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UTC Updated Sep 18, at p. UTC opinion Preston J.

By all accounts we were a reasonably successful early-stage company; we had wind up tokens prototypes on our permissioned Ethereum Virtual Machine for a range of banks including Deutsche BankBarclays and Credit Suisse. SWIFT built its first prototype blockchain system using our software.

Few VCs were interested. Are you doing a token?

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These opinions are not legal advice, and do not represent the position of his law firm, partners past or present clients, or itinerant mobs of angry marmots. Kevin Castel ruled, in Securities wind up tokens Exchange Commission v.

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Telegram, Inc. Of the vintage, only a handful of schemes, which were obviously fraudulent e.

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PayCoin, wound up being prosecuted; the PayCoin case led to a multi-million dollar settlement with the SEC and jail time. Crypto Twitter is abuzz with the usual questions about whether flogging coins for fun and profit that allow voting rights on a DEX is or is not a security.

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Whether this is the case will, as with all things, depend on the facts as they fit within the three-prong test from SEC v. Howey and the precedent that follows it. However, generalizing greatly, more often than not, a coin that airdrops or is pre-sold in vast quantities to American citizens is going to attract attention from American regulators and, as encountered in the wild, is likely to satisfy the Howey prongs.

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Other cheerleaders will say that entrepreneurs are leaving money on the table by not doing a Uniswap-style airdrop to the American public, and what a loser you are if you steer clear! Enjoy staying poor! The facts are these: Not all tokens are securities; this we know from the release of several no-action letters to that effect. How to make money on money as a practical matter, many, if not most, of them will be.

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It is also true that there are, without a doubt, countries in the world that do countenance token offerings. Go there. In the wake of the Telegram case, however, there can be no doubt — none whatsoever — that there are serious restrictions on engaging in token sale activity in the U. I count myself among them.

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A liberal token-offering regime in the U. That this is the case may result in American startups having less adoption and less access to capital. The SEC may not move today nor tomorrow nor even a year from now in relation to any particular issuance.

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Nor is there a requirement that cash change hands for the issuance to be deemed a sale. Consideration is not just money — it can be work, effort and the attendant increase in value that arises from it.

Read more about Opinion DeFi Disclosure The leader in blockchain news, CoinDesk is a media outlet that strives for the highest journalistic standards and abides by a strict set of editorial policies. CoinDesk is an independent operating subsidiary of Digital Currency Groupwhich invests in cryptocurrencies and blockchain startups.

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