Tag: Initial coin offering

Monster’s ICO

Before all my music was digital and playing out of bluetooth speakers, I was a big fan of Monster Cables for connecting my audio and video equipment. Now those cables just sit in a plastic bin in the basement. I hadn’t thought about Monster Cables until the SEC has published the first “bedbug” letter on EDGAR and it was aimed at Monster. The letter from the Division of Corporation Finance is in response to a proposed monster money offering by Monster Products, Inc. Rather than providing a detailed examination and issuing comments, the staff letter to Monster suggests trying again.

Public company filings are not in my area of expertise so I’m not sure what the SEC was concerned about.

What caught my attention was the crazy scheme that Monster is trying to put together. Monster wants to offer up to three hundred million of its to-be-created Monster Money Tokens (“MMNY”) for gross proceeds of $300,000,000.

Monster plans to use the Ethereum blockchain technology on its E-commerce website to create the new Monster Money Network where consumers may use either MMNY Tokens or fiat currencies to purchase Monster products and services. The company intends to utilize the blockchain technology to its marketing, accounting and audit, internal control and shipping management functions.

In the event of an “ICO Failure” investors in the tokens may convert them into Monster common stock at the rate of four tokens per share of stock. The “ICO Failure” means that i) MMNY Tokens not have been traded on a cryptocurrency exchange or a U.S. stock exchange by June 30, 2020 because either this registration statement is not declared effective by the SEC or MMNY Tokens are not approved for trading on any such exchange market; or ii) MMNY Tokens have ceased trading on or before June 30, 2020 due to legal or administrative enforcement actions by the SEC, the CFTC, or any other government authorities.

The ICO seems a Hail Mary to turn the company around. It was acquired by a blank check company earlier this year. It as unable to timely file its latest 10Q. It fired its auditor. It replaced its CFO.

Monster trying something new by basically pre-selling Monster products and services through the MMNY offering. It’s issuing gift certificates, tarted up with blockchain.

I saw this at the same time I saw the UBI Blockchain fraud. That company was originally JA Energy, but reincorporated as UBI Blockchain Internet. Its business was to encompasses the research and application of blockchain technology with a focus on the internet of things covering areas of food, drugs and healthcare. UBI had no revenues and has yet to develop any products for sale. The stock price shot up from $3.70 per share to over $87 at one point on a surge of buying just because the company had blockchain in its name. The SEC temporarily suspended trading in UBI Blockchain stock earlier this year due to concerns about the accuracy of assertions in its SEC filings and unusual and unexplained market activity.

Unlike UBI Blockchain, Monster has an operating business. It’s just not doing well. As a turnaround, it proposes to sell tarted up gift certificates for products that are mostly in bins in the basement.

What type of monster is it?

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Bitcoins Are Not Securities

In a completely unsurprising statement, a high-ranking official at the Securities and Exchange Commission said that Bitcoins are not securities. William Hinman, Director, Division of Corporation Finance at the SEC, gave detailed speech on cryptocurrency.

When we see that kind of economic transaction, it is easy to apply the Supreme Court’s “investment contract” test first announced in SEC v. Howey. That test requires an investment of money in a common enterprise with an expectation of profit derived from the efforts of others. … In articulating the test for an investment contract, the Supreme Court stressed: “Form [is] disregarded for substance and the emphasis [is] placed upon economic reality.” So the purported real estate purchase was found to be an investment contract – an investment in orange groves was in these circumstances an investment in a security.

Just as in the Howey case, tokens and coins are often touted as assets that have a use in their own right, coupled with a promise that the assets will be cultivated in a way that will cause them to grow in value, to be sold later at a profit. And, as in Howey – where interests in the groves were sold to hotel guests, not farmers – tokens and coins typically are sold to a wide audience rather than to persons who are likely to use them on the network.

In the ICOs I have seen, overwhelmingly, promoters tout their ability to create an innovative application of blockchain technology. Like in Howey, the investors are passive. Marketing efforts are rarely narrowly targeted to token users. And typically at the outset, the business model and very viability of the application is still uncertain. The purchaser usually has no choice but to rely on the efforts of the promoter to build the network and make the enterprise a success. At that stage, the purchase of a token looks a lot like a bet on the success of the enterprise and not the purchase of something used to exchange for goods or services on the network.

It seems clear that the SEC’s default position on Initial Coin Offerings is that they are securities offerings. The coin promoters are not offering oranges for sale, but interests in the orange grove.

I did find it interesting that Mr. Hinman indicated that even if the ICO was an illegal securities offering, eventually the cryptocurrency could evolve into not being a security. Eventually, you are not exchanging interests in the orange grove, but exchanging actual oranges. He went to the next biggest coin platform: Ether.

And putting aside the fundraising that accompanied the creation of Ether, based on my understanding of the present state of Ether, the Ethereum network and its decentralized structure, current offers and sales of Ether are not securities transactions.

As for the rest of the coin and ICO universe, Mr. Hinman offered up six factors to consider:

  1. Is there a person or group that has sponsored or promoted the creation and sale of the digital asset, the efforts of whom play a significant role in the development and maintenance of the asset and its potential increase in value?
  2. Has this person or group retained a stake or other interest in the digital asset such that it would be motivated to expend efforts to cause an increase in value in the digital asset? Would purchasers reasonably believe such efforts will be undertaken and may result in a return on their investment in the digital asset?
  3. Has the promoter raised an amount of funds in excess of what may be needed to establish a functional network, and, if so, has it indicated how those funds may be used to support the value of the tokens or to increase the value of the enterprise? Does the promoter continue to expend funds from proceeds or operations to enhance the functionality and/or value of the system within which the tokens operate?
  4. Are purchasers “investing,” that is seeking a return? In that regard, is the instrument marketed and sold to the general public instead of to potential users of the network for a price that reasonably correlates with the market value of the good or service in the network?
  5. Does application of the Securities Act protections make sense? Is there a person or entity others are relying on that plays a key role in the profit-making of the enterprise such that disclosure of their activities and plans would be important to investors? Do informational asymmetries exist between the promoters and potential purchasers/investors in the digital asset?
  6. Do persons or entities other than the promoter exercise governance rights or meaningful influence?

That is just for coins based on being able to buy some future service. If the digital coin includes some profits interest in the coin network, it’s always going to be a security.

The other factor to take into consideration is the trading platform for the digital coins. If a platform offers trading of digital assets that are securities and operates as an “exchange,” as defined by the federal securities laws, then the platform must register with the SEC as a national securities exchange or be exempt from registration. If the platform just handles Ether and Bitcoin, it’s okay based on the Hinman speech. Those two are not securities. Others are still suspect.

What is left out is the whether Bitcoin, Ether, or any of the other non-security digital coins are commodities or currency.

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HoweyCoins – The ICO I Have Been Waiting For

Initial coin offerings have been a new wave of financing.. and scams. One offering that you should look at for some lessons about coin offerings is the soon to be released Howey Coin.

HoweyCoins are the cryptocurrency for the travel industry. According to the white paper, HoweyCoins partner agreements lock in an average initial discount of 30% for airfare and 42% for hotel room rates for all HoweyCoin-denominated transactions. The agreements are not final, but once the offering is complete, they will be revealed.

This is a can’t miss investment opportunity. HoweyCoins are officially registered with the U.S. government and will trade on an SEC-compliant exchange where you can buy and sell them for profit. According to the ICO team, they “forecast a minimum growth rate of between 7% to 15% annualized, making HoweyCoins attractive for long-term investment. In addition, HoweyCoins can serve as a GUARANTEED hedge against inflation and market loss.”

…

Hopefully, you have noticed a few things that might make you not click on the the button to buy the HoweyCoins. Bonus points if you recognized “Howey” as the seminal court case that sets the test for whether an investment is a security. Hopefully you noticed the “registered with US government” as red flag that this company is doing something wrong with this offering. Of course the high returns, and guarantee of success are hallmarks of problematic offerings. But if not, go ahead and click on the button.

This is a new type of performance education by the Securities and Exchange Commission. Clearly, the SEC is focused on the fraud and securities-law violations of coin offerings. If you are involved in such an offering, you should be worried. The SEC spent some time, money and energy on putting together the HoweyCoins website. You can be certain that the SEC is devoting much more time, energy and money into investigating ICO fraud and securities law violation.

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Yet Another ICO Scam

With Bitcoin hitting stratospheric pricing levels, there are scams aplenty trying to cash in on tulip-mania around Bitcoin. This chart from the Wall Street Journal says it all.

Of those trying to cash in, I’m sure some actually have legitimate business purposes and are trying to find new ways to operate financial systems. But many are just scams trying to fool some people out of cash. The latest scammer is PlexCoin. The SEC filed a complaint for an emergency action to freeze the scammers assets and stop selling any more.

Dominic Lacroix, and his company, PlexCorps, were running an initial coin offering of its PlexCoin. It launched the ICO on August 6.

PlexCorps claimed that if you invested $100 USD into PlexCoin at the ICO, you would obtain 769.23 PlexCoin, with an estimated value of $1,353, a return on your investment of 1354% “in 29 days or less”. It’s unclear how they reached the value of “$1.76 per PlexCoin”.

It wasn’t clear what was behind the PlexCoin or who was behind it. That didn’t stop ten of thousands of investors from plowing $15 million into the company.

It turns out that one of the people behind PlexCorps is Dominic Lacroix. In July, the Autorité des marchés financiers (AMF), Quebec’s chief financial regulator, had issued orders prohibiting Lacroix and several associated companies from promoting “any form of investment” to investors in Quebec and operating an investment scheme from within the province, even if it was targeted solely at investors who did not live in Quebec. Lacroix had several previous problems with the Quebec financial regulators.

According to the SEC complaint, the ICO of PlexCoin was an offering of securities.

PlexCoin, like Bitcoin has limited utility. There is no argument that crypto-currencies are growing in value. The problem is that even though there is value being created, it’s not being used as a currency very much. Rightly so. It makes poor economic sense to use a rapidly rising commodity to pay for a transaction if you have alternatives.

I think it is a commodity and not a currency. Theoretically, you could pay for your groceries with gold if the store was willing to accept the gold. Like a commodity, the commodity future exchanges are going to start trading on Bitcoin futures. The CBOE starts on December 11, following by the CME on December 18. It will be interesting to see whether some short selling will put pressure on BitCoin’s rise in value.

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Celebrity Endorsements of ICOs and other Securities

With BitCoin breaking through the $10,000 barrier and growing interest in the uses of the underlying blockchain technology, everyone is looking to cash in using virtual currency. As with an IPO, the goal of investors in an Initial Coin Offering is get in early and cheap before the market takes the price up. The Securities and Exchange Commission warned sponsors that ICOs look a lot like a securities offerings and need to comply with securities laws.

It turns out that ICO sponsors are violating SEC rules and FTC rules.

Looking forward to participating in the new @cobinhood Token! ZERO fee trading! #CryptoCurrency#BitCoin#ETH – https://t.co/1XFiosn22Spic.twitter.com/A7es0C2Rxr
— Jamie Foxx (@iamjamiefoxx) September 18, 2017

Looking forward to participating in the new @LydianCoinLtdToken! #ThisIsNotAnAd #CryptoCurrency #BitCoin #ETH #BlockChainpic.twitter.com/a8kT9eHEko
— Paris Hilton (@ParisHilton) September 3, 2017

The SEC warned that celebrity endorsements of securities need to disclose the nature, source, and amount of any compensation paid, directly or indirectly, by the company in exchange for the endorsement.  (Obviously, that is hard to do in the 140 280 characters of Twitter.) A failure to disclose this information is a violation of the anti-touting provisions of the federal securities laws. That also potentially pulls the celebrity endorser into possible anti-fraud provisions of the securities laws

There are the advertising rules from the Federal Trade Commission that also require disclosure of payment for endorsements. The FTC Guidelines make it clear that celebrities must disclose their relationships with advertisers when making endorsements outside the context of traditional ads, such as on social media.

Ms. Hilton’s endorsement of Lydian Coin was deleted after Forbes reporters uncovered the checkered legal past of the founder of Lydian Coin.

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The First Ever Cryptocurrency Back By Real Estate

The First Every Cryptocurrency Back By Real Estate, REcoin, is a big scam. At least according to the Securities and Exchange Commission.

Several weeks ago the SEC posted an Investor Bulletin in Initial Coin Offerings. In the bulletin, the SEC raised the issue that an initial coin offering could easily be considered an offering of securities, which would require compliance with the securities laws. The SEC warned that fraudsters had begun using ICOs as fraudulent investment schemes.

It seems easy to paste together some mumbo-jumbo to make it sound like the blockchain could be something useful and disrupt an industry. You can add dash of hope for the conspiracy freaks by noting the ICO is free from government fiat and the Federal Reserve. Add in the lure of big profit. Then rope in the suckers.

You can see all of that in the white paper for REcoin.

  • 100% (less the cost of maintenance) of proceeds from the sale of REcoin are invested in real estate
  • REcoin Trust guarantees 70% of the investors’ market value, against the US Federal Reserve’s 10%

The SEC alleges that REcoin misstated to investors that it had a “team of lawyers, professionals, brokers, and accountants” that would invest REcoin’s ICO proceeds into real estate. In fact none had been hired or even consulted.

REcoin was “backed by secure real estate investments in the world’s most advanced economies” and touted that the asset’s “security is ensured through the use of one of the soundest and most reliable currency backings there is: real estate.” REcoin never purchased any real estate, either before, during, or after the REcoin ICO, with the proceeds of the REcoin ICO or otherwise

REcoin misrepresented that it had raised between $2 million and $4 million from investors when the actual amount is approximately $300,000. Sadly, I suspect it has all been pilfered or misused. Investors who transferred funds to REcoin never received any form of digital asset, token, or coin, and no token or coin for REcoin has ever been developed.

I think there will be some interesting uses for the blockchain technology. None of them involve coins.

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