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SEC seeks summary judgment against Terraform Labs

Policy & Regulation·November 04, 2023, 9:12 AM

The U.S. Securities and Exchange Commission (SEC) is making a strong push for a summary judgment in its ongoing legal battle against Singapore’s Terraform Labs and its co-founder Do Kwon. Such an outcome would spare the need for a protracted trial.

According to a motion filed by the SEC on Thursday, the record shows that there is “no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.”

Photo by Caleb Fisher on Unsplash

 

Relying on the Howey Test

The SEC’s filing underscores its central argument that Kwon and Terraform Labs were involved in the sale of securities. The document categorically states:

“There is no dispute that purchasers made an investment of money, either through fiat currency or crypto assets, for each crypto asset — LUNA, wLUNA, MIR, and UST, thereby satisfying the first prong of Howey.” The Howey Test refers back to a U.S. Supreme Court case — SEC v. Howey — which took place in 1946. The case set a precedent and has subsequently become the cornerstone of determining what is or is not a security in the United States.

This argument hinges on the idea that funds were pooled in a common enterprise with the expectation of profits primarily derived from the efforts of the promoters.

 

Citing fraud as well as unregistered securities

The SEC’s assertion is two-fold, contending that not only did Terraform and Kwon engage in selling securities, but they also engaged in fraudulent activities and disseminated misleading information. The SEC reiterates these claims in its filing, emphasizing that the defendants committed fraud by duping investors about the stability of UST.

They allegedly falsely attributed the algorithm for price stabilization while orchestrating clandestine third-party interventions. This purported deception made their claims regarding the algorithm’s effectiveness deceptive and involved the omission of crucial information. The fallout from Terra’s collapse in May of the previous year resulted in the destruction of substantial investor wealth, totaling billions of dollars.

 

Similar defense team filing

The SEC’s move to seek summary judgment comes in the wake of a similar filing by Kwon’s defense team last Friday. Kwon is currently serving a sentence for document forgery in Montenegro, a situation stemming from his arrest at an airport with forged passports.

Notably, Terraform’s co-founder, Daniel Shin, who is currently on trial in South Korea, has attributed the collapse of Terraform Labs to Kwon’s mismanagement. Shin has claimed his separation from the company and its activities occurred two years before its eventual collapse.

In this legal battle that holds significant implications for the cryptocurrency and blockchain space, the SEC continues to emphasize its position, asserting that Kwon and Terraform Labs engaged in the sale of securities through deceptive means. The outcome of this case could have far-reaching consequences, setting precedents for future regulatory actions in the industry.

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Policy & Regulation·

May 15, 2024

Falcon Labs fined in settlement with CFTC

U.S. regulator, the Commodity Futures Trading Commission (CFTC), has fined Seychelles-headquartered crypto prime brokerage Falcon Labs as part of an overall settlement with the company.  The CFTC had found that the company had operated as an unregistered futures commission merchant (FCM) and furthermore, that it had enabled access to digital asset exchanges without the requisite registration.Photo by Joshua Hoehne on UnsplashSettlement termsIn a press release published to its website on May 13, the CFTC set out the nature of its settlement with Falcon Labs. The parties have agreed that Falcon Labs must discontinue its activities in acting as an unregistered FCM, with particular emphasis on it having provided U.S. individuals with access to digital asset derivatives trading.  Furthermore a fine of $1,179,008 has been applied in disgorgement and in addition, Falcon will have to pay a civil monetary penalty of $589,504. These penalties have been significantly reduced by comparison with the CFTCs original ask, on the basis that Falcon Labs cooperated fully with the CFTC’s Division of Enforcement over the course of the regulator’s investigative process into the activities of the company. In its statement the regulator set out its intent relative to enforcement going forward. Ian McGinley, the CFTC’s Director of Enforcement, stated:”The CFTC is taking the fight one step further by, for the first time, charging an intermediary that inappropriately facilitated access to those exchanges. Today’s action highlights that the CFTC will not hesitate to charge any entities—exchanges or intermediaries—who are providing customers access to digital asset products and services that require registration but have failed to appropriately register.” McGinley added that “the CFTC’s enforcement program has made clear it will not tolerate digital asset exchanges that fail to register with the CFTC or comply with the agency’s rules that maintain integrity in the derivatives markets.” No admission of guiltIn responding to the CFTCs original complaint, Falcon Labs tried to up the ante in terms of compliance. It moved to improve customer identification controls. As a consequence of its market position as a trading intermediary Falcon Labs enabled customer trading on a number of digital asset exchange platforms.  That activity included facilitating U.S.-based institutional customers relative to crypto derivatives trading. It allowed its own account with various digital asset trading platforms to be used, through a system of sub-accounts, by its customers, oftentimes without adequate customer information having been sought. In reaching this settlement with the CFTC Falcon Labs has not made any admission of guilt relative to the regulator’s findings. Alongside paying the agreed upon fines, it will voluntarily agree to adhere to the implementation of improved controls and to withhold its services from user groups that are deemed to be restricted, including all U.S. nationals. Taking to the X social media platform to comment on the matter, Mike Sellig, a partner at New York-based law firm Willkie Farr & Gallagher, claimed that the settlement demonstrated that the CFTC was following in the footsteps of the Securities and Exchange Commission (SEC), establishing “a body of widely applicable precedent.”

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Web3 & Enterprise·

Jun 08, 2023

Mirae Asset Securities and NEAR Protocol Partner to Advance Blockchain Tech

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Policy & Regulation·

May 24, 2023

Hong Kong Moves to Enable Retail Crypto Trade

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