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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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Oct 19, 2024

Singapore’s DBS introduces Token Services for institutions

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Policy & Regulation·

Feb 09, 2024

Settlement approved but sealed by judge in BlockFi-3AC case

A settlement agreement between failed crypto lender BlockFi and bankrupt Singaporean crypto hedge fund Three Arrows Capital (3AC) has received approval from a U.S. judge. However, the specifics of the settlement remain sealed, citing concerns raised by yet another failed crypto platform, FTX. Dispute resolvedDuring a hearing on Feb. 6, New Jersey Bankruptcy Court Judge Michael Kaplan resolved the dispute, which saw BlockFi claiming $129 million owed by 3AC, while the Singapore-based firm contended that BlockFi owed it $280 million. Judge Kaplan's decision to keep the settlement agreement sealed stemmed from a perspective that unsealing it would be counterintuitive. BlockFi had filed a motion to seal the settlement terms last month. The U.S. Trustee objected to the seal, asserting that the debtors hadn't provided sufficient justification for sealing the agreement.Photo by mk. s on UnsplashSensitive settlement termsBlockFi justified the need for confidentiality, citing the sensitive commercial nature of the terms, which could potentially impact ongoing litigation involving FTX. The approval of the settlement now paves the way for BlockFi to proceed with distributions from the lending estate to its 100,000 creditors, with the firm owing up to $10 billion. Central to the dispute were preferential payments, transactions made just before bankruptcy that could have given the recipient more than they would have received through court proceedings. The resolution of counterclaims between BlockFi and 3AC follows mediation ordered by Judge Kaplan in October, likely culminating from a two-day hearing starting on Jan. 5 aimed at resolving the matter conclusively. This settlement follows another agreement between 3AC and Genesis, settling $1 billion in claims by 3AC. The company filed for bankruptcy in July 2022, attributing the extreme fluctuations in cryptocurrency markets as the reason for its collapse. Projected 46% 3AC creditor recoveryAccording to a December report to creditors by Teneo, it's estimated that 3AC creditors will receive approximately 45.74% of their claims from the bankrupt estate. As of Dec. 18, 2023, 3AC's assets were valued at $1.16 billion, while recognized claims for distribution stood at $2.7 billion. In an ongoing effort to secure 3AC's assets, a British Virgin Islands (BVI) court froze $1 billion in assets belonging to 3AC's founders, amid the liquidation process. This move is part of a broader strategy to seek recoveries from the founders and Kelly Chen, wife of one of the co-founders. 154 claims totaling $3.4 billion were filed against the 3AC estate, with $200 million not admitted for distribution and $322 million rejected or expected to be rejected. Additionally, claims worth $76 million are currently under dispute. BlockFi, along with eight affiliates, filed for Chapter 11 bankruptcy in November 2022. The firm cited significant exposure, including obligations owed to BlockFi by FTX-linked hedge fund Alameda Research, assets on the FTX platform and an undrawn credit line from FTX. 3AC’s collapse in June 2022, followed by FTX's downfall, led to BlockFi's bankruptcy filing in late November 2022. In a separate development, OPNX, a crypto bankruptcy claims platform launched by 3AC co-founders Su Zhu and Kyle Davies, announced its cessation of operations, with plans to shut down by Feb. 14.  

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Policy & Regulation·

Aug 29, 2023

OKX and Bybit Exclude Sanctioned Russian Banks from P2P Services

OKX and Bybit Exclude Sanctioned Russian Banks from P2P ServicesIn response to the mounting pressure on crypto firms to improve general compliance standards, prominent digital asset exchanges OKX and Bybit, based in the Seychelles and Dubai, have decided to delist sanctioned Russian banks from their peer-to-peer (P2P) services.Photo by Eduardo Soares on UnsplashThe move by the two exchange platforms, brought to light by Russian media reports, comes just days after Binance had done the same.Tinkoff Bank and Sberbank, two significant Russian financial institutions, have been expunged from the P2P platforms of OKX and Bybit. This effectively removes the option for Russian crypto users to exchange their assets for fiat through these banks. The decision sees the exchanges fall into line with Western sanctions imposed on the banks due to Russia’s actions in Ukraine.Enforcement difficultiesWhile the removal of these banks from the platforms is a significant step, the nature of P2P transactions introduces complexities in enforcing such bans comprehensively. Reports indicate that certain users are still engaging in P2P transactions with these banks through private channels, showcasing the challenges in regulating this decentralized method of exchange.In the case of OKX, at the time of publication, the platform still allows Russian users to receive fiat through accounts held with the Russian Standard Bank and the Russian branch of Raiffeisen Bank.This action aligns OKX and Bybit with Binance, which faced a similar scenario last week. Binance came under scrutiny when it continued to list the sanctioned banks as part of its payment methods. Following a report by The Wall Street Journal, Binance eventually removed the banks from its platform.Binance’s compliance effortsA spokesperson from Binance conveyed that while the banks have been delisted, the company remains committed to ensuring compliance by continuously updating its systems.“We regularly update our systems to ensure compliance with local and global regulatory standards,” they said. “When gaps are pointed out to us, we seek to address and remediate them as soon as possible.”Despite this stance and the latest action it has taken, users on Binance’s P2P platform are still posting ads for the sale of crypto using the “green bank,” referring to the sanctioned banks, as the preferred method of payment.Western-imposed sanctions have led to significant economic challenges in Russia, pushing individuals and institutions towards cryptocurrencies as a potential solution. In a country that has previously banned private cryptocurrencies, the attraction of decentralized digital assets has grown stronger as a means to break through the sanctions-induced financial stranglehold.Sanctions impactReports from Russian financial institutions reveal dramatic declines in profits, some as high as 90%, as they find themselves cut off from the global payments network SWIFT. Tinkoff Bank, for instance, reported a substantial decline of 67% in the second quarter of 2022, attributing the drop to escalating global tensions.In April, the Bank of Russia introduced a bill that could potentially allow cryptocurrencies to be used in international trade, a measure aimed at mitigating the impact of sanctions. While this could potentially open doors for cross-border transactions involving cryptocurrencies, the restrictions on local transactions remain intact.

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