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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·

Dec 23, 2023

3AC liquidators estimate 46% recovery while BVI court freezes $1B

3AC liquidators estimate 46% recovery while BVI court freezes $1BThe joint liquidators of the now-defunct Singaporean crypto hedge fund Three Arrows Capital (3AC) have provided creditors with an estimated 45.74% recovery rate for their claims in the bankrupt estate. Meanwhile, in parallel proceedings in the British Virgin Islands (BVI), a court has frozen $1 billion of founders’ assets.According to The Block, the details were disclosed in a December report to creditors by joint liquidators Russell Crumpler and Christopher Farmer of Teneo, the firm appointed to oversee the liquidation of the failed business.$1.16B in assetsAs of Dec. 18, the estimated value of 3AC’s assets was reported to be $1.16 billion, while claims totaling $2.7 billion are expected to be recognized for distribution. The liquidators highlighted that settlements in litigation against various parties, including DCG, Genesis and BlockFi, increased reported assets by an estimated $292 million. It’s important to note that the BlockFi settlement is still pending approval.A total of 154 claims, valued at $3.4 billion, were filed against the 3AC estate. The report indicates that $200 million of claims were not admitted for distribution, and $322 million in claims have either been rejected or are expected to be rejected. Additionally, $76 million in claims are currently under dispute. The report reveals that initial distributions to creditors are being planned for the first quarter of the upcoming year.Illiquid tokensThe breakdown of assets reveals that a large majority are illiquid tokens, subject to vesting periods, comprising 82% of the total. Only 6% of the portfolio is liquid, while equity and investments account for 6.9% and 4.8% is in cash. These illiquid tokens, totaling $563 million at current prices, consist of 13 different tokens with vesting schedules unlocking assets over the next three years, reaching $200 million by the end of 2024.To date, the liquidators have staked some of these tokens, resulting in $5.4 million in staking rewards. Liquidation efforts, including the sale of $34.5 million worth of liquid tokens and $15 million in NFTs, along with other asset sales, have generated a total of $66 million.Photo by Kemp Fuller on UnsplashFrozen assetsIn a related development, Bloomberg reported on Thursday that a British Virgin Islands court has frozen assets totaling $1.1 billion belonging to 3AC co-founders Su Zhu and Kyle Davies, along with Davies’ wife Kelly Chen. The liquidators filed a claim for insolvent trading against the founders for $1.078 billion, with additional claims against Davies for $66 million and Chen for $4.6 million.Teneo outlined the rationale behind the move in the following statement it made to Decrypt:“The worldwide freezing order has been sought in connection with claims that are being pursued by the liquidators that allege, amongst other things, that the Founders should be held responsible for causing 3AC’s position to deteriorate by an amount that is equivalent to the value of the freezing orders sought.”Su Zhu, who was under house arrest for the last few weeks, became free on Dec. 20. Zhu had been arrested in Singapore on Sept. 29 and sentenced to four months imprisonment, serving two-thirds of his sentence under house arrest.Throughout the bankruptcy proceedings, legal fees have accumulated to $49.7 million while the report suggests ongoing efforts to maximize creditor recovery.

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Web3 & Enterprise·

Aug 18, 2023

Japanese Crypto Exchange Zaif Adds KLAY/JPY and KLAY/BTC Trading Pairs

Japanese Crypto Exchange Zaif Adds KLAY/JPY and KLAY/BTC Trading PairsJapanese cryptocurrency exchange Zaif added the KLAY token to its list of supported cryptocurrencies on August 16. Following in the footsteps of BITPoint Japan, which introduced KLAY trading in August 2022, Zaif has become the second trading platform in Japan to facilitate the trading of the KLAY token.Zaif’s inclusion of KLAY presents traders with the opportunity to engage with the token using the Japanese yen and Bitcoin (BTC). With this addition, the total number of tokens hosted on Zaif’s platform has now reached 21, bolstering its diverse selection.Photo by Nicholas Cappello on UnsplashKLAY’s path to Green ListKLAY presently requires an additional listing on a Japanese cryptocurrency trading platform to fulfill the requirements for being included in the “Green List” of the Japan Virtual and Crypto Assets Exchange Association (JVCEA). Cryptocurrencies that have achieved green-listed status are exempt from undergoing individualized approval procedures across various exchanges. As stipulated by the JVCEA’s criteria for the Green List, a virtual asset must be featured on a minimum of three member exchanges and exhibit a trading track record of no less than six months on one of these select platforms.As of August 8, the number of green-listed virtual assets is 25, including prominent cryptocurrencies such as BTC, Ether (ETH), and Bitcoin Cash (BCH).Zaif’s upcoming listing of MBXAlong with this development, Zaif is reportedly engaged in discussions with MARBLEX, a blockchain subsidiary belonging to South Korean gaming giant Netmarble. The aim of these talks is to list MBX, the native token of MARBLEX, on the Japanese exchange in October.KLAY is the native token of the Klaytn blockchain, which was created by GroundX, a blockchain-focused arm of Kakao. Kakao is a South Korean tech giant recognized for its widely used messaging app, KakaoTalk. The company has also been expanding its presence in Japan through its subsidiary, Kakao Piccoma, which operates an online comics platform called Piccoma.

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Policy & Regulation·

Sep 05, 2023

South Korea Reveals Guidelines for Public Officials’ Virtual Asset Disclosure

South Korea Reveals Guidelines for Public Officials’ Virtual Asset DisclosureSouth Korea’s high-ranking government officials will soon be obliged to divulge specific information regarding their virtual asset holdings, including types and quantities, as part of their wealth declaration process. The Ministry of Personnel Management (MPM) issued a press release yesterday, announcing revisions to the Enforcement Decree of the Public Service Ethics Act. These amendments are slated to come into effect on December 14.Photo by Chris Boland on UnsplashIn addition, officials holding positions of rank one or higher will be required to disclose the methods through which they acquired their virtual assets. They must also furnish documentation of transaction records for a period of one year.These amendments to the decree come in the wake of the revised Public Service Ethics Act, which was passed in May. The primary aim of this act is to make it obligatory for government employees to declare their virtual asset holdings. The changes to the decree can be summarized into five main points.Types and amountsFirst, officials obligated to disclose their wealth must report the types and amounts of virtual assets. The prices of virtual assets traded on Upbit, Bithumb, Coinone, and Korbit — all virtual asset service providers (VASPs) designated by the Commissioner of the National Tax Service — are required to be reported using the average daily price observed on the reporting day. As for other assets, their values should align with their most recent market prices. In cases where determining these prices is not feasible, they should be reported at reasonable values that reflect transaction prices.Acquisition methodsSecond, high-level public officials must explain how they acquired virtual assets. Under the existing regulation, officials are obligated to reveal both the date and method of acquisition, along with the source of funds. However, following the adoption of the updated decree, they will also be required to provide analogous information for virtual assets.Year-long transaction historyThird, comprehensive guidelines will be established to outline the process of reporting virtual asset transaction history records. Officials subject to the disclosure requirement must divulge all virtual asset transactions conducted within the past year, even if they do not possess such assets on the day of reporting. They are obligated to furnish documentation prepared by VASPs.Officials and their family membersFourth, officials are required to permit VASPs and other relevant institutions to provide the Government Ethics Committee with information on virtual asset holdings owned by both themselves and their family members. This will be facilitated through the inclusion of virtual assets in the existing information provision agreement, similar to the approach applied to other types of assets such as real estate.Addressing conflict of interestLastly, the revised decree could potentially impose restrictions on certain public officials with regard to possessing virtual assets, especially when their responsibilities encompass tasks like formulating relevant policies, granting approval for virtual assets, and overseeing taxation matters related to them. The outcomes of these restrictions will be reported on an annual basis to the Government Ethics Committee.In a briefing regarding this development, MPM Vice Minister Lee In-ho underscored the significance of the amended decree as the regulatory framework for enforcing the requirement of public officials to declare their virtual assets. He highlighted the Korean government’s commitment to ensuring that public servants adhere to accurate reporting practices concerning virtual assets, thereby preventing unlawful accumulation of wealth.

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