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Federal District Court in New York Rules That ICOs May Be Securities

In the first federal court decision on the status of initial coin offerings (ICOs) in a criminal context, the U.S. District Court for the Eastern District of New York denied a motion to dismiss an indictment, ruling that a reasonable jury could conclude that the relevant ICOs were “investment contracts” and thus “securities.” This article reviews the facts alleged in the indictment; examines what the decision does and does not say; and considers its implications in general, as well as for fund managers that have invested in ICOs or are considering doing so. For more on ICOs, see “Funds and Managers Must Be Wary of State, in Addition to Federal, Regulatory Scrutiny of ICOs” (May 17, 2018); “HFLR Cryptocurrency Webinar Examines Regulatory Developments, ICOs, Cryptocurrency Sweep, Custody and Other Compliance Issues” (May 3, 2018); and “SEC Cyber Unit Files Charges Against Allegedly Fraudulent ICO” (Jan. 11, 2018).

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