I have been warning everyone that ICO-issued tokens (even if legally issued)
can’t be traded or used as a cryptocurrency, because as securities they must only be traded on regulated exchanges.
If the regulators were to allow ICO-issued tokens to trade freely (i.e. as a cryptocurrency), then they will have lost control over rampant, fraudulent speculative tragedy-of-the-commons mania.
Thus
the SAFTs that were sold in the Filecoin ICO encumber the Filecoin tokes as securities. Thus the Filecoin tokens are useless and can’t be actually used decentralized (unless hypothetically the common enterprise ceases as explained below).
Quoted from the 1933 Securities Act:
In particular, Benet drew a distinction between offering a coin for the purposes of raising money and using it as a tool for running a useful service.
My analysis about “use value” tokens being irrelevant to the issues that the Howey Test looks at, agrees with the attorney I am quoting here.
It doesn’t matter that the SAFTs can be speculated on and that the separate Filecoin tokens have some utility other than as speculations, the Howey Test only requires that the investors have an expectation-of-profit in a common enterprise managed by the others (typically the issuer), and the security is the investment contract certificate that records who receives the gains. Any obfuscations which attempt to circumvent the intent of the law, which is that securities must always be registered and trade on registered examples, are invalid under the Howey Test. There is no way to convert a security into a non-security (except as aforementioned the common enterprise ceases), because that would circumvent the entire point of the law. The investors are not investing in SAFTs but in the Filecoin tokens they receive for the SAFTs. Without the Filecoin tokens, the SAFTs are worthless. The Howey Test states it will always look at the economic reality and ignore any tricks that attempt to obfuscate the economic reality.
I think that the next max cap can be COMSA ICO. Not just because I advertise it at my signature…
Promoting ICOs makes you an affiliate. Which means you have severe fines and even jail time awaiting you in the future.
You may be in a some 2nd or 3rd world country and think you are out-of-reach of such regulatory crackdown. But those G20 can still find a way to take your assets and arrest you. That is if you use an international wires, travel internationally, etc.. They may also in the future pressure your government to acquiesce to enforcement as the USA has achieved with FATCA worldwide.
EDIT: since writing this post, I have recently
analysed the securities implications in more detail.
Disclaimer: IANAL. This is not legal advice.