Securities regulators in the United States have repeatedly asserted that most fungible blockchain-based crypto assets are clearly securities under current law. This assertion is incorrect. An exhaustive review of the relevant appellate case law and the related legal scholarship demonstrates that this position is inconsistent with the Supreme Court’s definition of the term “investment contract” as developed by federal appellate courts for nearly a century.

This is a panel discussion on the paper by the DLx Law (@DLxLawLLP) team, "The Ineluctable Modality of Securities Law: Why Fungible Crypto Assets are Not Securities.” It is a two-part series, where both Eric Hess (@hess_legal) and I (@JacobRobinsonJD) interview members of the DLx team. 

You can find part 2 on Eric's podcast, the Encrypted Economy, here. 

Guests

Lewis Cohen (@NYcryptolawyer) is a co-founder of DLx Law, where his practice is focused on the use of blockchain and tokenization across capital markets. Lewis is also recognized by Chambers Global as one of only five lawyers in “Band 1” for Legal: Blockchain & Cryptocurrencies. 

Gregory Strong is an attorney at DLx Law, where he focuses on advising entities regarding legal issues associated with the adoption of blockchain technology. Prior to joining DLx Law, Greg was a Deputy Attorney General in the Delaware Department of Justice. He served as the Director of the Investor Protection Unit for three years and was responsible for administering and enforcing the provisions of the Delaware Securities Act. 

Sarah Chen (@sarahcwy143) is an attorney at DLx Law, where, along with her colleagues, she focuses on matters related to the use of blockchain technology, including general corporate, venture financing, securities laws and financial regulations. Prior to joining DLx Law, Sarah was a senior associate at a top M&A practice in New York. Sarah received her B.A. from New York University, and her J.D. from Columbia Law School. 

Freeman Lewin (@Freeman_Lewin) is an attorney at DLx Law, where, along with his colleagues, he focuses on securities and financial regulatory matters related to blockchain and cryptocurrency projects and institutional investors. Freeman received his B.A. in Religion from Concordia University in Montreal and his J.D. from Yeshiva University Cardozo School of Law where he was part of the Cardozo Blockchain Project. 

Notes

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Disclaimer: Jacob Robinson and his guests are not your lawyer. Nothing herein or mentioned on the Law of Code podcast should be construed as legal advice. The material published is intended for informational, educational, and entertainment purposes only. Please seek the advice of counsel, and do not apply any of the generalized material to your individual facts or circumstances without speaking to an attorney.