Can the SEC Win the First-of-Its-Kind Crypto Insider-Trading Case?
The biggest obstacle the Commission faces in proving insider trading is one of its own creation; its failure to provide the market with a clear picture of how the securities laws apply to digital assets will make it harder to prove that the tokens at issue qualify as “securities” under federal law.
Two months ago, the U.S. Securities and Exchange Commission (SEC) brought its first-ever alleged insider-trading case arising from the purchase and sale of digital assets.
The SEC charged Ishan Wahi, a former manager at Coinbase Global, with violations of §10(b) of the Securities Exchange Act of 1934, alleging Wahi violated his duty to Coinbase by disseminating material non-public information (MNPI) to his brother and a friend about the timing of token listings on the Coinbase platform. That same day, the U.S. Attorney for the Southern District of New York unsealed an indictment related to the same conduct. As many observers have noted, the commission is attempting to break new ground in the Wahi case. But the SEC’s path to proving this case will be anything but smooth.
The biggest obstacle the commission faces in proving insider trading is one of its own creation: Its failure to provide the market with a clear picture of how securities laws apply to digital assets will make it harder to prove that the tokens at issue qualify as “securities” under federal law.
Indeed, at least one court has acknowledged that digital asset enforcement cases raise fundamental fairness concerns as well as due process considerations. Specifically, the SEC’s lack of a clear message to the market as to what is and is not a security may fail to provide issuers, exchanges, and traders with fair notice of the rules. The notice defense is sure to arise in this new token insider trading context—not least because the SEC alleges that Wahi shared tips about at least 25 tokens, only nine of which are alleged to be securities.
Then come the practical considerations that will complicate the SEC’s litigation strategy. Instead of naming the token issuers as co-defendants or collecting particularized evidence and information needed to establish that each of the nine tokens is, in fact, a security, the SEC has rushed into seeking to penalize individuals for actions taken in a regulatory gray area.
How is the SEC planning on proving that these nine tokens are securities, when the issuers don’t have a seat at the table? How are the defendants supposed to gather the evidence they need to defend against the SEC’s claims, when the industry participants who know the most about the tokens, their structure, and how those instruments might or might not meet the parameters of the test announced in S.E.C v. W.J. Howey Co., 328 U.S. 293 (1946), are not involved in the case?
Issuers, platforms, purchasers, and sellers who touch digital assets are left to guess as to the exact scope of regulatory scrutiny— even as the SEC and Department of Justice (DOJ) double down on prosecutions in this space.
The ‘Wahi’ Complaint
The SEC brought charges against Wahi as a tipper and against his brother and friend as tippees. The complaint alleges that as a manager in Coinbase’s Assets and Investing Products Group, Wahi “was regularly entrusted with material, nonpublic information,” including Coinbase’s plans about which tokens it would list and when. According to the commission, Wahi “repeatedly” breached his duties to Coinbase by tipping his co-defendants about upcoming token listings, allowing them to execute numerous trades based on the information. The SEC’s assertion that only nine of the 25 qualify as securities seems to undercut recent comments by SEC Chairman Gary Gensler that “[he] believe[s] the vast majority [of tokens] are securities.”
There has been much debate over whether digital tokens satisfy the Howey test, under which a financial instrument qualifies as a “security” when “a person (1) invests his money (2) in a common enterprise and (3) is led to expect profits (4) solely from the efforts of the promoter or a third party.” The Wahi complaint sidesteps that debate by offering little useful information as to how and why the SEC determined that only nine of the tokens in the alleged scheme meet the Howey test and qualify as securities. For example, to establish that LCX is the subject of a common enterprise, the SEC cites the coin offerer’s claims that “the interests of investors and management are aligned.”
The allegations supporting the proposition that the tokens gave investors a reasonable expectation of profits are similarly broad. For each of the nine tokens deemed securities, the SEC alleges that this factor is met through marketing materials stating that the issuer’s founders, management, and/or employees were working to increase the value of each token. The SEC relies on these types of allegations even in the case of the XYO token, the issuer of which stated in the accompanying white paper that profiting via trading is “not the intended purpose of [the] token.”
On the same day that the SEC filed its complaint, the U.S. Attorney for the Southern District of New York unsealed a criminal indictment (U.S. v. Wahi) charging the same three defendants under the same tipper-tippee theories. The indictment alleges an “insider-trading scheme” whereby Wahi “knew in advance both that Coinbase planned to list particular crypto assets and when Coinbase intended to make its public announcements of those asset listings, and misappropriated this Coinbase confidential information.”
Just as was the case in the DOJ’s June 1, 2022 indictment of Nathaniel Chastain for insider trading in connection with nonfungible tokens (NFTs—U.S. v. Chastain), the Wahi indictment does not allege securities fraud, nor, for that matter, that any of the traded tokens were “securities.” Rather, Wahi is another case in which DOJ is taking advantage of a tool that the SEC does not have at its disposal: the criminal wire fraud statute, which “reach[es] any scheme to deprive another of money or property by means of false or fraudulent pretenses, representations, or promises,” Carpenter v. United States, 484 U.S. 19, 27 (1987), whether or not that scheme relates to the offer, purchase, or sale of “securities” as defined by the Exchange Act.
Taken together, these cases suggest that prosecutors are content to police the digital asset space by enforcing the entire menu of insider trading theories recognized under the Exchange Act through the wire fraud statute. Those efforts have already shown results: Wahi’s brother recently pleaded guilty to conspiracy to commit wire fraud in the criminal case. Meanwhile, the SEC continues to withhold a clear statement of its view of which digital assets qualify as “securities.”
Enforcement Implications for Crypto-Industry Participants
The SEC’s decision to bring a case against Wahi and his associates could mark a fundamental shift in civil enforcement actions involving digital assets. But make no mistake: These enforcement actions are not a magic wand turning each digital asset horse-and-carriage into a heavily regulated securities pumpkin. Whether the Wahi complaint marks the beginning of a new era depends on the commission’s ability to prevail on novel legal arguments and to present evidence to the fact-finder sufficient to support those theories. We anticipate that the SEC’s refusal to lay down bright-line rules for its treatment of digital assets will complicate these efforts.
The first test of the SEC’s new approach will come if and when Wahi and his co-defendants file a motion to dismiss the insider trading claims. They may choose to crib from Chastain’s motion to dismiss DOJ’s indictment, which provides potential arguments against the commission’s attempts to penalize “insider trading” in alternative assets. For instance, Chastain argues that information about NFTs is not relevant to securities or commodities trading and therefore cannot be the subject of an insider-trading-type wire fraud case. He also argues that he is not guilty of misappropriating from his NFT-marketplace employer because information about when a digital asset will be available to the public is not tangible property.
Of course, Chastain’s case diverges from Wahi’s case in at least one critical respect: The DOJ’s case does not depend on proving that Mr. Chastain traded securities. Nor could it, given the “decades-long presumption [in criminal cases] that the government must prove that the defendant knew the facts that made his conduct illegal.” See, e.g., U.S. v. Parigian, 824 F.3d 5, 11 (1st Cir. 2016). It will be extraordinarily difficult to convict Chastain of criminal securities fraud, given that such a conviction would depend on proof he was aware that NFTs were securities despite no judicial decision, federal law, or agency regulation ever saying so.
Although the SEC must meet a less-exacting standard to satisfy the requisite state of mind in civil insider-trading actions, to survive a motion to dismiss, its complaint must allege an intent to deceive, manipulate, or defraud in connection with the purchase or sale of securities. In the tipper-tippee scenario, that requires colorable claims that the tipper breached a fiduciary duty by disseminating MNPI in exchange for a personal benefit, and that the tippee should have known that the tipped information was obtained via a breach of such duty. Given that the SEC claims only that defendants’ trades in nine of the 25 tokens meet all of the elements of insider trading, the complaint invites a motion to dismiss at least on behalf of the tippees that the commission’s indecisiveness as to the status of tokens defeats any plausible inference that the tippees should have known they were trading improperly.
And even if a court finds the Wahi pleading sufficient at the outset, that gap could prove fatal down the road.
If a judge denies a motion to dismiss, the resulting order will validate the SEC’s digital asset insider-trading theory. But that preliminary victory will soon meet the practical realities of discovery, which will be far more challenging in a token-based insider trading case. If the SEC cannot obtain admissible evidence that (1) defendants traded tokens on the basis of MNPI, and that (2) the tokens qualify as securities under the Howey test, then Wahi and his co-defendants will be entitled to summary judgment at the close of discovery. It is here that the SEC’s ambitious new insider trading regime will run up against two significant obstacles.
First, unlike cases involving traditional securities, token-based insider trading cases will require extensive discovery from the token offerors regarding the nature of their products. Those issuers have no incentive to help the SEC prove that their products are unregistered securities, which would give rise to liability. In this way, pursuing the case against Wahi could turn into an insider-trading case accompanied by nine separate enforcement actions against the token offerors.
A further complication related to this necessary third-party discovery arises from the fact that digital tokens are often traded from overseas servers; as a prerequisite to obtaining discovery capable of proving that a particular token is a security, the commission will have to find a jurisdictional hook to exercise over that token’s issuer or seek assistance through international channels.
Even if the SEC succeeds in collecting the evidence necessary to prove its case, obtaining a finding of liability in token-based insider-trading cases at trial will present a greater degree of difficulty than in insider-trading cases involving registered securities. As one court noted in a putative securities class action, each token’s unique “set of characteristics and advertising history … forecloses a conclusion that claims regarding each of the tokens implicate the same set of concerns.” In re Bibox Grp. Holdings Ltd. Sec. Litig., 534 F. Supp. 3d 326, 335 (S.D.N.Y. 2021). Thus, SEC v. Wahi will involve nine mini-trials on the nature of the traded products. And those trials may result in juries being confused by the evidence or finding that the digital assets are not securities at all.
These token-by-token mini-trials will complicate the facts the government presents to the jury, potentially muddling its story. They will also provide Wahi and his co-defendants with a golden opportunity to blame it all on the absentee issuers. As commentators have long noted, juries are often persuaded by the argument that an absent party—an “empty chair”—is the true culprit in complex securities fraud cases.
Coda: Fuel for the Plaintiffs’ Bar?
If the SEC were able to convince a judge or jury that certain tokens are securities under the Howey test, what would that mean for the token purchasers seeking to bring securities class actions? Once again, the likely bite of this scenario is much less than its bark; plaintiffs alleging securities fraud and other Exchange Act claims have thus far been forced to bundle dozens of tokens into a single action in order to make their economic ends align with those of the plaintiffs’ bar.
For the same reason that each token-based insider-trading case will require a mini-trial on each token, any SEC wins in those cases will not determine the result in private litigation involving different tokens. A ruling that one token is a security will have no practical effect on cases involving other tokens; application of res judicata is appropriate only when two cases concern the same facts and circumstances.
Until the SEC rationalizes its regulation of this space or Congress takes a position on digital assets, momentum will be severely restricted. The status quo, with its low hum of enforcement actions isolating discreet trading activities—but lacking an existential threat to unregulated digital asset trading—will endure.
Sarah Heaton Concannon and Stacylyn Doore are partners at Quinn Emanuel Urquhart & Sullivan. Alex Zuckerman is an associate at the firm.
From: New York Law Journal