The recent hearing on Terraform Labs’ motion to dismiss the lawsuit brought by the U.S. Securities and Exchange Commission (SEC) shed light on the controversial question of whether TerraUSD (UST) can be considered an “investment contract.” The proceedings, held on Thursday night, showcased a clash of perspectives between Terraform’s defense team and the SEC. At the core of the dispute was the significance of the word “contract” and its application to UST.
In Defense of UST:
Douglas Henkin, an attorney from the Dentons law firm representing Terraform, vehemently argued that the SEC sought to strip the word “contract” of any meaning. Henkin emphasized that UST was designed for practical uses rather than solely as an investment, aligning with the arguments made by various token issuers who maintain that their crypto assets are not securities.
UST’s Purpose and Design:
To support their stance, Terraform’s defense team presented the idea that UST served practical purposes beyond being an investment vehicle. Henkin highlighted that UST, pegged one-to-one with the dollar, was intentionally designed to remain stable and facilitate commerce. He contended that UST’s primary function was as a consumptive asset rather than an investment tool.
Exploring Investment Contract Analysis:
SEC representative Devon Staren explained that evaluating whether something qualifies as an investment contract should consider potential consumptive uses. The SEC’s assertions of securities violations stemmed from the expectations and economic realities surrounding UST, as perceived by investors.
Dismissing the Need for a Formal Contract:
Challenging the defense’s argument, Staren emphasized that the SEC did not insist on a formal contract to establish UST as a security. The absence of a contract did not negate the potential securities violations under scrutiny.
The SEC Lawsuit and Terraform’s Response:
The SEC filed a lawsuit earlier this year, accusing Terraform Labs and founder Do Kwon of misleading investors in the TerraUSD project. The lawsuit also implicated Terraform’s Anchor Protocol and LUNA token as securities. In response, Terraform moved to dismiss the charges, citing jurisdictional issues and raising concerns tied to the Administrative Procedures Act and the major questions doctrine.
Comparisons and Judicial Scrutiny:
During the hearing, Henkin drew a parallel between UST and bitcoin, emphasizing the decentralized nature of UST’s control through the LUNA token. The judge, Senior Judge Jed Rakoff, engaged in a discussion with Henkin, exploring hypothetical comparisons to the famous orange grove analogy from the Howey Test. References were also made to recent Supreme Court decisions, including the West Virginia vs. Environmental Protection Agency ruling.
Broader Ecosystem Impact:
The SEC emphasized that its analysis focused not only on the tokens themselves but also on the broader ecosystems they are part of. SEC representative Staren clarified that while the assets alone might not be deemed investment contracts, certain transactions involving them could be categorized as such.
Awaiting the Ruling:
Judge Rakoff announced that a ruling on the motion to dismiss would be published on or before July 14, signaling an eagerly anticipated resolution to this legal battle.
The Thursday night hearing brought to the forefront the pivotal question of whether UST qualifies as an investment contract. Terraform Labs, through its legal representation, sought to disassociate UST from being solely an investment, highlighting its practical applications and consumptive nature. The SEC, however, asserted that the broader expectations and economic realities surrounding UST warranted scrutiny for potential securities violations. As the legal proceedings progress, the cryptocurrency community keenly awaits Judge Rakoff’s ruling, which will undoubtedly have far-reaching implications for the industry.
