On August 14, 2018, the U.S Securities and Exchange Commission (“SEC”) issued a cease and desist order (the “Tomahawk Order”) against Tomahawk Exploration LLC (“Tomahawk”) and David Thompson Laurance (“Laurance”) for their actions in connection with an initial coin offering of digital assets called “Tomahawkcoins” or “TOM” (the “Tomahawk ICO”). Tomahawk and Laurance’s actions were problematic for the same reasons cited by the SEC in other recent orders related to digital assets (e.g. the Munchee Order). Consistent with such orders, the SEC determined that Tomahawkcoins are securities because they constitute investment contracts under the “Howey” test. However, what makes the Tomahawk Order particularly noteworthy are the lessons to be gleaned regarding cryptocurrency “airdropping.”

What is Airdropping?

“Airdropping” is the distribution of tokens or cryptocurrencies without monetary payment from the token recipient. The practice of airdropping tokens became prevalent in late 2017 and early 2018 when ICOs began to face stricter regulatory scrutiny. Token airdrops or “free crypto” distributions have been particularly popular in conjunction with ICO marketing campaigns, such as the Bounty Program (“Bounty Program”) offered in connection with the Tomahawk ICO. As part of its Bounty Program, Tomahawk dedicated 200,000 Tomahawkcoins, and offered third-parties between 10-4,000 Tomahawkcoins for activities such as making requests to list Tomahawkcoins on token trading platforms, promoting the coins on blogs and other online forums, and creating professional images, videos or other promotional materials. Ultimately, Tomahawk airdropped more than 80,000 Tomahawkcoins to approximately 40 wallet holders as part of its Bounty Program.

Airdropping as a Section 5 Violation

Under Section 5 of the Securities Act of 1933, as amended (the “Securities Act”), any offer and sale of securities must be registered with the SEC or exempt from registration. Section 5 regulates the timeline and distribution process for issuers who offer securities for sale. In the Tomahawk Order, the SEC found that Tomahawk’s Bounty Program constituted an offer and sale of securities because “[Tomahawk] provided TOM to investors in exchange for services designed to advance Tomahawk’s economic interests and foster a trading market for its securities.” Despite not receiving payment in exchange for the airdropped Tomahawkcoins, the SEC nonetheless found that the airdrops made in connection with the Bounty Program constituted the offer and sale of securities: “a ‘gift’ of a security is a ‘sale’ within the meaning of the Securities Act when the donor receives some real benefit…Tomahawk received value in exchange for the bounty distributions, in the form of online marketing…in the creation of a public trading market for its securities.” By offering and selling Tomahawkcoins without having a registration statement filed or in effect with the SEC or qualifying for an exemption from registration, Tomahawk and Laurance were found to be in violation of Sections 5(a) and 5(c) of the Securities Act.

Potential Consequences of a Section 5 Violation

In light of the Tomahawk Order, it is important to understand the potential consequences of a Section 5 violation, which may include the following:

  1. SEC Enforcement Action[1]: In addition to having the power to impose monetary penalties, the SEC can also bar an individual from serving as an officer or director of a public company for a period of several years. Through the Tomahawk Order, the SEC not only imposed a $30,000 penalty (a reduced amount due to Laurance’s inability to pay a civil penalty) but also barred Laurance from acting as an officer or director of a public company or from participating in any offering of a penny stock.
  2. Rescission Rights: Under Section 12(a)(1) of the Securities Act, purchasers of securities that were sold in violation of Section 5 of the Securities Act have a right of rescission. This right of rescission is essentially a “put right” whereby the purchasers can force the seller of the securities to buy the securities back at cost plus interest.
  3. Control Person Liability[2]: Even if a person did not directly take part in the airdrop, under Section 15 of the Securities Act, such person might still face liability. Under Section 15 of the Securities Act, each person who, by or through stock ownership, agency, or otherwise, controls any person who violates Section 5 of the Securities Act, may also be jointly and severally liable for such Section 5 violation.
  4. Accounting Consequences: Potential payments in respect of rescission rights may be required to be booked as contingent liabilities under GAAP, which can negatively impact financial statements and the issuer’s ability to comply with financial covenants under bank documents.

Conclusion

Any company considering airdropping tokens or other digital assets should make sure to work with their securities lawyers to confirm that such actions do not run afoul of federal or state securities laws.