October 22, 2018

FINRA’s Groundbreaking First Enforcement Action Against a Cryptocurrency Company: HempCoin

With attention focused on skyrocketing securities of Canadian companies such as Tilray ($TLRY) due to Canada’s country-wide legalization of cannabis on Wednesday, October 17, a groundbreaking case involving Colorado-based HempCoin ($HMP) has flown under the radar.

Last month, Wall Street’s independent regulatory body, the Financial Industry Regulatory Authority (FINRA), filed a disciplinary action against Timothy Tilton Ayre, a former broker, with a claim that he was selling a security he failed to register. The security, HempCoin ($HMP), was one of the first cross-over assets from traditional securities into cryptocurrencies, and the action by FINRA, filed on September 11, was FINRA’s first crypto-related disciplinary action.

Though many facts of the case are peculiar and worth a read, one legal point nestled among them is crucial and universally applicable. When selling HempCoins ($HMP) and soliciting mining of the same, Ayre stated that HempCoins ($HMP) were “backed by the marketable securities” of a publicly-traded company, Rocky Mountain Ayre ($RMTN). Specifically, “every 10 HempCoins [were] backed by one share of RMTN,” according to Rocky Mountain Ayre. Critically, then, because ten HempCoins ($HMP) purportedly represented one share of Rocky Mountain Ayre, FINRA took the position that HempCoin ($HMP) was a security, just like the RMTN shares were.

The main takeaway is this: if you issue a new token that is tied to, backed by, or convertible into a security, then that new token is also a security. While this arguably follows from principles that have been in place for years, this is the first time FINRA has relied on such logic in relation to cryptocurrencies.

FINRA’s complaint against Ayre should serve as a clear warning to cryptocurrency companies seeking to skirt registration requirements of securities laws. The case is FINRA Department of Enforcement v. Ayre, disciplinary proceeding number 2016049307801, in the Financial Industry Regulatory Authority Office of Hearing Officers.

Article by Jesse Hudson


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