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After SEC Pushed Judge Castel Ends Telegram Case With Injunction Not To Violate Section 5

By Matthew Russell Lee, Patreon
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SDNY COURTHOUSE, June 26 --  On February 19 lawyers for Telegram and the U.S. Securities and Exchange Commission argued for more than two hours about the SEC's request for a preliminary injunction against Telegram's proposed crypto currency, the Gram. More on Patreon here.

  Now on June 26, in a world made different by the Coronavirus crisis, SDNY Judge P. Kevin Castel has issued this order: "FINAL JUDGMENT AS TO DEFENDANTS TELEGRAM GROUP INC. AND TON ISSUER INC.: IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Defendants, and Defendants' officers, agents, servants, employees, attorneys, and all persons in active concert or participation with them who receive actual notice of this Final Judgment by personal service or otherwise, are permanently restrained and enjoined from violating Section 5 of the Securities Act of 1933 ("Securities Act") [15 U.S.C. § 77e] by, directly or indirectly, in the absence of any applicable exemption: (a) Unless a registration statement is in effect as to a security, making use of any means or instruments of transportation or communication in interstate commerce or of the mails to sell such security through the use or medium of any prospectus or otherwise, and as further set forth in this judgment. IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Defendants are jointly and severally liable for disgorgement of $1,224,000,000. Defendant Telegram Group Inc. is liable for a civil penalty in the amount of $18,500,000 pursuant to Section 20(d) of the Securities Act, as further set forth in this judgment. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendants' Consents to this Final Judgment, entered into on June 11, 2020, are incorporated herein with the same force and effect as if fully set forth herein, and that Defendants shall comply with all of the undertakings and agreements set forth therein. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that this Court shall retain jurisdiction of this matter for the purposes of enforcing the terms of this Final Judgment. The Clerk shall terminate all motions and close the matter. (Telegram Group Inc. and Ton Issuer Inc. terminated.) (Signed by Judge P. Kevin Castel on 6/26/2020)." Oh and there's the payment of an $18.5 million fine...

  Back in May, as Inner City Press reported and was picked up, Telegram filed this, agreeing among other things to provide "communications" by May 20: "UPON THE CONSENT OF THE PARTIES IT IS HEREBY ORDERED:

 (a) The parties shall meet and confer regarding the SEC’s discovery requests dated February 4, 2020. Telegram agrees not to object to the discovery requests on the ground of timeliness but otherwise expressly reserves all rights and objections. (b) Telegram shall provide to the SEC information regarding any assets disbursed to Initial Purchasers under the Purchase Agreements and assets received from Initial Purchasers in connection with the termination of the Purchase Agreements promptly after such information is available (subject to all foreign data privacy laws and considerations, about which the parties reserve their respective rights). (c) Telegram shall provide the SEC with notice of any amendments to the Purchase Agreements, and notice of any final written agreements entered into with the Initial Purchasers relating to or arising out of the Purchase Agreements, within two days following such amendments or final agreements. (d) Telegram agrees to produce its communications with Initial Purchasers relating to the termination of the Private Placement, including communications regarding any agreements offered or entered into with the Initial Purchasers relating to or arising out of the Purchase Agreements, as promptly as practicable, and by no later than May 20, 2020. (e) Telegram shall provide to the SEC the bank records previously identified by the SEC and which Telegram has agreed to produce, and to respond to the SEC’s questions about already produced bank records that the SEC has already posed. Nothing in this stipulation is meant to modify in any way the parties’ obligations under the Court’s January 13, 2020 Order. (f) The parties may engage in discovery served on third parties, while reserving all rights to object to such discovery on grounds other than timeliness.

 (g) For additional discovery, if any, the parties agree to meet and confer regarding a schedule to be proposed to the Court. The parties reserve all rights with respect to any such proposed schedule, including but not limited to objecting to any additional discovery."

  Back in March SDNY Judge P. Kevin Castel  granted the SEC's request for a preliminary injunction, writing that "the Court finds that the SEC has shown a substantial likelihood of success in proving that Telegram’s present plan to distribute Grams is an offering of securities under the Howey test to which no exemption applies. The motion for a preliminary injunction will be granted." Full decision for download via here.

By the end, their agreement that Telegram will hold off was extended, but only under U.S. District Court for the Southern District of New York Judge P. Kevin Castel rules on the SEC's request. Judge Castel said he is mindful of an April 30 deadline by which Telegram would have to return investors' unspent money.

In essence the SEC argues that Telegram's raising of $1.7 billion to lead to the Gram crypto currency was an offer of securities which should have been registered with the SEC in the 1946 test set out by the Supreme Court in SEC v. W. J. Howey Co., 328 U.S. 293.

    That case involved oranges, and that fruit as well as gold and even Mets season tickets were used as examples by the two sides, vying for Judge Castel's ruling. (The Mets tickets analogy used by Telegram's Skadden Arps attorney Alexander C Drylewski caught Judge Castel's attention: he said the Mets improving the roster sounded like "a fantasy," drawing laughter in the packed courtroom).

   More seriously, Drylewski emphasized that Telegram would not be a validator of the TON blockchain, and therefore investors were not banking on Telegram's continuing involvement in management.

  SEC lawyer Jorge Gerardo Tenreiro countered that Telegram founder Pavel Durov had admitted, in a deposition the SEC conducted, that he cares deeply about the reputation of Telegram.     On that basis, Judge Castel repeatedly asked Drylewski to admit that Telegram would get involved in a sufficient community of validators did not immediately emerged.    Drylewski answered that Telegram could not do that, then said that Telegram had represented that it would not.    Judge Castel asked, "Which is it?"   

Drylewski countered that since the validators would have to agree by a two-thirds margin, no one actor would control things. This, he said with some effect, was the benefit of blockchain and this crypto currency in particular.  He compared Grams favorably to both Bitcoin and Ethereum, while saying that Telegram got its idea of a TON Foundation, not yet in existence, from the foundations of Bitcoin and Ethereum.   The upshot is that Judge Castel will grant or not grant the SEC requested preliminary injunction before April 30.

Drylewski offered that Telegram could live with injunctions against particular parts of its plan as long as the overall plan can go forward. He painted a picture of developers adding apps and smart contracts to the TON blockchain and Grams becoming  a "new mass-market crypto currency" unlike Ethereum or Bitcoin. That remains to be seen. This case is Securities and Exchange Commission v. Telegram Group Inc. et al., 19-cv-9439 (Castel).


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