Updated to include comments from Circle.
Kik might have dared the SEC to do it, but that won't make a potentially ruinous lawsuit sting any less.
The U.S. Securities and Exchange Commission sued the Canadian messaging startup yesterday, alleging that it had illegally run an $100 million unregistered securities offering in 2017.
The 49-page complaint alleged all kinds of devilry: Kik pivoting to blockchain as a cynical ploy to revive its ailing business, employees at the company describing the ICO model as a “Hail Mary pass,” and several incidents in which top executives literally promised investors that they would make “a ton of money.'”
Given this, you might have expected Kik’s flagship supporters, who are listed on the website for its $5 million legal defense fund, DefendCrypto, to have quietly withdrawn their support, and fled into the night.
Already one of them, Circle, whose founder Jeremy Allaire had been an ardent supporter of the fund, was surreptitiously dropped from the website after the SEC's lawsuit was brought. "While we are supportive of the legal challenges around the classifications of digital assets, Circle has not donated to the Kik defense fund and we've removed our logo from the site until we determine exactly how support might materialize," a Circle spokesperson told Decrypt.
The two other supporters listed, Fight for the Future and Arrington XRP Capital, did not respond for comment. Nevertheless, the others—namely Coinbase, ShapeShift and Messari—are still supporting Kik's effort. But they're certainly not giving it any money.
"We have not funded that effort, no," said Ryan Selkis, the CEO of data firm Messari, which is assisting the startup in setting up a transparent “disclosures profile." Nevertheless, he does have words of encouragement. “Yesterday’s complaint was predictably brutal, but it’s supposed to be—it’s the prosecution’s case,” he said. "It’s going to be a precedent setting case one way or another if it still moves forward."
That might be an understatement. Kik's goal is to lay waste to century-old legal precedent and upend the Howey test, the triple-prong rule of thumb that regulators use to determine whether an asset pitched to buyers constitutes a security.
This was the very same Howey test that the SEC, in its savage complaint, used to deem the Kin token a security. The SEC alleges that Kik had deliberately encouraged a speculative rally in 2017—violating the prong of the Howey test that dictates an asset is a security if the issuing company promises returns to investors through "no effort of their own."
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Despite this, Selkis suggested that Kik might have leeway. Ethereum, too, was sold to investors on the basis that it would yield them profit, but the SEC has intimated that the project is now “sufficiently decentralized,” as SEC Division of Corporate Finance Director Bill Hinman declared, ambiguously, in a now notorious speech.
"The issue I think comes down to what is 'sufficiently decentralized,'" said Selkis.
And what of the other Kik supporters?
ShapeShift, also listed on the DefendCrypto website, also hasn’t aided Kik financially, and its legal counsel, Veronica McGregor, said its support of Kik was “just ideological.”
Nevertheless, it is keen to see Kik succeed. "ShapeShift is supportive of the premise behind DefendCrypto, which is to obtain more clear guidance from the SEC,” said McGregor. “We support the concept of pushing the SEC to be more concrete in their guidance on tokens.”
She clarified, however, that ShapeShift’s legal team had “not reviewed the facts of the case at all, so have not yet formed any opinion as to whether or not we would go further in our support."
It’s certainly in ShapeShift’s interest for Kik to trounce the SEC. The company’s reputation took a hit last year among diehard cypherpunks when pressure from federal regulators forced it to implement know-your-customer provisions in its flagship trading app.
Coinbase’s position is murkier. Yesterday, observers noted that an older screenshot on the DefendCrypto website appeared to list Coinbase as one of the fund’s donors, while a second omitted the exchange.
Had Coinbase withdrawn support altogether?
Not at all, according to a source at Coinbase, who said that the exchange had never financed Kik’s fundraise. First, the update was first noted on May 28, a full week before the SEC’s lawsuit was unsealed. And second, the source explained, Coinbase just hosts the wallet into which the funds raised are deposited.
A Kik staffer corroborated this, adding that Coinbase’s logo can still, in fact, be viewed in full on the site—just lower down. “They weren’t removed from the site,” the source at Kik said. “We moved them to the bottom [of the website] and denoted that they are powering the wallet.”
Asked whether Kik had its full support, Coinbase declined to comment.
But, given the startup’s rough treatment yesterday, Kik might be happy with whatever support it can get from its big dog friends.