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It’s no secret that ICOs, the go-to fundraising and token distribution mechanism for crypto startups, have effectively been chased out of the United States by federal regulators over the last year and a half. But could the SEC’s aggressive posture be doing more harm than good?
Kik CEO and founder Ted Livingston certainly thinks so.
Livington’s Canada-based messaging app company is currently facing a potentially ruinous civil enforcement action brought forth by the SEC over Kik’s sale of the Kin token in 2017—an ICO which the Commission alleges amounted to nothing more than “an illegal $100 million securities offering.”
Last Friday, Livingston spoke out in Kik’s defense for the first time since the news of the SEC’s lawsuit initially broke. During an hour-long AMA hosted by crypto data firm Messari, Kik’s CEO reflected on the SEC’s complaint, Kik’s chances of a legal victory, and the future of the company given the challenges that lie ahead.
One particularly cogent and candid moment came during the end of the chat, when Messari Analyst Zack Voell asked Livingston if, in hindsight, he would do anything differently regarding the launch on Kin: “Would you launch an ICO in [the] U.S. again?”
“No, we wouldn't. And that would be a major shame,” Livingston said. “We think crypto is going to be a major force of positive change in the world, so we think every consumer and developer should be part of that. The U.S. shouldn’t get left behind.”
Nevertheless, Kik expects to press forward, said Livingston, reiterating what Kik’s general counsel, Eileen Lyon, previously identified as a silver lining in the SEC’s complaint. “In their complanint, [sic] the SEC has made zero comment about how Kin is being used today,” said Livingston. “To us this suggests that they think Kin is now ‘sufficiently decentralized.’ So it is full steam ahead.”
But as crypto attorneys such as Marc Boiron of FisherBroyles, LLP have pointed out, while the current state of Kin may determine how the token is regulated today, these details have no bearing on the SEC’s charges against the unregistered sale of Kin in 2017.
Even still, Livingston remains confident that Kik will win its case and said the company expects to have the funds “to fight this to the end.” Otherwise, he said, the Commission’s takedown of Kik “becomes a hammer for the SEC to go after all the other projects that did a token sale.”
And it’s this crucial point that Livingston believes is still lost on most in the crypto community.
“I think what a lot of crypto is missing is that this is just the first one,” he said. “There will be more. Jay Clayton, chair of the SEC, has said every crypto that has done a token sale has done an illegal securities offering in his view. That’s Ethereum, Kin, IPFS, Brave, and many others.”
Putting aside the fact that both Chairman Clayton and SEC Director William Hinman have intimated that Ethereum probably doesn't fall under the SEC’s purview, Livingston’s larger point—that more enforcement actions against big-name crypto projects may be on the way—has become a rallying cry of sorts for Kik.
“We will move quickly to correct the facts [in the SEC’s complaint], but, in the mean time [sic], I think we need to come together and defend crypto,” Livingston said.
“We think the SEC v Kik lawsuit is just the tip of the iceberg. Exchanges are increasingly pulling out of the US. Tokens are increasingly being delisted,” warned Livingston. “While the SEC has said they want to help, in the last 10 years they have only given out a single no action letter related to crypto, which was for a closed loop coupon system that didn't need a no action letter.”
“When you put the pieces together,” he said, “it feels like the SEC is working increasingly quickly to shut down crypto in the US. We don't know how that will continue to evolve, but we are increasingly confident that it will become important to band together to defend crypto.”
It’s a view that few crypto companies might share publicly, but one that many have said they agree with privately, said Tanner Philp, Livington’s technical advisor. Since launching the DefendCrypto.org website, just weeks before the SEC filed its lawsuit against Kik, Philp said the company has “had a number of other projects in the space reaching out to say they are dealing with the same thing behind the scenes but have been [too] afraid to go public.”
“Many others see the timeline of events, can see themselves on different points of that timeline and see how it can evolve,” said Philp. “It’s been a big step forward for crypto to now have this out in the public as new regulation is formed.”
But the SEC has also been busy working “behind the scenes,” said Livingston.
While Kik’s roadmap for success remains focused on “growing Kin”—finding ways to attract more developers and users—and getting liquidity for its token, Livingston said that the SEC’s efforts to stifle the company’s progress go beyond just the lawsuit.
“Liquidity is an important piece of what makes the whole ecosystem work—if Bitcoin miners couldn't sell their Bitcoin, then no one would mine Bitcoin. Unfortunately, it seems that the SEC knows this too,” he said. “We are hearing more and more stories of them pressuring exchanges behind the scenes to not work with us.”
But the company is undeterred, Kik’s leading man insists. Despite the odds and the growing sentiment among legal experts that Kik may find itself settling up with the SEC on the regulator’s terms soon enough, Livingston said the company isn’t giving up the fight just yet: “We are going to keep hammering at it until the wall falls down—it is a big world out there.”