It's On! Federal Judge to Hear First Ever Oral Argument Asserting ICOs are NOT Securities. Read Legal Briefs From SEC, DOJ and Defense Here . . .

By John Reed Stark*

This week the ICO/SEC battle is finally on: The first ever oral argument before a federal judge on the issue of whether initial coin offerings (ICOs) are securities offerings and are therefore subject to SEC jurisdiction. Below are the details and all of the relevant court filings in one place, neatly organized for quick and easy review.

• The Matter: USA/SEC versus Maksim Zaslavskiy Filed in the United States District Court for the Eastern District of New York, E.D.N.Y. Docket No. 17-MJ-934 (Before the Honorable Judge Raymond Dearie). Zaslavskiy, et al, were charged by the United States Department of Justice (DOJ) and by the United States Securities and Exchange Commission (SEC) with securities fraud in connection with several ICOs. Zaslavskiy was arrested by the FBI and his assets were frozen by the SEC. Now, Zaslavskiy's attorneys -- federal public defenders who represent him in the criminal case and Polsinelli LLC who represent him in the SEC case -- have filed a motion to dismiss the criminal charges, asserting, among other things, that the digital coins or tokens peddled by Zaslavskiy's ICOs were not securities.
• The Logistics: Oral Argument Hearing Zaslavskiy's Motion to Dismiss is scheduled for May 8th at 2:45 pm, in Court Room 10A S in United States District Court for the Eastern District of New York, 225 Cadman Plaza East, Brooklyn, NY 11201.
• The Filings: The court filings are plentiful and robust but, for anyone interested in SEC jurisdiction over ICOs, cryptocurrency exchanges and the like, are absolutely worth reading. See for yourself below.
• ?My Take: The SEC and DOJ will win. Easily. Quickly. Handily. For my reasoning, please visit here; here or here . . .

I.             US DOJ Federal Criminal Action Against Maksim Zaslavskiy 

• DOJ PRESS RELEASE ANNOUNCING ZASLAVSKIY PROSECUTION
• COMPLAINT AND AFFIDAVIT IN SUPPORT OF APPLICATION FOR ARREST WARRANT
• INDICTMENT
• ZASLAVSKIY’S MOTION TO DISMISS INDICTMENT FOR SUBJECT MATTER JURISDICTION AND VAGUENESS (SUBMITTED BY FEDERAL PUBLIC DEFENDER, DOJ DEFENSE COUNSEL)
• DOJ MEMORANDUM OF LAW OPPOSING ZASLAVSKIY’S MOTION TO DISMISS THE INDICTMENT
• ZASLAVSKIY’S REPLY BRIEF IN SUPPORT OF HIS MOTION TO DISMISS (SUBMITTED BY FEDERAL PUBLIC DEFENDER, ZASLAVSKIY'S DOJ DEFENSE COUNSEL)

II.        SEC Federal Civil Enforcement Action Against Maksim Zaslavskiy

• SEC PRESS RELEASE ANNOUNCING ZASLAVSKIY PROSECUTION
• SEC COMPLAINT AGAINST RECOIN GROUP FOUNDATION, LLC, DRC, WORLD INC. a/k/a DIAMOND RESERVE CLUB, and MAKSIM ZASLAVSKIY 
• SEC MEMORANDUM IN SUPPORT OF EMERGENCY ASSET FREEZE AND TEMPORARY RESTRAINING ORDER
• DECLARATIONS FROM SEC OFFICIALS VALERIE SZCZEPANIK AND JORGE TENREIRO IN SUPPORT OF EMERGENCY ASSET FREEZE AND TEMPORARY RESTRAINING ORDER
• SEC BRIEF IN SUPPORT OF THE UNITED STATES, OPPOSING ZASLAVSKIY’S MOTION TO DISMISS INDICTMENT
• ZASLAVSKIY'S MEMORANDUM OF LAW SUPPORTING MOTION TO DISMISS INDICTMENT (SUBMITTED BY POLSINELLI LLC, ZASLAVSKIY'S SEC DEFENSE COUNSEL)

*John Reed Stark is president of John Reed Stark Consulting LLC, a data breach response and digital compliance firm. Formerly, Mr. Stark served for almost 20 years in the Enforcement Division of the U.S. Securities and Exchange Commission, the last 11 of which as Chief of its Office of Internet Enforcement. He has taught most recently as Senior Lecturing Fellow at Duke University Law School Winter Sessions and will be teaching a cyber-law course at Duke Law in the Spring of 2019. Mr. Stark also worked for 15 years as an Adjunct Professor of Law at the Georgetown University Law Center, where he taught several courses on the juxtaposition of law, technology and crime, and for five years as managing director of global data breach response firm, Stroz Friedberg, including three years heading its Washington, D.C. office. Mr. Stark is the author of, "The Cybersecurity Due Diligence Handbook."