Secondary Trading Crypto Fraud and the Propriety of Securities Class Actions

Abstract

Traders participating in secondary crypto asset markets risk significant loss. Some trading loss will arise simply because of market dynamics, including inherently volatile crypto asset prices. But secondary crypto asset traders also risk considerable monetary injury resulting from fraudulent statements or acts by crypto asset sponsors or others occurring in connection with their secondary transactions. If subjected to such fraud, the affected crypto asset traders may turn to a Rule 10b-5 class action for redress.

Crypto asset traders’ reliance on Rule 10b-5 class actions implicates important doctrinal and public policy questions. This Article analyzes two of these questions—one doctrinal and another in the domain of public policy. In its doctrinal analysis, the Article evaluates issues pertinent to the threshold definitional question of when an exchange-traded crypto asset will constitute an investment contract and therefore fall within the definitional perimeter of a security. The Article proposes a slight generalization of the horizontal commonality test that renders the test suitable for use in both primary transaction and secondary transaction cases, and also addresses aspects of Howey’s efforts of others prong that are relevant to Howey’s application in the crypto asset context.

With respect to the public policy question, the Article evaluates whether the public policy justification for crypto asset-based Rule 10b-5 class actions is significantly weaker than for stock-based Rule 10b-5 class actions. The Article’s public policy determinations break in different directions and in some respects are to be considered preliminary, but the analysis does not justify limiting the availability of crypto asset-based Rule 10b-5 class actions any more than stock-based Rule 10b-5 class actions.

Keywords: Crypto fraud, Securities Class Actions, Howey

JEL Classification: K22