(upbeat orchestral music) >> Hello, welcome to this CUBE Conversation. I'm John Furrier here at our Palo Alto studios. I'm joined with Kelsey Lemaster who's Tax Partner at Goodwin. This is theCUBE signal. Kelsey, thanks for coming in. >> Yeah, thanks for having me. Glad to be here. >> So, tax partner. Obviously, lot of things going on. Apple's bringing back cash with the United States. Big news, $380 billion. Tax reform under President Trump seems to be spurring. NASDAQ hit an all time high. Business is booming. Kind of good, good tail wind for business. But really the hot topic that I want to drill down with you in this segment is have a conversation about the ICOs. >> Yeah. >> Cryptocurrency, it's insane. It's super exciting. If you're under the age of 30 and if you're not actually so excited to get into this unregulated, uncontrolled, well some say controlled market. It's just people are going crazy. A lot of opportunities, a lot of fraud, a lot of action around building businesses around it. So, you're in the middle of it. What's going on? Give us a take on then ICO. How many ICOs you guys doing, all right. What's Goodwin's number up to now? How many ICOs you got? >> Yeah, so the number we talk about within the firm is about 40 active ICOs. That's probably not precise but it's more or less that number. You know, every day we talk with existing clients or new clients that want to go through an ICO process, and we advise them the best that we can. There's securities laws issues which people are aware of. That's not really my expertise but in the tax world -- >> Well, Grant Fonda, he's coming in next. But we've had a conversation with him. >> Right, right. >> The securities issues and this, but there's huge tax consequences. >> Yeah, so there are a lot of tax consequences. They're unusual and things that people don't expect when they're raising money, what they view as raising money through an ICO process. Cause typically when you raise money from a venture capitalist or from investors, people who will buy securities in your company for cash or property, that's usually tax free to the company. And I mean, that's been traditional law for many, many years. Problem is in an ICO, what you're selling usually is a digital asset of some sort, a token which often is a right to obtain some service on a platform that may or may not exist yet. And the tax characterization of raising capital for that kind of asset or property or service probably does not qualify for the exception. It normally qualifies when you sell stock or securities. So, it's basically taxable revenue to companies. >> So, let's drill into this, have that conversation about tax. Cause a lot of people I talk to, entrepreneurs or newbies, either new entrepreneurs or seasoned entrepreneurs, even the seasoned entrepreneurs look at the tax consequences and go, "Wow, this is crazy! I don't understand it." And it seems like the tax providers, you guys are one of them there's a bunch of other firms out there that can help with different price points all across the board. Their learning, their training wheels are on too. So, people are learning, running, tripping, falling. It seems to be that from my perspective. And it's a real, real rapid accelerated pace. It's almost like the dot com bubble but fast forward it feels like with an entire new infrastructure of corporate governance. >> Yeah. >> I mean, this is pretty crazy. So, tax is a big one. And the dollar signs could add up big time if you're a company and you need tax advice cause there's so many scenarios. What is the current state of that market? With tax providers, the tax consequences, is it as thorny and hairy? And how are you guys unpacking it? >> I think you're exactly right that a lot of us are learning together about the technology, about the business terms, the deals. Those are evolving. The tax law is what it is. It has really not caught up to any of this. The IRS issued a notice in 2014 that tells you how cryptocurrencies like Bitcoin and Ether and Dash and some of those others are taxed to individual investors but that's it. That's all we've heard from the IRS. So, a lot of us as practitioners are trying to figure out how to apply traditional tax law principles to this brand new, technological sort of device or way of raising capital. And in some instances, the answers are clear. And in others, they're not. There are a lot of square peg round hole problems that a lot of us are trying to work through. And as you said, we're doing it at a very rapid pace, real time, clients are not really waiting for us to figure out every nuance of tax law and how it's going to apply. They're just doing their ICOs. And so, there are a lot of situations where companies will do an ICO and raise, maybe this hasn't happened lately as much but at least last summer, companies would raise hundreds of millions of dollars in an ICO without really getting any significant tax advice. And the basic rules in this area, as I had mentioned, If you raise capital by issuing tokens, it's probably taxable revenue. So, if you start up as a normal corporation where you're going to build a platform, you're going to spend some money to build it, and all of a sudden you raise $200 million. Well, if you can't spend all of that money in a year, you're going to pay tax. And last year, the corporate tax rate was 35% federally. Now, that's been reduced on under the tax reform. But say you raised $200 million dollars last year and you effectively couldn't spend much more than a couple million dollars. You could have a tax bill at the end of the year of $70, $80 million dollars which nobody was expecting. You know, companies are trying to structure around and avoid -- >> It's hard to spend $200 million in one year. >> Kelsey: Yeah, exactly. >> You really got to go crazy, go on boondoggle. No but this is an important point. So, let's get down to that. So, the cash proceeds coming in, obviously the utility token, that's taxed right out of the gate. >> Yeah, there are some areas of uncertainty there. And there are positions. I mean, there are alternative ways of viewing that. Probably the right way of viewing money coming in, we say money but usually it's Ether or Bitcoin, right? So, we take the fair value of what comes in. And if it's $200 million, in a utility token context, that's probably going to be viewed as revenue for future services. Because, by having the tokens, the individual holders will be allowed to participate in your platform and get your services. So, the services income that's taxable. Now, you may be able to defer some of it for up to one or maybe two years. It depends. You're going to have to recognize all of it for tax purposes within two to three years max. And you know, people have talked about, "Well, can I just wait and see what happens and not pay any tax on this income?" And there are some sort of doctrines that you might look to one's called the open transaction doctrine where you don't really know what's going to happen. In a lot of these cases, the ICO proceeds have to be given back if the platform never gets built. So, people have talked about, "Well, can I use what's called open transaction, and wait and see? And if I build the platform, then I'll take the income in in that year in the future but not now." Personally, I think that's a losing argument. And my view is the IRS, when they start looking into this, they're going to really view this as all just services income. And you might have one or two years to spread it out, but you're going to have to pay tax on it. >> It sounds like there's a mix and a confluence between accounting and finance and tax law. Because you've got timing issues, that's revenue recognition. You mentioned services with tax practional view. What is the line? Where is the absolute, out of bounds in ICO tax policy? If you could lay it out. I know there's a gray area that your people are working through and might have a position and lean towards a certain direction based upon what they're doing. So, I can get that. But where should someone look in saying that might not be in the know in the taxing. Don't do this. What are the things that they shouldn't be doing? Obviously, fraud. We know that's ... >> You don't want to do tax fraud, for sure. I would say, in general, it's going to be risky to take a position that, if you raise a bunch of money in a utility token ICO, if you take the position that that's not revenue and you somehow view it under the open transaction doctrine, for example, I think that's a risky position. >> John: Why? >> Just because I think that it's inconsistent with the law and the open transaction doctrine space. Normally, when you receive money and it's basically yours, you have a claim of right over it, that's taxable income to you. Even if you might have to somehow give it back in the future. So, I think that would be a risky position to take. Another thing that we've heard about a lot of companies doing is, you know, for awhile everybody wanted to set up a foundation in Switzerland. I'll set up a foundation in Switzerland, they'll issue the tokens, it's all tax free because it's a foundation. I think there's ... I'm trying to remember. There's an ICO company that recently got in trouble for this because they were trying to take the funds out of Switzerland and use them for personal use. But any time I hear someone talk about setting up a foreign foundation, my antenna go up. I think that -- >> You think that's a red flag. >> I think that's a major red flag. Most of these companies that are doing ICOs, probably don't really have the kind of purpose or business that really fits with a foundation. I mean, foundations are tax exempt, charitable type entities. Like The Ethereum Foundation. That to me sounds like a foundation, right? It's not there to profit in any particular business. >> John: It's not a business hiding as a foundation. >> Kelsey: Exactly. That's a great way to put it. I think there for awhile, people thought that I could hide my business in a Swiss foundation and never pay tax. And I think that's a major red flag. >> Okay, let's talk about the Cayman Islands, Switzerland, there's places to domicile or locate your business for tax reasons. And some people, there's play books out there on what to do. And it evolves. It's a moving train for sure. But what problem are we solving with the tax? Can you just elaborate on what is the core problem to be worked on with respect to taxing, the tax consequences in the ICO crypto market? >> Kelsey: Right. So, from the company's perspective, the core problem is what I was mentioning where, when you raise all this money through an ICO, the most likely treatment of that if your raise it into a U.S. corporation is that it's just taxable income. And maybe some of it's taxable this year and the rest is taxable next year, but it's going to be taxable to that corporation pretty quickly. And corporations don't want to pay tax. I mean, that's an age old problem. So, what people are doing and are still doing is there are structures where you can set up a subsidiary in a foreign jurisdiction like Switzerland, Cayman Islands. This is not a foundation, this is a normal subsidiary. And if you get the intellectual property moved into that subsidiary in an appropriate way, and there are rule around that, and then you have substance in that subsidiary where you have employees in that jurisdiction who are helping to develop the IP. Then if you do everything right, and then you sell the future services out of that subsidiary and you sell the ICO tokens out of that subsidiary, you may get some ability to defer U.S. tax until you actually take money out of the subsidiary and repatriate it to the U.S. So, that's what -- >> It's a lot of work to set up a subsidiary. >> It's a lot of work to set up a subsidiary. >> And it's costly. >> Kelsey: Yep. >> Is it worth it? >> Yeah, so prior to the tax reform bill at the end of last year, if you could do it all right, and there are a lot of issues with getting it right and complications and complexity, But if you could do all of that, and there are a lot of companies that did, then yeah, I think there are good positions for deferring tax. Which, you know, on a $200 million ICO, that's deferring $80 million dollars in tax until some indefinite period in the future. >> There's not many $200 million ICOs. >> Not many ... Right. >> Most of them are in the five to 20, 20 to 60 range. Million. >> Yep. So, I think now that we're in -- >> Still a good chunk of change. >> Kelsey: Yeah, a good chunk of change. And so, post tax reform, the tax rates last year were 35% corporate federal income tax rate. Now, they're 21%. So, there's been a huge reduction in corporate income tax rate in the U.S. So, that I think coupled with the smaller size of the ICOs is going to drive fewer companies to want to set up these offshore structures because, one, it's a smaller amount of tax liability that they're dealing with. And two, because you're raising less money it's not too difficult to spend $5 million -- >> So, pretend I'm doing an ICO. So, I say, "Oh, I'm going to do an ICO." Well, I know that I could maybe fetch $20 million might be the range. Or say I get lucky, say I do 30. I say to myself, "Okay, can I spend $30 million in two years?" Probably, yeah. But it's not so much spending money. I want to get your reaction to this. It's not just spending the money to get the tax law set. It's can I get to revenue. So, can I hit the fly wheel for critical mass in a revenue model. Which, now, a new dynamic is 2018 seems to be the year of we were looking for real deals not vapor deals. White paper and raise money. How does that work? So, if I say, "Hey, I know with $20 million in two years I can get to cash flow positive break even." What's the tax consequence on that? Is that a good deal to do? >> Yeah. So, once you turn net profitable for tax purposes you'll start paying taxes in the U.S. And so, if the idea is I'm going to raise $20 million on an ICO in January 2018, and I'm going to spend $20 million between now and the end of 2019, you can probably, you have to model this out with your accountants, but you can probably match up the $20 million you received this year with the $20 million of expense you spend between now and the end of 2019. And once that zeroes out then you probably won't pay too much tax on the $20 million you receive now. Then once you flip to net positive, right? So, you've spent the 20, took the 20, now you're at zero and you start earning income -- >> But that's a real business. >> That's a real business. And that's going to be taxed like any other business. And now you're in a much lower U.S. tax rate environment of 21%. That's probably a fair deal. >> This is the business model question that everyone's asking. Can I get, use the cash to build a business this is now the conversation in the venture community. It's the conversation in the entrepreneurial circles. >> Kelsey: Yep. >> How to do it. Not just go to the trough and take as much down as you can. Which pretty much everyone's trying to do. That's up though. Not many people doing that. >> Kelsey: Yep. >> I mean, Signal's got a big ICO coming. They were in the billions. But are you advising clients to stay in the U.S. If they don't have to go to Cayman's? What's the current state of your research note or tax note to clients? >> Kelsey: Yeah. I think this you might have different views from different practitioners. My personal view is that if it's a relatively small amount that you're raising and you expect to be able to spend it down within that one to two year period, I tend to advice clients to keep it simple, stay in the U.S. Because there are a lot of ways that you can screw up a Cayman structure or Swiss structure. And usually these companies are working incredibly hard to build their platform. >> It's also distracting. >> That's my point. Exactly. The benefit is uncertain. And it may not be much of a benefit at all. And it's probably much more important that you succeed with your business than for you to save what may or may not be a small or large amount of tax. >> So, you guys are learning on the fly, which is great. And this is a market ... It's a huge wave. Everyone's getting their surf boards and getting out there on this big wave. And it's super exciting. What are the practitioners circles, your peers, as you guys huddle on this in the industry, what is the general rule of thumb that you guys are applying? I know Goodwin's a great firm. You guys have done some great work. You're conservative but yet aggressive which is a good balance here. I think some firms won't even touch an ICO. Maybe too risky for them. But you guys take a good line there. You're pushing the envelope. What's the rule of thumb in the practitioners circles? Where's the standards evolving? What's your reaction that? >> This is probably not a super helpful answer. I don't think there are standards. I mean, this is a space that barely existed eight months ago, and now we're doing 40 ICOs at a time. So, it's a very fast-paced evolving space. We just had tax reform literally two weeks ago. I'm on an advisory group with the Ethereum Network Foundation, and it's a bunch of tax lawyers in New York and out here, and we talk every couple of weeks. Just to kind of figure out what we're doing. And there are a lot of things we talk about but I wouldn't say there are really any standards that have come up. There are other ways that people are implementing ICOs that didn't really exist six or eight months ago. >> John: Like what? >> Which you'll probably talk about with Grant to some extent. But you could just go out and have your tokens ready and sell them as a token sale ICO. We have a lot of clients that want to raise the money before they have their tokens built. They just have the white papers so they will sell SAFTs, which are a Simple Agreement for Future Tokens. But you basically agree you'll give me your Ether now and I promise I will give you tokens in the future. And that's a SAFT. Now, there are versions on that where we see investors kind of hedging their bets like, "Well, I don't really know if you're going to be successful with the platform, so what I really want to do is I'll give you money now and I want an instrument that kind of gives me flexibility to either take tokens or equity. So, you see these instruments, like one's called a SAFE, a Simple Agreement for Future Equity. Which you see in normal financings But with a dash "t" on the end of it. >> John: We're going to have pipes. We're going to have SAFE. We're going to have all this stuff going on. >> So, there are all these acronyms coming up. And there are different versions but some of those versions might give you better positions on bringing in the money now and waiting to figure out if it's going to be taxable. >> John: What have you learned? You've got ICOs under your belt. You guys are doing good work over there. Relatively new. What's the big learnings that you've walked away with, so far? And what's still in front of you? >> Yeah, I think what I've learned is just, for me personally, it's very interesting to see how these traditional tax concepts which are simple in the abstract really apply in very unexpected ways to an ICO. And the things we've been talking about on the company side is a big area there. I've also focused a lot on if you're an investor and you're participating in an ICO, odds are you're not paying cash. You're probably paying in Ether or Bitcoin. And if you've held those other cryptos for a long time, and let's say you bought Ether at $10 and you're trading it in now at $1,000 in an ICO. Well, you probably also have gain cause you've just exchanged your Ether. So, now you have $990 in gain for every Ether that you send in. And you know, there are ways to try to manage that for the investors. But that's one area that's been a surprise for investors something we've been aware of but it's something I've kind of thought about and learned that in a lot of these situations there are tax consequences not only for the company but on the investor side. So, on both sides of the table there are tax consequences. And people are often surprised by that and everybody's catching up. >> Kelsey, great to have you on. Take a minute to end the segment. Just share a little bit of the work that Goodwin's doing. You guys have a tax practice. You're head of it over there. What's some of the work you've done? Do the plug in. >> Kelsey: Yeah. So, in this space we do our work with a lot of clients on ICOs. We're working with a lot of traditional venture funds that are dipping their toe in and are reviewing ICOs that they may invest in. So, we look at it with our investor hat and with our company hat. We've also helped clients that are thinking about doing tokenized funds where they will raise capital into a venture fund but they'll do it by issuing their own tokens. So, those are very interesting structures in and of themselves. We've really kind of embraced this space and worked really in just about every way that you see these companies taking shape. We've helped them and helped the investors. >> And of course, you got funds of funds going on now. I saw a couple of decks been circulating around. Funds of funds, you've got token funds, funds of funds. This is like a new asset class. >> It's a whole new world. >> I mean, unregulated, uncontrolled, controlled probably by a few people. I mean, pretty wild. >> Yeah, yeah. >> John: Having fun? >> It is, it's been a blast. >> Kelsey, thanks for coming on theCUBE. Kelsey Lemaster, partner at Goodwin on the tax side. A lot of work. I'm sure he's busy. It's complicated. And they're learning and people are being successful in ICOs. And again, one of the big things is the tax consequences. Check out Goodwin. They've got a great firm over there. Kelsey, thanks for spending the time coming on theCUBE. I'm John Furrier. This is CUBE Conversations in Palo Alto. Thanks for watching. (upbeat orchestral music)

(upbeat dramatic music) >> Hello, everyone, welcome to the Cube Conversation, here in Palo Alto Studios, for The Cube. I'm John Furrier, the cohost of The Cube, co-founder of Silicon Angle Media. We are here for Thought Leader Thursday, with Mitzi Chang. She's a securities attorney and partner at Goodwin. Formerly Goodwin Proctor, Goodwin Proctor's the name. Again, great to have you on. Thanks for coming in and talking about some of the securities around Blockchain ICO's. You guys doing a lot of work, thanks for coming in. >> Thanks for having me. >> So, obviously, Blockchain is the hottest thing we're seeing. AI, obviously, is hot as well, IOT, all of this about a new, decentralized internet. And it's the wild west. And we know because we're looking at doing our Blockchain and tokens for The Cube and all that good stuff. So we're totally love the new environment. Everyone, all the light tier one entrepreneurs are licking their chops and going, ah, man, good action. And a lot of the thought leaders are saying this is a fundamental shift. So it's cool, we get that. But now, okay, is the technology ahead of the law? And, just today, the news is breaking that the SEC is now putting a clampdown on a new thing, celebrity endorsements, into ICO's initial coin offering. So, yeah, you're a securities attorney. You have to sit back there and, like, wire these deals together. >> Right. >> What's going on, I mean, is the law behind the tech? How are you guys managing it, what's the flow look like for you? >> Yeah, I mean, I think that the law is almost always behind the technology, right. That's just how it works. I mean, from our perspective, you know, we represent tons of companies on normal securities law, or securities issuances. And this can be similar, depending on how the token is structured. So, you know, the SEC said in its July guidance that tokens can be securities, depending on the facts. A part of what we do, as lawyers, is review the facts of the token, right. What does the token do, how do you treat the token, how are you issuing the token, how are you marketing the token? Are there securities-like features of the token? So, for example. Does it have profit sharing features? Does it have voting features? Those are pretty obviously more security-like features. But, also, you know, in the token ecosystem, are you treating it like you would equity? So, for example, you know, are you putting vesting conditions on there? Are you marketing it to VC's who may never use your network? Those are some factors that make it look like more security. Versus a utility. >> You guys also, I mean, I've been in Silicon Valley now 18 years, and been an entrepreneur for longer, and entrepreneurs are always three feet in a cloud of dust, breaking things in the bowl in the China shop, as they say, and have to get the lawyers to kind of clean things up or set things straight. Securities is a known practice, but now there's some kind of bumps in the road but still people are moving forward. So I got to ask you, what's the test? I mean, we hear things like the Howey Test. >> Mm hmm. >> What are some of the things that entrepreneurs should know around where to pay attention? Kind of where to put their head down and drive because there are known practices, on the security site you mentioned, a few of them, but where's the test? What's the one thing, is it the Howey Test? What is this Howey Test concept? And what other things should entrepreneurs know about? >> Right, so I think, you know, the Howey Test is a test that was in CaseLab that basically explains what is an investment contract. And an investment contract is what is considered a security. So, basically, the payment of money, you know, based on the efforts of others, where you kind of have the reasonable expectation of obtaining profits, right, from those efforts of others, versus yourself. So that's the general gist of it. So I think, from a securities law perspective, that's really important. Because there has been so much focus from the SEC. But there's also other regulatory agencies who are focused on this. Some of those are, you know, money transmitter laws. You know, there's potential commodities law issues. So there's definitely other regulatory regimes that could implicate the token. Or the token could be implicated in that regime. But I think the securities law one is one that I focus on. >> Yeah. >> And it's important to look at. >> Alright, so the first test is, okay, obviously, new internet infrastructure, different conversation, but the real law test is, is this token going to be an investment making money. >> Right. >> Or is it going to be a utility. One that provides values to the participants. Did I get that right? >> Yes, I would say, generally speaking, right. Is the token, you know, is it a use case? Or is it an investment? Am I expecting profits from that token? Or am I using it like an access fee or a membership? Or to obtain services. >> An arcade game, as Grant Fonda would say. >> Exactly. An arcade game is probably your best example. >> Yeah. Okay, so then the next test is I've heard of some things I'd like to get you to explain. What anti-money laundering or AML is. And KYC, Know Your Customer. And, obviously, Bitcoin has been kind of, you know, we've heard Silk Road stories, underbelly, a lot of bad things are happening, but anonymous is good. But here, financially, Know Your Customer is a specific thing that means something and then AML, anti-money laundering, how does that factor into this whole thing? >> Yeah, so I think for, you know, when you open a bank account, for example, right, your bank wants to know who you are. They'll obtain certain information from you. Whether it's your drivers license or passport. Where you obtained your funds. I mean, that's part of the Know Your Customer, anti-money laundering activity, right. >> And identity behind the, before you sign the thing. >> Right. So part of it is because cryptocurrency can be very anonymous, right. There are anonymous wallets that you're sending cryptocurrency to and from, you don't know who these people are. So part of it is making sure that you understand who your purchasers are. You don't want to run afoul of, you know, an anti-terrorist type, you know, regulations. The US government has several lists that they have online that you can search for names of folks that you don't need to be doing business with. So there's a lot of structures already in place. And part of that is just understanding who your purchasers are. >> And these are requirements on certain things, and the anti-money laundering exposes just audit trailing and certain things that you got to have as compliance things. >> Correct, correct. And so I think, in America, we don't normally, I would say if you were kind of outside of the US, this is probably a little bit more normal, right. People are used to doing it. I think, in America, maybe we're not as used to it. But these are not kind of new guidelines. This has always existed. >> Alright, so sometimes entrepreneurs are fast and loose with their, ah, screw the anti-money laundering thing. Or they get, I don't understand, that's too much work, I don't understand it. >> Yeah. >> So they blow it off. When do they have to not blow it off? When do you have to worry about, like, all these anti-money laundering things? Cause you have to, obviously, do more work. >> Right. >> Got to make sure you're checking the boxes, complying. That probably has overhead, costs money, or maybe write some new software. So we've been recommending that all of our clients who are in the token space and kind of obtaining, you know, digital currency, go through KYC and AML. Some of the digital currency exchanges, right. So in order, when you're receiving your digital currency and you need an account, >> Mm hmm. >> in order to exchange the digital currency into US dollars, for example, it's essentially like opening a bank account. So they're going to ask for all of the information with respect to how did you receive your digital currency. So part of that is you need to have that in place prior to actually launching your token sale so that you can kind of follow the flow of funds. >> So I was trying to find this image I would put up but I can't find it cause I'm on this computer, but I saw a thing on a conference, might have been Block Con, that you guys were at. I think you guys sponsored that event. Where the cost of doing an ICO can range from, they said, on the cheap end, they use the word cheap, not inexpensive, cheap, probably implying not get a good lawyer, a hundred K up to 750 thousand dollars. So, range of cost between hundred thousand and 750 thousand. From cheap to done right. >> Right. Right. >> Or expensive. Is that right or is that, what's the cost ranges? >> Yeah, I mean, I think there's a lot of players in the ecosystem, right. So there's the lawyers. And typically lawyers bill by the hour, so that's kind of how much time, you know, we're kind of looking at documents and things and helping you structure. There's the tax accountants. So part of that is also, you know, how much time they're spending. But some of it can be very complicated from a tax structuring perspective. Then there's the technical people, right. Unless you have that in house. To actually build your Blockchain network. Kind of help you with all of that, you know, the technical aspects of it. So software engineers, for example. Then there's the ICO consultants. Someone to kind of help you manage, quarterback the process, maybe help you with marketing the tokens to certain different websites, or help you with that. So, all of those together, I mean, yes, it can be very expensive, it kind of depends on how much of that you want to outsource. And how much of that you can do yourself. Obviously, you can't really do all that stuff yourself. >> So it's in the ranges. It could be in the ranges. >> Yeah. I mean, tax alone could kill you if you're looking at all kinds of complicated schemes or licensing agreements. >> Right. >> I mean. >> So all that, you want to make sure you're structuring the entity appropriately before you start it. >> Okay, so where do you get involved? So let's just say that, let's just walk through the day and day operations of, say, Goodwin. Okay, I've got to client. >> Yep. >> And, okay, you come in for the securities component. What does that mean? You just make sure they're incorporated properly? All the laws on the stock and then the tokens treatment? What specific things do you do? >> Sure, so, you know, once we kind of have brought the client in, after our conflicts procedures, and we've agreed to the engagement, part of depends on where they are. If they don't have a company, we'll help you form the company, right. And make sure that all of those startup documents have been appropriately done. Sometimes people have already, they're, you know, an actual company, right. We don't need to form them, they're already in existence. So then we look at pass the formation items and we look at the token issuance. So we'll look at your white paper. The white paper typically describes how the token works in the ecosystem and kind of what the company. >> You get involved in that, just to kind of check if it sounds. >> From a structuring perspective, right. Do we think this is a security? Or do we think it is leaning towards utility? And the SEC obviously has not said, what is a utility and what is a security. >> So that's the gray area? >> Yes. >> So the gray area is watch the language, be careful what you say. >> But also what you do, right. It's not just what you say, it's also what you do. So part of it is talking to the clients about what are you thinking, how are you envisioning this? Where can we help you kind of restructure or decrease your risks? >> And you guys become a safety net and help defend that too, obviously, as attorneys. But the clients still own, >> Correct. I mean, part of it is we give you advice. And the clients can take or not take our advice. But that's what we're here for. >> Do you guys offer a legal opinions behind these? I'm sure you don't. (laughs) >> We don't offer legal opinions. You know, we do do research memos on kind of where we think your token lies. But we don't do legal opinions. >> So have you guys talked to the SEC at Goodwin? I mean, do you guys have conversations? I don't know what goes on behind the curtain of the big law firms but I'm assuming that you guys are up to speed on all the notes and everything, but do you guys actually talk to people at the SEC? Is that how it works? Cause this is a cutting edge area, I'm sure you guys have to be on the cutting edge. >> Yeah, I mean we haven't had any clients, knock on wood, that have had to go through any of the SEC investigations on this. So, you know, we have not had, on behalf of our clients, had to talk to them about it. >> So that's good news, you guys doing good. >> Yeah. >> I know you guys doing over close to 30 plus ICO's, so congratulations. Is there a pattern that you've seen, from a legal standpoint, that you've seen emerging? Obviously, it's pretty clear, out in the market place, certainly the celebrity endorsement, Paris Hilton to the boxer dude and all kinds of stuff was going on where people were endorsing >> Right. >> things, so. Kind of, I don't want to say pump and dump, but that's a word that's been used in the dot com bubble, but people are saying a lot of these things are scams. And the majority of them aren't going to work out. So we've said, editorially here on The Cube and Silicon Angle, that failure doesn't mean scams. We had some failures, but certainly there are some scams. So has that caused people to pull back a little bit? And say, whoa, we're not going to go forward fast enough? Or is nothing stopping this, what's the pattern? >> Yeah, I would say, compared to a year ago, where there was no SEC guidance, right, there was no guidance from other regulator agencies, people were definitely going very quickly. I think now what we're seeing are more sophisticated clients. Clients who really want to make sure that they're following all of the legal requirements to the best that they can, given the grayness in the securities laws and other regimes. And a lot more of a thoughtfulness about, well, let's make sure that this works, right, we're not going to get into trouble. >> Have you seen any co-mingling between some of the traditional VC, venture capital investors or hedge funds, they're emerging, who want to come in and participate on the pure equity side, or the preferred stock or, more common, mostly prefer we see them. But, also, play in the tokens. Is there co-existence between participation? Or is it mostly they line up on the preferred and then let the tokens go here? Is there a pattern there that you see around how those securities are playing out? >> Yeah, I think a lot of people see value in the token ecosystem and they want to participate in that. And a lot of our venture capital clients, or our token clients who have VC investors, they want to participate. So we are definitely seeing people are very excited about it and want to kind of be a part of it. >> What about the presale concept? We're seeing a lot of people jump on the presale bandwagon because it allows them to, you know. It's not an inexpensive process. You guys, obviously, don't work for free. You guys have deals where, obviously, startups can come in. And you guys have a great startup program, I could testify that. You guys do have a good community participation there. But, at the end of the day, this is a legitimate process now. >> Mm Hmm. >> It costs money. You guys have to get paid. And service provides, like the tax attorneys got to get paid. So there's a lot, we see a lot of entrepreneurs doing that's presale. Where they try to offer this kind of discount. How is that working out and has that been going well? >> Yeah, I mean I think, you know, while the SEC has not commented on this, the practitioners and kind of the ecosystem, most people, I think, are considering that presale agreement prior to a network actually being live as a security. And, so, people are going out to accredited investors, sometimes that's VC, sometimes that's high net worth individuals. That's usually done through a SAFT, which is, it stands for Simple Agreement for Future Tokens, or a presale contribution agreement. So part of that is it's like a, you can liken it to a preferred stock financing. >> It's a known process. >> But it's not preferred stock. >> But it's a known vehicle for financing. >> Correct. >> It's not like it's tied to the ICO in a new vehicle. It's just like, okay, we're going to do something down the road, there's risks associated, all that stuff. >> Right, it's an investment contract. I'm giving you a million dollars to invest, to build up the platform. At the end of, when the platform launches, and, hopefully, when the network has utility and your token has utility, then you'll receive tokens. >> And this is good for innovation, because it gets everyone rolling a little bit. Is that, that kind of seems to be the pattern that I'm seeing. It's like, you know. >> It's basically like a seed round, alright. That's probably a really good example, is it's a seed round to get something started. That thing is not your company, it is your network. >> And it also sets the community. I've noticed on the Blockchain, these ICO communities are a very bit part of it. Goodwin's got a great reputation, certainly here in Silicon Valley, and around the world, as a law firm. This is a big part of it. So the presale's also kind of a gesture of credibility for the opportunity and I think, I mean, you know, people I talk to are like, hey, I look at what's going on in the presale, kind of as an indicator of who's involved, judged by the company that you keep kind of thing. So that's interesting. Have you seen that presale dominating more than just going right to the ICO, given the market conditions of all the ICO's? >> Yeah, I mean I think it depends, right. Some of our clients have existing businesses, right. Where this is very complimentary. The Blockchain network is complimentary to their existing business and, so, they may not need to have this big presale, right. Part of the presale could be two weeks before your general crowd sale. You have folks who kind of get in early. To me, that is not necessarily, I mean, it really depends, obviously, fact-specific, but that's a little big different that doing a, quote, presale agreement. Like a year before or six months before your token launch. That's a little bit different. >> Yeah, so also you brought up a good point. Existing businesses versus kind of like people who just need the cash to get going. >> Right. >> We're seeing a lot of companies that either have a successful business, like Kik and then Kik Kin Token was once example, we talk about all the time. The other one is pivots. We're seeing a lot of entrepreneurs take companies that were pivots, AKA, going out of business, where the token timing of a token in decentralized Blockchain actually is great for their business model. And they have to, essentially, go recap or do some securities, you know, resetting. That's your world, right? You got to get involved in those areas. >> Yeah, I mean, I think anything that has to do with kind of changing your capital structure, right, you should have your securities lawyer or your corporate lawyer involved. Because that'll obviously impact your securities law. You know, exemptions that you're taking, you know, typically from a private placement exemption, for most of our private company clients. >> Is there any new trends that are popping out of that kind of pivot or, wow, this is really, you know, I was out there, I got some funding from Y Combinator, or some sort of venture, and we're kind of just barely staying alive. This Blockchain could really accelerate, there's now momentum. Is there any trends that you see, from your work standpoint, where you have, that are happen, that are obvious new things that are coming out of this? Or is it a standard recap to cap table, normal corporate work? >> I think there is a tension, right, between doing a normal stock finance, preferred stock, or common stock financing that, you know, whatever you would typically do. Whether that's a convertible security or a convertible note. And then raising funds through a token sale. And so, from my perspective, it's obviously cleaner to do it the traditional way. Because you're not dealing with unclear SEC rules, right. It's very clear how you do a preferred stock financing. We do that every day. So to the extent that companies are in that position where they can choose, it's certainly cleaner to do it the traditional way. >> If you pull off an ICO, god bless you. It's certainly equity-free, tokens. There's no equity to token, if you're a utility token. >> Right. >> Okay, so I was reading about the Delaware, Delaware was allowing companies to use Blockchain. >> Mm hmm. >> This is right up your alley. So, they're not doing ICO's. So can you clarity the Delaware situation relative to Blockchain, cause they're using a Blockchain from a ledger standpoint, but it's not an ICO haven yet. So talk about the Delaware situation. >> Correct, so the Delaware amendments, which I believe are now approved, as of a couple of months ago, over the summer, essentially allow the cap table ledger to be on the Blockchain. So they're kind of ahead of everything, right. Because, you know. So, for like, for example, a few years ago, no one had uncertificated stock certificates. Everybody wanted the physical stock certificates. And now most companies, that we represent, >> They want digital. >> Exactly, digital, uncertificated stock certificates. But there is a ledger and there is a record of it. You just don't have the fancy paper with the pretty legend on it. So I think technology is moving and the law needs to as well. So part of that is Delaware kind of getting onboard. >> Delaware's got a great opportunity, they can nail the ICO's. Well, Mitzi, thanks for coming, I really appreciate it. Any other observations that you'd like, that you see in the market that you'd like to share? Take a minute to talk about what you're doing at Goodwin, as well. What's going on, what's happening? >> Yeah, I mean I think it's a really exciting time, we're really excited to be a part of it. It's cutting edge work. I think that there's a lot of, I guess, what I would call kind of your more traditional clients that we have, that we take calls from every day. Whether that's investment banks, or VC funds, private equity funds, or just our venture backed companies that are curious as to what is this all about. >> Yeah. >> So I think it's really exciting and I'm glad to be a part of it. I don't think that it is going to stop. I think that certainly there's likely to be more regulation about how you do one of these ICO's, one of these token generation events, you know, within the confines of the law. But I don't see it stopping. >> You don't see it stopping at all? >> No, I mean I think once there's more regulation, there'll be more clarity about how to do it. And how to do it within the confines of the law, which we try to do, obviously, you know, given that there's not a ton of clear guidance. But I think that, I think the ship has sailed. >> Yeah, well this is a great conversation here with Goodwin, formerly Goodwin Proctor, Mitzi Chang, partner, she's a securities attorney. We should call this show Billable Hours. Because we're getting some free legal opinions and conversations, thanks for coming on, appreciate it. >> Thanks for having me. >> Blockchain is hot, entrepreneurs are using it. All the top tier one entrepreneurs are looking at this. Great opportunity, similar with the Web One dato, the TC IP era of the internet, Blockchain. It's fundamental infrastructure for the future of decentralization, so. Great opportunities, causing lots of innovation. Check with your attorneys, obviously Goodwin, and a few others all doing great ICO's. Great potential fundraising, but also great business opportunities. Thanks again, appreciate it. >> Thank you. >> So Cube Conversations here, in Palo Alto, I'm John Furrier, thanks for watching. (electronic music)