(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)