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Some crypto assets are securities in Kwon Luna case: Manhattan judge

Hon Chang-joon, business partner of Do Kwon, the cryptocurrency entrepreneur who created the failed Terra (UST) stablecoin, is taken to court in Podgorica, Montenegro, March 24, 2023. 

Stevo Vasiljevic | Reuters

Cryptocurrencies are considered securities regardless of how they are sold, a Manhattan federal judge said in an opinion, allowing the Securities and Exchange Commission to pursue securities charges against Terraform Labs and its founder Do Kwon.

The opinion, issued by U.S. District Judge Jed Rakoff on Monday, contradicts an earlier ruling from the same district court that said Ripple, another cryptocurrency, may not be categorized as a security in all circumstances. It will not impact the prior opinion.

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The judge’s decision, part of litigation between the SEC and Kwon, will likely inform any appeals made between the federal financial regulator and private sector crypto firms under government scrutiny, including Ripple.

Kwon and Terraform Labs are accused of committing a massive fraud upon investors through the unregistered offer and sale of multiple cryptoassets, including Luna and a stablecoin called TerraUSD.

“The Court declines to draw a distinction between these coins based on their manner of sale, such that coins sold directly to institutional investors are considered securities and those sold through secondary market transactions to retail investors are not,” Rakoff said of the prior ruling in the case. “In doing so, the Court rejects the approach recently adopted by another judge of this district in a similar case.”

Shares of crypto exchange Coinbase are down about 3% in pre-market trading.

The SEC has pursued numerous other crypto firms over the alleged unregistered offer and sale of securities, including Coinbase, Gemini and Genesis.

CNBC’s Lora Kolodny contributed to this report.

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