Judge Rebuffs Bid for Temporary Freeze of Tezos Assets
U.S. District Judge Richard Seeborg said investor Bruce MacDonald had failed to show that he'd be irreparably harmed without a temporary restraining order freezing funds in the stalled ICO.
December 19, 2017 at 04:51 PM
3 minute read
SAN FRANCISCO — A federal judge on Tuesday turned back a bid by an investor to temporarily freeze $1 billion worth of cryptocurrency and funds tied up in the blockchain startup Tezos.
U.S. District Judge Richard Seeborg of the Northern District of California, who is overseeing a group of related lawsuits against the Swiss Foundation and California startup behind Tezos' initial coin offering (ICO), said that lawyers for Tezos investor Bruce MacDonald had failed to show that he'd be irreparably harmed without a temporary restraining order freezing funds.
Seeborg said that at best MacDonald could point to “internecine” squabbles within the Tezos Foundation, the Swiss entity formed to carry out the ICO, and Dynamic Ledger Solutions, the company set up by husband-and-wife Arthur and Kathleen Breitman to develop the underlying blockchain technology. But the judge added that MacDonald's lawyers hadn't pointed to “any evidence” of the sort of “looting” they claimed supported their call for him to intervene.
“The funds are there and the funds appear to not be able to be moved even if someone wanted to move them,” Seeborg said. Most of the funds raised from investors are in bitcoin or ether, but the foundation also has about $78 million in currency, mostly in Swiss francs, which was cashed out to diversify its holdings, said the foundation's lawyer, Neal Potischman of Davis Polk & Wardwell. Potischman said that less than $1 million of its funds had been spent so far aside from legal fees.
Seeborg also seemed skeptical of letting MacDonald's lawyers at Block & Leviton temporarily represent all investors for the purposes of the TRO. MacDonald invested just $5,000 in cryptocurrency in the ICO, Seeborg pointed out, an amount the judge's clerk calculated had grown in value to $18,000 since his time of investment. Also representing the plaintiff are lawyers at Hagens Berman Sobol Shapiro.
Although Seeborg denied MacDonald's TRO request at the conclusion of the hearing, he did indicate that he's “skeptical” of the Tezos defendants' argument that Tezos purchases should be treated as charitable donations rather than investments in unregistered securities.
He also noted press reports detailing disputes between foundation board members and the Breitmans seem to indicate “this whole structure, if you will, is in turmoil at the moment.”
Seeborg also had pointed questions for Dynamic Ledger Solutions' lawyer, Patrick Gibbs of Cooley, about who ultimately has the authority to spend the money raised so far, questions that don't have easy answers in the decentralized blockchain governance structure behind Tezos.
“I will say that when we move forward in this matter I will be asking perhaps the outdated questions about who's calling the shots and where and why,” Seeborg said. “I'm a little mystified about how this is all operating.”
One of the related lawsuits currently before Seeborg is set for a preliminary injunction hearing in early January. Where MacDonald's lawsuit only seeks claims under California state law, the remaining lawsuits all bring claims under federal securities laws.
Brian Klein of Baker Marquart, who is also representing the Breitmans and Dynamic Ledger Solutions, said in a statement he was “pleased” with Seeborg's ruling. “This was a misguided attempt by the plaintiff and his lawyers to try to halt a project—the Tezos protocol—that so many around the world want to see succeed, including Arthur and Kathleen Breitman and DLS. They will continue to aggressively defend themselves.”
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