Todd R. Kornfeld, of counsel in the Financial Services Practice Group of Pepper Hamilton, was quoted in the May 31, 2017 The Atlantic article, "The Rise of Cryptocurrency Ponzi Schemes."
Buyer expectations may matter more to regulators than technical hair-splitting. Todd Kornfeld, a securities specialist at the law firm Pepper Hamilton, finds precedent in the landmark 1946 case SEC v. W.J. Howey Co. Howey, a Florida orange-growing operation, was selling grove plots and accompanying “service contracts” that paid faraway landowners based on the orange harvest’s success. When the SEC closed in, Howey argued they were selling real estate and services, not a security. But the Supreme Court ultimately disagreed, establishing what’s known as the Howey test: In essence, if you give someone else money in the hope that their activities will generate a profit on your behalf, you’ve just bought a security, no matter what the seller calls it.
According to Kornfeld, even those who believe they are conducting ICOs in complete good faith could face serious repercussions when regulators do act, especially if prosecutors think they’ve made misleading statements. “If [prosecutors] think that you’re really bad,” he says. “They can say, hey, you deserve 20 years in jail.”