SEC Motion For Judgement

Case 1:19-cv-05244-AKH Document 26 Filed 10/24/19 Page 1 of 33
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
U.S. SECURITIES AND EXCHANGE

COMMISSION,
Plaintiff, Case No. 19-cv-5244 (AKH)
vs.
KIK INTERACTIVE INC.
Defendant.
MEMORANDUM OF LAW OF PLAINTIFF U.S. SECURTIES AND EXCHANGE

COMMISSION IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS
AS TO DEFENDANT KIK INTERACTIVE INC.’S FIRST DEFENSE
Stephan J. Schlegelmilch
David S. Mendel
Laura D’Allaird
U.S. SECURITIES AND EXCHANGE COMMISSION
100 F Street, N.E.
Washington, DC 20549-5971
(202) 551-4935 (Schlegelmilch)
(202) 551-4418 (Mendel)
(202) 551-5475 (D’Allaird)
SchlegelmilchS@SEC.gov
MendelD@SEC.gov
DAllairdL@SEC.gov
Counsel for Plaintiff

TABLE OF CONTENTS
I. PRELIMINARY STATEMENT....................................................................................................... 1
II. STATEMENT OF FACTS ............................................................................................................... 4
A. The Registration Provisions of the Securities Laws and the Howey Test ..................................4
B. The DAO Report and SEC Enforcement Actions Involving ICOs .........................................6
C. The SEC’s Complaint Against Kik .................................................................................................7
D. Kik’s Answer to the Complaint.......................................................................................................7
1. Having Spent Most Of Its Venture Capital Money,

Kik Publicly Announced Kin And Then Ran A Roadshow ..................................................8
2. Kik Explicitly Considered The Application Of

The Howey Test To The Offering and Sale ..............................................................................8
3. Kik Told Prospective Kin Buyers About The Opportunity To Profit And Its Own
Future Plans To Increase Demand For Kin and “To Spark The Creation Of This
Ecosystem” ...................................................................................................................................9
4. Kik Sold Kin and “Rights to Kin”And Made $100 Million .............................................. 10
5. Kik And The Kin Foundation Controlled 90 Percent of Kin

Distributed in September 2017 ............................................................................................. 11
6. Kik Did Not Register the Offering And Sale And Did Not Publicly
Disclose Its Financial Statements .......................................................................................... 11
III. ARGUMENT ...................................................................................................................................12
A. The Standard Under Rule 12(c) ……………………………................................................... 12
B. The Standard for Unconstitutional Vagueness ........................................................................13
C. “Investment Contract” Is Not Unconstitutionally Vague As Applied to Kik ..................... 14
1. Kik Had Constitutionally Fair Notice That It Was Offering and

Selling Investment Contracts................................................................................................. 15
a. Kik’s Admitted Conduct Created High Risk That Kik Was Offering
And Selling Investment Contracts Under Howey ......................................................... 16
i
b. The DAO Report Provided Kik Additional Notice ................................................... 19
c. Kik Understood Its Legal Risk And Did Not Seek Clarifying
Guidance From The SEC ............................................................................................... 20
2. The Term “Investment Contract” Provides Explicit Standards...................................... 21
a. Kik’s Offering and Sale Falls Within The Core Of

Section 5’s Prohibition ..................................................................................................... 22
b. Section 5 and the Howey Test Do No Invite or Encourage

Arbitrary Enforcement .................................................................................................... 23
IV. CONCLUSION.................................................................................................................. 25
Exhibit 1 Defendant Kik Interactive Inc.’s First Set of Requests for the Production of
Documents to Plaintiff U.S. Securities and Exchange Commission
Exhibit 2 Proposed Order
ii
TABLE OF AUTHORITIES
Cases
Aldrich v. McCulloch Properties, Inc.,

627 F.2d 1036 (10th Cir. 1980) .................................................................................................. 17
Arriaga v. Mukasey,
521 F.3d 219 (2d Cir. 2008) ....................................................................................................... 13
Balestra v. ATBCOIN LLC,
380 F. Supp. 3d 340 (S.D.N.Y. 2019) .................................................................. 4, 17, 18, 19, 20
Boyce Motor Lines, Inc. v. United States,
342 U.S. 337 (1952) ................................................................................................................... 16
Bradley v. Fontaine Trailer Co.,
No. 06 Civ. 62 (WWE), 2009 WL 763548 (D. Conn. Mar. 20, 2009) ......................................... 12
Brodt v. Bache & Co., Inc.,
595 F.2d 459 (9th Cir.1978) ....................................................................................................... 17
Copeland v. Vance,
893 F.3d 101 (2d Cir. 2018) ............................................................................... 13, 14, 21, 22, 24
Davi v. Heckler,
No. 83 Civ. 2825, 1984 WL 62778 (E.D.N.Y. Nov. 21, 1984) ................................................... 13
Desiano v. Warner–Lambert & Co.,
467 F.3d 85 (2d Cir. 2006) ......................................................................................................... 12
Dickerson v. Napolitano,
604 F.3d 732 (2d Cir. 2010) ................................................................................................. 13, 14
Farrell v. Burke,
449 F.3d 470 (2d Cir. 2006) ........................................................................................... 22, 23, 24
General Media Comms v. Cohen,
131 F.3d 273 (2d Cir. 1997) ....................................................................................................... 14
Get Back Up, Inc. v. Detroit,
606 Fed. Appx. 792 (6th Cir. 2015) ........................................................................................... 13
Glen-Arden Commodities, Inc. v. Costantino,
493 F.2d 1027 (2d Cir. 1974) ................................................................................................. 3, 15
Heckler v. Chaney,
470 U.S. 821 (1985) ....................................................................................................................................... 24
Hill v. Colorado,
530 U.S. 703 (2000) ................................................................................................................... 13
In re Integrated Res. Real Estate Ltd. Partnerships Sec. Litig.,
850 F. Supp. 1105 (S.D.N.Y. 1993) ........................................................................................... 13
In re Matter of Munchee Inc.,
Exchange Act Release No. 10445, 2017 WL 6374434 (Dec. 11, 2017) ......................................... 6
Juster Assocs. v. City of Rutland, Vt.,
901 F.2d 266 (2d Cir. 1990) ....................................................................................................... 12
L-7 Designs, Inc. v. Old Navy, LLC,
647 F.3d 419 (2d Cir. 2011) ....................................................................................................... 12
Lake Tahoe Watercraft Recreation Ass’n v. Tahoe Reg’l Planning Agency,
24 F. Supp. 2d 1062 (E.D. Cal. 1998) ........................................................................................ 13
iii
Lorenzo v. SEC,
139 S. Ct. 1094 (2019) ................................................................................................................. 5
Lu v. Spencer,
No. 15 Civ. 30162 (MGM), 2016 WL 740407 (D. Mass. Feb. 24, 2016)..................................... 13
New Mexico Gas Co. v. Bernalillo County,
No. 14 Civ. 188 (WJ-KBM), 2014 WL 12783114 (D.N.M. Dec. 31, 2014)................................. 13
Ortiz v. N.Y.S. Parole in Bronx, N.Y.,
586 F.3d 149 (2d Cir. 2009) ....................................................................................................... 14
Revak v. SEC Realty Corp.,
18 F.3d 81 (2d Cir. 1994)........................................................................................................... 17
SEC v. Aaron,
605 F.2d 612 (2d Cir. 1979) ......................................................................................................... 5
SEC v. Aqua-Sonic Products Corp.,
687 F.2d 577 (2d Cir. 1982) ................................................................................................... 5, 15
SEC v. AriseBank,
No. 18 Civ. 186 (BML) (N.D. Tex. Jan. 30, 2018) ....................................................................... 6
SEC v. Blockvest,
No. 18 Civ. 2287-(GPB-BLM), 2019 WL 625163 (S.D. Cal. Feb. 14, 2019) ................................. 4
SEC v. Blockvest,
No. 18 Civ. 2287 (GPC-BLM) (S.D. Cal. Oct. 3, 2018) ............................................................... 6
SEC v. Brigadoon Scotch Distributing Co.,
480 F.2d 1047 (2d Cir. 1973) ................................................................................................. 3, 15
SEC v. C.M. Joiner Leasing Corp.,
320 U.S. 344 (1943) ................................................................................................................... 18
SEC v. Cavanagh,
1 F. Supp. 2d 337 (S.D.N.Y. 1998) .............................................................................................. 5
SEC v. Edwards,
540 U.S. 389 (2004) ......................................................................................................... 5, 16, 17
SEC v. Glenn W. Turner Ent., Inc.,
474 F.2d 476 (9th Cir. 1973) ...................................................................................................... 18
SEC v. Howey,
328 U.S. 293 (1946) ............................................................................................... 1, 5, 15, 16, 18
SEC v. Koscot Interplanetary, Inc.,
497 F.2d 473 (5th Cir. 1974) ........................................................................................................ 5
SEC v. PlexCorps,
No. 17 Civ. 7007 (CBA) (E.D.N.Y. Dec. 1, 2017) ....................................................................... 6
SEC v. Ralston Purina Co.,
346 U.S. 119 (1953) ..................................................................................................................... 5
SEC v. ReCoin Group Foundation, LLC,
No. 17 Civ. 5725 (RD) (E.D.N.Y. filed Sept. 29, 2017) ............................................................... 6
SEC v. SG Ltd.,
265 F.3d 42 (1st Cir. 2001) ...................................................................................................... 4, 5
SEC v. Shavers,
No. 13 Civ. 416, 2014 WL 12622292 (E.D. Tex. Aug. 26, 2014)................................................. 16
SEC v. Telegram Group Inc.,
No. 19 Civ. 9439 (PKC) (S.D.N.Y. Oct. 11, 2019) ...................................................................... 6
iv
SEC v. Zandford,
535 U.S. 813 (2002) ................................................................................................................... 15
Sellers v. M.C. Floor Crafters, Inc.,
842 F.2d 639 (2d Cir. 1988) ....................................................................................................... 12
Solis v. Latium Network, Inc.,
No. 18 Civ. 10255 (SDW-SCM), 2018 WL 6445543 (D. N.J. Dec. 10, 2018) ......................... 4, 18
State of New York v. United Parcel Service, Inc.,
160 F. Supp. 3d 629 (S.D.N.Y. 2016) ........................................................................................ 12
United Hous. Found., Inc. v. Forman,
421 U.S. 837 (1975) ............................................................................................................... 5, 18
United States v. Bowdoin,
770 F. Supp. 2d 142 (D.D.C. 2011) ........................................................................................... 15
United States v. Farhane,
634 F.3d 127 (2d Cir. 2011) ........................................................................................... 21, 22, 23
United States v. Farris,
614 F.2d 634 (9th Cir. 1979) ...................................................................................................... 15
United States v. Kay,
513 F.3d 432 (5th Cir. 2007) ................................................................................................ 16, 24
United States v. Leonard,
529 F.3d 83 (2d Cir. 2008) ............................................................................................... 5, 15, 18
United States v. Smith,
985 F. Supp. 2d 547 (S.D.N.Y. 2014) .................................................................................. 13, 14
United States v. Washam,
312 F.3d 926 (8th Cir. 2002) ...................................................................................................... 20
United States v. Zaslavskiy,
No. 17 Cr. 647 (RJD), 2018 WL 4346339 (E.D.N.Y. Sept. 11, 2018) .................................. passim
Uselton v. Commercial Lovelace Motor Freight, Inc.,
940 F.2d 564 (10th Cir. 1991) .................................................................................................... 16
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489 (1982) ....................................................................................................... 14, 21, 24
Statutes
15 U.S.C. § 77a ...................................................................................................................................................4
15 U.S.C. § 77b ...................................................................................................................................................5
15 U.S.C. § 77e ...................................................................................................................................................4
15 U.S.C. § 78c ...................................................................................................................................................5
Other Authorities
H.R. Rep. No. 85, 73d Cong., 1st Sess., 11 (1933)........................................................................................5
v
Report of Investigation Pursuant to Section 21(a) of the

Securities Exchange Act of 1934: The DAO,
Release No. 81207, 2017 WL 7184670 (July 25, 2017) ................................................................ passim
Rules
Fed. R. Civ. P. 12(b)(6)................................................................................................................................... 12
Fed. R. Civ. P. 12(c) .................................................................................................................................... 1, 12
Fed. R. Civ. P. 26(a)(1) ................................................................................................................................................. 3
vi
Pursuant to Fed. R. Civ. P. 12(c), Plaintiff U.S. Securities and Exchange Commission (the
“Commission” or “SEC”) respectfully submits this memorandum of law in support of its motion for
judgment on the pleadings with respect to Defendant Kik Interactive Inc.’s (“Kik”) First Affirmative
Defense. This defense asserts that, notwithstanding 70-plus years of well-settled jurisprudence, the
term “investment contract” in the securities laws is void for vagueness as applied to Kik’s investment
scheme. This claim is untenable and should be dismissed.
I. PRELIMINARY STATEMENT
The Commission seeks judgment on the pleadings so that Kik cannot use a baseless
affirmative defense as a justification for irrelevant and burdensome discovery – for example, Kik’s
recent sweeping requests for production of all communications with third parties relating to, inter alia,
every SEC investigation concerning a digital token, and effort to depose the Director of the
Commission’s Division of Corporation Finance and other senior SEC officials. By deciding this
purely legal issue at this early juncture, the Court will narrow the number of disputes that arise during
discovery and facilitate the presentation of only relevant legal and factual issues at the summary
judgment stage.
The Commission brought this action claiming that Kik violated Section 5 of the Securities Act
of 1933 (the “Securities Act”) by conducting an unregistered offering and sale of securities when, from
May to September 2017, Kik offered and sold one trillion digital tokens called “Kin.” Through this
offering and sale (the “Offering and Sale”), Kik raised $100 million, over half of which came from
investors in the United States. By failing to register the Offering and Sale, Kik deprived the thousands
of people who bought Kin the protections and required disclosures under the Securities Act.
The Kin Offering and Sale was an offering and sale of securities under the Supreme Court’s
70-year-old decision in SEC v. Howey, 328 U.S. 293 (1946). In Howey, the Court held that an
“investment contract” – a specific type of security listed in the Securities Act – is “an investment of
money in a common enterprise with profits to come solely from the efforts of others.” Id. at 301.
Decades of court cases have explained and applied Howey to determine whether a multitude of
investment schemes qualified as investment contracts. The Commission’s complaint alleges all of the
facts necessary for this Howey framework.
Although it strikes an indignant tone, Kik’s answer to the complaint actually admits many key
facts demonstrating that the Howey test was met, or – at a minimum – presenting an obvious risk that
Howey would apply. Kik also concedes that it conducted the distribution of Kin in late September
2017 – two months after the SEC issued its Report of Investigation pursuant to Section 21(a) of the
Exchange Act, known as the “DAO Report.” See Report of Investigation Pursuant to Section 21(a) of the
Securities Exchange Act of 1934: The DAO, Release No. 81207, 2017 WL 7184670 (July 25, 2017). The
DAO Report stated the SEC’s view that digital assets like Kin may be securities, and that the federal
securities laws and registration requirements “apply to those who offer and sell securities in the United
States, regardless whether the issuing entity is a traditional company or a decentralized autonomous
organization, regardless whether those securities are purchased using U.S. dollars or virtual currencies,
and regardless whether they are distributed in certificated form or through distributed ledger
technology.” Id. at *14. In this regard, the DAO Report was wholly consistent with decades of Howey
jurisprudence.
Kik further admits that “Risks” of “Securities law” were referenced in a presentation to its
Board of Directors, and that Howey was at least mentioned when Kik met with regulators in Canada
about the Offering and Sale. After this meeting, Kik decided to not to sell Kin to persons in Canada
because of regulatory concerns, though it proceeded with the sale in the United States.
Despite longstanding judicial precedent, the DAO Report, and its numerous admissions
regarding its contemporaneous awareness of the Howey issue, Kik contends that the phrase
“investment contract” is “unconstitutionally vague.” Answer at 118. Furthermore, Kik has relied on
2
its vagueness defense as the sole justification for seeking voluminous irrelevant discovery against the
SEC. Such discovery includes subpoenas to three high-ranking officials in the SEC’s Division of
Corporation Finance, a notice of deposition against the agency under Federal Rule of Civil Procedure
30(b)(6), and requests for the production of many thousands of documents concerning digital assets
from throughout the agency, including other investigations and litigations, that are unrelated to the
complaint’s allegations. See, e.g., Kik’s First Set of Requests for the Production of Documents to
Plaintiff U.S. Securities and Exchange Commission (Exhibit 1). By all appearances, Kik is trying to
create an irrelevant sideshow about the SEC’s regulation of digital assets that diverts attention from
Kik’s illegal conduct. 1
Kik’s first defense fails as a matter of law, and the Court should dismiss the defense, thereby
streamlining the litigation by appropriately focusing discovery on the facts pertinent to whether or not
Kik offered and sold securities in violation of Section 5. This circuit’s Court of Appeals found long
ago that the “void for vagueness” defense, “[i]n light of the many Supreme Court decisions defining
and applying the term [investment contract] . . . to be untenable.” SEC v. Brigadoon Scotch Distributing
Co., 480 F.2d 1047, 1052 n.6 (2d Cir. 1973); accord Glen-Arden Commodities, Inc. v. Costantino, 493 F.2d
1027, 1029 (2d Cir. 1974) (rejecting as “untenable” the argument that the “term ‘investment contract’
in the statutory definition of the term ‘security’ in the federal securities laws was void for vagueness”).
Citing Brigadoon, a court in the Eastern District of New York recently denied a criminal defendant’s
vagueness challenge to his indictment for securities violations involving digital assets, finding:
1 Notably, Kik did not serve any discovery requests until September 2019, over six weeks after the
parties’ July 19, 2019 case management conference at which defense counsel represented that he “expect[ed] .
. . very limited written discovery” in the case – a statement totally at odds with what Kik then did. Moreover,
Kik did not state its intention to depose SEC employees until September 25, 2019, over six weeks after Kik
served initial disclosures under Fed. R. Civ. P. 26(a)(1) that made no mention of SEC employees or the
agency having “discoverable information that Kik may use to support its defenses.” Through such delay, Kik
further exacerbated the burden and harassing nature of the requested discovery because of the already short
(four and one-half month) fact discovery period set by the Court at Kik’s request.
3
[T]he test expounded in Howey has – for over 70 years – provided clear
guidance to courts and litigants as to the definition of ‘investment contract’
under the securities laws. . . . [T]he abundance of caselaw interpreting and
applying Howey at all levels of the judiciary, as well as related guidance issued
by the SEC as to the scope of its regulatory authority and enforcement power,
provide all the notice that is constitutionally required.
United States v. Zaslavskiy, No. 17 Cr. 647 (RJD), 2018 WL 4346339, at *9 (E.D.N.Y. Sept. 11, 2018)
(Dearie, J.) (internal citations omitted). Moreover, like the court in Zaslavskiy, other courts have ruled
favorably on allegations that offerings and sales of digital assets are offerings and sales of securities
under Howey. See, e.g., Balestra v. ATBCOIN LLC, 380 F. Supp. 3d 340, 357 (S.D.N.Y. 2019) (denying
motion to dismiss); SEC v. Blockvest, No. 18 Civ. 2287 (GPB-BLM), 2019 WL 625163, at *9 (S.D. Cal.
Feb. 14, 2019) (granting preliminary injunction); Solis v. Latium Network, Inc., No. 18 Civ. 10255 (SDW-
SCM), 2018 WL 6445543, at *3 (D.N.J. Dec. 10, 2018) (denying motion to dismiss).
This Court should follow suit and reject Kik’s vagueness claim. For decades courts have
interpreted the term “investment contract” in a “‘kaleidoscopic assortment of pecuniary arrangements
that defy categorization in conventional financial terms,’” Zaslavskiy, 2018 WL 4346339, at *9 (quoting
SEC v. SG Ltd., 265 F.3d 42, 47 (1st Cir. 2001)). These precedents, particularly in light of the DAO
Report and Kik’s admissions in its answer, provided constitutionally sufficient notice to Kik that the
Offering and Sale might violate the Securities Act, and they demonstrate that the Act does not
authorize or encourage arbitrary and discriminatory enforcement. Kik’s answer raises no material
issue of fact, and the Court should grant the SEC judgment on the pleadings as to Kik’s first defense.
II. STATEMENT OF FACTS
A. The Registration Provisions of the Securities Laws and the Howey Test
The registration regime imposed by the Securities Act, 15 U.S.C. §§ 77a, et seq., requires the
offer or sale of “securities” to the public to be accompanied by “full and fair disclosure” afforded by
a registration statement filed with the SEC and the delivery of a statutory prospectus. This regime
fulfills the statutory purpose to provide potential purchasers with the information essential to an
4
informed investment decision. See, e.g., SEC v. Cavanagh, 1 F. Supp. 2d 337, 360 (S.D.N.Y. 1998), aff’d,
155 F.3d 129 (2d Cir. 1998); SEC v. Aaron, 605 F.2d 612, 618 (2d Cir. 1979) (citing SEC v. Ralston
Purina Co., 346 U.S. 119, 124 (1952)), vacated on other grounds, 446 U.S. 680 (1980). Sections 5(a) and
5(c) of the Securities Act, which was enacted in 1933, prohibit the unregistered offer or sale of
“securities” in interstate commerce absent an exemption. 15 U.S.C. §§ 77e(a), (c); Compl. ¶ 3.
Under Section 2(a)(1) of the Securities Act, a security includes “an investment contract.” See
15 U.S.C. § 77b(a). 2 The Supreme Court has interpreted “investment contract” to mean an investment
of money in a common enterprise with a reasonable expectation of profits to be derived from the
entrepreneurial or managerial efforts of others. See SEC v. Edwards, 540 U.S. 389, 393 (2004); Howey,
328 U.S. at 301. This so-called “Howey test” is designed to be “flexible” and “capable of adaptation
to meet the countless and variable schemes devised by those who seek the use of the money of others
on the promise of profits.” Howey, 328 U.S. at 299; accord Lorenzo v. SEC, 139 S. Ct. 1094, 1103 (2019)
(quoting Howey); see also United Hous. Found., Inc. v. Forman, 421 U.S. 837, 847-48 (1975) (Congress
“sought to define ‘the term security in sufficiently broad and general terms so as to include within that
definition the many types of instruments that in our commercial world fall within the ordinary concept
of a security.’”) (quoting H.R. Rep. No. 85, 73d Cong., 1st Sess., 11 (1933)).
Thus, courts have found the Howey test to be satisfied with regard to non-stock and non-debt
interests in: orange groves in Howey itself; payphone leases, see Edwards, 540 U.S. at 389; licenses to sell
dental products, see SEC v. Aqua-Sonic Products Corp., 687 F.2d 577, 582 (2d Cir. 1982); films, see United
States v. Leonard, 529 F.3d 83, 87-91 (2d Cir. 2008); and multi-level marketing, see SEC v. Koscot
Interplanetary, Inc., 497 F.2d 473, 478-79 (5th Cir. 1974). Notably, Howey has been satisfied where a
promotor offered “virtual shares in an enterprise existing only in cyberspace.” SG Ltd., 265 F.3d at
2 Section 3(a)(10) of the Securities Exchange Act of 1934 (the “Exchange Act”) also defines “security”
to include “investment contract.” See 15 U.S.C. § 78c(a).
5
44-59. That it is a fact-specific inquiry does not mean that such an inquiry is vague or deprives
regulated entities of notice of what is regulated. The Courts and the SEC have been applying the test
successfully for decades, and regulated entities conform their conduct accordingly.
B. The DAO Report and SEC Enforcement Actions Involving ICOs
In July 2017, the SEC issued the DAO Report regarding an ICO for so-called “DAO Tokens.”
In the DAO Report, the SEC explained that issuers of distributed ledger or blockchain technology-
based securities must register offers and sales of such securities unless a valid exemption from
registration applies. The DAO Report considered the offering and sale of DAO Tokens and
concluded that they were securities based on long-standing legal principles, and that offers and sales
of DAO Tokens were thus subject to the federal securities laws. The automation of certain functions
through “smart contracts” or computer code or other technology, the Report concluded, does not
remove conduct from the purview of the federal securities laws. Thus, the SEC’s message to issuers
and others in this space has been clear: those who would use distributed ledger or blockchain
technology to raise capital or engage in securities transactions must take all appropriate steps to comply
with the federal securities laws. See Zaslavskiy, 2018 WL 4346339, at *9 (relying on the DAO Report
as part of the “guidance issued by the SEC as to the scope of its regulatory authority and enforcement
power” that provides sufficient notice).
In addition to this action, the SEC has brought a number of enforcement actions concerning
ICOs for alleged violations of the federal securities laws. 3
3 See, e.g., SEC v. Telegram Group Inc., No. 19 Civ. 9439 (PKC) (S.D.N.Y. Oct. 11, 2019) (emergency
action to halt alleged unregistered offerings of digital assets); SEC v. Blockvest, No. 18 Civ. 2287 (GPC-BLM)
(S.D. Cal. Oct. 3, 2018) (emergency action to halt allegedly fraudulent and unregistered offerings of digital
assets); SEC v. AriseBank, No. 18 Civ. 186 (BML) (N.D. Tex. Jan. 30, 2018) (same); In re Matter of Munchee Inc.,
Exchange Act Release No. 10445, 2017 WL 6374434 (Dec. 11, 2017) (settled administrative proceeding
against unregistered ICO); SEC v. PlexCorps, No. 17 Civ. 7007 (CBA) (E.D.N.Y. Dec. 1, 2017) (emergency
action to halt allegedly fraudulent and unregistered ICO); SEC v. ReCoin Group Foundation, LLC, No. 17 Civ.
5725 (RD) (E.D.N.Y. filed Sept. 29, 2017) (same). These and other matters are listed on the SEC’s website.
See https://www.sec.gov/spotlight/cybersecurity-enforcement-actions.
6
C. The SEC’s Complaint Against Kik
On June 4, 2019, the Commission filed this action against Kik. Kik, a private Canadian
company founded in 2009, owned and operated a mobile messaging application called Kik Messenger.
As alleged in the complaint, by early 2017, Kik had spent most of its venture capital money. Unable
to make a profit from Kik Messenger and facing rapidly dwindling reserves, Kik decided to raise –
and did raise – significant new funds through the Offering and Sale. But Kik did not register the
Offering and Sale as required by Section 5 of the Securities Act, and the SEC’s complaint provides
detailed allegations demonstrating that the Offering and Sale was an offering and sale of investment
contracts under each of the Howey elements. Through this action, the SEC seeks an injunction against
Kik restraining and enjoining it from, directly or indirectly, violating Section 5; disgorgement of all ill-
gotten gains or unjust enrichment derived from the Offering and Sale; and an order that Kik pay a
civil penalty.
D. Kik’s Answer to the Complaint
On August 6, 2019, Kik filed a 130-page answer to the SEC’s complaint including the
affirmative defense that “if the phrase ‘investment contract’ is defined in a way that applies to Kik’s
offering and sale of Kin in 2017, the phrase is unconstitutionally vague.” Answer, First Defense, at
118. However, Kik’s lengthy response contains numerous factual admissions that Kik engaged in
conduct that, under any objective analysis, met all of Howey’s elements for “investment contract” – or,
at the barest minimum, presented an obvious risk that these elements would be satisfied. These
admissions alone render Kik’s vagueness defense untenable. The defense also is foreclosed by Kik’s
admissions that Kik had anticipated – and planned for – the possibility that government regulators
would conclude that Kik offered and sold securities, thus showing that Kik was aware of the risk all
along.
7
The following summary of events is based solely on the admissions in Kik’s answer and
demonstrates that relief under Rule 12(c) is appropriate at this juncture. Kik was on notice that the
Commission and U.S. courts could apply the Securities Act and decades of Supreme Court precedent
to any large-scale offering to U.S. investors such as Kik’s. 4
1. Having Spent Most Of Its Venture Capital Money, Kik Publicly

Announced Kin And Then Ran A Roadshow
Although Kik received at least $120 million in financing from venture capital firms, Answer
¶ 35, by early 2017, the company had roughly $26 million in cash remaining, id. ¶ 41. A May 2017
presentation to Kik’s Board of Directors referenced a “Total Raise Target” of $100 million for the
Offering and Sale. Id. ¶¶ 54, 55, 57. On May 25, 2017, Kik announced a plan to offer and sell Kin
through publishing a “white paper,” issuing press releases, and the CEO’s “fireside chat” at a New
York City conference, and also posted on social media and released a produced video that was posted
to YouTube. Id. ¶¶ 8, 13, 62, 63. Additionally, “Kik planned a ‘Participant Roadshow’” such that,
after the May 25, 2017 announcements, Kik “advertised the Kin economy” by having “its employees
attend[] events in San Francisco, China, the United Kingdom and Canada” – “[m]any” of which “were
videotaped and posted on YouTube.” Id. ¶¶ 69-70.
2. Kik Explicitly Considered The Application Of The Howey Test To

The Offering and Sale
Even prior to the commencement of the Offering and Sale, Kik considered whether it would
run afoul of the Howey test. On or about April 3, 2017, Kik’s consultant delivered a report stating:
“[t]he SEC has yet given no guidance that any particular token offering is a security, and this guidance
is not expected in the near future. The SEC would potentially apply the Howey Test to determine if the
4
The Commission does not concede that this summary based on Kik’s answer includes all relevant
facts, or that all of the stated facts are true. The Commission reserves the right to show additional material
facts about which there is no genuine dispute after discovery is completed, and to prove additional, relevant
facts at trial.
8
sale of such tokens would constitute an ‘investment contract.’” Id. ¶ 97. “Kik’s consultant did
acknowledge that ‘unregistered public securities offerings are not legal in the U.S.,’” id., but, Kik
explains, the consultant “also told Kik that ‘[i]n the case of a community currency, there is a good
basis to argue that this is not a security. You’re just selling units of property that you created that are
used for a particular purpose in your app.’” Id. On April 10, 2017, PowerPoint slides provided to
Kik’s Board included the statement that a Kin offering that raised “millions” and “was highly marketed
to users and the public at large . . . risk[ed] becoming a security in the eyes of the SEC very quickly.”
Answer ¶ 97; Compl. ¶ 97 (setting forth admitted quotations).
On or about May 5, 2017, Kik’s CEO sent the Kik Board a slide deck, in which one slide was
titled, “Risks: (1) Securities law.” Answer ¶ 98. In August or September 2017, Kik representatives
met with the Ontario Securities Commission (“OSC”) to discuss Kik’s sale of Kin, and at least one of
the issues they discussed was Howey. Id. ¶ 108. Kik’s Canadian counsel later wrote a letter to the OSC
stating, “OSC staff definitively communicated [to Kik’s outside counsel] a position that the [sale to
the public of Kin] constituted an offering of securities.” Id. ¶ 109. Kik did not allow Canadian
residents to purchase Kin in Kik’s “Token Distribution Event” based in part on its discussions with
the OSC. Id. ¶ 110.
3. Kik Told Prospective Kin Buyers About The Opportunity To Profit And
Its Own Future Plans To Increase Demand For Kin and “To Spark The
Creation Of This Ecosystem”
In the months following the May 25, 2017 announcement, Kik made numerous public
statements about Kin. Through these and the May 25 public statements, Kik objectively
communicated an opportunity to profit by: comparing Kin to venture capital investing, id. ¶ 75; stating
that it expected Kin to trade on secondary markets, and that Kin are fungible and transferable, id. ¶¶
80, 81, 83; emphasizing its own financial interest in growing the value of Kin because of Kik’s 30
percent stake in Kin, id. ¶¶ 115, 116, 117; stating that “[t]he Kin token offering presents a unique
9
opportunity for crypto investors . . . .,” id. ¶ 164; and “acknowledge[ing] that the price of Kin could
increase or decrease as a function of supply and demand, like in any economy,” id. ¶ 65.
Kik’s admitted public statements also described Kik’s expertise, its future commitment to the
Kin “economy,” and the future steps that Kik would take to increase demand for Kin and “to spark
the creation of this Ecosystem.” Kik provides these admissions at least in response to complaint
paragraphs 121, 122, 123, 124, 125, 128, 129, 131, 136, 138, 139, 142, 144, 145, 147, 148, 151, 152,
153, and 161; see also Answer paragraphs 135, 137, 138, and 141. 5
4. Kik Sold Kin and “Rights to Kin” And Made $100 Million
On or about August 29, 2017, Kik publicly announced deadlines and procedures by which
members of the public could participate in Kik’s upcoming “token distribution event.” Answer ¶¶
160-161; Compl. ¶¶ 160-161. Between September 12 and September 26, 2017, Kik sold Kin to
purchasers – including purchasers from the United States – who paid Ether in exchange for Kin
tokens. Answer ¶¶ 13, 171-172.
Approximately 10,000 total purchasers bought Kin in the token distribution event in exchange
for a total of 168,732 Ether, which was then worth approximately $49.2 million. Id. ¶ 172. Three
thousand, four hundred, and fifty-six (3,456) of these purchasers were from the United States, and
these purchasers accounted for approximately $16.8 million in Ether. Id. In addition, through
September 11, 2017, Kik entered into Simple Agreements For Future Tokens (“SAFTs”) with
approximately 50 “participants,” and received approximately $49 million in U.S. dollars, including
approximately $40 million from “participants” in the United States. Id. ¶¶ 15, 93, 157. On September
5
Because of a numbering error in Kik’s answer, paragraphs 132 through 141 of Kik’s answer
correspond to paragraphs 133 through 142 of the SEC’s complaint, respectively. With respect to the
paragraphs cited in the text, paragraph 136 of the complaint is answered by Kik’s paragraph 135; complaint
paragraph 138 is answered by Kik’s paragraph 137; complaint paragraph 139 is answered by Kik’s paragraph
138; and complaint paragraph 142 is answered by Kik’s paragraph 141. Kik failed to answer complaint
paragraph 132.
10
26, 2017, Kik issued a press release entitled “Kik Raises Nearly US$100 Million in Kin Token
Distribution Event” that stated: “the Kin token distribution event (TDE) has successfully ended,
raising nearly US$100 million.” Id. ¶ 176.
Kik deposited the proceeds from the sale of Kin into two bank accounts and Kik’s Ether
wallet, all of which Kik controlled. Id. ¶¶ 186, 188.
5. Kik And The Kin Foundation Controlled 90 Percent of Kin Distributed

in September 2017
Kik arranged for the distribution of Kin that occurred on September 26, 2017. Id. ¶¶ 14, 177.
Kik received four trillion Kin, of which Kik kept three trillion – 30 percent of the total Kin created.
Id. ¶¶ 10, 178. Kik then transferred the other one trillion Kin to the approximately 10,000 general
public purchasers and the approximately 50 “participants” who purchased Kin using Kik’s SAFT. Id.
¶ 178. 6 In addition, six trillion Kin was distributed to the Kin Foundation. Id. ¶ 179. 7 All Kin tokens
are the same. Id. ¶ 180.
6. Kik Did Not Register The Offering And Sale And Did Not Publicly
Disclose Its Financial Statements
Kik did not register its sales of Kin via SAFTs or through its public sale with the Commission,
nor did Kik restrict United States purchasers from buying Kin. Id. ¶ 111. Kik did not publicly disclose
its financial statements. Id. ¶ 68.
6
Pursuant to the terms of the SAFTs, however, only half of the Kin purchased via SAFTs were
delivered; the other half were to be delivered on the one-year anniversary of the distribution. Answer ¶¶ 14,
178.
7
Although Kik maintains that the Kin Foundation was “a separate legal entity,” the Kin Foundation
was not formed until September 12, 2017, and, “initially, the Kin Foundation’s Board of Directors consisted
of Kik CEO Livingston and Kik’s then-CFO, in their individual capacities.” Answer ¶¶ 34, 179.
11
III. ARGUMENT
A. The Standard Under Rule 12(c)
Federal Rule of Civil Procedure 12(c) (“Rule 12(c)”) provides that “[a]fter the pleadings are
closed—but early enough not to delay trial—a party may move for judgment on the pleadings.”
Courts review a Fed. R. Civ. P. 12(c) motion for judgment on the pleadings under the same standard
used for analyzing a Fed. R. Civ. P. 12(b)(6) motion to dismiss. Desiano v. Warner–Lambert & Co., 467
F.3d 85, 89 (2d Cir. 2006). “Judgment on the pleadings is appropriate where material facts are
undisputed and where a judgment on the merits is possible merely by considering the contents of the
pleadings.” Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988). Under Rule 12(c), the
movant bears the burden of establishing “that no material issue of fact remains to be resolved and
that it is entitled to judgment as a matter of law.” Juster Assocs. v. City of Rutland, Vt., 901 F.2d 266, 269
(2d Cir. 1990) (internal quotations and citations omitted). On motion under Rule 12(c), the Court
may consider “the complaint, the answer, any written documents attached to them, and any matter of
which the court can take judicial notice for the factual background of the case.” L-7 Designs, Inc. v. Old
Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (internal quotation omitted).
A motion under Rule 12(c) may be brought by a plaintiff, as the SEC does here, seeking
judgment as to some or all affirmative defenses. See Bradley v. Fontaine Trailer Co., No. 06 Civ. 62
(WWE), 2009 WL 763548 at *1-*3, *6 (D. Conn. Mar. 20, 2009) (granting judgment on the pleadings
as to three affirmative defenses); State of New York v. United Parcel Service, Inc., 160 F. Supp. 3d 629, 638
(S.D.N.Y. 2016) (“Although Rule 12(c) neither specifically authorizes nor prohibits motions for
judgment on the pleadings directed to less than the entire complaint or answer . . . it is the practice of
many judges to permit partial judgment on the pleadings (e.g. on the first claim for relief, or the third
affirmative defense)” (internal quotation marks and citations omitted)), vacated in part on other grounds,
2016 WL 10672074 (S.D.N.Y. June 21, 2016).
12
Courts routinely grant Rule 12(c) motions against void for vagueness claims. 8
B. The Standard for Unconstitutional Vagueness
Because Kik’s vagueness challenge has no First Amendment implications and is otherwise
unrelated to any assertion of constitutionally-protected rights, the challenge must be evaluated as the
Securities Act is applied to Kik’s particular circumstances. See Dickerson v. Napolitano, 604 F.3d 732,
744 (2d Cir. 2010) (concluding that parties were “limited to an as-applied vagueness challenge under
the Fourteenth Amendment” where neither First Amendment nor other fundamental rights were
implicated); Arriaga v. Mukasey, 521 F.3d 219, 224-25 (2d Cir. 2008) (“Claims of facial invalidity are
generally limited to statutes that threaten First Amendment interests.”).
Where, as here, the challenge is vagueness as-applied, “[a] statute can be impermissibly vague
for either of two independent reasons. First, if it fails to provide people of ordinary intelligence a
reasonable opportunity to understand what conduct it prohibits. Second, if it authorizes or even
encourages arbitrary and discriminatory enforcement.” Copeland v. Vance, 893 F.3d 101, 114 (2d Cir.
2018) (quoting Hill v. Colorado, 530 U.S. 703, 732 (2000)); see also Arriaga, 521 F.3d at 222-23 (same).
“Importantly, it is not only the language of a statute that can provide the requisite fair notice;
judicial decisions interpreting that statute can do so as well.” United States v. Smith, 985 F. Supp. 2d
547, 588 (S.D.N.Y. 2014) (collecting Supreme Court and Second Circuit authority). Whether by
statute or judicial gloss, “a law need not achieve meticulous specificity, which would come at the cost
of flexibility and reasonable breadth.” Dickerson, 604 F.3d at 747 (internal quotation marks omitted).
“[T]he unavoidable ambiguities of language do not transform every circumstance in which judicial
8 See, e.g., In re Integrated Res. Real Estate Ltd. Partnerships Sec. Litig., 850 F. Supp. 1105, 1114-16 (S.D.N.Y.
1993); Davi v. Heckler, No. 83 Civ. 2825, 1984 WL 62778, at *4 (E.D.N.Y. Nov. 21, 1984)); Get Back Up, Inc. v.
Detroit, 606 Fed. Appx. 792, 797-98 (6th Cir. 2015); Lake Tahoe Watercraft Recreation Ass’n v. Tahoe Reg’l Planning
Agency, 24 F. Supp. 2d 1062, 1073 (E.D. Cal. 1998); New Mexico Gas Co. v. Bernalillo County, No. 14 Civ. 188
(WJ-KBM), 2014 WL 12783114 (D.N.M. Dec. 31, 2014); Lu v. Spencer, No. 15 Civ. 30162 (MGM), 2016 WL
740407, at *1-3 (D. Mass. Feb. 24, 2016).
13
construction is necessary into a violation of the fair notice requirement.” Smith, 985 F. Supp. 2d at
587-88 (quoting Ortiz v. N.Y.S. Parole in Bronx, N.Y., 586 F.3d 149, 159 (2d Cir. 2009)).
Furthermore, “[t]he degree of linguistic precision . . . varies with the nature—and in particular,
with the consequences of enforcement.” General Media Comms. v. Cohen, 131 F.3d 273, 286 (2d Cir.
1997). Not only do statutes implicating First Amendment and other constitutionally protected rights
receive “more stringent” analysis, id., but, as the Supreme Court has explained,
[E]conomic regulation is subject to a less strict vagueness test because its

subject matter is often more narrow, and because businesses, which face
economic demands to plan behavior carefully, can be expected to consult
relevant legislation in advance of action. Indeed, the regulated enterprise may
have the ability to clarify the meaning of the regulation by its own inquiry, or
by resort to an administrative process.
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99 (1982) (internal citations
omitted); see also General Media, 131 F.3d at 286 (noting lower “standards of certainty” for statutes
“depending primarily upon civil sanction for enforcement”). And, because the test for
unconstitutional vagueness is an “‘objective’ inquiry,” the reviewing court need not determine
“‘whether a particular plaintiff actually received a warning that alerted him or her to the danger of
being held to account for the behavior in question.’” Copeland, 893 F.3d at 113 (quoting Dickerson, 604
F.3d at 745–46).
C. “Investment Contract” Is Not Unconstitutionally Vague As Applied to Kik
Kik’s defense that the term “investment contract” is unconstitutionally vague fails under this
doctrine. The statute provided Kik “fair notice” and did not invite or encourage “arbitrary
enforcement” against it.
14
1. Kik Had Constitutionally Fair Notice That It Was Offering and Selling
Investment Contracts
Kik cannot “demonstrate that a person of ordinary intelligence would not have sufficient
notice that the charged conduct was proscribed.” Zaslavskiy, 2018 WL 4346339, at *8. 9 First, “courts
are clear that the securities laws are meant to be interpreted ‘flexibly to effectuate their remedial
purpose.’” Id. at *9 (quoting SEC v. Zandford, 535 U.S. 813, 819 (2002)). Second, the Howey test itself
was designed to be “flexible” and “capable of adaptation,” and, for that reason, was specifically
intended to be a test dependent on the facts and circumstances of each case. Howey, 328 U.S. at 299;
see also Aqua-Sonic, 687 F.2d at 584 (the inquiry “necessarily turn[s] on the totality of the
circumstances”); Leonard, 529 F.3d at 87-91 (same).
Kik’s claim in its answer that it lacked fair notice – precisely because of Howey’s flexibility – flies
in the face of this Supreme Court guidance. Here, as in Zaslavskiy, “the abundance of caselaw
interpreting and applying Howey at all levels of the judiciary, as well as related guidance issued by the
SEC as to the scope of its regulatory authority and enforcement power, provide all the notice that is
constitutionally required.” Zaslavskiy, 2018 WL 4346339, at *9 (citing Brigadoon, 480 F.2d at 1052 n.6
and the DAO Report); see also Glen-Arden, 493 F.2d at 1029; United States v. Farris, 614 F.2d 634, 642
(9th Cir. 1979) (“It is too late in the day more than 32 years after the Supreme Court’s decision in
[Howey] to say that the term ‘security’ is impermissibly vague.”); United States v. Bowdoin, 770 F. Supp.
2d 142, 148 (D.D.C. 2011) (“The lineage of the term [investment contract] is too long and well-
recognized for Mr. Bowdoin’s 2011 claim of unconstitutional vagueness to stand.”).
9 The sale of digital assets at issue in Zaslavskiy concluded on September 11, 2017, two weeks prior to
the conclusion of Kik’s sale of Kin. See Zaslavskiy, 2018 WL 4346339 at *2.
15
a. Kik’s Admitted Conduct Created High Risk That Kik Was

Offering And Selling Investment Contracts Under Howey
Application of the Howey elements to the facts admitted by Kik in its answer demonstrates that
Kik’s vagueness defense is meritless. By its own admissions, Kik engaged in conduct that amounted
to an offering and sale of investment contracts under long-standing judicial precedents – or, at the
very least, conduct for which Kik had sufficient notice that Howey could apply. Kik had notice that
Kin buyers (i) made an investment of money, (ii) in a common enterprise, (iii) with a reasonable
expectation of profits, (iv) to be derived from the entrepreneurial or managerial efforts of others. See
Edwards, 540 U.S. at 393; Howey, 328 U.S. at 301.
It is not “unfair to require that one who deliberately goes perilously close to an area of
proscribed conduct shall take the risk that he may cross the line.” United States v. Kay, 513 F.3d 432,
442 (5th Cir. 2007) (citing Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 340 (1952)). Kik
unquestionably took this risk. The Court can grant the SEC’s Rule 12(c) motion by concluding that a
reasonable person in defendants’ position would be aware of the risk of Howey’s application, without
ultimately deciding whether Kik offered and sold “securities” under Howey.
First, “it is well established that cash is not the only form of contribution or investment that
will create an investment contract,” and that “the ‘investment’ may take the form of ‘goods and
services,’ . . . or some other ‘exchange of value.’” Uselton v. Commercial Lovelace Motor Freight, Inc., 940
F.2d 564 (10th Cir. 1991). Thus, in SEC v. Shavers, No. 13 Civ. 416, 2014 WL 12622292 (E.D. Tex.
Aug. 26, 2014), the court was “easily able to determine that Bitcoin [tokens] . . . satisfie[d] the
“investment of money” prong of the Howey test,” id. at *5. Here, Kik’s acceptance of U.S. dollars or
Ether for Kin similarly satisfies the “investment of money” prong. Answer ¶¶ 13, 15, 93, 157, 172;
supra Section II.D.4.
Second, the Second Circuit and other courts of appeals have long held that a showing of
“horizontal commonality” suffices to meet Howey’s requirement of investment in a “common
16
enterprise.” See Revak v. SEC Realty Corp., 18 F.3d 81, 87 (2d Cir. 1994) (“A common enterprise within
the meaning of Howey can be established by a showing of “horizontal commonality[.]”). “Horizontal
commonality” involves the “tying of each individual investor’s fortunes to the fortunes of the other
investors by the pooling of assets,” such that “the fortunes of each investor depend upon the
profitability of the enterprise as a whole.” Revak, 18 F.3d at 87. Although pooling of assets is “usually
combined with the pro-rata distribution of profits,” id., profit distribution is not required. See Balestra,
380 F. Supp. 3d at 354 (where plaintiff alleged sale of unregistered securities through initial coin
offering of a digital asset, a “formalized profit-sharing mechanism is not required for a finding of
horizontal commonality”).
Here, the common enterprise element is met by Kik’s admissions that the proceeds from its
sales of Kin were deposited into two bank accounts, see Answer ¶ 186, that Kik controlled these
proceeds, see id. ¶ 188, that Kik represented to investors that it would use the funds to build the “Kin
Ecosystem,” see id. ¶ 115, 122, 128, 148, and that all Kin were fungible or the same, see id. ¶ 80; see
generally supra Sections II.D.3, II.D.4. Thus, the fortunes of all Kin buyers were tied together by Kik’s
pooling of the funds that the buyers paid Kik, and their fortunes jointly depended on Kik’s ability to
drive up demand for – and hence the price of – Kin. 10
Third, Kik’s admissions demonstrate that it led Kin investors reasonably to expect profits.
“Profits” under Howey includes “capital appreciation resulting from the development of the initial
investment,” and does not require intervening profit distributions. Edwards, 540 U.S. at 395; see also,
e.g., Aldrich v. McCulloch Properties, Inc., 627 F.2d 1036, 1039 (10th Cir. 1980) (“That the plaintiffs did
10 In addition, the Second Circuit has left open the question whether the common enterprise element
may be met by a showing of “strict vertical commonality,” which “requires that the fortunes of investors be
tied to the fortunes of the promoter.” Revak, 18 F.3d at 88 (emphasis in original) (citing Brodt v. Bache & Co.,
Inc., 595 F.2d 459, 461 (9th Cir.1978)). Kik’s admissions plainly demonstrate strict vertical commonality,
because any increase in the value of Kin would benefit Kik, which retained three trillion Kin, alongside the
buyers who obtained Kin in the Offering and Sale.
17
not expect to realize any tangible gain until they sold their property does not preclude investment
intent.”). Whether a promoter such as Kik created an expectation of profits requires an evaluation of
the promoter’s various statements to investors. See SEC v. C.M. Joiner Leasing Corp., 320 U.S. 344, 352-
53 (1943). These include, in the ICO context, “advertising methods” and “public statements [that]
stressed the limited supply of tokens,” Solis, 2018 WL 6445543, at *3, and statements emphasizing the
availability of secondary markets for the tokens, see Balestra, 380 F. Supp. 3d at 355 n.14 (“Purchasers’
ability to resell ATB Coins on other exchanges also supports the conclusion that the coins are
securities.”).
Here, Kik led Kin buyers reasonably to expect profits by telling them that: Kin buyers could
(compared to venture capitalists) “get in at basically any stage and in any amount, and . . . get out at
any stage,” Answer ¶ 75; Kik expected Kin to trade on “exchanges,” id. ¶¶ 80-84; Kin’s supply would
be limited, id. ¶ 116; Kik itself had a financial interest in growing the value of Kin, id. ¶¶ 115-117; and
– after the DAO Report and just weeks before the public sale – “[t]he Kin token offering presents a
unique opportunity for crypto investors,” id. ¶ 164; see generally supra Sections II.D.3.
Fourth, Kik’s admissions demonstrate that that it led Kin investors reasonably to expect that
profits that resulted from Kin’s increase in value would be “derived from the entrepreneurial or
managerial efforts of others,” United Hous. Found., 421 U.S. at 852. Courts routinely have declined to
follow literally Howey’s statement that profits must come “solely from the efforts of the promoter or
a third party,” 328 U.S. at 298-299; see, e.g., Leonard, 529 F.3d at 88; SEC v. Glenn W. Turner Ent., Inc.,
474 F.2d 476, 482 (9th Cir. 1973). Courts in the Second Circuit instead “consider whether, under all
the circumstances, the scheme was being promoted primarily as an investment or as a means whereby
participants could pool their own activities, their money and the promoter’s contribution in a
meaningful way.” Leonard, 529 F.3d at 88.
18
Thus, in Balestra, the court concluded that this Howey element was met where a digital coin
promoter had “conveyed to purchasers of ATB Coins that the anticipated return on their investment
would be the result of [the promoter’s] efforts to commercialize the ATB Blockchain and ATB Coins.”
380 F. Supp.3d at 355.
Here, Kik led Kin investors reasonably to expect profits derived from the entrepreneurial or
managerial efforts of others (i.e., Kik) by publicly extolling Kik’s experience, resources, and user base,
Answer ¶ 121, and telling potential buyers in various communications that Kik hoped to “spark the
creation of this ecosystem,” id.; Kik “was all in” and, because of Kik, “Kin can enjoy a good start
regardless of whether or not other digital services adopt it right away,” id. ¶ 122; “Kik must create a
series of new products, services, and systems,” id. ¶ 123; “[o]nce we have established the new
cryptocurrency, we will create demand for [Kin] by encouraging people to earn and spend Kin within
Kik,” id. ¶ 124; and Kik was “going to use the funds to join the platform and essentially build it, the
transaction service, the identity service, the reward engine. . . . Basically, to like launch this whole
broader ecosystem,” id. ¶ 148; see generally supra Section II.D.3.
In sum, long-standing judicial precedent easily apply to Kik’s admitted facts, which defeats
Kik’s claim that it lacked constitutionally sufficient notice as to what constitutes an “investment
contract.” Even if Kik were to ultimately prevail on summary judgment or at trial on its defense that
the Offering and Sale did not involve a “security,” that would not show that there is unconstitutional
vagueness in determining whether the Offering and Sale was an offering and sale of an “investment
contract,” or lack of notice that Howey was an issue that Kik had to address in its Offering and Sale.
b. The DAO Report Provided Kik Additional Notice
The SEC’s DAO Report issued on July 25, 2017, provided Kik additional notice of the risk
that its conduct implicated the Securities Act and Howey. In the Report, the SEC “stress[ed] that the
U.S. federal securities law may apply to various activities, including distributed ledger technology,
19
depending on the particular facts and circumstances, without regard to the form of the organization
or technology used to effectuate a particular offer or sale.” 2017 WL 7184670 at *7. The Report then
analyzed how DAO tokens were investment contracts under Howey under the facts and circumstances
in which those tokens were issued. The Report’s broad warning that the Howey test would apply to
digital assets like Kin dooms any claim of surprise by Kik.
As the Zaslavskiy court correctly found, the DAO Report constitutes relevant regulatory
guidance, 2018 WL 4346339, at *9, and the Report further negates Kik’s claim that the term
“investment contract” is unconstitutionally vague as applied to Kin. See also Balestra, 380 F. Supp. 3d
at 355 n.14 (citing with approval the DAO Report’s finding that DAO Tokens issued through an ICO
were securities).
c. Kik Understood Its Legal Risk And Did Not Seek Clarifying
Guidance From The SEC
If there were any doubt that Kik had constitutionally sufficient notice that it might be offering
and selling investment contracts, Kik’s admissions that it considered – and actively planned for – the
potential application of Howey to the Offering and Sale eviscerates this doubt. Cf. United States v.
Washam, 312 F.3d 926, 930 (8th Cir. 2002) (finding “appeal” in the government’s argument that “actual
notice” by the defendant of the illegality of his actions defeated the argument about the statute’s
vagueness). Kik cannot escape the fact that, at least as early as April 3, 2017, Kik received explicit
warnings in a report from Kik’s consultant that regulators could find that the Offering and Sale is an
offering and sale of securities under Howey, and that “Kik’s consultant did acknowledge that
unregistered public securities offerings are not legal in the U.S.” Answer ¶ 97. Kik then flagged the
“securities law” issue several days later in slides sent to Kik’s Board as the number one “risk.” Id.
¶ 98. Nor can Kik dispute that, in the following months, Kik considered this risk and decided to
cancel the Offering and Sale in its home country of Canada but to proceed anyway in the United
States. See id. ¶ 98, 108, 110; supra Section II.D.2. Although Kik clearly had “the ability to clarify the
20
meaning of the regulation by its own inquiry” with the SEC, Village of Hoffman Estates, 455 U.S. at 498-
99, it deliberately chose not to do so, see Answer ¶ 111. Any claim that Kik lacked fair notice is
nonsense.
Perhaps most telling, Kik openly structured its Offer and Sale in a manner that plainly
demonstrated its awareness that the securities law could and did apply to the Offering and Sale. Kik
received approximately $49 million – half of its proceeds – by entering into SAFTs which, in Kik’s
words, sold “the conditional right to receive Kin in the future at a discount, to accredited investors.”
Id. ¶ 1. 11 Kik admits that its offer and sale of SAFTs “was a security,” id. ¶ 91, and that it filed a Form
D with the SEC in 2017 claiming an exemption for these instruments from the Securities Act’s
registration requirements, id. ¶ 1. These public actions – including telling investors in the SAFT and
the Form D that the SAFT was a security – further dooms Kik’s claim that it lacked notice of the
definition of “investment contract.”
For all of the above reasons, the Securities Act gave Kik a “reasonable opportunity to
understand what conduct it prohibits.” Copeland, 893 F.3d at 114.
2. The Term “Investment Contract” Provides Explicit Standards
Kik’s vagueness defense fares no better under the second prong of that analysis, which asks
whether statutory language “authorizes or even encourages arbitrary and discriminatory enforcement.”
A vagueness challenge can fail this second prong for either of two reasons. First, “a statute certainly
will not be deemed unconstitutionally vague if as a general matter, it provides sufficiently clear
standards to eliminate such a risk” of arbitrary enforcement. United States v. Farhane, 634 F.3d 127,
139 (2d Cir. 2011) (internal quotation marks omitted). Second, “even in the absence of such standards,
11
Although the SEC contends that Kik sold Kin (not merely “rights” to receive Kin) through the
SAFTs, and that these sales were part of and/or integrated with the Offering and Sale, see Compl. ¶¶ 159, 198,
the Court need not resolve the parties’ conflicting views on these issues for purposes of this motion; the
relevant, undisputed fact here is that Kik’s use of the SAFTs demonstrated its awareness of the potential
applicability of the Securities Act and the term “investment contract.”
21
a statute will survive an as-applied vagueness challenge if the conduct at issue falls within the core of
the statute’s prohibition, so that the enforcement before the court was not the result of the unfettered
latitude that law enforcement officers and factfinders might have in other, hypothetical applications
of the statute.” Farhane, 634 F.3d. at 139-40 (internal quotation marks omitted); see also Copeland, 893
F.3d at 119-120 (same).
Kik’s vagueness challenge fails for not just one but for both of these reasons. As the Zaslavskiy
court found:
Howey and its progeny set forth the standards needed to cabin Section 5’s
enforcement relative to investment contracts. Furthermore, the conduct
charged “falls within the core of the statute’s prohibition,” and its enforcement
in this case is “not the result of the unfettered latitude that law enforcement
officers and factfinders might have in other, hypothetical applications of the
statute.”
2018 WL 4346339, at *9 (quoting Farrell v. Burke, 449 F.3d 470, 492-95 (2d Cir. 2006)). The reasoning
from Zaslavskiy applies equally here. Although Kik loses if either condition is met, here they are both
satisfied.
a. Kik’s Offering and Sale Falls Within The Core Of Section 5’s
Prohibition
Kik’s admitted conduct plainly “falls within the core of the statute’s prohibition,” Copeland,
893 F.3d at 119 (quoting Farrell, 449 F.3d at 494), as the core purpose of the Securities Act is to ensure
“full and fair disclosure” to investors afforded by registration. As of early 2017, Kik had spent over
$96 million of the venture capital funding that it had received, and had only $26 million in cash
remaining, with expenses reaching as high as $3 million per month. See Answer ¶¶ 35, 41; supra Section
II.D.1. Facing these perilous financial circumstances, Kik proceeded to plan and run the Offering and
Sale during which it conducted a Roadshow in multiple cities in the United States, Canada, and
elsewhere, and made numerous public statements about itself and Kin through the white paper, press
releases, articles, conferences, videos, tweets, and social media posts. Through these efforts, Kik took
22
$100 million from Kin buyers, including $55 million from over 3,400 buyers in the United States, all
while retaining control of nine trillion (90 percent) of the Kin that it created, either directly or indirectly
through the Kin Foundation for which Kik’s CEO and CFO served as the sole directors. See supra
Sections II.D.I, II.D.4., II.D.5. Yet Kik did not register the Offering and Sale and provide Kin buyers
the Securities Act’s protections, including disclosure of its financial statements and other information
about Kik and Kin. See supra Sections II.D.6. Given this conduct, which Kik admits in its answer,
“the enforcement of the statute against [Kik] was not arbitrary,” Farrell, 449 F.3d at 494.
b. Section 5 and the Howey Test Do No Invite or Encourage

Arbitrary Enforcement
Kik’s challenge also separately fails because the Securities Act, “judicial interpretations thereof,
as well as regulatory guidance, provided ‘sufficiently clear standards to eliminate’ risk of ‘arbitrary
enforcement’ of the securities laws in this case.” Zaslavskiy, 2018 WL 4346339, at *9 (quoting Farhane,
634 F.3d at 139). For decades the multi-pronged Howey test has provided helpful and explicit standards
by which courts, the SEC, and other government agencies have assessed whether conduct constitutes
the offer and sale of investment contracts. Neither the SEC’s decisions to bring or not bring
enforcement actions regarding other digital assets, nor statements by SEC officials in their personal
capacities, Kik’s CEO, industry groups, or members of Congress, as recited in Kik’s answer, dictate
otherwise. See Answer at 122-27.
Kik attempts to compare Kin’s circumstances to those of Bitcoin and Ether and contends
that, by the time of Kin’s distribution in September 2017, numerous other digital assets had been
offered and sold to the public. See Answer at 121-22. But Bitcoin and Ether were introduced years
before the SEC issued the DAO Report emphasizing “that the U.S. federal securities law may apply
to . . . distributed ledger technology, depending on the particular facts and circumstances.” 2017 WL
7184670 at *7. Regardless, any such comparison would not suffice to show arbitrary enforcement by
23
the SEC. Discretion to enforce a business regulation does not demonstrate arbitrary enforcement.
See Village of Hoffman Estates, 455 U.S. at 503; Farrell, 449 F.3d at 493-94.
In Copeland, addressing a claim of unconstitutional vagueness, the Second Circuit stated:
[A] pattern of discriminatory enforcement, without more, would not show that
the statute is unconstitutionally vague. What makes a statute
unconstitutionally vague is that the statute, as drafted by the legislature and
interpreted by the courts, invites arbitrary enforcement. See Kolender, 461 U.S. at
360–61. The test is whether some element of the statute turns on the law
enforcement officer’s unguided and subjective judgment. Thus, the Supreme
Court has invalidated ordinances whose elements included acting in an
“annoying” manner, Coates, 402 U.S. at 611, 614–16, and remaining in place
without an “apparent purpose,” Morales, 527 U.S. at 60–64. Such terms are so
devoid of objective content that any enforcement decision necessarily devolves
upon an individual law enforcement officer’s whim.
Copeland, 893 F.3d at 120; see also Kay, 513 F.3d at 442 (rejecting vagueness claim based on alleged
similar misconduct by competitor companies; “multiple violations of a law do not make those
violations legal or create vagueness in the law”). The same analysis applies here to Securities Act and
the Howey test, and, for the same reasons, Kik’s vagueness challenge fails.
Nor can Kik succeed on a theory of “selective enforcement,” as that would be a claim under
the Fifth Amendment’s Equal Protection Clause and not a claim of unconstitutional vagueness. See
Copeland, 893 F.3d at 120 (“[B]ecause plaintiffs only advance a vagueness claim, we express no view
on whether the defendants’ enforcement priorities are consistent with the Equal Protection Clause.”).
Even were Kik to attempt such a claim, it would fail because Kik can offer no evidence that the SEC’s
efforts to enforce the Securities Act in the area of digital assets “target[s] certain classes of people over
others.” Id.; see generally Heckler v. Chaney, 470 U.S. 821, 831 (1985) (“This Court has recognized on
several occasions over many years that an agency’s decision not to prosecute or enforce, whether
through civil or criminal process, is a decision generally committed to an agency’s absolute
discretion.”).
24
Following the DAO Report, the Commission has brought numerous enforcement actions
premised on the application of Howey to the offering and sale of digital assets, further undermining
the claim that the standard invites “arbitrary enforcement.” See supra Section II.B. And tellingly, the
Court in Zaslavskiy rejected the defendant’s vagueness challenge to the term “investment contract,”
even though the defendant completed his offering of digital assets in the month – September 2017 –
that Kik completed its Offering and Sale. Similarly here, nothing in Kik’s answer demonstrates
unconstitutional vagueness.
***
In sum, the parties’ undisputed pleadings show that Kik was aware of: U.S. securities laws;
the Howey test; the risk that, under the Howey test, the Offering and Sale was an offering and sale of an
investment contract; and the risk that Kik was engaged in an unregistered offering. Irrespective who
ultimately prevails on the Commission’s claims, Kik’s affirmative defense should be dismissed now
because it is unsustainable in law and fact.
IV. CONCLUSION
For the foregoing reasons, the Court should grant plaintiff SEC judgment as a matter of law
on defendant Kik’s first defense of unconstitutional vagueness.
Dated: October 24, 2019 /s/ David Mendel

Stephan J. Schlegelmilch
David S. Mendel
Laura D’Allaird
U.S. SECURITIES AND EXCHANGE COMMISSION
Division of Enforcement
100 F Street, N.E.
Washington, DC 20549
(202) 551-4935 (Schlegelmilch)
(202) 551-4418 (Mendel)
(202) 551-5475 (D’Allaird)
SchlegelmilchS@SEC.gov
MendelD@SEC.gov
DAllairdL@SEC.gov
25
CERTIFICATE OF SERVICE
I certify that on October 24, 2019, a copy of the foregoing document was served upon all
counsel listed below via e-mail.
Patrick E. Gibbs
Brett H. De Jarnette
COOLEY LLP
3175 Hanover Street
Palo Alto, CA 94304-1130
pgibbs@cooley.com
Counsel for Defendant Kik Interactive Inc.
/s/ David Mendel

David S. Mendel
26
Case 1:19-cv-05244-AKH Document 26-1 Filed 10/24/19 Page 1 of 13
Exhibit 1

-------------------------------------- X
U.S. SECURITIES AND EXCHANGE :
COMMISSION,
:
Plaintiff,
: Civil Action No. 19-cv-5244 (AKH)
vs.
:
KIK INTERACTIVE INC.,
:
Defendant.
-------------------------------------- X
DEFENDANT KIK INTERACTIVE INC.’S

FIRST SET OF REQUESTS FOR THE PRODUCTION OF DOCUMENTS TO
PLAINTIFF U.S. SECURITIES AND EXCHANGE COMMISSION
Pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure, Defendant Kik
Interactive Inc. (“Kik”) submits the following requests for the production of documents to Plaintiff
U.S. Securities and Exchange Commission (the “SEC” or “Plaintiff”). Plaintiff shall make such
production within thirty (30) days after service of these requests, at the offices of Cooley LLP,
3175 Hanover Street, Palo Alto, California 94304, or at such other time and place as may be
mutually agreed upon by the parties.
DEFINITIONS
The terms used herein shall have the meanings ascribed to them in the definitions set forth
below.
1. “Action” means the civil action that the SEC filed in the United States District
Court for the Southern District of New York on June 4, 2019, captioned U.S. Securities and
Exchange Commission v. Kik Interactive, Inc. Case No., 1:19-cv-5244 (AKH).
2. “Communication(s)” is defined according to the definition in Local Civil Rule 26.3

of the Southern District of New York.
3. “Complaint” means the complaint filed by the SEC in this Action on June 4, 2019.
See ECF. No. 1.
4. “Concerning” is defined according to the definition in Local Civil Rule 26.3 of the
Southern District of New York.
5. “Document(s)” is defined according to the definition in Local Civil Rule 26.3 of

the Southern District of New York.
6. “DAO Report” means SEC Release No. 81207 (July 25, 2017) and has the same
meaning as it does in Paragraphs 17 and 106 of the Complaint.
7. The term “Digital Asset” has the same meaning as it does in Paragraphs 29-33 of
the Complaint.
8. “Government Entity” means any federal, state or foreign government criminal, civil
or regulatory agency or authority, or any current or former employee or agent thereof. For the
avoidance of doubt, Government Entity includes, but is not limited to, the U.S. Internal Revenue
Service, the U.S. Commodity Futures Trading Commission, the Financial Crimes Enforcement
Network (“FinCEN”), and the Ontario Securities Commission.
9. “Includes” and “Including” means including, but not limited to.
10. “Investigation” refers to the investigations of individuals and entities that resulted
in the filing of the Complaint, including, but not limited to, the SEC investigation captioned In the
Matter of Kik Interactive, Inc. (HO-13388), and the subject matter of the investigation.
11. “Kik” means Kik Interactive, Inc., any of its subsidiaries (and any predecessors
thereof), and any of its present or former directors, officers, employees, affiliates, representatives,
advisors, agents, attorneys, associates or any other person acting on its behalf.
12. “Kin” means the Virtual Currency referenced in Paragraph 1 of the Complaint.
13. “Kin Foundation” means the nonprofit organization referenced in Paragraphs 151-
155 of the Complaint, including any of its present or former directors, officers, employees,
affiliates, representatives, advisors, agents, attorneys, associates or any other person acting on its
behalf.
14. “Virtual Currency” means a digital representation of value that can be digitally
traded and functions as a medium of exchange; and/or a unit of account; and/or a store of value.
See DAO Report at 3, n.5; In re Bitcoin Investment Trust and SecondMarket, Inc., Rel. No. 34-
78282 (July 11, 2016) at 2, n.1 (cited in the DAO Report); In re Erik T. Voorhees, Rel. No. 33-
9592 (June 3, 2014) at 1, n.1 (cited in the DAO Report).
15. The words “Plaintiff,” “SEC,” “You” or “Your” refer to the plaintiff in this action,
as defined according to the definition in Local Civil Rule 26.3 of the Southern District of New
York. For the avoidance of doubt, that definition encompasses each of the Divisions and Offices
2
of the SEC, including the Division of Enforcement, the Division of Corporation Finance, the Office
of the Chief Accountant, and the Division of Economic and Risk Analysis, and any current or
former SEC Commissioner, staff member, or employee.
16. The terms “all,” “any,” and “each” shall be construed according to the relevant rule
of construction in Local Civil Rule 26.3 of the Southern District of New York.
17. The connectives “and” and “or” shall be construed according to the relevant rule of
construction in Local Civil Rule 26.3 of the Southern District of New York.
INSTRUCTIONS
1. The Documents covered by these requests include all Documents in Your

possession, custody, or control.
2. Each request for the production of Documents shall be deemed continuing in nature,
and the SEC is under a duty to supplement or correct any responses that are incomplete or incorrect
and otherwise supplement its responses in accordance with Federal Rule of Civil Procedure 26(e).
3. You shall produce all Documents in the manner in which they are maintained in the
usual course of Your business, including in their native electronic format, or organized and labeled
to correspond to each separately numbered Request. A request for a Document shall be deemed
to include a request for any and all file folders within which the Document was contained,
transmittal sheets, cover letters, exhibits, enclosures, or attachments to the Document, in addition
to the Document itself. Documents shall be produced in such a way as to identify the applicable
file folder and/or source from which each responsive Document came or was obtained.
4. If and to the extent Documents are maintained in a database or other electronic

format, You shall produce along with the Document(s) software that will enable access to the
electronic Document(s) or database as You would access such electronic Document(s) or database
in the ordinary course of Your business.
5. Documents shall be produced in such fashion as to identify the department, branch

or office in which they were located and, where applicable, the natural person in whose possession
it was found and the business address of each Document’s custodian(s).
6. If you withhold any Document or portion of a Document based on a claim of

privilege, work product, or subject to a recognized immunity from discovery, you must:
A. Produce concurrently a separate log that complies with the requirements of Federal
Rule of Civil Procedure 26(b)(5) including a description of the document sufficient
to allow the receiving party to assess the privilege or protection claim without
disclosing any privileged information, and including at least the following:
i. the author(s);
3
ii. the person(s), entity, or entities to whom it was addressed, or to whom the
document or a copy of the document was sent;
iii. the nature or basis of the privilege or protection claimed;
iv. the date of the document; and
v. identification of all attorneys and a description of their role
B. If a Document contains both privileged and non-privileged information, it shall be

produced with the privileged information redacted in such a way as to show the
location of the redaction within the Document. The portion of each such redaction
should be described in the log described in subpart A of this Instruction.
7. If any Document requested herein has been lost, destroyed or otherwise disposed
of, please furnish a log identifying each such Document, and state the following information: (i)
the type of Document; (ii) the date of the Document; (iii) the title of the Document; (iv) the
author(s) of the Document; (v) the intended and actual recipients of the Document; (vi) the general
subject matter of the Document; and (vii) the circumstances of the destruction of the Document,
including the date on which the Document was lost, destroyed, or otherwise disposed of, the name
of the person who ordered or authorized its destruction or disposition, the conditions or reasons
for such destruction or disposition, and all persons having knowledge of its contents.
8. Documents attached to each other should not be separated.
9. In producing Documents and other materials, You are requested to furnish all
Documents or things in Your possession, custody or control, regardless of whether such
Documents or materials are possessed directly by You or Your agents, employees, representatives,
managing agents, affiliates, accountants, investigators, or by Your attorneys or their agents,
employees, representatives or investigators.
10. If You object to any part of any request, You shall state fully in writing the nature
of the objection. Notwithstanding any objections, You shall nonetheless comply fully with the
other parts of the request to which You are not objecting.
11. Each request for production shall be construed independently and not with
reference to any other request for production for the purpose of limitation.
12. The use of the singular form of any word includes the plural and vice versa. The
past tense shall include the present tense and vice versa.
13. If You do not understand any part of any request or the foregoing Definitions and
Instructions, You should seek clarification from counsel for Kik.
4
REQUESTS FOR THE PRODUCTION OF DOCUMENTS
REQUEST FOR PRODUCTION NO. 1:
Your complete investigative file in connection with the Investigation, including but not
limited to the following:
i. All subpoenas and other written requests to provide documents, testimony,

or an interview;
ii. All documents received in response to any such subpoenas or other requests,
or otherwise obtained by You from third parties or third-party sources;
iii. All transcripts, transcript exhibits, recorded testimony, verbatim notes,

declarations, affidavits or witness statements;
iv. All Documents concerning any Communications concerning the

Investigation. As examples but without limitation, this category includes all correspondence
(including email), cover letters, subpoenas, witness statements, declarations, affidavits,
memoranda, summaries, or notes, and any drafts and versions of the foregoing, sent to, or received
from any witness, potential witness, entities, or their counsel. For avoidance of doubt, this Request
for Production includes the formal order memorandum, the action memorandum, and emails and
other communications between the staff of the Enforcement Division and SEC Commissioners or
other SEC Divisions and their respective staff; and
v. All documents memorializing, evidencing, or concerning any

communications You had with any Government Entity and/or any other third party relating to the
Investigation.
To the extent not produced in response to Request for Production No. 1, all Documents and
Communications concerning any formal or informal requests by You for documents or information
concerning the subject matter of the Investigation or the Action, or any other matter involving Kik
or Kin, including but not limited to all Documents or Communications You received in response
to such informal or formal requests.
To the extent not produced in response to the above Requests, all Documents and
Communications identified or otherwise referenced in the Complaint.
5
To the extent not produced in response to the above Requests, all Documents and
Communications concerning Kin, Kik, and/or the Kin Foundation.
All Documents concerning Communications with third parties (including any Government
Entity), concerning the application of federal securities laws, regulations, or rules (including, but
not limited to, the Securities Act of 1933) to Kin or a Virtual Currency and/or Digital Asset.
All Documents and Communications concerning statements or presentations by the SEC

to third parties (including any Government Entity) concerning the application of federal securities
laws (including, but not limited to, the Securities Act of 1933) to Virtual Currency and/or Digital
Assets. For the avoidance of doubt, this Request for Production includes documents and
communications concerning public statements and presentations made by any SEC employee or
commissioner at conferences and statements and testimony before Congress or any committee
thereof.
All Documents and Communications reflecting any decision, determination, conclusion,

position taken, or policy by the SEC concerning the application of federal securities laws,
regulations, or rules (including, but not limited to, the Securities Act of 1933) to Virtual Currency
and/or Digital Assets.
All Documents and Communications concerning issuing guidance, or concerning the

decision not to issue guidance, concerning the application of federal securities laws (including, but
not limited to, the Securities Act of 1933) to Virtual Currency and/or Digital Assets. For the
avoidance of doubt, this Request for Production includes all Documents and Communications
concerning the SEC’s decision to issue the Framework for ‘Investment Contract’ Analysis of
Digital Assets, including any drafts thereof or actual or proposed updates thereto.
All Documents and Communications evidencing or memorializing a formal and/or

informal cooperation agreement between You and any person or entity from whom You gathered
information in connection with the Investigation.
6
All Documents and Communications evidencing or memorializing the terms of any

testimony or interview (including proffer agreements) of any person or entity from whom You
gathered information in connection with the Investigation.
All internal SEC Documents and Communications concerning whether or when a Virtual
Currency and/or Digital Asset that was originally offered in a securities offering could be later
sold in a manner that does not constitute an offering of a security. For the avoidance of doubt, this
Request for Production includes all Documents and Communications concerning Director William
Hinman’s prepared remarks titled Digital Asset Transactions: When Howey Met Gary (Plastic),
dated June 14, 2018, including any drafts thereof or actual or proposed updates thereto.
Your complete investigative file relating to the DAO Report, including but not limited to
the following:
i. All subpoenas and other written requests to provide documents, testimony,

or an interview;
ii. All documents received in response to any such subpoenas or other requests,
or otherwise obtained by You from third parties or third-party sources;
iii. All transcripts, transcript exhibits, recorded testimony, verbatim notes,

declarations, affidavits or witness statements;
iv. All Documents concerning any Communications concerning the subject

matter of the DAO Report. As examples but without limitation, this category includes all
correspondence (including email), cover letters, subpoenas, witness statements, declarations,
affidavits, memoranda, summaries, or notes, and any drafts and versions of the foregoing, sent to,
or received from any witness, potential witness, entities, or their counsel. For avoidance of doubt,
this Request for Production includes the action memorandum and emails and other
communications between the staff of the Enforcement Division and SEC Commissioners or other
SEC Divisions and their respective staff; and
v. All documents memorializing, evidencing, or concerning any

communications You had with any Government Entity and/or any other third party relating to the
subject matter of the DAO Report.
7
All Documents concerning Your Communications with third parties (including any
Government Entity) concerning filings by Kik with the SEC (including, without limitation, filings
to register the issuance or sale of securities).
All Documents concerning Communications between the SEC and any Government Entity
concerning the application of federal securities laws (including, but not limited to, the Securities
Act of 1933) to Virtual Currency and/or Digital Assets.
To the extent not produced in response to the above Requests, all Documents concerning
Your Communications with the Ontario Securities Commission concerning Kik, Kin, and/or the
Kin Foundation.
All Documents reviewed, considered, or relied upon by You in preparing the Complaint
filed in this Action.
All Documents described in the SEC’s Initial Disclosures You served on Kik in connection
with this Action.
All transcripts, transcript exhibits, recorded testimony, verbatim notes, declarations,

affidavits, witness statements or summaries reflecting statements by witnesses or potential
witnesses concerning the subject matter of this Action.
All no-action letters, orders, final investigative reports, and enforcement action complaints
issued or filed by the SEC from January 1, 2009 to June 1, 2017 concerning the application of the
Securities Act of 1933 to any offer or sale of Virtual Currency and/or Digital Asset.
All Documents memorializing, evidencing, or concerning the allegation that “the overall
size of the ICO market has grown exponentially,” as alleged in Paragraph 32 of the Complaint.
8
All Documents memorializing, evidencing, or concerning the “dramatic uptick in the

number of ICOs” in 2017, as alleged in Paragraph 44 of the Complaint.
Documents sufficient to identify all entities that have engaged, to your knowledge and
understanding, in a possible offer or sale of a Virtual Currency and/or Digital Asset from January
1, 2013 to June 4, 2019, including Your understanding of the dates of such offers or sales.
All formal or informal communications that any of the entities identified in the foregoing
request had with the SEC prior to and regarding its offer or sale of a Virtual Currency and/or
Digital Asset, including but not limited to any requests for a no-action letter.
All registration statements filed with the SEC in connection with the “ICOs” referenced in
Paragraph 44 of the Complaint.
Documents sufficient to identify all formal or informal inquiries or investigations initiated

by the SEC from January 1, 2017 to June 4, 2019 concerning the application of federal securities
laws, regulations, or rules (including the Securities Act of 1933) to any offer or sale of Virtual
Currency and/or Digital Asset, including the resolution of such inquiries or investigations, if any.
Documents sufficient to identify all entities that were or are the subject of formal or
informal inquiries or investigations conducted by the SEC from January 1, 2017 to June 4, 2019
concerning the application of federal securities laws (including the Securities Act of 1933) to any
offer or sale of Virtual Currency and/or Digital Asset, including the resolution of such inquiries or
investigations, if any.
All documents evidencing or concerning the allegation that “the Kin to be delivered under
the SAFT were securities” as alleged in Paragraph 91 of the Complaint.
All Documents memorializing, evidencing or concerning the allegation that “the company
and regulators specifically discussed the United States Supreme Court’s decision in Howey” as
alleged in Paragraph 108 of the Complaint.
9
To the extent not produced in response to the above Requests, all documents
memorializing, evidencing, or concerning any communication You had with any Government
Entity relating to the allegations in the Complaint.
All Documents and Communications concerning Investor Bulletins relating to the offer
and/or sale of Virtual Currencies and/or Digital Assets, including all drafts or commentary thereto.
All Documents You contend support the allegations and claims made in the Complaint
filed in this Action.
All Documents that tend to contradict, disprove, refute or undercut Your allegations and
claims made in the Complaint filed in this Action.
All Documents and Communications which might reasonably be considered exculpatory

to Kik with respect to the allegations in the Complaint.
All Documents the SEC intends to introduce as evidence at trial or at any hearing in this
Action.
All Documents the SEC may rely upon at trial or at any hearing in this action for any
purpose.
All Documents concerning each expert the SEC expects to call as a witness, including any
opinions rendered, any documents upon which each opinion is based, all documents authored or
contributed to and all presentations given or participated in by such expert, all documents that the
SEC has shown or otherwise made available to such expert, all documents that such expert has
shown or transmitted to the SEC, and all facts or data considered by any testifying expert.
10
Dated: September 4, 2019 Respectfully submitted,
By: /s/ Patrick E. Gibbs

Patrick E. Gibbs (Pro Hac Vice)
Brett H. De Jarnette (Pro Hac Vice)
Cooley LLP
3175 Hanover Street
Palo Alto, CA 94304-1130
Phone: (650) 843-5000
Fax: (650) 849-7400
Email: pgibbs@cooley.com;
bdejarnette@cooley.com
Sarah M. Lightdale (SL7122)

Cooley LLP
55 Hudson Yards
New York, NY 10001-2157
Phone: (212) 479-6374
Fax: (212) 479-6275
Email: slightdale@cooley.com
Luke T. Cadigan (Pro Hac Vice)

Cooley LLP
500 Boylston Street
Boston, MA 02116-3736
Phone: (617) 937-2425
Email: lcadigan@cooley.com
Kenneth R. Lench (Pro Hac Vice

forthcoming)
Kirkland & Ellis LLP
655 Fifteenth Street, N.W.
Washington, D.C. 20005-5793
Phone: (202) 879-5270
kenneth.lench@kirkland.com
Attorney for Defendant

KIK INTERACTIVE INC.
11
CERTIFICATE OF SERVICE
I hereby certify that on September 4, 2019, the foregoing document, entitled “Defendant
Kik Interactive Inc.’s First Set of Requests for the Production of Documents to Plaintiff Securities
and Exchange Commission,” was served in accordance with the Federal Rules of Civil Procedure
and/or the Local Rules of the United States District Court for the Southern District of New York
upon the attorneys for the plaintiff in the above-entitled action by electronic mail.
Dated: September 4, 2019
By: /s/ Brett H. De Jarnette

Brett H. De Jarnette
12
Exhibit 2

U.S. SECURITIES AND EXCHANGE

COMMISSION,
Plaintiff, Case No. 19-cv-5244 (AKH)
vs. [PROPOSED] ORDER GRANTING

PLAINTIFF’S MOTION FOR
KIK INTERACTIVE INC. JUDGMENT ON THE PLEADINGS
AS TO DEFENDANT KIK
Defendant. INTERACTIVE INC.’S FIRST
AFFIRMATIVE DEFENSE
Plaintiff U.S. Securities and Exchange Commission, by and through counsel, moved for an
Order pursuant to Federal Rule of Civil Procedure 12(c) granting Plaintiff judgment on the
pleadings as to Defendant Kik Interactive Inc.’s first affirmative defense.
After considering the pleadings, together with the papers and arguments submitted by the
parties, and good cause appearing therefore, the Court hereby GRANTS Plaintiff U.S. Securities and
Exchange Commission’s Motion for Judgment on the Pleadings as to Defendant Kik Interactive
Inc.’s first affirmative defense which asserts unconstitutional vagueness. Pursuant to Federal Rule of
Civil Procedure 12(c),
It is hereby ORDERED that Judgment on the pleadings as to Defendant Kik Interactive
Inc.’s first affirmative defense which asserts unconstitutional vagueness is GRANTED;
It is hereby FURTHER ORDERED that the first defense is stricken from Defendant’s
answer.
IT IS SO ORDERED.
Dated: ____________________ _______________________________________
HON. ALVIN K. HELLERSTEIN

U.S. DISTRICT JUDGE
-2-

SEC Motion For Judgement

Hochgeladen von

Dokumentinformationen

Originaltitel

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

SEC Motion For Judgement

Hochgeladen von

Copyright:

Verfügbare Formate

Case 1:19-cv-05244-AKH Document 26 Filed 10/24/19 Page 1 of 33

UNITED STATES DISTRICT COURT

U.S. SECURITIES AND EXCHANGE

Plaintiff, Case No. 19-cv-5244 (AKH)

KIK INTERACTIVE INC.

MEMORANDUM OF LAW OF PLAINTIFF U.S. SECURTIES AND EXCHANGE

Counsel for Plaintiff

II. STATEMENT OF FACTS ............................................................................................................... 4

C. The SEC’s Complaint Against Kik .................................................................................................7

D. Kik’s Answer to the Complaint.......................................................................................................7

1. Having Spent Most Of Its Venture Capital Money,

2. Kik Explicitly Considered The Application Of

5. Kik And The Kin Foundation Controlled 90 Percent of Kin

III. ARGUMENT ...................................................................................................................................12

A. The Standard Under Rule 12(c) ……………………………................................................... 12

B. The Standard for Unconstitutional Vagueness ........................................................................13

C. “Investment Contract” Is Not Unconstitutionally Vague As Applied to Kik ..................... 14

1. Kik Had Constitutionally Fair Notice That It Was Offering and

b. The DAO Report Provided Kik Additional Notice ................................................... 19

2. The Term “Investment Contract” Provides Explicit Standards...................................... 21

a. Kik’s Offering and Sale Falls Within The Core Of

b. Section 5 and the Howey Test Do No Invite or Encourage

Exhibit 2 Proposed Order

Aldrich v. McCulloch Properties, Inc.,

15 U.S.C. § 77a ...................................................................................................................................................4

15 U.S.C. § 77b ...................................................................................................................................................5

15 U.S.C. § 77e ...................................................................................................................................................4

15 U.S.C. § 78c ...................................................................................................................................................5

H.R. Rep. No. 85, 73d Cong., 1st Sess., 11 (1933)........................................................................................5

Report of Investigation Pursuant to Section 21(a) of the

Fed. R. Civ. P. 12(b)(6)................................................................................................................................... 12

Fed. R. Civ. P. 12(c) .................................................................................................................................... 1, 12

Fed. R. Civ. P. 26(a)(1) ................................................................................................................................................. 3

scheme. This claim is untenable and should be dismissed.

facts necessary for this Howey framework.

Kik’s illegal conduct. 1

interpreted the term “investment contract” in a “‘kaleidoscopic assortment of pecuniary arrangements

II. STATEMENT OF FACTS

“securities” in interstate commerce absent an exemption. 15 U.S.C. §§ 77e(a), (c); Compl. ¶ 3.

B. The DAO Report and SEC Enforcement Actions Involving ICOs

power” that provides sufficient notice).

ICOs for alleged violations of the federal securities laws. 3

C. The SEC’s Complaint Against Kik

D. Kik’s Answer to the Complaint

to any large-scale offering to U.S. investors such as Kik’s. 4

1. Having Spent Most Of Its Venture Capital Money, Kik Publicly

videotaped and posted on YouTube.” Id. ¶¶ 69-70.

2. Kik Explicitly Considered The Application Of The Howey Test To

Answer ¶ 97; Compl. ¶ 97 (setting forth admitted quotations).

the OSC. Id. ¶ 110.

tokens. Answer ¶¶ 13, 171-172.

raising nearly US$100 million.” Id. ¶ 176.

wallet, all of which Kik controlled. Id. ¶¶ 186, 188.

5. Kik And The Kin Foundation Controlled 90 Percent of Kin Distributed

are the same. Id. ¶ 180.

its financial statements. Id. ¶ 68.

A. The Standard Under Rule 12(c)

2016 WL 10672074 (S.D.N.Y. June 21, 2016).

B. The Standard for Unconstitutional Vagueness

generally limited to statutes that threaten First Amendment interests.”).

reasonable opportunity to understand what conduct it prohibits. Second, if it authorizes or even

[E]conomic regulation is subject to a less strict vagueness test because its

C. “Investment Contract” Is Not Unconstitutionally Vague As Applied to Kik