Just weeks after its very first case against a company for selling unregistered securities in the form of NFTs, the U.S. Securities and Exchange Commission's (SEC) has announced it has hit yet another company with charges over NFTs.
However, there's an interesting twist to this one. The NFT company that the SEC is going after this time is backed by actress Mila Kunis and Orchard Farm Productions, her production company.
Stoner Cats were marketed as an NFT project that would fund an animated series about an elderly woman and her cannabis-smoking cats. Kunis led the project, and along with other self-described crypto experts and Hollywood producers, formed Stoner Cats 2 LLC (SC2). Before the sale, Kunis herself even heavily promoted the upcoming NFT launch (e.g., she discussed it during an appearance on Conan O'Brien's TBS talk show).
In July 2021, the Stoner Cats NFTs went on sale. All 10,000 quickly sold out at $800 a piece. More than $8 million was raised.
The animated show debuted shortly after the sale. The short form web series featured the voices of Kunis, Ashton Kutcher, Chris Rock, and others. Big names in the crypto and NFT space, including Gary Vaynerchuk aka Gary Vee and Ethereum founder Vitalik Buterin, also voiced characters.
According to the SEC, however, Stoner Cats marketed its NFTs as an investment, telling NFT owners they could resell them on the aftermarket for a profit. Furthermore, the SEC says Stoner Cats' marketing heavily focused on the expertise of the Hollywood producers, big-name actors, and Web3 personalities involved, leading investors into believing that they could turn a profit.
Furthermore, the SEC pointed to the sheer volume of the Stoner Cats NFTs aftermarket sales – "more than $20 million in at least 10,000 transactions" – to argue that the company wasn't selling these as mere collectibles, but as crypto assets securities.
The SEC's order claims that Stoner Cats "violated the Securities Act of 1933 by offering and selling these crypto asset securities to the public in an unregistered offering that was not exempt from registration."
“Regardless of whether your offering involves beavers, chinchillas or animal-based NFTs, under the federal securities laws, it’s the economic reality of the offering – not the labels you put on it or the underlying objects – that guides the determination of what’s an investment contract and therefore a security,” said SEC’s Division of Enforcement director Gurbir S. Grewal in a statement.
SC2 agreed to a cease-and-desist order, but did not dispute the SEC's investigation. The company will pay a civil penalty of $1 million, which will be used to set up a "Fair Fund" to reimburse investors injured by the sale. The company must also destroy all Stoner Cats NFTs in its possession as part of the settlement.
