Kenneth Fedance v. Clifford "T.I." Joseph Harris, Jr.

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-12222
________________________
D.C. Docket No. 1:19-cv-02125-CAP
KENNETH FEDANCE, et al.,
Plaintiffs-Appellants,
versus
CLIFFORD “T.I.” JOSEPH HARRIS, JR.,
RYAN FELTON,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_______________________
(June 21, 2021)
Before WILLIAM PRYOR, Chief Judge, LUCK, Circuit Judge, and MARKS,*
District Judge.
WILLIAM PRYOR, Chief Judge:
*
Honorable Emily Coody Marks, Chief United States District Judge for the Middle
District of Alabama, sitting by designation.
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This appeal is about an initial coin offering of cryptographic tokens
promoted by celebrities to fund a new movie-streaming platform. The platform
never launched, and the value of the tokens plummeted a few months after the
offering. After the limitations period had run, a purchaser, Kenneth Fedance,
brought a putative class action for the sale of unregistered securities against Ryan
Felton and Clifford “T.I.” Joseph Harris Jr., the purported co-owners of the
company that issued the tokens. Fedance asserted that fraudulent concealment
equitably tolled the limitations period, but the district court dismissed the
complaint as untimely. We affirm.
I. BACKGROUND
In mid-2017, Ryan Felton created FLiKIO, an “offshore entity” also known
as FLiK. FLiK represented that it was “developing [an] online viewing platform
that [would] allow[] creatives to sell / rent their projects.” It purported that it also
planned to fund “unique and creative entertainment projects.” To raise funds, FLiK
created cryptographic tokens called “FLiK Tokens.” FLiK represented that
investors could redeem the tokens on its platform after it launched. FLiK never
registered FLiK Tokens as securities with the Securities and Exchange
Commission.
In August 2017, Felton began to promote FLiK. He created social media
accounts for FLiK on Twitter, Facebook, and other platforms. Through these social
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media accounts, FLiK announced that it planned to launch an initial coin offering
of FLiK Tokens on August 20. It published a whitepaper on August 12 that
provided details about the company and its plans. FLiK explained that it would use
the funds from its sale of FLiK Tokens to license content, fund film projects,
market and promote the FLiK platform, and integrate FLiK with additional
viewing platforms.
A few days later, FLiK announced on social media that “T.I.,” an Atlanta-
based rapper and actor named Clifford Joseph Harris Jr., had joined Felton as a co-
owner of FLiK. FLiK represented that its leadership included Felton as its
“Founder” and Harris as its “Co-Owner.” The actor Kevin Hart later tweeted a
photograph of himself with Harris and wrote, “I’m Super Excited for [T.I.] and his
new venture with @TheFlikIO! They’re gonna crush it! #ICO #blockchain #crypto
#bitcoin.” On Facebook, Hart joked that the photograph portrayed his “tellin [T.I.]
how much help he gon need spending all that money he gonna make on his new
venture.”
On August 20, FLiK launched the initial coin offering of FLiK Tokens and
sold the tokens for about six cents each. Meanwhile, Felton continued to portray
FLiK as a promising company with major investments and deals. And Harris
promoted the initial coin offering to his more than eight million followers on
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Twitter by tweeting, “Check out my new #ICO @TheFlikIO it’s about to change
#Hollywood!!! #Crowdsale #Blockchain.”
The value of FLiK tokens would soon soar and then come crashing down.
FLiK closed the initial coin offering on September 20. On October 17, FLiK
Tokens reached their peak price of about 35 cents each on a cryptocurrency
exchange market. The following day, Felton posted that FLiK Tokens “will be
redeemable for $3.99 in 3 months, $9.99 in 12 months and $14.99 in 15 months.”
He also represented that FLiK was a “growing multi-billion dollar company” that
was making film investments. That month, FLiK, Felton, and Harris continued to
make announcements and insinuations about FLiK’s projects and purported
investors. But in late 2017, a “massive ‘dump’” of the tokens occurred, and they
began to lose value rapidly. FLiK then stopped posting on social media and Felton
largely ignored messages from token purchasers. The value of the tokens would
climb again until mid-February 2018, but up to only 18 cents each.
FLiK did not, in the end, change Hollywood. On April 3, 2018, in what
would be its final tweet, FLiK announced that it had “missed [its] deadline” to
launch its streaming service. None of its services or projects came to fruition and
its website was eventually deleted. By August 3, FLiK Tokens were worth less
than one cent a token. On August 29, FLiK announced that it had been acquired by
Skyblock Media Group, LLC, a company created the previous day. Felton told
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token purchasers that Skyblock would not be run by the same people involved in
FLiK.
Kenneth Fedance purchased $3,000 worth of FLiK Tokens on August 23,
2017. On May 10, 2019, Fedance, individually and on behalf of a putative class of
persons who purchased FLiK Tokens during the initial coin offering, sued Felton
and Harris for securities violations. The complaint asserted three counts: two
counts under section 12(a)(1) of the Securities Act of 1933, 15 U.S.C. § 77l(a)(1),
and one under section 15(a) of the Act, id. § 77o(a). It alleged that Felton and
Harris sold unregistered securities in violation of section 5(a) and (c) of the Act, id.
§ 77e(a), (c), that Harris acted as a “statutory seller” of unregistered securities, and
that Felton and Harris were liable as controlling persons of an entity, FLiK, that
engaged in the sale of unregistered securities.
Anticipating a defense that the claims were untimely, Fedance asserted that
he could not “Bring Em Out” earlier. See T.I., Bring Em Out, on Urban Legend
(Atlantic Records & Grand Hustle Records 2004). He alleged that he was
“unaware” that FLiK Tokens were securities subject to regulation until April 25,
2019, when the district court issued a ruling in a similar lawsuit. See Beranger v.
Harris, 2019 WL 5485128, at *4 (N.D. Ga. Apr. 24, 2019). He asserted that Felton
“fraudulently concealed the true nature of FLiK [Tokens].” According to Fedance,
he was “unaware of any facts giving rise to this action” because of “Felton’s
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fraudulent misstatements and omissions promising that FLiK [Tokens] had actual
utility” and were not securities. And he alleged that the misrepresentations
continued through August 2018, with the alleged acquisition of FLiK by SkyBlock,
so he could not “have possibly known sufficient facts to bring this action until
September 2018, at the very earliest.”
Harris moved the district court to dismiss the complaint against him as
untimely. The district court said, in effect, “Live Your Life,” and granted the
motion. See T.I. featuring Rihanna, Live Your Life, on Paper Trail (Atlantic
Records & Grand Hustle Records 2008). The district court concluded that the
statute of limitations was not subject to either a discovery rule or equitable tolling.
In response to an order to show cause, Fedance agreed with the district court that
the same question of law controlled whether the claims against Felton were timely.
So the district court dismissed the claims against Felton too.
II. STANDARDS OF REVIEW
“We review de novo the district court’s dismissal of [a claim] for failure to
satisfy the applicable statute of limitations, taking as true all factual allegations
contained on the face of the complaint.” Byrd v. MacPapers, Inc., 961 F.2d 157,
159 (11th Cir. 1992). We also review de novo questions of statutory interpretation.
United States v. Hastie, 854 F.3d 1298, 1301 (11th Cir. 2017).
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III. DISCUSSION
We divide our discussion in two parts. We first explain that the district court
erred by concluding that the text of the statute of limitations for section 12(a)(1)
and section 15(a) claims forecloses equitable tolling. We next determine that the
complaint does not plausibly allege that Felton or Harris fraudulently concealed the
facts necessary to assert claims under sections 12(a)(1) or 15(a) against them.
Because we affirm the dismissal of the complaint as untimely, we do not reach
Harris’s alternative arguments for affirmance, or Felton’s attempt to adopt them.
A. The Text of the Statute of Limitations for Section 12(a)(1) and
Section 15(a) Claims Does Not Foreclose Equitable Tolling.
When it interpreted the applicable statute of limitations, the district court
made the “all-too-common mistake” of conflating the doctrine of fraudulent
concealment, an equitable-tolling doctrine, with the discovery rule. SEC v. Gabelli,
653 F.3d 49, 59 (2d Cir. 2011), rev’d on other grounds, 568 U.S. 442 (2013). That
statute of limitations, 15 U.S.C. § 77m, includes a discovery rule for some claims,
but not for section 12(a)(1) and section 15(a) claims. But the text of the statute
does not foreclose equitable tolling.
Non-jurisdictional statutory time bars come in two forms: statutes of
limitations and statutes of repose. “Both are mechanisms used to limit the temporal
extent or duration of liability for [certain] acts, but each has a distinct purpose,”
Cal. Pub. Emps.’ Ret. Sys. v. ANZ Sec., Inc., 137 S. Ct. 2042, 2049 (2017) (internal
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quotation marks omitted), and different rules regarding the availability of equitable
tolling.
Statutes of limitations, which encourage plaintiffs to pursue claims
diligently, id., “are customarily subject to equitable tolling, unless tolling would be
inconsistent with the text of the relevant statute,” Young v. United States, 535 U.S.
43, 49 (2002) (citations and internal quotation marks omitted). “We therefore
presume that equitable tolling applies if the period in question is a statute of
limitations[.]” Lozano v. Montoya Alvarez, 572 U.S. 1, 11 (2014). Equitable tolling
“pauses the running of, or ‘tolls,’ a statute of limitations when a litigant has
pursued his rights diligently but some extraordinary circumstance prevents him
from bringing a timely action.” Id. at 10.
In contrast, statutes of repose protect defendants from prolonged exposure to
liability. CTS Corp. v. Waldburger, 573 U.S. 1, 9 (2014). Statutes of repose may
not be tolled, “even in cases of extraordinary circumstances beyond a plaintiff’s
control.” Id. In other words, statutes of repose show “No Mercy” to plaintiffs. See
T.I. featuring The-Dream, No Mercy, on No Mercy (Atlantic Records & Grand
Hustle Records 2010).
Fedance alleged claims under section 12(a)(1) and section 15(a) of the
Securities Act of 1933. 15 U.S.C. §§ 77l(a)(1), 77o(a). Section 12(a)(1) creates a
private right of action for purchasers of a security against any person who offers or
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sells the security in violation of section 5 of the Act. Id. § 77l(a)(1). Section 5 in
turn prohibits any person from offering, selling, or delivering securities without a
registration statement in effect, id. § 77e(a), or without filing a registration
statement, id. § 77e(c). And section 15(a) imposes joint and several liability on a
person who controls an entity liable under section 12(a)(1), id. § 77o(a), so an
action brought under it is subject to the same constraints as a section 12(a)(1)
action.
Section 13 of the Act, id. § 77m, governs the timeliness of claims brought
under section 12(a)(1) and operates in two parts, Cal. Pub., 137 S. Ct. at 2049.
First, it creates a one-year limitations period for three kinds of actions and a rule of
accrual for each action:
No action shall be maintained to enforce any liability created under
section [11] or [12](a)(2) of this [Act] unless brought within one year
after the discovery of the untrue statement or the omission, or after such
discovery should have been made by the exercise of reasonable
diligence, or, if the action is to enforce a liability created under section
[12](a)(1) of this [Act], unless brought within one year after the
violation upon which it is based.
15 U.S.C. § 77m. Second, it creates a three-year period of repose for the three
kinds of actions, and it establishes a rule of commencement for that period as well:
In no event shall any such action be brought to enforce a liability
created under section [11] or [12](a)(1) of this [Act] more than three
years after the security was bona fide offered to the public, or under
section [12](a)(2) of this [Act] more than three years after the sale.
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Id.; see Cal. Pub., 137 S. Ct. at 2049 (considering the timeliness of a section 11
claim). The Supreme Court has explained that the three-year bar is a statute of
repose because the “clear terms” of section 13 state “that ‘in no event’ shall [a
section 11] action be brought more than three years after the securities offering on
which it is based.” Cal. Pub., 137 S. Ct. at 2049 (alteration adopted) (emphasis
added).
The one-year bar on claims under section 12(a)(1) is a statute of limitations.
Nothing in the text of section 13 makes equitable tolling inconsistent with that
statute. So we presume that equitable tolling is available. Lozano, 572 U.S. at 11.
Fedance argues that fraudulent concealment tolled the statute of limitations
for his complaint, which he filed in May 2019, well over one year after he
purchased FLiK Tokens in August 2017. Fraudulent concealment occurs when a
defendant makes affirmative acts or misrepresentations “which are calculated to,
and in fact do, prevent the discovery of the cause of action.” In re Int’l Admin.
Servs., Inc., 408 F.3d 689, 701 (11th Cir. 2005) (internal quotation marks omitted).
It is one possible basis for equitable tolling. See id.The district court concluded that, because the text of the statute of
limitations for claims under section 12(a)(1) establishes a certain date of accrual
that does not depend on the discovery of the underlying violation, equitable tolling
is inapplicable. The Sixth Circuit too has held that because “Congress expressly
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mentioned a discovery rule for [section] 12(a)(2) claims but not for [section]
12(a)(1),” it “intended to negate equitable tolling in this context.” Nolfi v. Ohio Ky.
Oil Corp., 675 F.3d 538, 553 (6th Cir. 2012). We disagree.
“We must distinguish between the accrual of [a] plaintiff’s claim and the
tolling of the statute of limitations[.]” Holland v. Florida, 560 U.S. 631, 647
(2010) (alteration adopted) (internal quotation marks omitted). Fraudulent
concealment “is an equitable tolling doctrine, not an accrual doctrine.” Gabelli,
653 F.3d at 59. And the discovery rule is a rule of accrual. Id.The discovery rule is distinct from the equitable-tolling doctrine, Rotkiske v.
Klemm, 140 S. Ct. 355, 361 (2019), although “[t]he two doctrines are often
blended or confused,” id. at 363 n.* (Ginsburg, J., dissenting in part and dissenting
from the judgment). Ordinarily, a statute of limitations begins to run “when the
cause of action accrues because Congress legislates against the standard rule that
the limitations period commences when the plaintiff has a complete and present
cause of action.” Id. at 360 (majority opinion) (alteration adopted) (internal
quotation marks omitted). But when a discovery rule applies, “accrual is delayed
until the plaintiff has ‘discovered’ his cause of action.” Gabelli, 568 U.S. at 449(internal quotation marks omitted); cf. Cada v. Baxter Healthcare Corp., 920 F.2d
446, 450 (7th Cir. 1990) (“Tolling doctrines stop the statute of limitations from
running even if the accrual date has passed.”). Courts have historically applied the
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discovery rule, as an equitable exception to the standard accrual rule, in actions
that sound in fraud. Gabelli, 568 U.S. at 449; see Bailey v. Glover, 88 U.S. (21
Wall.) 342, 348 (1874). And sometimes, Congress creates a statutory discovery
rule, Rotkiske, 140 S. Ct. at 361, as it did for the section 11 and section 12(a)(2)
claims, see 15 U.S.C. § 77m.
Fraudulent concealment works differently than the discovery rule. Like any
other basis for equitable tolling, it is not limited to actions that sound in fraud.
Prather v. Neva Paperbacks, Inc., 446 F.2d 338, 341 n.2 (5th Cir. 1971). And
where the discovery rule automatically delays accrual of a fraud claim until a
victim discovers he has been defrauded, Gabelli, 568 U.S. at 449, fraudulent
concealment tolls the statute of limitations where a defendant acts “above and
beyond the wrongdoing upon which the plaintiff’s claim is founded” to keep a
plaintiff from suing in time, Cada, 920 F.2d at 451; see also Gabelli, 653 F.3d at
59 (“Under the fraudulent concealment doctrine, even when a claim has already
accrued, a plaintiff may benefit from equitable tolling in the event that the
defendant took specific steps to conceal her activities from the plaintiff.”).
No discovery rule applies to claims brought under section 12(a)(1). This
kind of claim does not sound in fraud. And section 13 does not provide a discovery
rule for claims under section 12(a)(1). Cf. Rotkiske, 140 S. Ct. 360–61. So the
“Countdown” on the statute of limitations for a claim under section 12(a)(1) begins
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on the date of the section 5 violation. See T.I., Countdown, on Urban Legend; see
also Cook v. Avien, Inc., 573 F.2d 685, 691 (1st Cir. 1978); Gridley v.
Cunningham, 550 F.2d 551, 552 (8th Cir. 1977).
The lack of a discovery rule for claims brought under section 12(a)(1) does
not “negate equitable tolling.” Contra Nolfi, 675 F.3d at 553. “The [negative-
implication canon] properly applies only when . . . the thing specified[] can
reasonably be thought to be an expression of all that shares in the grant or
prohibition involved.” Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts § 10, at 107 (2012) (explaining that a sign outside a
restaurant that reads “No dogs allowed” does not imply that other animals are
allowed in the restaurant). The expression of a rule of accrual for one kind of claim
does not imply anything about the tolling of a limitations period for another kind of
claim. So the provision of a discovery rule for claims under section 11 and
section 12(a)(2) does not imply that equitable tolling of the statute of limitations
for claims under section 12(a)(1) is unavailable. The district court erred by
concluding otherwise.
The district court also relied on our reasoning in Hill v. Texaco, Inc., 825
F.2d 333 (11th Cir. 1987), to decide that equitable tolling is unavailable, but later
Supreme Court decisions have undermined that reasoning. In Hill, we concluded
that equitable tolling did not apply to a limitations period, 15 U.S.C. § 2805(a), that
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was “extremely short” and ran from an “exact starting point” instead of running
from discovery. Id. at 334–35. The district court concluded that the limitations
period for section 12(a)(1) claims satisfied the same criteria identified in Hill. But
a decade after Hill, the Supreme Court held that the opposite traits—a discovery
rule and a generous limitations period—rendered a statute inconsistent with
equitable tolling. United States v. Beggerly, 524 U.S. 38, 48–49 (1998). Taken
together, Hill and Beggerly would mean both that statutes with fixed starting points
and short limitations periods and statutes with discovery rules and long limitations
periods would not be subject to equitable tolling. But that broad exclusion of
equitable tolling is inconsistent with the repeated statements by the Supreme Court
“that a nonjurisdictional federal statute of limitations is normally subject to a
rebuttable presumption in favor of equitable tolling.” Holland, 560 U.S. at 645–46
(internal quotation marks omitted).
We decline to extend our reasoning in Hill to this statute of limitations. We
have never applied Hill to hold that another statute is inconsistent with equitable
tolling. Cf. Ellis v. Gen. Motors Acceptance Corp., 160 F.3d 703, 707–08 (11th
Cir. 1998) (distinguishing Hill and stating that Hill “represents a narrow exception
to the general rule”). As the concurring opinion in Hill pointed out, without clear
congressional guidance to the contrary—such as language providing that “‘in no
event’ can [a date] be surmounted”—we must presume that equitable tolling
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principles apply. Hill, 825 F.2d at 336 (Morgan, J., concurring specially) (internal
quotation marks omitted). We do not disturb that presumption here.
B. Fedance Did Not Plausibly Allege that Felton or Harris Fraudulently
Concealed Viable Claims Under Sections 12(a)(1) or 15(a) during the
Limitations Period.
Because it concluded that equitable tolling was textually foreclosed, the
district court did not consider whether Fedance plausibly alleged that fraudulent
concealment prevented him from bringing claims under sections 12(a)(1) or 15(a)
within one year of the alleged section 5 violations. He did not, so we affirm the
dismissal of the complaint on that ground. See Powers v. United States, 996 F.2d
1121, 1123–24 (11th Cir. 1993) (explaining that we may affirm a judgment for any
reason supported by the record).
For fraudulent concealment to toll the statute of limitations, a plaintiff “must
show both successful concealment of the cause of action and fraudulent means to
achieve that concealment.” Prather, 446 F.2d at 341. The defendant must have
actively concealed facts such that the plaintiff remained “ignoran[t] of a potential
claim,” not “merely ignoran[t] of evidence.” Id. And, as with all grounds for
equitable tolling, the plaintiff must show that he “has pursued his rights diligently.”
Lozano, 572 U.S. at 10; see also Credit Suisse Sec. (USA) LLC v. Simmonds, 566
U.S. 221, 227 (2012) (“[W]hen a limitations period is tolled because of fraudulent
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concealment of facts, the tolling ceases when those facts are, or should have been,
discovered by the plaintiff.”). Fedance cannot satisfy this burden.
In conclusory fashion, Fedance alleges that neither he nor putative class
members could bring claims for the sale of unregistered securities within the one-
year limitations period because Felton and Harris fraudulently concealed the facts
necessary to reach the legal conclusion that FLiK Tokens were securities. But you
cannot make fraudulent concealment mean “Whatever You Like.” See T.I.,
Whatever You Like, on Paper Trail. The factual allegations of Fedance’s complaint
make it implausible that any token purchaser was unaware of possible claims under
sections 12(a)(1) or 15(a) against the purported co-owners of FLiK as soon as they
bought the tokens in August and September 2017.
Fedance’s assertion of fraudulent concealment rests entirely on his supposed
inability to “gather the intentionally concealed facts that the tokens were a scam
with no utility” and determine that they were securities before the limitations
period elapsed. He says that Felton and Harris concealed these facts by
“repeat[ing] the sham wonders of FLiK Tokens including their utility.” But
Fedance misunderstands the test to determine whether something is a security
subject to federal securities laws and regulations.
The Securities Act of 1933 defines a “security” to include many things,
including an “investment contract.” 15 U.S.C. § 77b(a)(1). Courts have interpreted
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“investment contract” broadly to encompass many money-raising schemes.
Thomas Lee Hazen, 1 Treatise on the Law of Securities Regulation §§ 1:49–50, at
116–19, 124 (7th ed. 2016). The basic test for distinguishing an “investment
contract” from other commercial dealings is “whether the scheme involves an
investment of money in a common enterprise with profits to come solely from the
efforts of others.” SEC v. W.J. Howey Co., 328 U.S. 293, 301 (1946). “If that test
[is] satisfied, it is immaterial whether the enterprise is speculative or non-
speculative or whether there is a sale of property with or without intrinsic value.”
Id. We have “divided the Howey test into the three elements: (1) an investment of
money, (2) a common enterprise, and (3) the expectation of profits to be derived
solely from the efforts of others.” SEC v. Unique Fin. Concepts, Inc., 196 F.3d
1195, 1199 (11th Cir. 1999) (internal quotation marks omitted).
To determine whether a transaction satisfies the “expectation of profits”
element, the Supreme Court has instructed us to examine if an investor “is attracted
solely by the prospects of a return on his investment,” as opposed to when “a
purchaser is motivated by a desire to use or consume the item purchased.” United
Hous. Found., Inc. v. Forman, 421 U.S. 837, 852–53 (1975) (internal quotation
marks omitted). We look at both the motivations of the purchasers and the
promotional materials associated with the offer and sale at issue. Rice v. Branigar
Org., Inc., 922 F.2d 788, 790 (11th Cir. 1991) (Powell, J.). Courts “examine the
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substance—the economic realities of the transaction—rather than the names that
may have been employed by the parties.” United Hous. Found., 421 U.S. at 851–
52.
Felton and Harris allegedly fooled Fedance and other token purchasers into
thinking that FLiK would be wildly successful, but they did not fool those
purchasers into thinking that they were buying FLiK Tokens as anything but an
investment. Indeed, Fedance alleged that Felton and Harris “touted, and [he and the
putative class plaintiffs] reasonably expected, that the FLiK Tokens received . . .
would increase in value.” These purchases were all “About the Money.” See T.I.
featuring Young Thug, About the Money, on Paperwork (Grand Hustle Records &
Columbia Records 2014).
All the facts that Fedance alleged regarding the nature of FLiK Tokens—to
prove that their sale satisfied the Howey test—were available to any token
purchaser before, during, or soon after the initial coin offering. Fedance readily
admitted that “by their very nature, [cryptographic] tokens sold before a network
launch are securities, because investors purchasing those tokens . . . rely[]
primarily on the technical and managerial efforts of others to affect the failure or
success of the enterprise.” FLiK had not launched its viewing platform at the time
of the initial coin offering. In its whitepaper, FLiK stated that it would use the
funds raised from the initial coin offering to develop the company and implement
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its platform. And FLiK and its purported co-owners promoted the tokens for their
profit potential. Consider that soon after the initial coin offering, Felton posted that
the value of the tokens would increase to almost $15 within 15 months, which he
said “represent[ed] TREMENDOUS growth.”
True, FLiK and its purported co-owners might have tried to obscure that
FLiK Tokens purchased during the initial coin offering could be considered
securities. The whitepaper never explicitly stated that FLiK Tokens were not
securities, but it did say that the FLiK Token was “a cryptographic token used by
the FLiK application” and that FLiK Tokens would “allow token holders to rent or
purchase projects” and “grant token holders access to premium features and
subscriptions.” Nevertheless, any supposed future utility of the tokens on FLiK’s
“end-to-end entertainment ecosystem” is beside the point. Plenty of items that can
be consumed or used—from cosmetics to boats to Scotch whisky—have been the
subject of transactions determined to be securities because they had the attributes
of an investment. See Hazen, 1 Law of Securities Regulation § 1:49, at 116–19
(listing examples).
Fedance alleged that he and the putative class could not have brought the
claims until at least September 2018, but he identified no concealed facts necessary
to bring the claims that came to light at that point. Cf. Summerhill v. Terminix, Inc.,
637 F.3d 877, 881 (8th Cir. 2011) (“If the plaintiff made any particular discovery,
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it should be stated when it was made, what it was, how it was made, and why it
was not made sooner[.] . . . One may not avoid the effect of the statute of
limitations on the ground of fraudulent concealment if he . . . fails to
plead . . . when he . . . discovered the alleged fraud.” (internal quotation marks
omitted)). According to the complaint, Felton’s fraudulent concealment continued
through the end of August 2018 with the suspicious acquisition of FLiK by
SkyBlock. Perhaps Felton managed to continue the illusion that the FLiK platform
would someday launch until then. But those misrepresentations have no bearing on
whether Fedance and the putative class were prevented from realizing that they had
invested in FLiK Tokens in August and September 2017. Anyone in Fedance’s
position could say “You Know What It Is.” See T.I. featuring Wyclef Jean, You
Know What It Is, on T.I. vs. T.I.P. (Grand Hustle Records et al. 2007).
Fedance also alleged that he was “unaware” that FLiK Tokens were sold as
securities until April 2019, when the district court ruled that similar allegations
were sufficient to prove that they were. See Beranger, 2019 WL 5485128, at *4.
But Fedance had all the facts he needed to make that same legal conclusion well
before then. Because any misrepresentations on the part of Felton or Harris did not
make Fedance or any putative class members “ignoran[t] of a potential [section
12(a)(1) or section 15(a)] claim,” Prather, 446 F.2d at 341, equitable tolling does
not excuse the untimeliness of Fedance’s complaint.
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USCA11 Case: 20-12222 Date Filed: 06/21/2021 Page: 21 of 21
IV. CONCLUSION
We AFFIRM the dismissal of Fedance’s complaint.
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