It Ain't Over Til It's Over

Recently, as recently as last 08/06/03, the Honorable Judge William Horsley Orrick III of the District Court for the Northern District of California decided In re Ooki (Commodity Futures Trading Commission v. Ooki DAO, 3:22-cv-05416).

One can speak of a one-to-zero for the CFTC against Ooki DAO, against DAOs in general, against DEXs more generally, and against the crypto world under a complete generality. But a "one-to-zero" is just that, a round won on points in a fight with fourteen rounds to fight.

The judgment resolves the case by default by granting each and every one of the CFTC's claims on the grounds that Ooki DAO is a "person" under the Commodity Exchange Act and, as such, amenable to suit.

More specifically, the ruling finds that Ooki DAO is an “unincorporated association” under California state law (and hence, a “person”). But the ruling is silent as to who the members of that unincorporated association are; just as it is silent as to what a DAO is and who its members are.

Of course, it is silent in the sense that it does not expressly say so since those questions are implicitly understood to be settled: there could be no other way to condemn.

In fact, it can be said that these important issues were already practically resolved since the judge, in his ORDER TO SERVE INDIVIDUALS OR SHOW CAUSE of 12/12/22, stated that "it seems clear in this case that Ooki DAO has actual notice of the litigation", being that the service and summons of the lawsuit had been made to Ooki DAO as if the DAO were a de facto unincorporated association, namely: by uploading the corresponding files together with the summons to the Help Chat Box that Ooki DAO had and has implemented on its website, as well as to the Online Forum accessible from a link on the said website.

This interpretation is not undermined by the fact that the judge agreed, in a complementary manner, to notify the two DAO members previously identified (Tom Bean and Kyle Kistner, founders of bZeroX LLC, the predecessor of Ooki DAO, which in the meantime had been called bZx DAO).

For the judge, just as when the unincorporated association learns of something, its members learn of that something, so when the DAO learns of something, its members also learn of that something.

Of course, there are many presumptions, perhaps too many, in this reasoning that touches on the fundamentals of procedural law.

Something that was seen, and very well, not only by the amici curiae who appeared at the trial to defend Ooki DAO's position (up to four, in chronological order: LeXpunK, Defi Education Fund, Paradigm Operations, and a16z) but before that by the crypto-rebel inspector, Mersinger, with her dissenting statement of 09/22/22.

Much has been written about what has already happened in this process, and more will be written, but even more will be written about what is to come in the execution of a sentence that has both good and bad news for the parties.

And although we often do not know very well which is the good or the bad news for the simple reason that the good or the bad depends on the context and the need, what can now be affirmed is that this sentence satisfies everyone to the extent that it could satisfy them given the specific circumstances of the development of the case.

So, on the one hand, it is true that the CFTC (and therefore, the SEC) has its precedent against those strange entities that are the DEXDAOs and that now, according to some, seem to be persons (procedurally speaking).

However, on the other hand, Ooki DAO, but perhaps especially its token-holders, have very good arguments—but very good—either to nullify the process or to turn its execution into an insufferable diabolical execution:

The enforcement of the judgment against the non-resident tokenholders (Hague argument), the essentially decentralized nature of the DAO (ubiquity argument), the circumstance of the tokenholders being genuine John Doe and Jane Doe (Doe argument), the prior conviction of Tom Bean and Kyle Kistner for the same acts together with the claim to go against the DAO and its members for the same acts (non bis in idem or the four bites argument), the fact that from a not inconsiderable point of view the DAO may be to its members what the flock is to the sheep (universitas argument), the consideration that the DAO may form per se an atypical legal wrapper (atypical legal wrapper argument), the lack of knowledge about what a hybrid token is and the rights and duties that follow from its mere possession (token arguments), the right to technologically neutral justice and regulation (technological neutrality argument), and, finally, covering all the above as if it were an umbrella, the fact that neither the DAO has defended itself (who should defend the DAO? ) nor its members have defended themselves because they have not had the opportunity to defend themselves (the defenselessness or due process argument).

So, as Rocky Balboa said:

.