United States District Court, D. Connecticut
RULING ON CLASS CERTIFICATION
MICHAEL P. SHEA, U.S.D.J.
case comes from the brave new world of cryptocurrency. The
Plaintiffs are individuals who invested in products that
ostensibly allowed them to share in the profits generated by
“mining” - or solving complex mathematical
problems to clear transactions in - digital currency. They
are suing two companies that sold them these products and an
individual who allegedly controlled these companies, claiming
they were defrauded in violation of federal and state
securities laws and the common law. I must decide whether the
Plaintiffs may represent a class of such investors under Rule
23 of the Federal Rules of Civil Procedure. I conclude they
may do so and thus grant their motion to certify the class,
although I narrow the proposed class to address valid
objections raised by the individual Defendant, who is at this
point the only active Defendant in the case. I deny the
Defendant's motion to exclude the Plaintiffs' expert
declarations as moot because I do not rely on them to reach
Garza and Fraser
2003, Homero Joshua Garza, who would later become the CEO of
GAW Miners LLC (“GAW Miners”) and ZenMiner LLC
(“ZenMiner, ” together with GAW Miners,
“the Companies”), first met Stuart A. Fraser, the
remaining active Defendant in this case. ECF No. 57 at ¶
33. Over the next several years, Fraser, who was the
Vice-Chairman of an investment bank called Cantor Fitzgerald,
invested in various computer-related business ventures that
Garza managed. Id. at ¶¶ 34-37. Although
they did not formalize all of their business relationships,
they had an understanding that Garza would serve as CEO of
their respective companies and Fraser would serve as
“the Board.” Id. at ¶ 34. They also
had a close personal relationship. Id. at
incorporated GAW Miners in March 2014 and served as its CEO.
Id. at ¶ 46. When the company first started,
Fraser invested approximately $135, 000 into the business;
later that year, he provided the company with three loans of
$200, 000 each. Id. at ¶ 47. He also provided
GAW Miners and Garza short-term loans. Id. Fraser
served as “the Board, ” id. at ¶
46, and he and Garza each owned half the company under an
earlier agreement concerning ownership of their joint
ventures, id. at ¶ 48. They ultimately agreed
to set aside 18% of the equity in GAW Miners for investors or
employees. Id. A few months later, in July 2014,
Garza incorporated ZenMiner. Id. at ¶¶ 20,
78. Garza and Fraser owned and controlled ZenMiner with Garza
serving as the Managing Member. Id. at ¶¶
Companies offered various products and services related to
virtual currency. Virtual currency is a digital
representation of value that can be traded and functions as a
medium of exchange. Id. at ¶ 25. Unlike fiat
currency, which is money designated by a country as its legal
tender, virtual currency does not have legal tender status in
any jurisdiction. Id. The most widely adopted
virtual currency is Bitcoin, but there are also other virtual
currencies in use, known as “altcoins.”
Id. An individual can “mine” virtual
currency by using software to solve complex algorithms that
validate groups of transactions in that virtual currency.
Id. at ¶¶ 26, 28. Each unit of virtual
currency has a “blockchain” that serves as an
electronic public ledger of all transactions in that
currency. Id. at ¶ 27. The first miner to
confirm the transactions in a particular block and write them
into the blockchain is rewarded with newly-issued virtual
currency. Id. at ¶ 28.
competition among miners increases, more computer processing
power becomes necessary to mine Bitcoin and other virtual
currencies. Id. at ¶ 29. The processing power
of a computer used to confirm virtual currency transactions
is measured by its “hash rate, ” which represents
the No. of calculations it can perform per second.
Id. Sometimes, miners combine their computing power
into mining pools to increase their chances of receiving a
payout. Id. at ¶ 30.
Hardware-Hosted Mining and Cloud-Hosted Mining
and Fraser founded GAW Miners to purchase virtual currency
mining equipment from overseas manufacturers and resell it to
customers. Id. at ¶ 75. Later, in June 2014,
GAW Miners began selling “Hardware-Hosted
Mining.” Id. at ¶ 77. Customers who
purchased this product were told that GAW Miners would host
computer hardware in its own datacenter, but allow customers
to access and control their mining equipment via remote
management software offered by ZenMiner. Id. at
¶ 77. GAW Miners then began offering
“Cloud-Hosting Mining” in July 2014. Id.
at ¶ 79. This was similar to Hardware-Hosted Mining, but
customers were told they could control their mining equipment
through a ZenCloud account instead of through remote
management software. Id. In addition, those who
purchased Cloud-Hosted Mining could direct their equipment to
engage in mining only through one of the handful of mining
pools offered on the ZenCloud website. Id. at ¶
80. Customers of both products were told that they could end
their hosted service at any time and receive their physical
equipment in the mail. Id. at ¶ 81.
Plaintiffs allege that in reality, GAW Miners purchased very
few pieces of mining equipment and did not have sufficient
equipment to return to customers. Id. at
¶¶ 81, 89. They further allege that GAW Miners was
not directing customers' computing power to any mining
pools, but was instead operating a Ponzi scheme whereby it
used incoming funds from new customers to pay existing
customers the “returns” generated from mining
activities. Id. at ¶¶ 89-91. Once
customers began to complain that they could not see the
increase in power in the mining pools they believed they had
chosen to mine through ZenCloud, the Companies changed
business models and offered customers the opportunity to
convert their Cloud-Hosted machines into another product,
described in detail below, called Hashlets. Id. at
Companies began selling Hashlets in August 2014. Id.
at ¶ 95. Hashlet customers believed they were buying the
right to profit from a slice of the computing power owned by
the Companies, but without the right to acquire a specific
piece of mining equipment (unlike customers of Hardware- and
Cloud-Hosted Mining). Id. at ¶ 97. They were
told that they could direct their Hashlets to mine in one of
the particular mining pools available through ZenCloud and
that they would receive a share of the payout earned by that
pool's mining activity. Id. at ¶¶ 98,
100. The majority of investors bought Hashlets with U.S.
currency or Bitcoin, but others bought Hashlets by converting
the value of their Cloud-Hosted Mining equipment.
Id. at ¶ 99. Investors were charged maintenance
fees to pay for the upkeep of the equipment purportedly
behind the Hashlets and these fees were deducted from their
ZenCloud accounts daily. Id. at ¶ 101. They
could also request withdrawals, in Bitcoin, from their
accounts. Id. at ¶ 101.
Hashlets could mine for Bitcoin or Altcoin
(“Bitcoin/Altcoin-Hashlets”). Id. at
¶ 105. But there were different types of Hashlets.
Id. at ¶¶ 113-14. “Zen
Hashlets” and “Prime Hashlets” were two of
the most expensive types as they purportedly allowed
investors exclusive access to ZenPool. Id. at ¶
130. ZenPool was advertised as an advanced multi-pool-a pool
that mines for both Bitcoin and Altcoin depending on the
profitability of each coin-with the highest and most reliable
payout. Id. at ¶ 129. The Plaintiffs allege
that, contrary to these representations, there was no
ZenPool. Id. at ¶ 131. Instead, they allege
that GAW Miners determined the daily payout by examining the
publicly-available payouts of other pools and picking a
higher number. Id. . at ¶ 132.
Plaintiffs allege that the Companies dramatically oversold
their computing capacity such that they did not engage in
mining with even close to the amount of computing power that
they sold in Hashlets. Id. at ¶¶ 108, 112.
Specifically, they allege that the Companies falsely claimed
that Hashlets were engaged in mining when they knew that few
Hashlets were actually supported by mining activity.
Id. at ¶¶ 117, 122. When customers
inquired about where their hashing power was being used,
Garza admitted that GAW Miners was not sending its computing
power to the pools that investors had selected-he said that
they were instead sending hashing power to the Companies'
private pools, but assured customers that their payouts were
still based on the pools they selected. Id. at
¶ 124. The Plaintiffs allege that this representation
was also false as the Companies had nowhere near the amount
of computing power required to support the units of hashing
power that had been sold through Hashlets. Id. They
allege that the Companies were running a Ponzi scheme by
paying old investors primarily with funds from ongoing
Hashlet sales. Id. . at ¶ 125.
the fall of 2014, the Companies experienced a drop in their
revenue stream from selling Hashlets and announced new
investment opportunities. Id. at ¶ 134.
Hashpoints, Paycoin, Paybase, and HashStakers
November 2014, GAW Miners announced that it was planning to
launch a new type of virtual currency called
“Paycoin.” Id. at ¶ 136. Before
launching Paycoin, GAW Miners offered its customers
“Hashpoints, ” which were promissory notes that
could be purchased or mined and then exchanged for Paycoin
when Paycoin launched. Id. Customers could convert
their Hashlets-which up until that point mined for Bitcoin
and/or Altcoin-to mine for Hashpoints instead
(“Hashpoint-Hashlets”). Id. at ¶
138. Customers exchanged their Hashpoints for Paycoin when
GAW Miners processed the conversion in December 2014.
Id. at ¶ 149.
Plaintiffs allege that the Companies' “main
motivation in offering Hashpoints was to shift customers'
mining focus from bitcoin and altcoin to Hashpoints and
Paycoin and to stave off bitcoin payments to Hashlet-holders
that GAW Miners could not make.” Id. at ¶
136. In marketing Paycoin, the Companies represented that
they would ensure that the price of Paycoin would not drop
below a $20 per coin floor, id. at ¶ 141, that
banks and investment firms were providing financial backing,
id. at ¶ 140, that there was significant
financial support from outside investors, id., and
that well-known merchants like Amazon and Wal-Mart would
accept Paycoin, id. at ¶¶ 141-42. The
Plaintiffs allege that none of these representations was
true. Id. at ¶¶ 144, 153; ECF No. 97 at
Paycoin was placed into customers' ZenCloud account
wallets. ECF No. 57 at ¶ 151. Then, GAW Miners
introduced HashStakers, “digital wallets designed to
hold Paycoin, ” which functioned as fixed-rate
investment vehicles. Id. at ¶¶ 151-52.
When customers deposited their Paycoin in HashStakers, the
Paycoin would be “locked up” for 30, 90, or 180
days, and would yield a daily payout that was fixed by GAW
Miners. Id. at ¶¶ 151-52. Customers could
purchase HashStakers or “upgrade” their Hashlets
to HashStakers. Id. at ¶ 151.
Miners also developed a central exchange and marketplace for
Paycoin called Paybase. Id. at ¶ 153. However,
Paybase was not ready when Paycoin launched. Id. In
the interim, other virtual currency exchanges created their
own Paycoin exchanges. Id. The price of Paycoin on
these exchanges began to fall below $20. Id. at
¶ 154. Garza then announced that GAW Miners would
“move the market” and used $35, 000 to trade
Paycoin on an exchange called Cryptsy; Paycoin began trading
above $20 per coin after this action. Id. GAW Miners
also led customers to believe that it would take action to
support the $20 floor when Paybase launched. Id.
However, when Paybase launched it lacked many of the promised
features - such as merchant adoption of Paycoin - and the
price of Paycoin dropped. Id. at ¶¶
SEC Investigation & Criminal Prosecution
Securities and Exchange Commission began investigating Garza
and GAW Miners. ECF No. 107-1 at 223-227 (Exhibit A-42).
Although it is unclear when the investigation began, CoinFire
(a news organization that publishes news related to Bitcoin
and other cryptocurrencies) published an article about it on
January 19, 2015. Id.
on July 20, 2017, Garza pled guilty to wire fraud and
stipulated to the following conduct:
1. From approximately May 2014 through January 2015, [Garza]
operated a scheme to defraud victims out of money in
connection with the procurement of virtual currency on their
. . .
3. [Garza] founded multiple companies that were used in
connection with this scheme to defraud related to virtual
currency, including, among others, GAW, GAW Miners, ZenMiner,
4. [Garza's] companies sold miners, access to miners, the
right to purchase a virtual currency called “paycoin,
” as well as “hashlets.” A hashlet entitled
an investor to a share of the profits that GAW Miners and/or
or ZenMiner would purportedly earn by mining virtual
currencies using the computers that were maintained in their
data centers. In other words, hashlet customers, or
investors, were buying the rights to profit from a slice of
the computing power owned by GAW Miners and ZenMiner.
5. To generate business as well as attract customers and
investors, [Garza] made multiple statements related to the
scheme, including, among others:
. . .
. . .
The hashlets the defendant's companies sold
engaged in the mining of virtual currency.
The defendant's companies sold more hashlets
than were supported by the computing power
maintained in their data centers. Stated
differently, the defendant's companies sold the
customers the right to more virtual currency than
the companies' computing power could generate.
The market value of a single paycoin would not fall
below $20 per unit because the defendant's
companies had a reserve of $100 million that the
companies would use to purchase paycoins to drive
up its price.
The defendant's companies did not have a
reserve of $100 million and could not therefore
drive up the value of Paycoin.
6. [Garza] along with others, acting through his companies,
applied money his companies had made from new hashlet
investors and used it to pay older hashlet investors money
that the companies owed them based on the purported mining
GAW Miners and ZenMiner had done on the investors'
behalf. . . .
ECF No. 96-1 at 113-14 (Exhibit A-21).
Plaintiffs allege that the Companies (1) violated Section
10(b) of the Securities and Exchange Act, 15 U.S.C. §
78j(b), and Rule 10b-5 thereunder, 17 C.F.R. §
240.10b-5; (2) violated Sections 36b-29(a)(2) and 36b-4 of
the Connecticut Uniform Securities Act; (3) violated Conn.
Gen. Stat. § 36b-29(a)(1); and (4) engaged in common law
fraud. ECF No. 57 at ¶¶ 167-173, 179-186, 192-195,
200-203. They allege that Fraser is liable as a control
person or aider/abettor under (1) Section 20(a) of the
Securities and Exchange Act, 15 U.S.C. § 78t(a); (2)
Conn. Gen. Stat. § 36b-29(a)(2); (3) Conn. Gen. Stat.
§ 36b-29(c); and (4) common law fraud. ECF No. 57 at
¶¶ 174-178, 187-191, 196-199, 204-207. The
Plaintiffs seek to certify the following class:
All persons or entities who, between August 1, 2014, and
December 1, 2015 purchased or acquired Hashlets, Hashpoints,
HashStakers, and Paycoin from GAW Miners and ZenMiner.
Excluded from the Class are any defendants, any parent,
subsidiary, affiliate, agent or employee of any defendant,
any co-conspirator and any governmental entity.
97 at 19. I held a hearing on the Plaintiffs' class
certification motion on April 12, 2019.
137 (transcript of hearing). After the hearing, I received
supplemental submissions from the parties. See ECF
reasons explained below, I modify the class definition and
GRANT the Plaintiffs' motion to certify as to the
All persons or entities who, between August 1, 2014 and
January 19, 2015, (1) purchased Hashlets, Hashpoints,
HashStakers, or Paycoin; or (2) acquired Hashlets,
Hashpoints, HashStakers, or Paycoin by converting, upgrading,
or exchanging other products sold by the Companies. Excluded
from the Class are any defendants, any parent, subsidiary,
affiliate, or employee of any defendant, any co-conspirator,
and any governmental agency.
the parties have not yet had a chance to comment on the
modified class definition, they may, by July 5, 2019, file
briefs not exceeding 10 pages in which they address any
new issues raised by the modified class definition
that the Court has not already addressed in this decision.
plaintiff seeking certification of a Rule 23(b)(3) class
action bears the burden of satisfying the requirements of
Rule 23(a)-numerosity, commonality, typicality, and adequacy
of representation-as well as Rule 23(b)(3)'s
requirements: (1) that ‘the questions of law or fact
common to class members predominate over any questions
affecting only individual members' (the
‘predominance' requirement); and (2) that ‘a
class action is superior to other available methods for
fairly and efficiently adjudicating the controversy' (the
‘superiority' requirement).” In re
Petrobras Securities, 862 F.3d 250, 260 (2d Cir. 2017)
(quoting Fed.R.Civ.P. 23(a), (b)(3)). The Second Circuit
“has also recognized an implied requirement of
ascertainability in Rule 23, which demands that a class be
sufficiently definite so that it is administratively feasible
for the court to determine whether a particular individual is
a member.” Id. (internal quotation marks and
party seeking class certification bears the burden of
establishing each of Rule 23's requirements by a
preponderance of the evidence. Amara v. CIGNA Corp.,
775 F.3d 510, 519 (2d Cir. 2014). In determining whether a
proposed class meets these requirements, the court must
resolve any factual disputes and find any facts relevant to
this determination. In re Initial Public Offerings
Securities Litigation, 471 F.3d 24, 41 (2d Cir. 2006).
The court's obligation to make such a determination
“is not lessened by overlap between a Rule 23
requirement and a merits issue, even a merits issue that is
identical with a Rule 23 requirement.” Id.
an alleged securities fraud case, when a court is in doubt as
to whether or not to certify a class action, the court should
err in favor of allowing the class to go forward.”
In re Blech Securities Litig., 187 F.R.D. 97, 102
(S.D.N.Y. 1999); see also Colozzi v. St. Joseph's
Hosp. Health Ctr., 275 F.R.D. 75, 82 (N.D.N.Y. 2011)
(“Doubts about whether Rule 23 has been satisfied
should be resolved in favor of certification.”).
Accordingly, the Second Circuit “accord[s] greater
deference to district court decisions granting class
certification than to decisions declining to certify a
class.” Johnson v. Nextel Commun. Inc., 780
F.3d 128, 137 (2d Cir. 2015).
district courts have “the ability . . . to alter or
modify the class, create subclasses, and decertify the class
whenever warranted.” Sumitomo Copper Litig. v.
Credit Lyonnais Rouse, Ltd., 262 F.3d 134, 139 (2d Cir.
2001); see also Fed. R. Civ. P. 23(c)(1)(C)
(“An order that grants or denies class certification
may be altered or amended before final judgment.”).
Thus, “[i]f factual or legal underpinnings of the
plaintiffs' successful class certification motion are
undermined once they are tested [on the merits], a
modification of the order, or perhaps decertification, might
then be appropriate.” Taylor v. The Hous. Auth. of
New Haven, 267 F.R.D. 36, 62 (D. Conn. 2010)
(internal quotation marks omitted), aff'd sub
nom. Taylor ex rel. Wazyluk v. Hous. Auth. of City of New
Haven, 645 F.3d 152 (2d Cir. 2011).
argues that the proposed class includes members who lack
Article III standing and do not meet the requirements of Rule
10(b) or the Connecticut Uniform Securities Act
(“CUSA”). ECF No. 107 at 10-11. With regard to
Article III standing, he argues that “the class would
by definition include members who suffered no injury
traceable to Defendants' alleged misconduct, ” and
points to those who broke even or profited from their
purchases as well as those who received them for free.
Id. at 10. As to Rule 10(b), he argues that a
plaintiff must either be a purchaser or seller of the
securities at issue, and that the proposed class includes
individuals who are neither. Id. at 10-11.
Similarly, with regard to CUSA, he argues that only
“the person buying the security” can bring suit.
Id. As discussed below, I agree with some of these
arguments and have modified the class definition accordingly;
the remaining arguments raised by Fraser do not preclude
Article III Standing
class action, “only one of the named Plaintiffs is
required to establish standing in order to seek relief on
behalf of the entire class.” C States S.E. and S.
W. Areas Health and Welfare Fund v. Merck-Medco Managed Care,
L.L.C., 504 F.3d 229, 241 (2d Cir. 2007). And the court
does “not require that each member of a class submit
evidence of personal standing.” Denney v. Deutsche
Bank AG, 443 F.3d 253, 263 (2d Cir. 2006). “At the
same time, no class may be certified that contains members
lacking Article III standing” and a “class must
therefore be defined in such a way that anyone within it
would have standing.” Id. at 264.
III standing consists of three elements: (1) “an injury
in fact, (2) that is fairly traceable to the challenged
conduct of the defendant, and (3) that is likely to be
redressed by a favorable judicial decision.”
Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016).
Here, Fraser argues that the first element is not satisfied
because the class “would by definition include members
who suffered no injury traceable to Defendants' alleged
misconduct.” ECF No. 107 at 10. More specifically, he
argues that putative class members who “broke even or
profited from their investments in the Companies'
products, ” who “received them for free”
through promotions, or who stole them as a result of
“flaws in the Companies' systems, ” did not
suffer any injury. ECF No. 107 at 10-11.
correct that any individuals who stole products or received
them for free would not have been injured by the alleged
fraud. At oral argument, Plaintiffs' counsel stated that
his intent in including in the class definition persons who
merely “acquired” but did not purchase the
products was to capture “rollovers” or
“exchanges, ” such as persons who agreed to
convert their Hashlets from Bitcoin-earning to
Hashpoint-earning and thereby “acquired”
Hashpoints. ECF No. 137 at 5. Accordingly, I revised the
Plaintiffs' proposed class definition to more closely
track this intent.
not agree, however, that the class must also exclude those
who “broke even or profited” from their
investment as this concern goes to damages rather than
standing. A plaintiff suffers an injury in a securities fraud
case when she changes her position - such as by buying or
selling - as a result of a material misrepresentation.
See, e.g., CSI Inv. Partners II, L.P. v. Cendant
Corp., 180 F.Supp.2d 444, 458 (S.D.N.Y. 2001) (“In
a securities fraud action, [the] cognizable injury occurs at
the time an investor enters . . . a transaction as a result
of material misrepresentations.”) (quoting Zola v.
Gordon, 685 F.Supp. 354, 363 n. 10 (S.D.N.Y. 1988));
EIG Energy Fund XIV, L.P. v. Petroleo Brasileiro
S.A., 246 F.Supp.3d 52, 69 (D.D.C. 2017) (explaining
that, for fraud claims brought under Rule 10b, “it is
well established that a plaintiff suffers legal injury at the
moment she makes her investment, not when she suffers actual
losses, ” and that there is “no reason for
differentiating between when an injury arises for common law
fraud and for Rule 10b-5” as “standing to raise a
Rule 10b-5 securities fraud claim . . . requires a plaintiff
to have met both constitutional and statutory
standing requirements”), aff'd, 894 F.3d
339 (D.C. Cir. 2018).
also argues that the proposed class includes members who
cannot satisfy Section 10(b)'s requirements of a
“purchase” or “sale” of securities.
Specifically, he argues that the inclusion of those who
acquired products by “‘mining' products, such
as Hashpoints, ” or converting one product to another,
such as “converting ‘Hashpoints' to . . .
Paycoin, ” prevents certification of the class. ECF No.
107 at 11. I disagree. Section 10(b) states that it shall be
unlawful “[t]o use or employ, in connection with
the purchase or sale of any security . . . any
manipulative or deceptive device or contrivance in
contravention of such rules and regulations as the Commission
may prescribe . . . .” 15 U.S.C. § 78j(b)
(emphasis added). Rule 10b-5 contains similar language
requiring a “connection with the purchase or sale of
any security.” 17 C.F.R. § 240.10b-5. When the
Supreme Court “has sought to give meaning to the phrase
[“in connection with the purchase or sale”] in
the context of § 10(b) and Rule 10b-5, it has espoused a
broad interpretation.” Merrill Lynch, Pierce,
Fenner & Smith Inc. v. Dabit, 547 U.S. 71, 85 (2006)
(emphasis omitted). “Under [its] precedents, it is
enough that the fraud alleged ‘coincide' with a
securities transaction-whether by the plaintiff or by someone
else.” Id. “The requisite showing, in
other words, is deception in connection with the purchase or
sale of any security, not deception of an identifiable
purchaser or seller.” Id. (internal quotation
marks omitted). In addition, the Securities and Exchange Act
defines the terms “purchase” and
(13) The terms “buy” and “purchase”
each include any contract to buy, purchase, or otherwise
acquire. For security futures products, such term includes
any contract, agreement, or transaction for future delivery.
For security-based swaps, such terms include the execution,
termination (prior to its scheduled maturity date),
assignment, exchange, or similar transfer or conveyance of,
or extinguishing of rights or obligations under, a
security-based swap, as the context may require.
(14) The terms “sale” and “sell” each
include any contract to sell or otherwise dispose of. For
security futures products, such term includes any contract,
agreement, or transaction for future delivery. For
security-based swaps, such terms include the execution,
termination (prior to its scheduled maturity date),
assignment, exchange, or similar transfer or conveyance of,