SK POOLS MINING CORPORATION

Securities and Exchange Commission COMMISSION EN BANC Republic of the Philippines Department of Finance

IN THE MATTER OF:

SK POOLS MINING CORPORATION

SEC CD0 CASE N0. 02-24-109 Promulgated: 20 February 2024

ENFORCEMENT AND INVESTOR PROTECTION DEPARTMENT, Movant.

CEASE AND DESIST ORDER

This resolves the Motion for Issuance of A Cease and Desist Order dated 14 February 2024 (the "Motion") Investor Protection Depar filed by the Enforcement and Februar 2024, praying that a Cease and Desist Orde Ssued: (a) directing SK POOLS

officers, partners, MINING CORPORATION "SK POOLS". its agents, uplines enablers, influeng eferred to as the Agents". and ar and on their behalf, T3 offering/selling securitie: the. requisite registrat pproved by the SEC, and the cor issued; and (b) prohibiting s all persons claiming and

involving the funds disposing, acting for Ie anks, and from transferring, ting any and all business any and all assets, properties, real or persona named and/or covered perso custody, without authority from the Commission. participation whatsoever, whether directly or indirectly, under their rein may have any interest, claim or bank deposits, if any, of which the

PARTIES

tasked, among others, to investigate motu proprio or upon complaint or referral, violations of laws, rules, and regulations administered, Movant, EIPD is one of the Commission's operating departments

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implemented, or issued by the Commission, and to seek the issuance of a CDO whenever warranted by the circumstance.1

SK POOLS is an entity that is not registered with the Commission either as a corporation or as a partnership, and does not have the authority or license to offer and/or sell securities to the public.2

RELEVANT FACTS

The Commission received numerous reports and inquiries from the public regarding the legality of the alleged solicitation activities of SK

the operations and transactions of SK POOLS, for possible violations of POOLS, which triggered the conduct by the EIPD of an investigation on

Securities Regulation Code (SRC),3 the Revised Corporation Code of the

implemented by the Securities and Exchange Commission (the Philippines (RCC), and other rules and regulations administered and "Commission").4

confirmed that SK POOLS openly represents itself to the public as the The information obtained during the investigation of the EIPD

currency mining services, thus: world's best online cloud computing platform which provides multi-

Based on intelligent online mining applications, SKPmine has created the world's best online cloud computing platform, not just now but in the next 10 or 20 years"5 "SKPmine has been successfully operating on the Internet for three years.

To entice the public to buy its unregistered securities, SK POOL publicly posted in its Facebook account "SKP Mine" a spurious Certificate

("SEC Iloilo"), to wit: of Registration purportedly issued by the SEc-Iloilo Extension Office

2 Motion, Annex "A" and Annex "B". 4 Screenshots of inquiries are marked as Annex "B". 5 Motion, Annex "F 1 SEC Office Order No. 512, series of 2013. 3 R.A. No. 8799. PAGE THE DOCUMENTS ON RECORD CERTIFIFD TRUE COPY OR Q SEC OGC 15 PAGES

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RAO

reward income. Under this investment scheme, for example, a member posted in the Facebook account provides the investing public with four (4) ways to earn, as follows: (a) income from starting a mining machine; (b) team income; (c) invitation income reward; and (d) weekly salary The unregistered investment scheme of SK POOLS which is also

mining machine, results in one (1) new member being rewarded US machine income and team income, the daily income can easily reach US who invites two (2) new members every day who in turn activates the H2 Dollar: Seven ($7.00). Thus, inviting two (2) new members translates into 7+7+14 US dollars in rewards. Together with the starting mining

Dollar: Twenty ($20.00).

Under the first method, a prospective investor must sign-up through a link which will direct him/her to a cloud mining app where

PhP700.00 to PhP75,000.00,and earn between P70.00 to PhP1,960.00 such investor can lease the cloud-mining machine at the rate of

per day for cycles ranging from twenty (20) days to three hundred (300)

SCOC

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days. This package entitles the investor to earn income from P105 ($1.5) to P588,000 ($8,400) for the entire cycle.

CLOUD MINING MAGHINE

B0

In the SK POOL's website,6 the following unregistered securities which it is offering/selling in the guise of a rental fee for a cloud mining machine are as follows:

Package Name M3 M1 Amount P3,500 ($50 P700 ($10 P140 ($2) P70 ($1) Daily Returns P1,400 P8,400 ($120) ($20 Total Cycle/Lock- in period 20 days 60 days Percentage of Return cycle) (after 200% 240%

M4 K2 K4 P18,200 P5,600 P8,400 ($120) ($260) ($80 P840 ($12) P280 ($4) P560 ($8) P235.200 ($3,360) P28,000 P16,800 ($400 ($240) 100 days 280 days 30 days 1,292% 500% 200%

K3 H4 P75,000 ($1,080) P35,000 ($500) P1,400 ($20) P1,960 ($28) P420,000 P588,000 ($6,000) ($8,400) 300 days 300 days 1200% 784%

6 Ibid. Annex "F" CERTFIED TRUE COPY OF SEC-OGC

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A screenshot of the cloud mining machines which are rented out by SK POOLS, which is accessible in its website was submitted in evidence by the EIPD, to wit:7

G TE

Pco S

In addition to the foregoing method, the EIPD also showed proof that members of SK POOLS are also able to avail of weekly salary method. which allows them to earn higher income/salary in proportion to the size of the team forged/built, thus:

Team Size 30 Weekly Salary $6

50 10 100 $20 200 O40 300 60 500 $100 1000 $300

Further, SK POOLS also provides for the invitation income reward

where a new member-investor joins and rents out a cloud mining method, where a member receives a bonus for every successful referral, machine. Specifically, a referral bonus of US$1.00 is given to the member whose referred member activates an M1 and M3 machines; US$2.00 referral bonus if his/her second referred member activates an M1 and

7 Motion "Annex F". SEC -OGC

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M3; US$3.00 referral bonus if his/her third referred member activates an M1 and M3; and US$4.00 referral bonus if his/her fourth referred member activates an M1 and M3. However, if the referred member avails of an M4 machine on the same day, the referral bonus is US$1.00 for the first referred member, US$6.00 for the second referred member, US$8 for the third referred member, and US$10 for the fourth referred member. Moreover, if the referred member rents out a K7 machine, the referral bonus reaches US$65.00 for the first referred member, US$68.00 for the second referred member, US$71.00 for the third referred member; and US$75.00 for the fourth referred member.

In support of its allegation that SK POOLS is not authorized to sell/offer securities, the EIPD submitted in evidence the Certifications

(CRMD), the Corporate Governance and Finance Department (CGFD) and the Markets and Securities Regulation Department (MSRD) of the issued by the Company Registration and Monitoring Department

a primary franchise as a corporation or partnership; has not been issued Commission, which attested to the fact that SK POOLS has not applied for

any secondary license to operate as broker/dealer of securities; and is not a registered issuer of any securities pursuant to Sections 8 and 12 of the SRc, or of mutual funds, including exchange traded funds, proprietary/non-proprietary shares or membership certificates and timeshares

and warning the public to stop investing in SK POOLS, and to exercise investments for and on behalf of it.8 caution in dealing with any individuals or group of persons soliciting On 31 January 2024, the Commission issued an Advisory informing

receive reports that SK POOLS continues to offer/sell unregistered securities to the public through the internet via its Facebook account.9 However; notwithstanding the foregoing, the EIPD continued to

Hence, the instant Motion.

ISSUE

warrant the issuance of a CDO against SK POOLS. Whether the allegations and evidence submitted by the EIPD

9 Ibid. Annex "J" 8 Ibid. Annex "I" THE TIOCUMENTS ON RECORD CERTIFIED TRUE COPY OF SECOCC

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RULING

The Commission finds the Motion meritorious.

POOLS is selling. and/or offering unregistered securities in the form of investment contracts to the public without the requisite license from the The EIPD was able to establish by substantial evidence that SK

Commission, in violation of the SRC and the 2015 Implementing Rules and Regulations (SRC-IRR).

The evidence showed that SK POOLS is actually offering/selling securities to the public which is generated from its purported cloud mining operations.

Cloud mining is a mechanism which enables/facilitates the mining

installing and directly running computer software and hardware.io of cryptocurrencies using rented computer power without necessarily

mined.11 make crypto mining cheaper than purchasing the machines and bearing and each investor is given their pro-rated share in whatever it is that was Essentially the purpose of cloud mining is to generate and pool funds to the energy costs. The proceeds from the crypto mining are thus divided

SK POOLS represents to the public as the owner of

from the cloud mining machines, and not the cloud mining machines themselves that generates the money that is being used to pay the returns promised to investors. In short, investors are misled to believe that they are sharing in income generated by the mining activities of SK POOLS that computers/cloud mining machines with enough computing power that is capable of mining cryptocurrencies, and offers investors the opportunity to share in such computing power by "leasing" its cloud mining machines. The investment scheme of SK POOLS however reveal that it is the rents

received from new investors. it is using the alleged cloud mining machines, when in reality, the guaranteed returns paid to investors comes from investments (rentals)

Investopedia. https://www.investopedia.com/terms/c/cloud-mining.asp last accessed: 16 February 11 Ibid. 10 Frankenfield, J. (2023, December 23). What Is Cloud Mining of Cryptocurrency, and How Does It Work? 2024 SECOGC

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offered/sold by SK POOLS to the public are securities, which falls under From the foregoing, we hold that the investment packages being

the definition in Section 3.1 of the SRC, to wit:

"SEC. 3. Definition of Terms.

and evidenced by a certificate, contract, instrument, whether written corporation or in a commercial enterprise or profit-making venture or electronic in character. It includes: 3.1. "Securities" are shares, participation or interests in a

XXX

future subscription;" (Emphasis supplied) participation in a profit-sharing agreement, certificates of deposit for a b Investment contracts, certificates of interest or

Rule 26.3.5 of the SRC-IRR specifically defines an investment contract as follows:

scheme whereby a person invests his money in a common money or property of others on the promise of profits. enterprise and is led to expect profits primarily from the efforts of others. It is presumed to exist whenever a person seeks to use the "An investment contract means a contract, transaction or

commission." (Emphasis supplied) enterprise, even if the promoter receives nothing more than a broker's more investors "pool" their resources, creating a common A common enterprise is deemed created when two (2) or

In the case of SEC vs. Howey Co., the US Supreme Court defined an

various situations where individuals were led to invest money in a themselves.13 It is in the context of the foregoing that the US Supreme Court came up with and adopted the Howey Test14 in determining if an investment contract as a contract or scheme for the placing of capital or laying out of money in a way intended to secure income or profit from its employment.12 Investment contracts have been used and adopted in common enterprise with the expectation that they would earn a profit through the efforts of the promoter or of someone other than

12 328 U.S. 293 (1946). 13 Ibid. Although the definition as stated in the Howey Case qualified that the earning of profit was expected to be solely through the efforts of another party, Rule 26.3 of the 2015 IRR of the SRC replaced the qualifier with "primarily", acknowledging that an investment contract may still be present where the individual who placed the money exerted a small amount of effort in an attempt to earn the profits. 14 1bid. SEC OGC

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investment scheme, regardless of the legal terminology used, partakes of the nature of an investment contract.

In the case of Virata vs. Ng Wee,15 the Supreme Court reiterated and emphasized the applicability of the Howey Test in determining if a security is an investment contract that requires prior registration from the Commission, thus:

"In this jurisdiction, the Court employs the Howey test, named after the

the domestic definition of the said security. landmark case of Securities and Exchange Commission v. W.J. Howey form of an investment contract. The case served as the foundation for Co., to determine whether or not the security being offered takes the

contract to exist: (1) a contract, transaction, or scheme; (2) an Under the Howey test, the following must concur for an investment investment of money; (3) investment is made in a common enterprise; (4) expectation of profits; and (5) profits arising primarily from the efforts of others. Indubitably, all of the elements are present in the extant case." (Emphasis and underscoring supplied)

of Power Homes Unlimited Corp. v. Securities and Exchange Commission16 transaction should be considered, thus: that in applying the Howey Test, the nature and the entirety of the Relative thereto, the Supreme Court equally emphasized in the case

contract under R.A. No. 8799. Our definition of an investment contract traces its roots from the 1946 United States (US) case of SEC v. W.J. Howey Co. In this case, the US Supreme Court was confronted with the "It behooves us to trace the history of the concept of an investment issue of whether the Howey transaction constituted an "investment

Supreme Court, recognizing that the term "investment contract" was under the state's "blue sky" laws in existence prior to the adoption of not defined by the Act or illumined by any legislative report, held that the Securities Act. Thus, it ruled that the use of the catch-all term contract" under the Securities Act's definition of "security." The US "Congress was using a term whose meaning had been crystallized" "investment contract" indicated a congressional intent to cover a wide range of investment transactions. It established a test to determine

contract." Known as the Howey Test, it requires a transaction, contract, derived solely from the efforts of others. Although the proponents must establish all four elements, the US Supreme Court stressed that the whether a transaction falls within the scope of an "investment or scheme whereby a person (1) makes an investment of money, (2) in a common enterprise, (3) with the expectation of profits, (4) to be

15 G.R. Nos. 220926, 221058, 221109, 221135 & 221218, July 5, 2017 16 G.R. No. 164182, February 26, 2008. CERTIFIED TRUE COPY OS SEC -OGC

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Howey Test "embodies a flexible rather than a static principle, one that

promise of profits." Needless to state, any investment contract covered devised by those who seek the use of the money of others on the regardless of whether its issuer was engaged in fraudulent practices. is capable of adaptation to meet the countless and variable schemes by the Howey Test must be registered under the Securities Act, (Underscoring supplied)

sale and/or offer of unregistered securities in the form of investment agrees with the EIPD's finding, and holds that SK POOLS is engaged in the Applying the Howey Test to the instant case, the Commission

contracts in violation of Section 8.1 of the SRC as all the elements thereof are present, to wit:

unauthorized investment scheme of SK POOLS, prospective investors need to invest their hard-earned money for them First, there is an investment of money. Under the

an amount ranging from P700.00 to P75,000.00. In this actually defrauded because the purpose of a CDO is precisely rent out the cloud mining machines and receive the however is essentially a mechanism designed to mask the unregistered securities that SK POOLS is offering/selling at to prevent the investing public from being defrauded or injured; returns/bonuses guaranteed by SK POOLS. The scheme regard, the law does not require that the investing public is

Second, the EIPD was able to show that the investment scheme of SK POOLS involves the pooling of amounts representing the rentals of the cloud mining machines which

operations. This pooled fund is actually utilized by SK POOLS member-investors paid to be a part of the cloud mining

to pay the incentives and bonuses that it guaranteed to its member-investors. This is essentially the common enterprise that is being sustained by the investments that it is receiving from the public;

Third, under the investment scheme of SK POOLS, member-

member-investors to expect a yield ranging from 200% to P588,000.00 (US$8,400.00) in a period of twenty (20) to investors expect to earn a guaranteed daily return in (US$28.00) daily, or up to P1,400.00 (US$20.00) to amounts ranging from P70.00 (US$1.00) to P1,960.00 three hundred (300) days. In other words, SK P00LS lead its SEC -OGC

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addition, member-investors also expect to earn weekly 1200% of their investment for a specific cycle period. In

salary depending on their team's size, as well as bonuses/rewards from referrals; and

through the marketing and managerial efforts of SK POOLS Fourth, the expectation of profits is derived primarily and/or its Agents who actually runs the entire operations using the social media platform i.e. Facebook, its website and applications.

Section 8.1 of the SRC specifically proscribes the offer or sale of securities within the Philippines without a Registration Statement duly filed with and approved by the Commission, thus:

approved by the Commission. Prior such sale, information on the securities, in such form and with such substance as the Commission shall not be sold or offered for sale or distribution within the (Emphasis supplied) "SEC. 8. Requirement of Registration of Securities. - 8.1 Securities Philippines, without a registration statement duly filed with and may prescribe, shall be made available to each prospective purchaser.'

Relative thereto, Rule 3.1.17 of the 2015 SRC IRR defines "Public Offering" as:

to anyone, whether solicited or unsolicited. Any solicitation or presentation of securities for sale through any of the following modes shall be presumed to be a public offering: "3.1.17. Public offering is any offering of securities to the public o1

X X X

3.1.17.3 Advertisement or announcement in radio, television, communication technology communication;" (Emphasis supplied) telephone, electronic communications, or any other information forms of

and CGFD which the EIPD submitted in evidence, confirmed that SK POOLS has no license to deal in securities. Neither has SK POLLS secured the registration of any security with the Commission. Verily, its act of In the instant case, the Certifications issued by the CRMD, MSRD

unregistered securities in the form of investment contracts to-the public selling unregistered securities without the requisite license constitutes a clear violation of Section 8 of the SRC. Moreover, its act of offering these

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using its website and social media17 sans the required license constitutes an unauthorized offering of unregistered securities.

Finally, relative to the requirements prescribed by law for a valid issuance of a CDO, Section 64.1 of the SRC provides, thus:

proper investigation or verification, motu proprio or upon verified complaint by any aggrieved party, may issue a cease and desist order or practice, unless restrained, will operate as a fraud on investors "Section 64. Cease and Desist Order. - without the necessity of a prior hearing if in its judgment the act or is otherwise likely to cause grave or irreparable injury or prejudice to the investing public." (Emphasis supplied) 64.1. The Commission, after

requisites that must be complied with before a CDO can be validly issued. Under the afore-quoted provision, there are two (2) essential

to wit:

1) There must be a conduct of a proper investigation or verification; and

2) There must be a finding that the act or practice, unless

prejudice to the investing public.18 restrained, will operate as a fraud on investors or is otherwise likely to cause grave or irreparable injury or

complied with by the EIPD. The Commission finds that the foregoing requirements have been

Anent the first requisite, the records disclose that the EIPD

support of its Motion i.e. Certifications from the CRMD, SEC-Iloilo, CGFD conducted a proper investigation and presented substantial evidence in

of their investigation; screenshots of Facebook postings, Cloud Mining and MSRD,19 Affidavit of the EIPD20 investigating officer on the conduct app21 and website postings.22

POOLS's willful employment of fraud in making it appear to the public The second requisite was likewise complied with as shown by SK

18 Securities and Exchange Commission vs. Performance Foreign Exchange Corporation, G.R. No. 19 Motion. Annexes "A" "E", "G" and "H". 20 Ibid. Annex "C" 21 Ibid. Annexes "D" 22 Ibid. Annexes "F" 17 https://www. facebook.com/profile.php?id=6155278016355; https: 154131, July 20, 2006. PAGE U/skpools.pro THE DMUMENTE O CERTFIET SEC.-'OGC TE COFY OU 15 FECORD G

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that it is a legitimate corporation authorized to sell, offer, and deal with securities. The use of a falsified Certificate of Incorporation shows a clear intent to defraud the public which, if unrestrained, will likely prejudice them. This was aggravated by SK POOLS' unauthorized offer/sale of unregistered securities which both law and jurisprudence consider as fraudulent since it necessarily misleads the investing public to the mistaken belief that the transaction and the investment scheme are legitimate, when they are not. Thus, in the case of Securities and Exchange Commission vs. CJH Development Corp.23 the Supreme Court emphasized the need for a prompt issuance of a CDO after a finding of a violation of the SRC that will likely defraud or cause grave or irreparable injury to the investing public, thus:

issued by the SEC motu proprio, it being unnecessary that it results from a verified complaint from an aggrieved party. A prior hearing is also not cease and desist order that aims to curtail fraud or grave or irreparable injury to the public that the SEC is obliged to protect. required whenever the Commission finds it appropriate to issue a injury to investors. There is good reason for this provision, as any delay in the restraint of acts that yield such results can only generate further "The law is clear on the point that a cease and desist order may be

approved by the SEC and that prior to such sale, information on the securities, in such form and with such substance as the SEC may The act of selling unregistered securities would necessarily operate as a fraud on investors as it deceives the investing public by making it appear that respondents have authority to deal on such securities. Section 8.1 of the SRC clearly states that securities shall not be sold or offered for sale or distribution within the Philippines without a registration statement duly filed with and prescribe, shall be made available to each prospective buyer." (Emphasis supplied)

On the basis of the foregoing disquisitions, this Commission finds and so holds that the issuance of a CDO is warranted and is in order.

WHEREFORE, premisesconsidered, SKPOOLSMINING

ordered to IMMEDIATELY CEASE AND DESIST from engaging in the CORPORATION, its officers, partners, representatives, salesmen, any and all persons claiming and acting for and on their behalf, are hereby solicitors, agents, uplines, enablers, influencers, conduits, assigns, and unlawful/unauthorized solicitation, offer and/or sale of securities in the form of investment contracts and/or any other similar or related acts,

23 G.R. No. 210316, November 28, 2016. THD CERTFE SEC OGC FCOYOF RECORD

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until the requisite registration statement is duly filed with and approved by the Commission.

influencers, conduits, assigns, and any and all persons claiming and representatives, salesmen, solicitors, agents, uplines, enablers, SK POOLS MINING CORPORATION, its officers, partners,

acting for and on their behalf are likewise directed to immediately CEASE their internet presence relating to the transactions and investment scheme covered by this Cease and Desist Order. The Commission will institute the appropriate administrative and criminal action against any persons or entities found to act as solicitors, information providers, salesmen, agents, brokers, dealers or the like for and in their behalf.

Finally, the Commission hereby PROHIBITS SK POOLS MINING

solicitors, agents, uplines, enablers, influencers, conduits, assigns, and any and all persons claiming and acting for and on their behalf from CORPORATION, its officers, partners, representatives, salesmen,

transacting any business involving funds in its depository banks, and

participation, whether directly or indirectly, under their custody, to from transferring, disposing, or conveying in any manner, any and all assets, properties, real or personal, including bank deposits, if any, of which the named persons herein may ensure the preservation of the assets of the investors. have interest, claim or

The EIPD of the Commission is hereby DIRECTED to cause the

entity. posting of this Cease and Desist Order in the Commission's website considering that SK POOLS MINING CORPORATION is not a registered

The EIPD is FURTHER DIRECTED to submit a formal compliance report, by way of a pleading, to the Commission En Banc within ten (10) days from receipt of this Cease and Desist Order.

Information and Communications Technology Department of this and Monitoring Department, Markets and Securities Regulation Department, Corporate Governance and Finance Department and the Let a copy of this Order be furnished to the Company Registration

Commission, the Bangko Sentral ng Pilipinas, the Department of Trade and Industry, the National Privacy Commission, the Department of

government unit(s) for their information and appropriate action. Information and Communications Technology, and the relevant local

SEC -- OGC CERTFEDTTUECOTY OR TAPDO KUMINTE ONRECORD

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In accordance with the provisions of Section 64.3 of the SRC and Part II, Rule IV, Section 4-3 of the 2016 Rules of Procedure of the SEC, the Respondent may file a verified Motion to Lift the CDO to the Commission En Banc thru the Office of the General Counsel, within five (5) days from receipt of this Order.

FAIL NOT UNDER PENALTY OF LAW.

SO ORDERED.

Makati City, Philippines.

EMILIO B. AQUINO *

Chairperson

(AVE PAUL D. FRANCISCO KELVIN LESTER K. LEE

Commissioner Commissioner

KARLO S BELLO MCJILL BRYANT T. FERNANDEZ *

Commissioner Commissioner

*On Official Business

SEC -OGC

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SECURITIES AND EXCHANGE COMMISSION SEC HEADQUARTERS, 7907 Makati Avenue Salcedo Village, Bel-air, Makati City Republic of the Philippines 23.PEB.202t DATE

cons is ting of firtEeN IHEREBY CERTIFY that the foregoing 1S a true and correct xerox reproductiou of the official file thereof inx the custody of this Commission SEC CO0 CAJE8Y-A- (0) A0t sopertainng to

Verified By: OR No SEC Administrative Officer II Fees GIPSY C. DAYAON Dated Fad wder