I chatted with a securities lawyer indirectly through another person, i.e. I do not know who the attorney is and I do not want to know (unless I need to hire such an attorney formally), but he did read my prior post. This was a very informal discussion and not to be construed as legal advice. Nothing I am writing below can be construed to have been written by any attorney. These are my own thoughts. The attorney actually did not state any of the following. These are my own conclusions.

What I realized is now obvious in hindsight, although what I say below was not articulated by the attorney. This is my own conclusion that spawned from the ideas that were raised in the brief informal brainstorming discussion. Realize I am analysing from the conservative perspective on what is reasonably safe to presume, and not wanting to lawyer up and take a huge risk of losing in some regulators’ court in the many jurisdictions around the world (i.e. multifarious jurisdictional jeopardy).

Airdrop re-issuance does not remove the fact that if was a security before, it remains a security after, because the distribution has not changed. There needs to be a stronger disconnection between the prior token which is presumed to be a security (e.g. was ICO issued) and the new airdropped (i.e. reissued) one, otherwise the economic reality has not changed: which is that token and all its derivatives are subject to the resale restrictions on the issued security.

Contrast this with a fork that does not airdrop the same distribution, i.e. not an airdropped xerox copy of a preexisting token’s distribution.

Thus if EOS is a security, the airdropped eEOS would be also. The reissuer of eEOS may or may not be culpable as a common enterprise under the Howey test depending on the circumstances. I was arguing coherently about the issuer perhaps not being culpable, but I was not arguing correctly about the token converting from security to a non-security due to the airdrop.

The mistake in my logic was that just because the issuer might not be culpable for reissuing (i.e. no investment contract formed with the original investors), that does not change the economic reality that the new distribution is the same as the prior one.

Actually the attorney did not actually state it that way, but I realized it after carrying forward his concerns into a more coherent understanding of the orthogonal facets of the culpability of the reissuer of the airdrop vs. the security-status of the airdropped token.

Yeah I can make (somewhat legally dubious but maybe successful) arguments that the reissuer is not culpable for issuing a new security (i.e. the lack horizontal commonality between ICO investors and reissuer), but this seems to have no bearing on removal of the former security status if the distribution remains a xerox copy.

IOW, if it looks and quacks like a duck, then it is a duck. Xerox copying the distribution of security, is still the same security (regardless of the culpability of the issuer of the airdrop).

The new issuance is also a dividend. But unlike chocolate candy gifts given as dividends to shareholders or token holders, the airdropped token has same tradeable and fungible qualities of the ICO issued token, thus it still quacks the same and has the same familial structure (aka distribution). The economic reality has not changed.

That is to say that randomly dropping freeware like-kinded things to the investors of the security, doesn’t change the nature of the thing, even though the entity doing the dropping (giving) is not necessarily (depending on the circumstances) culpable for reissuing a security.

Disclaimer: IANAL. This is not legal advice.