A U.S. District Court has struck out the application of Dapper Labs seeking to dismiss a suit alleging that its NBA Top Shot non-fungible token (NFT) is an unregistered security.

In dismissing Dapper Labs’ appeal, District Judge Victor Marrero stated that the digital collectibles, known as NBA Top Shot Moments, appeared to have elements of being a security under the application of the Howey test. According to the Howey test, a transaction will pass as a security if there is an investment of money in a common enterprise with the expectation of profit stemming from the efforts of another party.

“The Court finds that Plaintiffs’ allegations render each consideration under Howey facially plausible and survive Defendants’ Motion to Dismiss the alleged violation of sections 5 and 12 of the Securities Act,” said District Judge Marrero.

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