A recent Bloomberg article reported that average prices for nonfungible tokens, or NFTs, are down approximately 70 percent from recent highs. NFTs are the latest innovation in digital assets and encompass digital representations of unique works of art, music, or other goods and experiences stored on blockchain. Unlike other digital assets such as bitcoin, in which each bitcoin is the same as every other one (and thus “fungible”), each NFT is theoretically unique and different from every other one (and thus “nonfungible”). A wide range of NFTs have begun to enter the marketplace over the past several months. A digital work of art represented by an NFT recently sold at auction for over $69 million, and even a professional sports league has begun to issue NFTs. A fascinating debate about the social and economic utility of NFTs has emerged, but what are some of the legal issues associated with this new digital asset class?
On March 9, 2021, a bipartisan bill was reintroduced that would, among other things, exclude digital tokens from the definition of a security under federal securities laws. As introduced, H.R. 1628, known as the Token Taxonomy Act, would define a “digital token” as a token that is created pursuant to rules for which the creation and supply are not controlled by a central group or single person, among other requirements. To qualify as a “digital token” under the bill, the transaction history must be able to resist modification or tampering by a single person or group or persons under common control. Moreover, the digital token must be capable of being transferred between persons without an intermediate custodian.
As we have previously reported, the New York Attorney General has been in protracted litigation to enforce an investigative subpoena under New York’s expansive Martin Act against cryptocurrency exchange Bitfinex and its affiliated companies that issue the Tether stablecoin. On February 23, 2021, the Attorney General announced a definitive settlement of the matter.
In some of her first remarks on the subject of digital assets since Senate confirmation, Treasury Secretary Janet Yellen sounded an alarm on Bitcoin. Her views on the regulation of digital assets more broadly are sure to influence policy in the coming years at the various offices and bureaus within the Treasury Department that oversee the asset class, including the OCC, IRS, OFAC and FinCen.
The US Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) settled with BitPay, Inc. for $507,375 to resolve 2,102 apparent violations of multiple US sanctions programs for allowing individuals located in sanctioned jurisdictions to use digital currency on its platform to transact with merchants in the United States and elsewhere.
In the past week, Canadian securities regulators approved the offering of the first two Canadian Bitcoin ETFs. By holding Bitcoin, the Canadian funds intend to provide investors with economic exposure to the US dollar and Canadian dollar price of Bitcoin through an ETF structure. For ETF investors, the structures have the potential to eliminate much of the friction associated with holding Bitcoin or investing in the asset directly. The ETF units have been conditionally approved for listing on the Toronto Stock Exchange. Additional details are available in the respective ETF prospectuses, which are publicly available here and here.
As has been widely reported, President Biden has nominated Gary Gensler to be the next chairman of the Securities and Exchange Commission. After becoming one of the youngest partners at a leading Wall Street investment bank, Gensler transitioned into government service as a senior official in President Clinton’s Treasury Department and as the chairman of the Commodity Futures Trading Commission under President Obama. While at the CFTC, Gensler was the principal architect of the sprawling Dodd-Frank Act’s provisions regulating the swaps markets, and he worked tirelessly to implement new CFTC rules regulating the space. He has deep experience both in the financial markets and as a regulator.
The Office of the Comptroller of the Currency (OCC) issued a conditional approval last week for Anchorage Digital Bank to become the first federally-chartered crypto bank.
Amid the rise of digital currency services, the US Department of the Treasury’s Office of Foreign Assets Control (OFAC) published a cautionary tale on December 30, 2020, discussing a recent settlement with BitGo, Inc. (BitGo), a California-based technology company that facilitates digital currency transactions and provides non-custodial digital wallet management services. BitGo settled for $98,830 after the company faced, at a maximum, a $53 million civil penalty for 183 apparent violations of multiple US sanctions programs.
The Office of the Comptroller of the Currency (OCC) issued Interpretive Letter 1174 on January 4, 2021, clarifying the authority of national banks and federal savings associations to buy, sell, and issue stablecoins and participate in independent node verification networks (INVNs) in order to conduct payment activities and other bank-permissible functions.