Recently, staff of the US Senate’s Permanent Subcommittee on Investigations prepared a memorandum for subcommittee members in advance of its April 30, 2020 “Roundtable on Continuity of Senate Operations and Remote Voting in Times of Crisis.” The memo provides a description of Senate proposals to allow senators to participate and vote remotely during crises such as the ongoing COVID-19 pandemic, with an emphasis on potential technological solutions such as blockchain.
On March 28, 2020, the Commodity Futures Trading Commission (CFTC) issued final interpretive guidance (Guidance) clarifying its position with respect to retail commodity transactions and the “actual delivery” exception in the context of digital assets.
On April 14, 2020, the Financial Stability Board (FSB) issued a consultative paper entitled “Addressing the Regulatory, Supervisory and Oversight Challenges Raised by ‘Global Stablecoin’ Arrangements.” The paper considers various risks and vulnerabilities of global stablecoins, or GSCs, which are defined to include a crypto-asset that aims to maintain a stable value relative to a specified asset, or a pool or basket of assets, in each case with a potential reach and adoption across multiple jurisdictions and the potential to achieve substantial volume. The white paper then surveys existing regulatory, supervisory and oversight challenges, particularly in the cross-border context; contemplates the role of international standard setters in GSC governance; and makes high-level recommendations for regulatory, supervisory and oversight responses.
On April 16, 2020, the Commodity Futures Trading Commission (CFTC) filed a civil enforcement action (Complaint) against two Florida-based crypto companies and their founder and sole owner (Defendants). According to the CFTC, the Defendants raised $1.6 million from hundreds of customers by fraudulently marketing and soliciting a digital asset to be used in connection with the Defendants’ proprietary foreign exchange (forex) algorithm called ART.
In the fall of 2018 we posted a state-by-state summary of smart contract legislation which included an overview of legislation passed in Arizona, Tennessee and Vermont, as well as an update on legislation pending in other states at the time. Over the past few years, a multitude of states have tackled smart contract legislation with varying degrees of detail and success. Most state smart contract legislation has fallen into three broad categories: formation of exploratory committees, recognition of basic smart contract concepts and comprehensive treatment of smart contracts and related technologies.
On March 24, 2020, federal Judge P. Kevin Castel issued a long-anticipated opinion in the SEC’s ongoing efforts to block Telegram’s $1.7 billion initial coin offering. Judge Castel found that Telegram’s planned distribution of Gram tokens constitutes a securities offering under federal law for which no exemption from registration is available. He therefore granted the SEC a preliminary injunction blocking Telegram from distributing its Gram tokens to investors.
On February 20, 2020, the federal Office of the Comptroller of the Currency (OCC) announced a Bank Secrecy Act enforcement action against a federal savings bank (Bank). This is one of the first, if not the first, public enforcement actions against a bank related to banking cryptocurrency-related operations. Banks that currently provide banking services to cryptocurrency-related companies, or are considering providing banking services to such companies in the future, should carefully review this enforcement action and consider where the quality of the bank’s AML compliance program is commensurate with these high-risk customers.
As we previously reported, the US Treasury Department recently announced its 2020 National Strategy for Combating Terrorist and Other Illicit Financing (the 2020 Strategy). The 2020 Strategy identifies the US government’s top anti-money laundering and countering the financing of terrorism (AML/CFT) priorities and serves as a roadmap of Treasury’s plan to stay ahead of evolving illicit finance threats. Additionally, the 2020 Strategy provides private sector financial institutions a window into upcoming legislative efforts and enforcement trends, which should in turn inform compliance efforts through the coming years. Digital assets feature heavily in the 2020 Strategy.
At the conclusion of its February meeting in Riyadh, the Group of Twenty (G20) Finance Ministers and Central Bank Governors issued a communiqué discussing a wide range of topics, including digital assets and stablecoins. The G20 reiterated its view that technological innovations can deliver significant benefits to the financial system and the broader economy. It remains vigilant to potential risks arising from financial innovations, including those risks related to financial stability, consumer and investor protection, anti-money laundering and countering the financing of terrorism as well as their macroeconomic implications, including monetary sovereignty issues. Building on its 2019 Leaders’ Declaration, the G20 urged countries to implement the recently adopted Financial Action Task Force (FATF) standards on virtual assets and related providers, also known as the “travel rule.” The G20 also reiterated its prior statement in October 2019 regarding global stablecoins and other similar arrangements that such risks need to be evaluated and appropriately addressed before they commence operation, and likewise reiterated its support of the Financial Stability Board’s efforts to develop regulatory recommendations with respect to these arrangements.