On September 24, 2019, the House Financial Services Committee held an oversight hearing entitled “Oversight of the Securities and Exchange Commission: Wall Street’s Cop on the Beat” in which each of the five SEC commissioners were called as witnesses. While the hearing covered a wide range of issues related to securities regulation and enforcement, it also touched on a number of topics of particular interest to crypto and blockchain businesses, including the application of the securities laws to digital assets.
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OFAC Sanctions North Korean Crypto Hackers
On September 13, 2019, the US Department of the Treasury’s Office of Foreign Assets Control (OFAC) announced sanctions targeting three North Korean state-sponsored malicious cyber groups responsible for North Korea’s malicious cyber activity on critical infrastructure. As part of the sanctions, OFAC alleges that the entities conducted successful operations targeting more than 16 organizations across 11 countries, including the SWIFT messaging system, financial institutions and cryptocurrency exchanges.
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New York Attorney General Prevails in Investigative Dispute with Crypto Exchange
As we first reported in April, the New York Attorney General has been locked in a complicated dispute with a virtual currency exchange operator over the authority of the Attorney General to investigate its activities. In its defense in court proceedings, the crypto exchange asserted that the Attorney General lacked both personal jurisdiction and subject matter jurisdiction over it because of its efforts to avoid doing business in New York state. In a ruling ultimately siding with the Attorney General, a New York trial court on August 19 permitted the regulatory investigation to continue. The judge’s opinion underscores the difficulty faced by crypto entrepreneurs seeking to avoid contacts with U.S. customers in order to avoid the jurisdiction of U.S. courts and regulators.
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FINRA Issues Regulatory Notice on Digital Assets
Continuing a cryptocurrency oversight program begun in 2018, on July 18, 2019, FINRA issued Regulatory Notice 19-24. Under Notice 19-24, FINRA has requested that broker-dealers notify their FINRA Regulatory Coordinator if the member firm, or its associated persons or affiliates, engages, or intends to engage, in activities related to digital assets, including digital assets that are not securities.
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Congress Considers “Keep Big Tech Out of Finance Act”
Amid a series of hearings on cryptocurrency scheduled this week in the House of Representatives and Senate, a discussion draft of a bill entitled the “Keep Big Tech Out of Finance Act” has begun to circulate online. The bill appears intended to prohibit several large, well-known technology firms from engaging in various cryptocurrency-related businesses in the United States.
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SEC and FINRA Staffs Release Guidance on Custody of Digital Asset Securities
On July 8, 2019, the SEC’s Division of Trading and Markets and FINRA’s Office of General Counsel issued a Joint Statement on Broker-Dealer Custody of Digital Asset Securities. The Joint Statement discusses several provisions of the federal securities laws applicable to registered broker-dealers that may be implicated when such entities custody digital asset securities.
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CFTC Brings Charges in Fraudulent Bitcoin Trading Scheme
On June 18, 2019, the Commodity Futures Trading Commission (CFTC) announced the commencement of a civil enforcement action (the Complaint) against two United Kingdom-based defendants, a purported Bitcoin trading company and its principal (collectively, the Defendants). The CFTC alleges that the Defendants perpetrated a wide-ranging fraud involving at least $147 million in Bitcoin from more than 1,000 customers.
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Nevada Enacts New Blockchain Laws
Nevada is the latest state to adopt statutory amendments accommodating blockchain. In the first two weeks of June, Nevada enacted the following new laws:
SB161 – The act creates a regulatory sandbox in the Department of Business and Industry for any use of a new or emerging technology, or any novel use of an existing technology, to address a problem, provide a benefit or otherwise offer or provide a financial product or service that is determined by the Director of the Department not to be widely available in Nevada. The act is effective June 13, 2019 for the purpose of adopting any regulations and performing any other preparatory administrative tasks necessary to carry out the provisions of the act, and on January 1, 2020, for all other purposes.
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Australian Regulator Issues Crypto Guidance
In May 2019, the Australian Securities and Investments Commission (ASIC) issued Information Sheet 225, “Initial Coin Offerings and Crypto-Assets” (IS 225). IS 225 provides helpful guidance for Australian entrepreneurs considering whether to raise funds through an initial coin offering (ICO) and for businesses that are involved with crypto-assets such as cryptocurrency, tokens or stable coins in Australia.
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New FinCEN Guidance on Virtual Currency
On May 9, 2019, FinCEN, the U.S. federal agency charged with combating money laundering, issued two new interpretive documents of interest to the crypto community. The first is interpretive guidance titled “Application of FinCEN’s Regulations to Certain Business Models Involving Convertible Virtual Currencies”. The second document is an “Advisory on Illicit Activity Involving Convertible Virtual Currency”.
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