On September 11, the Securities and Exchange Commission (SEC) and Financial Industry Regulatory Authority (FINRA) separately announced three “first of their kind” enforcement actions against participants in the digital asset (or “token”) market:
- In the Matter of TokenLot LLC. The SEC took action against a token sale website for operating as an unregistered broker-dealer in violation of the federal securities laws.
- In the Matter of Crypto Asset Management, LP. The SEC entered an order against a digital asset hedge fund manager for failing to register its fund as an investment company and offering and selling its fund’s securities in an unregistered offering.
- Department of Enforcement vs. Timothy Tilton Ayre. In its first disciplinary action involving digital assets, FINRA filed a complaint alleging that a registered person of a member firm violated federal securities laws and FINRA rules in its offering of a blockchain token as an unregistered security.
On May 23, 2017, the Commodity Futures Trading Commission (CFTC) unanimously approved proposed amendments to the recordkeeping obligations set forth in CFTC Regulation 1.31 (Recordkeeping Rule) which is applicable to all CFTC registered entities and other persons required to maintain records under the Commodity Exchange Act (CEA). The final amendments are intended to modernize the Recordkeeping Rule by making the form and manner in which regulatory records must be kept technology-neutral. The amendments provide recordkeepers with greater flexibility regarding the retention and production of CFTC regulatory records. The CFTC indicated that it does not believe the amendments impose any new recordkeeping requirements on any recordkeeper, and existing recordkeeping methods remain valid for compliance with the amended Recordkeeping Rule should a recordkeeper choose not to take advantage of the less-prescriptive, principles based approach of the amended Recordkeeping Rule. The final amendments also reorganized the Recordkeeping Rule for ease of understanding, including by adopting new definitions. The amendments represent a long-awaited and generally positive modernization of important CFTC rules that have often frustrated market participants. The effective date for the amended Recordkeeping Rule is August 28, 2017. (more…)
This Article originally appeared in the Thomson Reuters FinTech Law Report, Volume 18, Issue 6 (2016).
On September 17, 2015, the Commodity Futures Trading Commission (“CFTC”) issued an order (“Coinflip Order”) settling charges brought against Coinflip, Inc., the operator of an online trading platform that facilitated the trading of derivatives on Bitcoin and other digital currencies, also referred to by the CFTC and other regulators as “virtual currencies” (“Bitcoin Derivatives”), including U.S. dollar cash-settled options. The CFTC found that Coinflip, Inc. had violated the Commodity Exchange Act (“CEA”) and CFTC rules by failing to register as a swap execution facility (“SEF”) or designated contract market (“DCM”). The direct impact of the Coinflip Order is minimal, as the platform itself had already shut down due to lack of volume. However, the Coinflip Order represents a watershed in the development of virtual currencies, as it is the first time that the CFTC has affirmatively asserted that Bitcoin and other virtual currencies are “properly defined as commodities” and that the CFTC has jurisdiction over Bitcoin Derivatives.