Enhanced Focus on Digital Asset Intermediaries by SEC, Congress, and State Securities Regulators

Given the substantial growth in digital asset investments this year, intermediaries offering trading and lending services are now the target of regulatory and enforcement focus that we expect will continue in the coming months and years. Recent examples of this increased scrutiny of digital asset service providers and intermediaries include

  • Securities and Exchange Commission (SEC) Chair Gary Gensler’s keynote for the American Bar Association Derivatives and Futures Committee, which touched on the regulation of cryptocurrencies, including statements that decentralized finance (DeFi) are implicated by securities laws
  • the letter from Sen. Elizabeth Warren, D-Mass., to Chair Gensler requesting further information about the SEC’s authority to regulate cryptocurrency exchanges
  • recent actions by state securities regulators against the financial services platform BlockFi related to a digital asset lending program alleging that these products are unregistered securities offerings
  • the SEC settlement with Coinschedule, which operated a token-offering website and failed to disclose the compensation it received from token issuers in violation of antitouting provisions

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UK FCA Consults on Changes to Strong Consumer Authentication, Dedicated Interfaces, and Guidance on Payment Services

On January 28, 2021, the UK Financial Conduct Authority (FCA) published Consultation Paper CP21/3, “Changes to the SCA-RTS and to the guidance in ‘Payment Services and Electronic Money – Our Approach’ and the Perimeter Guidance Manual” (Consultation Paper). This follows the FCA’s announcement in its 2020-21 business plan that payment services were one of its main supervisory priorities1 and its temporary guidance of July 9, 2020, on prudential risk management and safeguarding in light of the COVID-19 pandemic (Temporary COVID Guidance).

The FCA is proposing amendments to:

  1. the UK onshored versions of EU technical standards on strong customer authentication (SCA) and common and secure methods of communication (UK SCA-RTS);
  2. its Approach Document on Payment Services and Electronic Money (Approach Document); and
  3. its Perimeter Guidance Manual (PERG).

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A Digital Europe – Digital Health and other Recent EU Data Initiatives

Taking a step into the digital age, the European Commission announced that the 2020s shall become the EU’s Digital Decade.  The EU’s digitalization, including in the area of health, is one of the Commission’s key priorities and covers a wide range of actions and related initiatives.

Building on prior initiatives, in 2019 the Commission announced six key priorities (since supplemented by the COVID-19 recovery plan) that would shape the coming five years of policy making.  One of these six key priorities is to create a Europe fit for the digital age and work on a digital strategy that will empower people with a new generation of technologies.

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U.S. Office of the Comptroller of the Currency Finalizes Fair Access Requirements

On January 14, 2021, the U.S. Office of the Comptroller of the Currency (OCC) issued its controversial final rule (Rule)1 to establish a new requirement for covered banks to provide “fair access” to financial services to both natural persons and legal entities.2 The preamble to the Rule explains that it is intended to address situations in which large banks have denied access to financial services on the basis of a prospective customer’s industry affiliation or connection with a politically unpopular, but lawful, activity. The Rule instead requires, among other things, that access to all financial services at covered banks be provided on the basis of a person’s individual characteristics evaluated under quantitative, impartial risk-based criteria. The OCC claims that these fair access standards do not, however, require that a covered institution provide any specific type of financial service, do business with a particular person or industry, or operate in a particular market. Nonetheless, in part because of the perception that the Rule will impair the ability of banks to take into account issues like climate change in making underwriting decisions, the fate of the Rule under the Biden administration remains uncertain.

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FinCEN Proposes Tracking and Reporting Virtual Currency Transactions Involving Unhosted Wallets

On December 18, 2020, the Financial Crimes Enforcement Network (FinCEN) issued a notice of proposed rulemaking (NPR) regarding a proposal to impose on banks1 and money service businesses (MSBs) new recordkeeping, reporting, and identity verification requirements in relation to certain transactions involving convertible virtual currency (CVC) or digital assets with legal tender status (legal tender digital assets or LTDA)2 if the counterparty to the transaction does not have an account with, including a digital asset wallet hosted by, a financial institution regulated under the U.S. Bank Secrecy Act (BSA) or certain foreign financial institutions not located in designated problematic jurisdictions. If adopted, the proposed rule will impose significant new burdens only on banks and MSBs involved in digital asset businesses and undercut the role of U.S. institutions in digital asset economies, including in the growing area of “decentralized finance.” The NPR proposes to exclude broker-dealers, futures commission merchants, and mutual funds, among others that are subject to the BSA from these new reporting requirements, but specifically requests the industry’s comment on whether these types of institutions should also be included within the scope of the rule.

Affected institutions will have very limited time to assess and comment on the NPR, as the comment period closes on January 4, 2021, notwithstanding two intervening federal holidays.

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Five Sidley Practices Recognized as Law360 “Practice Groups of the Year”

Sidley was named to Law360’s 2020 “Practice Groups of the Year” in five categories:

  • Compliance
  • Fintech
  • International Arbitration
  • International Trade
  • Structured Finance

With an eye toward landmark matters and general excellence, the annual awards honor the law firms behind the litigation wins and major deals that resonated throughout the legal profession. Law360 commended Sidley for being only one of five firms to have five winning practices.

Big Data: Legal and Compliance Considerations for Investment Managers

Sidley Partners Nathan J. Greene and Colleen Theresa Brown are co-authors of a new chapter of the PLI treatise Investment Adviser Regulation: A Step-by-Step Guide to Compliance and the Law focusing on legal and compliance considerations for use of Big Data.  The chapter examines the expanding range of topics facing investment management lawyers and compliance professionals, as well as the attendant legal and operational risks.  The chapter includes an introduction to the concepts of data, alternative data, big data and artificial intelligence; examples of an organization’s data users, likely sources of data, and organizational controls for data collection and processing; and a review of the ways different types of data are regulated.

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Introducing Sidley’s Blockchain Legal Launch Pad

Adoption of blockchain and distributed ledger technology has the potential to revolutionize business and business practices in ways not seen since the advent of the internet and e-commerce.

Whether you are directly responsible for researching, developing, or implementing new blockchain initiatives, or you are executive management and need a more informed understanding of the issues your project teams are confronting, Sidley’s Blockchain Legal Launch Pad is a place to which you can turn as a resource.

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SEC Issues No-Action Letter for Certain Alternative Trading Systems Trading Digital Asset Securities

On September 25, the U.S. Securities and Exchange Commission (SEC)’s Division of Trading and Markets issued its first no-action letter (Letter) to the Financial Industry Regulatory Authority, Inc. (FINRA),1 related to digital asset securities. Based on the Letter, the SEC staff (Staff) would not recommend enforcement action pursuant to SEC Rule 15c3-3 (the Customer Protection Rule) under the U.S. Securities Exchange Act of 1934 (Exchange Act) if a registered broker-dealer operates a noncustodial alternative trading system (ATS) that trades digital asset securities issued and/or transferred using blockchain technology, subject to certain conditions. The Letter elaborates on the July 28, 2019, joint statement (Joint Statement) issued by the staffs of the SEC and FINRA,2 which discusses a broker-dealer’s ability to comply with the Customer Protection Rule with respect to digital asset securities and outlines potential noncustodial broker-dealer models for digital assets, including operating an ATS3 that only matches buyers and sellers of digital asset securities but does not custody such securities for the account of customers.

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Partnering With Tech and Fintech Firms: Key EU/UK Regulatory Considerations for the Payments Sector

There has been a rapid increase in collaboration between fintechs and other technology firms and more traditional payment service providers (PSPs) such as banks, merchant acquirers, and money transmitters. While fintechs and technology firms are often seen as direct competitors of traditional PSPs, in a market driven by innovation, both sides of the market increasingly consider collaboration a mutually beneficial way to play to each participating firm’s strengths. For more traditional PSPs, the technologies that a fintech or technology firm develops can help enhance and streamline, and in some cases modernize, the services provided to customers. For a fintech or technology firm, partnering with a PSP can provide an efficient and effective way to expand into the payment services market, particularly for customers who are more inclined to use traditional PSPs.

Regulators are monitoring these developments with growing interest and with an eye to potential risks to customers and markets as well as their ability to supervise regulated firms and their operations. This post highlights a number of EU/UK regulatory issues that fintechs, technology companies, and PSPs should consider when collaborating with one another.

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