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Financial Services Law Insights and Observations


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  • SEC charges respondent with unlawfully promoting crypto security


    On October 1, the SEC announced charges against a celebrity (respondent) who allegedly used her social media accountg to tout a crypto-asset security without disclosing the payment she received for the promotion. According to the SEC’s order, the respondent promoted the crypto-asset security on her social media account in exchange for financial payment from the issuer, receiving approximately $250,000 for the promotion. Specifically, the respondent posted a link to a securities offering conducted by an online company with a public website, in which it offered and sold digital tokens to the public. The tokens were offered and sold as investment contracts and therefore qualified as securities pursuant to Section 2(a)(1) of the Securities Act. The SEC’s order found that the respondent violated the anti-touting provision of the federal securities laws. Without admitting or denying the SEC’s findings, the respondent agreed to pay $1.26 million, including approximately $260,000 in disgorgement, which represents her promotional payment, plus prejudgment interest, and a $1,000,000 penalty. The respondent also agreed to not promote any crypto-asset securities for three years.

    Securities SEC Enforcement Digital Assets Cryptocurrency Securities Act

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  • FSOC reports on cryptocurrency systemic risks

    Federal Issues

    On October 3, the Financial Stability Oversight Council (FSOC) released its Report on Digital Asset Financial Stability Risks and Regulation. As called for by Executive Order 14067, “Ensuring Responsible Development of Digital Assets” (covered by InfoBytes here), the report reviewed financial stability risks and regulatory gaps posed by various types of digital assets and provided recommendations to address such risks. Among other things, the report noted three gaps in the existing cryptocurrency regulatory framework: (i) limited direct federal oversight of the spot market for crypto-assets that are not securities; (ii) opportunities for regulatory arbitrage; and (iii) whether vertically integrated market structures can or should be accommodated under existing laws and regulations. The report stated that FSOC recommended that Congress pass legislation that would create “a comprehensive prudential framework for stablecoin issuers that also addresses the associated market integrity, investor and consumer protection and payments system risks, including for entities that perform services critical to the functioning of the stablecoin arrangement.” FSOC further recommended that the member agencies should follow several guiding principles, including “same activity, same risk, same regulatory outcome,” and “technology neutrality.” The report also requested that agencies consider whether “vertical integration” or other business models where retail customers can directly access markets instead of going through a broker-dealer “can or should be accommodated.” The report noted that if banks “scale up their participation in the crypto-asset ecosystem, such activity could potentially entail much greater access to the crypto-asset market by a broad range of institutional investors, corporations, and retail customers than currently exists.” The U.S. Treasury Department released a Fact Sheet summarizing the report’s key findings and recommendations.

    Treasury Secretary Janet Yellen noted in a statement that the “report adds to analysis of digital asset issues that have been covered in other recent reports, including on the future of money and payments; consumers and investor protection; illicit finance; and a framework for international engagement.” Acting Comptroller of the Currency Michael J. Hsu released a statement supporting the report, emphasizing that “it is critical for the Council and Congress to prioritize Recommendation 4 regarding interagency coordination, Recommendation 5 regarding a federal prudential framework for stablecoin issuers, and Recommendation 6 regarding regulatory visibility and authorities over all of the activities of crypto-asset entities.” SEC Chair Gary Gensler also expressed his support in a statement, noting that he looks “forward to working with Congress to achieve our public policy goals, consistent with maintaining the regulation of crypto security tokens and related intermediaries at the SEC.” Texas Banking Commissioner and FSOC state banking representative Charles G. Cooper released a statement of support through the Conference of State Bank Supervisors saying that the report should “inform the work that we do as individual agencies and on an interagency basis to balance responsible innovation with safeguarding our financial markets and consumers.”CFPB Director Rohit Chopra released a statement, noting that “agencies have already taken steps to address discrete issues related to deposit insurance misrepresentation and to lay groundwork to address concerns related to fraud, hacks, and scams,” and emphasized the need “to tackle broader risks to the financial system.”

    Federal Issues Digital Assets Fintech Department of Treasury FSOC SEC OCC CSBS Cryptocurrency Of Interest to Non-US Persons Stablecoins CFPB

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  • SEC files charges against fintech company for manipulating crypto-asset securities


    On September 28, the SEC filed a complaint against a Florida-based fintech company, the company’s former CEO, and the CEO of a “market making” firm (collectively, “defendants”) for allegedly perpetrating a scheme to manipulate the trading volume and prices of crypto-asset securities. According the SEC, the company and the former CEO created and distributed a token using several methods, including paying individuals with tokens in exchange for promotions. They then allegedly hired the “market making” firm “to create the false appearance of robust market activity” for the token through the use of customized trading software, and then engaged in unregistered offers and sales of the token in an artificially inflated market in order to generate profits on the company’s behalf. The SEC claimed this scheme yielded more than $2 million for the company. The complaint charges the defendants with violating numerous provisions of the federal securities laws, including certain registration, antifraud, and market manipulation provisions, and seeks permanent injunctive relief, disgorgement with prejudgment interest, civil penalties, and conduct-based injunctions. The SEC also seeks an officer and director bar against the former CEO. Based on the SEC’s announcement, the market making firm’s CEO has consented to a judgment, subject to court approval and without admitting or denying the allegations, which would permanently ban him from violating these provisions and from participating in future securities offerings. The market making firm’s CEO is also ordered to pay $36,750 in disgorgement as well as prejudgment interest of $5,118, with civil monetary penalties to be determined by the court. 

    “Companies cannot avoid the federal securities laws by structuring the unregistered offers and sales of their securities as bounties, compensation, or other such methods,” Associate Director of the SEC’s Enforcement Division Carolyn M. Welshhans said. “As our enforcement action shows, the SEC will enforce the laws that prohibit such unregistered fund-raising schemes in order to protect investors.”

    Securities Enforcement Digital Assets Cryptocurrency Fintech Courts

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  • DFPI cracks down on crypto-asset Ponzi schemes

    State Issues

    On September 27, the California Department of Financial Protection and Innovation issued desist and refrain orders against 11 entities, including nine crypto asset trading platforms, one metaverse software development company, and one decentralized finance platform for violating California securities laws. While each of the 11 entities allegedly offered and sold unqualified securities through their platforms and promised various fixed rates of return to investors, DFPI claimed that the entities actually engaged in Ponzi-like schemes and used investor funds to distribute supposed profits and returns to other investors. Additionally, DFPI accused the entities of “luring” new investors through referral programs that operated like pyramid schemes in which investors would be paid commissions to recruit new investors. Referring to these as “high yield investment programs (HYIPs),” DFPI claimed the entities provided investors with few details about the people operating the HYIPs, how the HYIPs make money, or how the HYIPs facilitate deposits and withdrawals with crypto assets, among other things. DFPI also accused 10 of the 11 entities of making material representations and omissions to investors about the qualifications of their securities under California law as well as the purported risks. DFPI said in its announcement that it had been directed by an executive order issued by the governor in May (covered by InfoBytes here) to initiate enforcement actions to stop violations of consumer financial laws and to increase residents’ awareness of the benefits and risks associated with crypto asset-related financial products and services.

    State Issues Digital Assets State Regulators California DFPI Enforcement Cryptocurrency Securities

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  • States accuse crypto platform of offering unregistered securities

    State Issues

    On September 26, the New York attorney general sued a cryptocurrency platform for allegedly offering unregistered securities and defrauding investors. New York was joined by state regulators from California, Kentucky, Maryland, Oklahoma, South Carolina, Washington, and Vermont who also filed administrative actions against the platform. The states alleged that the platform failed to register as a securities and commodities broker but told investors that it was fully in compliance. According to the New York AG’s complaint, the platform promoted and sold securities through an interest-bearing virtual currency account that promised high returns for participating investors. The NY AG said that a cease-and-desist letter was sent to the platform last year, and that while the platform stated it was “working diligently to terminate all services” in the state, it continued to handle more than 5,000 accounts as of July. The complaint charges the platform with violating New York’s Martin Act and New York Executive Law § 63(12), and seeks restitution, disgorgement of profits, and a permanent injunction.  

    California’s Department of Financial Protection and Innovation (DFPI) said in a press release announcing its own action that it will continue to take “aggressive enforcement efforts against unregistered interest-bearing cryptocurrency accounts.” DFPI warned companies that crypto-interest accounts are securities and are therefore subject to investor protection under state law, including disclosure of associated risks.

    State Issues Digital Assets New York California State Regulators State Attorney General DFPI Courts Cryptocurrency Securities Enforcement

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  • Treasury discusses future of digital assets, says CBDC may take years

    Agency Rule-Making & Guidance

    On September 23, the U.S. Treasury Department’s Under Secretary for Domestic Finance Nellie Liang discussed ways in which digital assets could alter the future of money and payments in the U.S. Speaking at the Brookings Institution, Liang highlighted recommendations presented in an agency report released earlier in September as part of President Biden’s Executive Order on Ensuring Responsible Development in Digital Assets (covered by InfoBytes here). The report, Crypto-assets: Implications for Consumers, Investors, and Businesses, outlined several significant areas of concern, including “frequent instances of operational failures, market manipulation, frauds, thefts, and scams.” The report advised federal agencies, including the CFPB, SEC, CFTC, and DOJ, to (i) continue to aggressively pursue enforcement actions focused on the crypto-asset sector; (ii) clarify existing authorities to ensure they are appropriately applied to crypto-assets; (iii) coordinate efforts to increase compliance; and (iv) take collaborative measures to improve the quality of information about crypto-assets for consumers, investors, and businesses.

    Liang also commented on the potential benefits of adopting a U.S. central bank digital currency (CBDC), “such as preserving the uniformity of the currency, or providing a base for further innovation,” but warned that further research and development on the technology needed to support such a currency may take years. “There are many important design choices that would require additional consideration,” Liang said, stating, for example, “a retail CBDC would be broadly available to the public, while a wholesale CBDC would be limited to banks and other financial institutions.” Liang said Treasury plans to lead an inter-agency working group to advance further work on a possible CBDC and “consider the implications of CBDC in areas such as financial inclusion, national security and privacy.”

    Liang also discussed other recommendations made in the report related to the possible establishment of a federal regulatory framework for nonbank providers of payment services. “A federal framework could provide a common floor for minimum financial resource requirements and other standards that may exist at the state level,” Liang pointed out. “It also would complement existing federal [anti-money laundering/combating the financing of terrorism] obligations and consumer protection requirements that apply to nonbank payment providers,” and “could work in conjunction with a U.S. CBDC or with instant payment systems.” She also commented on Treasury’s work to develop a faster, cheaper cross-border international payment system and noted the agency will consider potential risks, such as privacy and human rights considerations.

    Agency Rule-Making & Guidance Federal Issues Digital Assets Department of Treasury CBDC Cryptocurrency Fintech

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  • CFTC orders unregistered respondents to pay $250,000 for CEA violations


    On September 22, the CFTC announced a settlement with a cryptocurrency business and its founders (collectively, respondents) for allegedly violating the Commodity Exchange Act (CEA), Commission regulations, and Bank Secrecy Act compliance requirements. According to the CFTC, the respondents allegedly “designed, deployed, marketed, and made solicitations concerning a blockchain-based software protocol that accepted orders for and facilitated margined and leveraged retail commodity transactions.” The protocol allowed users to leverage positions, where the value was determined by the price difference between two digital assets from the time the position was established to the time it was closed. The protocol, according to the CFTC, “purported to offer users the ability to engage in these transactions in a decentralized environment.” The CFTC found that the respondents were not registered with the CFTC and had engaged in unlawful activities that could only be lawfully performed by a registered designated contract market and other activities that could only lawfully be performed by a registered futures commission merchant (FCM). Additionally, the respondents did not comply with the Bank Secrecy Act when they failed to conduct know-your customer diligence on their customers as part of a customer identification program, as required of FCMs. The order requires the respondents to pay a $250,000 civil monetary penalty and to cease and desist from further violations of the CEA and CFTC regulations. Simultaneously, the CFTC filed a complaint in the U.S. District Court for the Northern District of California charging a decentralized autonomous organization and successor to the cryptocurrency business that operated the same software protocol with violating the same laws as the respondents. The CFTC is seeking restitution, disgorgement, civil monetary penalties, trading and registration bans, and injunctions against further violations of the CEA and CFTC regulations.

    The same day, CFTC Commissioner Summer K. Mersinger published a dissenting opinion, stating that though she does “not condone[s] individuals or entities blatantly violating the CEA or our rules,” we “cannot arbitrarily decide who is accountable for those violations based on an unsupported legal theory amounting to regulation by enforcement while federal and state policy is developing.” She further argued that there is no provision in the CEA that holds members of a for-profit unincorporated association personally liable for violations of the CEA or CFTC rules committed by the association based solely on their membership status.

    Securities CFTC Cryptocurrency Digital Assets Bank Secrecy Act Enforcement

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  • Treasury seeks info on illicit finance, national security risks of digital assets

    Agency Rule-Making & Guidance

    On September 19, the U.S. Treasury Department issued a request for comment (RFC) seeking feedback on illicit finance and national security risks posed by digital assets. The RFC, issued pursuant to Executive Order 14067 “Ensuring Responsible Development of Digital Assets” (covered by InfoBytes here), requests public input on illicit finance risks, anti-money laundering and combating the financing of terrorism (AML/CFT) regulation and supervision, global implementation of AML/CFT standards, private sector engagement, and central bank digital currencies. The RFC also seeks feedback on actions the U.S. government and Treasury should take to mitigate these risks, in addition to whether public-private collaboration may improve efforts to address risks. Comments on the RFC are due November 3.

    “Without appropriate controls and enforcement of existing laws, digital assets can pose a significant risk to national security by facilitating illicit finance, such as money laundering, cybercrime and terrorist actions,” U.S. Under Secretary of the Treasury for Terrorism and Financial Intelligence Brian E. Nelson said in the announcement. “As we work to implement the Illicit Finance Action Plan, hold bad actors accountable and identify potential gaps in existing enforcement, we look forward to receiving the public’s input on this urgent work.”

    The RFC follows the September 16 release of Treasury’s Action Plan to Address Illicit Financing Risks of Digital Assets (covered by InfoBytes here).

    Agency Rule-Making & Guidance Financial Crimes Federal Issues Digital Assets Department of Treasury Anti-Money Laundering Combating the Financing of Terrorism CBDC Risk Management Fintech

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  • SEC targets crypto developer and influencer for sale of unregistered securities


    On September 19, the SEC issued a cease and desist order against a software development company and its founder (collectively, “respondents”) for the unregistered offer and sale of crypto asset securities. The SEC also announced charges against a crypto influencer involved in promoting the company. According to the SEC’s order, from April 2018 into July 2018, the respondents allegedly conducted an unregistered securities offering of crypto asset securities, which raised approximately $30 million from nearly 4,000 investors. The SEC noted that the respondents told investors that the crypto asset securities would raise in value, that the company’s management would continue to improve the company, and that they would make the tokens available on a crypto trading platform. The order also found that the crypto asset securities were not registered with the SEC and were not applicable for a registration exemption. The SEC alleged the respondents violated the offering registration provisions of Sections 5(a) and 5(c) of the Securities Act of 1933.

    According to the SEC’s complaint against the influencer, which was filed in the U.S. District Court for the Western District of Texas, the influencer purchased $5 million worth of the company’s crypto asset securities and promoted it on social media platforms from approximately May 2018 to July 2018. He also allegedly failed to disclose that the company had agreed to provide him a 30 percent bonus on the tokens that he purchased, as consideration for his promotional efforts. Additionally, the SEC alleged that he also organized an investing pool, despite not registering the offering with the SEC. The complaint alleged violations of the offering registration provisions of Section 5(a) and (c) of the Securities Act, as well as violations of Section 17(b) of the Act, and seeks injunctive relief, disgorgement plus prejudgment interest, and civil penalties.

    Without admitting or denying the allegations, the company agreed to pay $30 million in disgorgement, $4 million in prejudgment interest, and a $500,000 civil penalty. The company also agreed to destroy its remaining tokens, request the removal of its tokens from trading platforms, and publish the SEC’s order on its website and social media channels. The founder, without admitting or denying the SEC’s findings, agreed to refrain from participating in offerings of crypto asset securities for a period of five years and will pay a $250,000 civil penalty.

    Securities Enforcement SEC Digital Assets Cryptocurrency Securities Act

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  • White House presses regulators on framework for digital assets


    On September 16, the White House published a comprehensive framework for the responsible development of digital assets, calling on federal regulators to “provide innovative U.S. firms developing new financial technologies with regulatory guidance, best-practices sharing, and technical assistance.” The framework follows an executive order (E.O.) issued by the Biden administration in March (covered by InfoBytes here), which outlined the first “whole-of-government” strategy for coordinating a comprehensive approach to ensuring responsible innovation in digital assets policy. Consistent with the E.O.’s deadline, nine reports have been submitted to President Biden to date that “call on agencies to promote innovation by kickstarting private-sector research and development and helping cutting-edge U.S. firms find footholds in global markets.” The reports also “call for measures to mitigate the downside risks, like increased enforcement of existing laws and the creation of commonsense efficiency standards for cryptocurrency mining.”

    Among other things, the reports (i) direct the Federal Reserve Board to continue its research and experimentation on issuing a central bank digital currency, and request the creation of a U.S. Treasury Department-led interagency working group to support Fed efforts; (ii) encourage the SEC and CFTC to “aggressively pursue investigations and enforcement actions against unlawful practices in the digital assets space”; (iii) urge the CFPB and FTC to address consumer complaints related to unfair, deceptive, or abusive practices in the crypto space; (iv) encourage agencies to issue guidance and rules for addressing current and emergent risks in the digital asset ecosystem; (v) urge agencies and law enforcement to take joint measures to address digital asset risks impacting consumers, investors, and businesses; and (vi) encourage agencies to share data on consumers’ digital asset complaints. To promote access to safe and affordable financial services, the administration said it plans to explore how crypto-related technologies can bolster financial inclusion, and will encourage the adoption of instant payment systems, weigh recommendations for creating a federal framework for non-bank payment service oversight, and prioritize efforts to improve cross-border payment efficiency. Additionally, the administration said it is exploring the possibility of amending the Bank Secrecy Act and other related statutes to “explicitly” apply to digital asset exchanges and non-fungible token platforms, and is considering a legislative request to toughen penalties for unlicensed money transmitters and give the DOJ more jurisdictional digital asset prosecution authority.

    The Treasury released three reports addressing the future of money and payment systems, consumer and investor protection, and illicit finance risks in response to the E.O. The reports, The Future of Money and Payments, Crypto-Assets: Implications for Consumers, Investors, and Businesses, and Action Plan to Address Illicit Financing Risks of Digital Assets call on regulators to mitigate crypto-related risks to consumers, investors, and businesses. “Innovation is one of the hallmarks of a vibrant financial system and economy,” Treasury Secretary Janet Yellen said. “But as we have learned painfully from the past, innovation without appropriately addressing the impact of these developments can result in significant disruptions and harm to the financial system and individuals, especially our more vulnerable populations.” The reports examine the future of digital assets and offer recommendations to address consumer and investor protection concerns, combat illicit finance risks, and improve the payments system to support a more competitive, efficient, and inclusive landscape.

    The same day, the DOJ also released a report in response to the E.O. The Role Of Law Enforcement In Detecting, Investigating, And Prosecuting Criminal Activity Related To Digital Assets examines ways illicit actors exploit digital asset technologies and addresses challenges posed by digital assets to criminal investigations. The report provides recommendations to further enhance law enforcement’s ability to address digital asset crimes, such as strengthening criminal penalties and extending the statutes of limitations for crimes involving digital assets from five to ten years, and identifies three priorities: (i) “expanding to virtual asset service providers the laws preventing employees of financial institutions from tipping off suspects to ongoing investigations”; (ii) “strengthening the law criminalizing the operation of unlicensed money transmitting businesses”; and (iii) “extending the statute of limitations of certain statutes to account for the complexities of digital assets investigations.” The DOJ also launched the Digital Asset Coordinator Network, which will serve as the agency’s primary source for obtaining and disseminating information related to digital assets crimes.

    Fintech Federal Issues Digital Assets Financial Crimes Biden Department of Treasury CFPB FTC DOJ Cryptocurrency Federal Reserve CBDC Of Interest to Non-US Persons

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