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House Oversight seeks info from digital asset exchanges, financial regulators
On August 30, the Subcommittee on Economic and Consumer Policy of the House Committee on Oversight and Reform announced that Representative Raja Krishnamoorthi (D-IL), Chair of the Subcommittee, sent letters to the U.S. Treasury Department, SEC, CFTC, and FTC, in addition to five digital asset exchanges, requesting information on how they are combating cryptocurrency-related fraud and scams. According to his letters, Chairman Krishnamoorthi is “concerned about the growth of fraud and consumer abuse linked to cryptocurrencies.” He further added that “[t]he lack of a central authority to flag suspicious transactions in many situations, the irreversibility of transactions, and the limited understanding many consumers and investors have of the underlying technology make cryptocurrency a preferred transaction method for scammers.” In the letters to the federal agencies, he stated that “the federal government has been slow to curb cryptocurrency scams and fraud,” and that “[e]xisting federal regulations do not comprehensively or clearly cover cryptocurrencies under all circumstances.” In one of the letters to the digital asset exchanges, Krishnamoorthi noted that “cryptocurrency exchanges must themselves act to protect consumers conducting transactions through their platforms.” The letters requested that all recipients provide information to the subcommittee outling “steps they are taking to combat cryptocurrency-related fraud and scams and additional actions that are needed to protect Americans” in order to “help Congress understand what they are doing to protect consumers and inform legislative solutions to bring stability to the digital asset industry.”
CFTC commissioner seeks increased digital assets oversight
On August 19, CFTC Commissioner Kristin N. Johnson delivered remarks discussing digital asset policy, innovation, legislation, and regulation before a roundtable at the CFTC. In her prepared remarks, Johnson highlighted the “increasingly diverse crypto-investing community,” including historically underserved groups who are drawn to digital asset markets by “promises of financial inclusion” and opportunities to “increase income, wealth, and resources – a promise that, if realized, may enable them to transition from fragile financial circumstances to achieving the American dream.” Johnson noted, however, that instability in these markets have led the CFTC to examine closely “the specific implications of crypto-investing for diverse communities and the potential benefits of well-tailored, carefully crafted regulation.” Johnson referenced Treasury Secretary Janet Yellen’s April 7, 2022 remarks at American University’s Kogod School of Business Center for Innovation, which said that while regulations should be “tech-neutral,” they should also ensure that innovation does not cause disparate harm or exacerbate inequities.
Johnson also discussed President Biden’s March 9 Executive Order (covered by InfoBytes here), Ensuring Responsible Development of Digital Assets, which stressed the need for “steps to reduce the risks that digital assets could pose to consumers, investors, and business protections” and mitigate “illicit finance and national security risks posed by misuse of digital assets,” including money laundering, cybercrime and ransomware, terrorism and proliferation financing, and sanctions evasion. While the E.O. “marked an important step towards greater cooperation and coordination among cabinet-level agencies, market regulators and prudential regulators,” Johnson called for an “increase [in] investor education and outreach to empower consumers and contemporaneously combat illicit activity and safeguard the integrity and stability of our financial markets.”
Johnson also discussed pending legislation intended “to better protect consumers and enhance market structure and market integrity in digital assets and cryptocurrency markets,” such as the Digital Commodities Consumer Protection Act of 2022 (DCCPA), which “seeks to give the CFTC jurisdiction over digital asset spot market transactions by expanding the definition of ‘commodity’ in the CEA to include ‘digital commodities.’” She further explained that the DCCPA, among other things, “would require the CFTC to conduct a study on the impact of digital assets on diverse communities.” Johnson also mentioned the Responsible Financial Innovation Act, calling it “a comprehensive reform measure that introduces the concept of ‘ancillary assets’ as a pathway for clearly defining oversight of digital assets and cryptocurrencies as securities or commodities.” Johnson emphasized that market participants have expressed heightened cybersecurity concerns regarding attacks on cryptocurrency exchanges or trading platforms, and stressed that “[i]t is vital for the U.S. to bolster its role as a leader in the global financial system by developing a strong regulatory framework for digital assets[.]”
CFTC alleges crypto promoter’s digital asset trading scheme violates CEA
On August 12, the CFTC filed charges against an individual and his two Ohio-based cryptocurrency promotion companies for allegedly violating the Commodity Exchange Act and Commission regulations by soliciting more than $1 million in a digital asset trading scheme. The complaint alleged that the defendants made false and misleading statements in their solicitations to customers, including profit guarantees and claims concerning the individual defendant’s supposed success as a digital asset trader. According to the complaint, customers were guaranteed that they would not lose their initial investment and would be able to withdraw their initial investment and alleged profits at any time; however, defendants allegedly refused to allow existing customers to withdraw these funds, stopped communicating with customers, and manufactured excuses as to why funds were not returned. The complaint also contended, among other things, that the defendants omitted material facts, including that the defendants “misappropriated customer funds to pay purported profits to other customers in a manner akin to a Ponzi scheme,” misappropriated customer funds to pay for the individual defendant’s lifestyle, and commingled customer funds with personal bank and digital asset trading accounts. The CFTC seeks: (i) restitution for defrauded investors; (ii) disgorgement; (iii) civil monetary penalties; (iv) permanent registration and trading bans; and (v) a permanent injunction from future violations.
CFTC updates its interest rate swap clearing requirements as LIBOR ends
On August 12, the CFTC issued a final rule updating its interest rate swap clearing requirement under part 50 of the CFTC’s regulations. Among other things, the final rule eliminates the requirement to clear interest rate swaps referencing LIBOR and other interbank offered rates and replaces them with requirements to clear interest rate swaps referencing overnight, nearly risk-free reference rates. The final rule also “updates the swaps required to be submitted for clearing to a derivatives clearing organization (DCO) or an exempt DCO and the compliance dates for such swaps.” According to CFTC Chairman Rostin Behnam, the final rule “promotes financial stability and mitigates systemic risk,” and “is essential to ensure cross border harmonization in the interest rate swaps market.” The final rule is effective 30 days after publication in the Federal Register.
U.S.-UK financial regulators discuss bilateral issues
On July 26, the U.S. Treasury Department issued a joint statement covering the recently held sixth meeting of the U.S.-UK Financial Regulatory Working Group. Participants included officials and senior staff from both countries’ treasury departments, as well as regulatory agencies including the Federal Reserve Board, CFTC, FDIC, OCC, SEC, the Bank of England, and the UK’s Financial Conduct Authority. The Working Group discussed, among other things, (i) market developments since the Russian invasion of Ukraine; (ii) continuing international and bilateral cooperation; (iii) the international financial sector priorities at the G7, the G20, the Financial Stability Board (FSB), and the International Organisation of Securities Commissions (IOSCO); (iv) the risks associated with the Non-Bank Financial Intermediation (NBFI) sector and interconnectedness with other financial and non-financial actors; and (v) “the mutual desire to promote multilateral cooperation around risk management in global derivatives and banking markets.” The Working Group participants will continue to engage bilaterally on these issues and others ahead of the next meeting, planned for later this year.
CFTC establishes the Office of Technology Innovation
On July 26, the CFTC announced the reorganization of their fintech and consumer protection efforts by establishing the Office of Technology Innovation (OTI), formerly LabCFTC. As previously covered by InfoBtytes, in 2019 the CFTC announced that LabCFTC operates as an independent operating office of the agency, reporting directly to the chair of the CFTC. LabCFTC was established in 2017 as an initiative to engage innovators in the financial technology industry and promote responsible fintech innovation (covered by InfoBytes here.) The CFTC noted that OTI will “continue the CFTC’s efforts in incorporating innovation and technology into the agency’s regulatory oversight and mission critical functions by supporting the operating divisions and the Commission’s participation in domestic and international coordination.” The CFTC also noted that OTI’s new structure will provide more flexibility to ensure that it serves “internal and external stakeholders by, among other things, continuing to support outreach and providing rotational opportunities for CFTC employees to gain exposure and expertise.”
CFTC charges South African fund with CEA violations
On June 30, the CFTC filed charges against a South African investment fund and its CEO for an allegedly fraudulent scheme that raised over $1.7 billion worth of Bitcoin from the public in violation of the Commodity Exchange Act (CEA) and CFTC Regulations. The complaint alleged that the CEO used various websites and social media to fraudulently solicit bitcoin from public participants to participate in a commodity pool controlled by the company, and “purportedly traded off-exchange, retail foreign currency (‘forex’) on a leveraged, margined and/or financed basis with participants who were not eligible contract participants (‘ECPs’) through a proprietary ‘bot’ or software program.” The CFTC is seeking: (i) full restitution for defrauded investors; (ii) disgorgement; (iii) civil monetary penalties; (iv) permanent registration and trading bans; and (v) a permanent injunction from future violations.
CFTC Commissioner Romero discusses crypto regulation
On June 14, CFTC Commissioner Christy Goldsmith Romero discussed cryptocurrency regulation in an interview. According to sources, Romero rejected suggestions that the agency would be laissez-faire on cryptocurrency regulation, saying that the CFTC is positioned to protect consumers if provided with more authority. Throughout the interview, Romero noted some similarities between the present market and the 2008 market, stating that there is a “pretty sizeable market that’s largely unregulated.” Noting that a “regulatory gap” exists because the CFTC does not have any regulatory authority over the cash spot market, Romero said that Congress should close that gap. She mentioned her support for a bill similar to the Responsible Financial Innovation Act that she expects will give the CFTC more authority and will be introduced by Senators Stabenow and Bozeman. When asked about the possibility of regulation slowing the crypto market, Romero responded that “companies can’t scale up the way they need to without a lot of the financial institutions investments,” and that “regulation is needed.” She further noted that “bringing credibility [and] bring[ing] customer protections  are going to be really important for scaling up.” She also referred to the case-by-case philosophy of CFTC enforcement actions, explaining that the agency looks at “where the evidence lies" and that part of this approach is "send[ing] a message to deter future violations of the law.” She further expanded on that point by saying that “since the CFTC doesn’t have regulatory authority, it has to rely on victims and whistleblowers," among other things.
Romero also mentioned that a difference between now and 2008 is that there are not a lot of financial institutions invested in cryptocurrency, as many are “waiting for a regulatory framework" and more regulation. As more financial institutions become invested in cryptocurrency, she said that she expects there to be “more interconnections” and more customer protections. She also noted that her biggest concern is that “if regulation fails to keep pace with technology, the most vulnerable people are going to be hurt.” In terms of areas needing more customer protections, Romero identified the need for segregation of accounts, settlement, custody, and reducing cybersecurity risk. She also expressed her support for customer education, calling it “very important.”
CFTC requests feedback on climate-related financial risk
On June 8, the CFTC published a request for information (RFI) in the Federal Register seeking public responses on climate-related financial risks related to the derivatives markets and underlying commodities markets. Among other things, the Commission is seeking input on the types of data that could help the CFTC evaluate climate-related financial risk exposures, scenario analysis and stress testing, risk management, disclosures, product innovation, digital assets, financially vulnerable communities, mechanisms for public-private partnerships/engagement, and coordination with other regulatory bodies. The CFTC emphasized that the responses “will help to inform the Commission’s next steps in furtherance of its purpose to, among other things, promote responsible innovation, ensure the financial integrity of all transactions subject to the Commodity Exchange Act, and avoid systemic risk.” Additionally, the Commission noted that it “may use this information to inform potential future actions including, but not limited to, issuing new or amended guidance, interpretations, policy statements, regulations or other potential commission action within its authority under the Commodity Exchange Act, as well as its participation in any domestic or international fora.”
Comments on the RFI are due August 8.
CFTC awards $625,000 to whistleblowers
On March 28, the CFTC announced approximately $625,000 in awards to four whistleblowers whose information led the agency to a successful Commodity Exchange Act enforcement action. The associated order noted that the claimants “provided the Commission with original information,” and “each provided ongoing cooperation and assistance to Division staff, which significantly contributed to the success of the Covered Action.” One claimant received a higher award percentage to recognize that he or she provided the highest level of ongoing assistance and cooperation.
The CFTC has awarded approximately $330 million to whistleblowers since the enactment of its Whistleblower Program under Dodd-Frank, with whistleblower information helping prosecute enforcement actions leading to more than $3 billion in monetary sanctions.
- Keisha Whitehall Wolfe to discuss “Tips for successfully engaging your state regulator” at the MBA's State and Local Workshop
- Max Bonici to discuss “Enforcement risk and trends for crypto and digital assets (Part 2)” at ABA’s 2023 Business Law Section Hybrid Spring Meeting
- Jedd R. Bellman to present “An insider’s look at handling regulatory investigations” at the Maryland State Bar Association Legal Summit