Regulators as soon as once more provided piecemeal steerage, whereas specializing in dangers and enforcement. In the meantime, innovation and institutional adoption took off.
Final 12 months, Latham & Watkins sounded a hopeful note that 2020 would supply a clearer imaginative and prescient than 2019 for the regulation of digital belongings within the US. Within the wake of the emergence of COVID-19, priorities modified, together with forecasts and expectations. The second and third quarters of 2020 had regulators of all stripes in triage mode, and any consideration they might have directed at cryptoassets was understandably shelved. However, removed from sidelining digital asset development, the pandemic seems to have spurred additional innovation and adoption. Regulators at the moment are persevering with to reckon with an asset class that continues to be and not using a complete regulatory framework within the US.
A Proposed Secure Harbor for Tokens
One of many extra fascinating digital asset discussions of 2020 occurred early within the 12 months, earlier than the then rising pandemic shifted collective focus elsewhere, and deserves renewed consideration:
- On February 6, 2020, SEC Commissioner Hester Peirce unveiled a Token Safe Harbor Proposal in a speech on the Worldwide Blockchain Congress. Commissioner Peirce’s proposal would supply a time-limited exemption for token-based initiatives that search to boost capital to develop decentralized networks. The secure harbor would allow fledgling networks to function unburdened by the onerous registration provisions of the US federal securities legal guidelines till they attain community maturity outlined as both decentralization or token performance. (See Taking the Scarlet Out of the Letters I-C-O.) Commissioner Peirce has said publicly that she intends to refresh the proposal to model 2.0 in some unspecified time in the future in 2021, and with a altering of the guard on the SEC within the wake of crypto-skeptic Chairman Jay Clayton’s resignation, maybe the proposal will garner additional consideration.
SEC Exercise Was Principally Unremarkable, With the Exception of a Important 12 months-Finish Shock
There was far much less focus by the SEC on digital asset issues in 2020 than there was in 2019, which noticed fairly a couple of cases of steerage, no-action reduction, and enforcement. Nonetheless, there have been some notable developments in 2020, together with a leap ahead on custody of digital asset securities:
- On January 14, 2020, the SEC’s Workplace of Investor Training and Advocacy issued an Investor Alert to induce buyers to make use of cautdigition earlier than investing in so-called “preliminary change choices” or “IEOs” via on-line buying and selling platforms. In a bolded spotlight within the Alert, the SEC said with out qualification that “there isn’t any such factor as an SEC-approved IEO.”
- In 2020, a handful of high-profile enforcement actions by the SEC in opposition to digital asset companies had been each initiated and concluded. On March 24, 2020, the US District Court docket for the Southern District of New York sided with the SEC and granted an injunction prohibiting Telegram Group Inc. and TON Issuer Inc. (collectively, Telegram) from delivering US$1.7 billion price of Telegram’s digital token, Grams, to 175 entities and high-net-worth people. Going via every prong of the Howey check, the court docket reached the conclusion that the Telegram scheme constituted an funding contract, requiring both registration or an relevant exemption to be able to adjust to the federal securities legal guidelines. (See Telegram: Court Halts Grams Delivery.) On October 21, 2020, the SEC secured one other main victory with regard to an unregistered securities token providing. The US District Court docket for the Southern District of New York entered a ultimate judgment on consent in opposition to Kik Interactive Inc. to resolve the SEC’s costs that Kik’s unregistered providing of digital Kin tokens in 2017 violated the federal securities legal guidelines. These circumstances signify the ultimate stake within the coronary heart of the Easy Settlement for Future Tokens (SAFT), although some market individuals proceed to make the most of buildings which can be uncomfortably shut to those now-discredited types of fundraising. As well as, on December 22, 2020, the SEC filed a complaint in opposition to Ripple Labs Inc., alleging that its ongoing providing of digital XRP tokens constituted an unregistered securities providing to buyers.
- On July 6, 2020, asset administration agency Arca introduced that the SEC granted it approval underneath the Funding Firm Act of 1940 to difficulty shares of a closed-end US Treasury fund within the type of digital securities. Whereas the arrival of ArCoins was not a watershed second — that may be when an exchange-traded fund lastly obtains the SEC’s blessing to carry cryptocurrencies or stablecoins as underlying belongings — the share supply through ArCoins deserves distinction as a digital asset milestone. By providing shares within the Arca US Treasury Fund as ArCoin tokens and the power to switch these digital securities peer-to-peer over a blockchain, Arca successfully eliminated monetary intermediaries from a long-standing equation within the funding universe. This sidesteps the present lack of a market of broker-dealers who’re permitted to have interaction with and custody digital asset securities. (See SEC Greenlights Investment Fund Delivered in Security Tokens.)
- On September 25, 2020, the SEC issued a no-action letter granting extra leeway to registered different buying and selling methods (ATSs) that settle trades involving digital asset securities, sure situations allowing. The no-action reduction is meant to scale back operational and settlement dangers that ATSs face in offering noncustodial digital asset providers, together with settlement of trades involving digital currencies, cash, and tokens. (See Settlement of Digital Asset Trading Just Got Easier.)
- On November 19, 2020, the SEC issued solely its third no-action letter so far for digital tokens, clearing the way in which for the software program growth firm IMVU Inc. to promote VCOIN, an ERC-20 token, as a transferable non-security to its international platform customers. In contrast to the SEC’s prior no-action reduction, the VCOIN no-action reduction for the primary time permits VCOIN customers to switch the token outdoors of its closed platform to non-users and for any VCOIN holder to have the ability to change the token for fiat forex from the token issuer. Whereas the VCOIN mannequin isn’t itself ground-breaking, there may be worth in understanding it and divining the SEC’s trajectory on this space, because the regulator progressively turns into extra permissive. (See A VCOIN for Your Thoughts: Ethereum-Based Token Wins SEC No-Action Relief.)
- On December 3, 2020, the SEC’s Strategic Hub for Innovation and Monetary Expertise, generally known as FinHub, was made a stand-alone workplace inside the SEC. FinHub is on the forefront of SEC efforts to encourage accountable innovation within the monetary sector, “together with in evolving areas equivalent to distributed ledger know-how and digital belongings.” It is a constructive growth for the crypto house typically as the brand new construction supplies direct entry to the SEC workers for business and the general public, with FinHub management reporting on to the SEC chairperson.
- On December 23, 2020, the SEC issued a press release with embedded no-action reduction (Custody of Digital Asset Securities by Special Purpose Broker-Dealers), outlining how broker-dealers should function when appearing as custodians of digital asset securities to be able to decrease threat to buyers and keep away from enforcement motion. The guideline behind the measures is to mitigate the danger of the loss or theft of digital asset securities and the influence such an occasion would have on broker-dealers, their prospects and counterparties, and different market individuals. The really useful steps and no-action reduction clear the way in which for particular function broker-dealers to custody digital asset securities by establishing unique possession and management of the belongings in compliance with the Buyer Safety Rule. (See SEC Issues Guidance for Broker-Dealer Custody of Digital Assets.)
The OCC and CFTC Stepped Up
Whereas 2020 was not precisely a banner 12 months for the SEC when it comes to digital belongings (and at this level, solely a complete framework for digital asset securities and approval of a Bitcoin ETF will earn the SEC that accolade), anybody watching this house can’t have failed to note that the Workplace of the Comptroller of the Forex (OCC) and the Commodity Futures Buying and selling Fee (CFTC) stepped into their respective digital limelight:
- On July 22, 2020, the OCC issued Interpretive Letter #1170, giving nationwide banks and federal financial savings associations (FSAs) the greenlight to supply prospects with custody providers for cryptocurrencies and digital belongings that aren’t broadly used as currencies (collectively, cryptoassets). The letter, which operates as steerage solely somewhat than an official rulemaking, was addressed to an unspecified recipient financial institution in search of to supply cryptoasset custody providers as a part of its present custody enterprise, however applies to nationwide banks and FSAs of all sizes. (See From Safe Deposit Boxes to Cold Wallets, Bank Custody Evolves.)
- On September 21, 2020, the OCC issued Interpretive Letter #1172, giving nationwide banks and FSAs the greenlight to carry deposits that function reserves for the underlying belongings backing sure “stablecoins” on behalf of consumers. In keeping with the letter, nationwide banks and FSAs are granted this expanded authority to carry stablecoin reserves if sure situations are met. The SEC’s FinHub issued a press release within the wake of the letter, reminding market individuals to carry out a cautious regulatory evaluate of all digital belongings into account. A info and circumstances evaluation is important to figuring out whether or not the registration, reporting, and different necessities of the federal securities legal guidelines are implicated. (See Banks Can Hold Stablecoin Reserves, OCC States in Crypto-Friendly Letter.)
- Nonetheless, not everybody has welcomed the OCC’s 2020 cryptoasset supportive actions. In a November 10, 2020, public letter to Appearing Comptroller of the Forex, Brian Brooks, six Democratic members of Congress rebuked “the OCC’s extreme concentrate on crypto belongings and crypto-related monetary providers” and “unilateral actions within the digital actions house.” Additional, in a December 4, 2020, letter, Home Monetary Providers Committee Chairwoman Maxine Waters referred to as on then President-elect Joe Biden to rescind the OCC’s cryptoasset steerage. Whether or not such sentiments or elevated stress on the Biden Administration will end in a reversal of those crypto-friendly efforts stays to be seen. On the opposite finish of the spectrum, some in Congress have lauded the OCC’s actions, and have called on the SEC and the Monetary Trade Regulatory Authority (FINRA) to observe swimsuit with related clarifications on cryptoasset custody.
- On February 10, 2020, the CFTC’s Division of Swap Supplier and Middleman Oversight (DSIO) issued a press release supporting accountable digital asset product innovation, together with in relation to the pooled funding autos in search of publicity to digital belongings and digital asset derivatives. The assertion indicated the division’s need to do its half “to assist market individuals to make sure that these improvements can develop in a manner that’s per the legislation,” and included a proposal to help innovators with the analysis of latest digital asset merchandise that is probably not topic to present particular CFTC disclosure necessities and disclosure doc evaluate by the Nationwide Futures Affiliation (NFA). (See A CFTC Helping Hand: DSIO Offers to Review Digital Asset Products.)
- On June 24, 2020, the CFTC’s ultimate interpretive steerage regarding the “precise supply” of digital belongings turned efficient. Absent qualifying for the “precise supply” exception, retail transactions in commodities (together with digital asset commodities) entered into or provided on a leveraged, margined, or financed foundation are regulated as if they’re futures contracts and might solely be provided by registered intermediaries and on registered exchanges. The steerage clarifies the CFTC’s understanding of when a transaction ends in precise supply of a digital asset inside 28 days and is thereby excepted from these necessities. The steerage takes a purposeful method to the time period “precise supply” and articulates the view that precise supply could have occurred in relation to digital belongings when, inside 28 days, (1) a buyer secures possession and management of all the amount of the digital asset commodity, in addition to the power to make use of all the amount freely in commerce; and (2) the offeror, counterparty vendor, and any associates thereof now not retain any curiosity in, authorized proper to, or management over the digital asset commodity. (See What the CFTC Interpretation of “Actual Delivery” Means for Crypto.)
- On July 8, 2020, the CFTC printed the company’s 2020-2024 Strategic Plan. Of be aware for the digital asset house was one line within the 14-page report. Strategic Purpose 3 (“Encourage innovation and improve the regulatory expertise for market individuals at dwelling and overseas”) consists of Strategic Goal 3.4: “Tackle the dangers and alternatives arising from ‘twenty first century commodities.’ We [the CFTC] will develop a holistic framework to advertise accountable innovation in digital belongings.”
- On October 21, 2020, the CFTC’s DSIO issued CFTC Employees Letter No. 20-34, clarifying its views on the acceptance, holding, and reporting of digital forex (e.g., Bitcoin or Ether) in segregated accounts by futures fee retailers (FCMs) and the event of acceptable threat administration packages in relation thereto. Particularly, the advisory pertains to digital currencies deposited by prospects with FCMs in reference to bodily delivered futures contracts or swaps. Because of the “custodian threat” related to holding digital forex as segregated funds, the Advisory lays out particular steerage for FCMs on digital asset acceptance and custody, and their accountability to implement acceptable insurance policies, procedures, and oversight packages. (See CFTC Adds Another Building Block to Its Digital Asset Framework.)
- On December 17, 2020, the CFTC’s innovation workplace, LabCFTC, launched a Digital Asset Primer, constructing on LabCFTC’s earlier 2017 Primer on Virtual Currencies and persevering with its efforts to tell the general public, policymakers, and business stakeholders about new applied sciences and improvements. The Digital Asset Primer supplies a handy distillation of the CFTC’s present method and pondering in relation to digital belongings and digital asset markets.
FinCEN Casts a Shadow
In mid-2020, the Monetary Crimes Enforcement Community (FinCEN) indicated that it was persevering with its efforts to implement obligations associated to anti-money laundering (AML) and countering the financing of terrorism, with an elevated concentrate on monetary establishments transacting through rising cost methods, together with digital currencies. FinCEN is prioritizing the mitigation of dangers associated to digital belongings, whereas recognizing the significance of cooperation between the federal government and the non-public sector.
- On October 27, 2020, FinCEN and the Federal Reserve Board issued a proposed rule that may amend the recordkeeping and journey rule rules underneath the Financial institution Secrecy Act. The proposed rule would decrease the relevant threshold for the duty on monetary establishments to gather, retain, and transmit sure info associated to fund transfers and transmittals from US$3,000 to US$250 for worldwide transactions. The proposed rule particularly states that the decreased threshold would apply to transactions involving convertible digital currencies, in addition to transactions involving digital belongings with authorized tender standing.
- On December 23, 2020, FinCEN issued a proposed rule that may impose important new obligations on market individuals within the cryptocurrency and digital asset market. The proposed rule “would require banks and cash service companies to submit studies, maintain information, and confirm the identification of consumers in relation to transactions involving convertible digital forex or digital belongings with authorized tender standing held in unhosted wallets, or held in wallets hosted in a jurisdiction recognized by FinCEN.” Trade suggestions on the proposed rule was overwhelmingly important. On January 14, 2021, FinCEN introduced that it was extending what was seen by market individuals as an unduly abridged remark interval (initially, 15 days from date of publication). The extension might point out that, on issues associated to the AML regime, the Treasury is “persevering with its lively engagement with the cryptocurrency business” in good religion. (See FinCEN Looks to Rein In Cryptocurrency Transactions.)
- In a associated growth, on January 1, 2021, Congress enacted the Nationwide Protection Authorization Act for Fiscal 12 months 2021, an omnibus invoice that features the Anti-Cash Laundering Act of 2020. A number of provisions of the Act serve to replace the prevailing AML regime to be able to assist safeguard the monetary system from growing threats and account for rising applied sciences and cost strategies, equivalent to digital currencies. The Act expressly consists of monetary establishments and companies engaged within the change or transmission of “worth that substitutes for forex” — equivalent to cryptocurrencies — inside the scope of regulated entities. (See The Anti-Money Laundering Act of 2020: 5 Key Takeaways.)
Enforcement Stays a High Precedence
Regulators continued to pursue enforcement within the digital asset house, with heightened concentrate on AML issues.
- On October 8, 2020, the US Lawyer Basic’s Cyber-Digital Activity Power of the Division of Justice (DOJ) printed a white paper titled “Cryptocurrency: An Enforcement Framework” (the Report), which supplies an in depth overview of legit makes use of of cryptocurrencies, the dangers of illicit cryptocurrency exercise, and associated federal enforcement challenges and response methods. The Report devotes intensive house to elaborating on the DOJ’s method to multi-agency collaboration, which entails parallel or joint investigations and enforcement in opposition to people and entities for infractions involving cryptoassets. Insofar because the Report supplies a roadmap of the DOJ’s priorities for cryptocurrency enforcement, all market individuals within the cryptocurrency house ought to pay attention to its contents and the federal government’s evolving expectations for threat administration and controls. (See DOJ’s Evolving Framework for Cryptocurrency Enforcement.)
- In keeping with its 2020 Enforcement Report, printed on December 1, 2020, the CFTC’s Division of Enforcement continued to aggressively prosecute misconduct involving digital belongings that match inside the Commodity Alternate Act’s definition of “commodity.” Together with the division’s Digital Asset Activity Power, the CFTC introduced a record-setting seven circumstances involving digital belongings in FY2020, together with a case through which the defendants allegedly focused churchgoers and misappropriated US$28 million in reference to purported Bitcoin investments, and a matter through which a overseas buying and selling platform was providing unlawful leveraged transactions in Ether, Litecoin, and Bitcoin.
CBDCs and Institutional Adoption
- Whereas different jurisdictions are testing and nearing the launch of their very own central financial institution digital currencies (CBDCs), the US Federal Reserve continues to be within the early stage/“hypothetical” phase of researching a digital greenback, whereas additionally debating its utility.
- The variety of establishments that introduced important adoption of blockchain know-how, digital asset investing, custody, collateralization, trading, settlement, and indexing are too quite a few to debate. Within the context of regulatory growth, this elevated institutional uptake alerts the next notion of legitimacy, and heralds the arrival of great, established monetary business gamers who’re demanding steerage and readability from regulators.
- In a Miracle on thirty fourth Road-sized instance of institutional adoption, the Salvation Military announced on December 17, 2020, that it will settle for Bitcoin and Ether for charitable donations.
Will 2021 Show to Be a Fortunate 12 months for Digital Property?
If nothing else, 2020 accelerated in style consolation with and uptake of digital innovation, from digital workplace options to digital monetary providers equivalent to distant banking and contactless funds. Accommodative central financial institution insurance policies have depressed the US greenback and buoyed mainstream and different belongings (together with Bitcoin and different cryptoassets) to all-time highs as buyers seek for yield. Institutional adoption of blockchain innovation and help for cryptoassets has accelerated past most expectations, as capital-rich companies search a technological edge and high-growth alternatives. All of which is to say that, taken as a complete, the assorted unintended penalties of the pandemic might drive regulators to lastly take digital belongings critically as an asset class worthy of a complete regulatory framework. The market merely can’t thrive underneath situations of ambiguity and uncertainty. Sooner or later — maybe this 12 months? — regulators should reckon with the inevitable intertwining of markets and blockchain innovation. It is probably not overly optimistic to examine a fortunate ’21.
This text is made out there by Latham & Watkins for academic functions solely in addition to to provide you common info and a common understanding of the legislation, to not present particular authorized recommendation. Your receipt of this communication alone creates no legal professional shopper relationship between you and Latham & Watkins. Any content material of this text shouldn’t be used as an alternative to competent authorized recommendation from a licensed skilled legal professional in your jurisdiction.