Blockchain technology utilizes a distributed digital ledger to record and track information, and can be leveraged to gain transparency and certainty in transactions ranging from cryptocurrency to supply chain tracking.  This blog provides information on the legal developments surrounding implementation of blockchain technology, with an initial focus on the financial services sector.

  • The staffs of the SEC's Division of Trading and Markets and FINRA issued their first public statement on broker-dealer custody of digital securities on July 8, 2019.  Among other things, the staffs discuss potential approaches for broker-dealers to carry digital securities in compliance with Rule 15c3-3 under the Exchange Act.

  • The Financial Crimes Enforcement Network released comprehensive guidance discussing money transmission regulations and how they apply to complex business models involving cryptocurrency and various cryptocurrency platforms and exchanges.

  • On Monday, the SEC entered an Order Instituting Cease and Desist Proceedings against a blockchain investment firm and its CEO for making material misrepresentations to its investors. 

  • Eric Powers of Kern County, California, entered into a consent order today, April 18, 2019, with the Financial Crimes Enforcement Network for acting as an unregistered money transmitter.  FinCEN determined that Powers’ purchase and sale of Bitcoin for U.S. Dollars in over 1,700 “peer-to-peer” transactions from 2012 through 2014 made him an “exchanger” of convertible virtual currency. 

     

     

  • The SEC's Division of Corporation Finance issued both a "Framework for 'Investment Contract' Analysis of Digital Assets" and a no-action letter relating to a blockchain-based consumptive token on April 3, 2019.  The Framework is intended to be a plain English description of how the SEC staff applies the so-called Howey test to determine if a digital asset is a security under the federal securities laws.  It also adddresses the concept of mutability of a digital asset whereby a digital asset initially issued as a security later converts to a digital asset that is not a security because of the digital asset's use on a fully-functional platform, among other things.

    The Division also issued a no-action letter to an air charter services company, TurnKey Jet, Inc.  The no-action letter permits TurnKey to issue a consumptive/utility token, subject to the criteria set out in the letter.

  • AirFox has taken the next step on the Path to Compliance laid out in its settlement with the SEC last year over allegations relating to the company's 2017 ICO.

  • A California federal district court has reversed its own order denying a preliminary injunction against a token issuer and its founder in an action arising from the offer and sale of alleged security tokens.  In a November 2018 order on the Securities Exchange Commission’s motion for a preliminary injunction, the court held that the SEC had failed to establish that the tokens were securities under the Howey test in what was seen as a setback to the agency’s claim of jurisdiction over initial coin offerings under the securities laws.  In last Thursday’s ruling, however, the court agreed with the SEC’s alternative theory that the defendants had engaged in the offer of securities in violation of Section 17(a) of the Securities Act because of false statements in the Defendant’s promotional material.  Accordingly, the court granted the SEC’s motion for reconsideration, in part, and entered a preliminary injunction.          

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