Blockchain and Digital Assets News and TrendsAchieving Digital Transformation and Securing Digital Assets
This is our twelfth monthly bulletin for 2022, aiming to help companies identify important and significant legal developments governing the use and acceptance of blockchain technology, smart contracts and digital assets.
While the use cases for blockchain technology are vast, this bulletin will be primarily on the use of blockchain and or smart contracts in the financial services sector. With respect to digital assets, we have organized our approach to this topic by discussing it in terms of traditional asset type or function (although the types and functions may overlap), that is, digital assets as:
- Virtual currencies
- Deposits, accounts, intangibles
- Negotiable instruments
- Electronic chattel paper
- Digitized assets
In addition to reporting on the law and regulation governing blockchain, smart contracts and digital assets, this bulletin will discuss the legal developments supporting the infrastructure and ecosystems that enable the use and acceptance of these new technologies.
OFAC, EU, UK, China targeting digital currency issuers and exchanges for increased enforcement
By: David Peyman
US sanctions enforcement efforts and compliance expectations
The Department of Treasury’s Office of Foreign Assets Control (OFAC) has entered the whole-of-government effort to pursue enforcement action against all companies in the virtual currency industry, including technology companies, exchangers, administrators, miners, wallet providers, and traditional financial institutions that may have exposure to virtual currencies or their service providers. OFAC is increasing resources that will focus on violations of US sanctions laws against the industry. US sanctions are a strict-liability regime that trigger severe consequences for unknowing and unintentional violations.
In its most recent action, on November 28, 2022, OFAC announced a settlement with Delaware-incorporated currency exchange Payward (dba Kraken) for violating US sanctions against Iran. Kraken paid a $362,158 civil penalty and agreed to invest in sanctions compliance controls, including internet protocol (IP) blocking to prevent users from sanctioned jurisdictions from accessing its platform and services both at on-boarding and with respect to subsequent transactions. Read more
Florida court allows service of lawsuit upon foreign crypto scammers by NFT
By Matthew Miller
In what appears to be a growing trend of courts both abroad and in the US, the US District Court for the Southern District of Florida has authorized service of a lawsuit seeking the recovery of stolen digital assets by way of a non-fungible token or NFT containing the text of the complaint and Summons and a hyperlink to a website created by Plaintiffs containing all pleadings and orders in the action. Read more
Yuga Labs and dozens of celebrities named in federal lawsuit alleging Bored Apes are unregistered securities
By Eric Hall
A lawsuit filed on December 8, 2022, in the federal district court for the Central District of California aims to hold dozens of A-list celebrities responsible for promoting the sale of multiple digital assets created by defendant Yuga Labs.
The assets include premier NFT collection Bored Ape Yacht Club (BAYC), metaverse property Otherdeeds, and cryptocurrency ApeCoin. The 100-page complaint alleges that Yuga Labs and elite talent agent Guy Oseary conspired to promote Yuga Labs' digital assets through Oseary’s Hollywood connections. Read more
Crypto winter spreading to public company disclosure
By: Deborah Meshulam, Andrew Ledbetter, Noah Schottenstein, Margo Tank, Eric Forni, Patrick Bryan, Deanna Reitman
As the “crypto winter” sets in, the SEC’s Division of Corporation Finance (Division) has signaled that additional winter storms may be brewing for public companies that provide insufficient disclosure about crypto holdings and crypto exposure. On December 8, the Division released a sample letter containing comments public companies might receive related to disclosures concerning the potential business, financial, and legal impacts from the recent crypto-asset market events. Read more
STATUTORY AND AGENCY DEVELOPMENTS
House Committee investigates FTX bankruptcy. On December 13, the US House Committee on Financial Services held a hearing Investigating the Collapse of FTX, Part I. John Ray III testified before the Committee and discussed his actions to authorize Chapter 11 bankruptcy filings as the newly appointed CEO of FTX. Ray continues to investigate the management practices of FTX, and explained that FTX US was included in the bankruptcy filing because FTX US was not operated independently of FTX.com. for more information on the FTX bankruptcy, see our article What should customers expect from the FTX bankruptcy? Lessons learned from MF Global and similar cases.
CFPB issues analysis of consumer complaints related to crypto-assets. In November, the Consumer Financial Protection Bureau (CFPB) issued a Complaint Bulletin regarding consumer complaints related to crypto-assets. According to the Bulletin, "[t]he majority of the more than 8,300 complaints related to crypto-assets submitted to the CFPB from October 2018 to September 2022 have been submitted in the last two years with the greatest number of complaints coming from consumers in California." The Bulletin finds that "fraud, theft, hacks, and scams are a significant problem in crypto-asset markets." Additionally, the Bulletin asserts that "analyses suggest that complaints related to crypto-assets may increase when the price of Bitcoin and other cryptoassets increase."
FINRA examines practice on retail communications concerning crypto-assets. In November, the Financial Industry Regulatory Authority, Inc. (FINRA) announced it is conducting "a targeted exam of firm practices regarding retail communications concerning Crypto Asset products and services." The examination seeks information from brokerage firms for the period July 1 through September 30 and seeks detail on each "retail communication" made by the firm during the period that refer to, relate to, or concern a crypto asset as defined by FINRA, as well as the firm's supervisory procedures and compliance policies regarding such communications.
Bipartisan digital asset legislation introduced. On December 14, Senators Elizabeth Warren (D-MA) and Roger Marshall (R-KS) announced they are introducing legislation to tighten AML rules around digital assets. The bill would expand KYC and AML requirements to digital asset wallet providers, miners, validators and other network participants and would prohibit financial institutions from transacting with digital assets that hide transaction sources. The legislation would require:
- FinCEN to issue certain rules/requirements including:
- Classification of “custodial and unhosted wallet providers, cryptocurrency miners, validators, or other nodes who may act to validate or secure third-party transactions, independent network participants, including MEV searchers, and other validators with control over network protocols as money service businesses.”
- US persons engaging in a transaction with a value greater than $10,000 in digital assets through one or more accounts outside of the US to file foreign financial account reports.
- Digital kiosk owners and administrators: (i) submit and update the physical address of the kiosks every 3 months; (ii) verify the identity of each customer (using valid government-issued id or other Treasury approved documentary method; and (iii) collect the name, DOB, physical address and phone number of each counterparty to the transaction
- Treasury to issue rule prohibiting financial institutions from: (1) handling, using, or transacting business with digital asset mixers, privacy coins, and other anonymity-enhancing technologies, as specified by the Secretary; and (2) handling, using, or transacting business with digital assets that have been anonymized by the technologies described in paragraph (1)
- Each of Treasury, the CFTC and the SEC to establish risk-focused examination and review processes to assess the adequacy of AML programs and reporting obligations and compliance with AMK and countering the financing of terrorism requirements.
- FinCEN to issue a report in four months identifying unlicensed kiosk operators and administrators with relevant identification information
- DEA to issue a report in one year making recommendations to reduce drug trafficking with digital asset kiosks.
IRS releases 2022 Criminal Investigation Annual Report. In November, the Internal Revenue Service (IRS) released the 2022 IRS Criminal Investigation Annual Report which identified digital assets as a top priority for 2023. According to the report, the division seized "record amounts of data and cryptocurrency." Additionally, in fiscal year 2023, the IRS Criminal Investigation division will establish the Advanced Collaboration and Data Center (ACDC) to modernize its investigative practices. The ACDC will enhance the division's and its partners’ abilities to access, investigate, and analyze information and evidence in challenging areas such as cryptocurrency, including tracing, monitoring, and tax basis calculating.
Distributed ledger technology
Federal Reserve Bank of New York to explore feasibility of DLT for settlement of digital asset transactions. On November 15, the New York Innovation Center of the Federal Reserve Bank of New York announced that the Center will participate in a proof-of-concept project to explore the feasibility of an interoperable network of central bank wholesale digital money and commercial bank digital money operating on a shared multi-entity distributed ledger. This 12-week proof-of-concept project will test the technical feasibility, legal viability, and business applicability of distributed ledger technology to settle the liabilities of regulated financial institutions through the transfer of central bank liabilities.
USPTO and US Copyright Office seek public comments on NFTs. On November 23, the US Patent and Trademark Office (USPTO) and the US Copyright Office (USCO) announced they are conducting a joint study regarding issues of intellectual property (IP) law and policy associated with non-fungible tokens (NFTs). The USPTO and USCO Copyright Office (USCO) seek public comments by January 9, 2023, on questions including:
- The current uses of NFTs and the types of assets associated with NFTs
- Any IP-related challenges or opportunities associated with NFFTs or NFT markets
- Whether, how and to what extent NFTs are used by or could be used by IP rights holders, or present challenges or opportunities for IP rights holders
- How and to what extent copyrights, trademarks and patents are relied on, or anticipated to be relied on, to protect assets associates with NFTs and to combat infringement of such assets
- IP-related impacts in connection with actual or intended uses of NFTs.
Additionally, the USPTO and USCO will hold three public roundtables in January 2023 focused on IP considerations as they relate to NFTs.
New York enacts two-year moratorium on cryptocurrency mining. On November 23, New York Governor Kathy Hochul signed S6486D, which establishes a two-year moratorium on cryptocurrency mining operations that use proof-of-work authentication methods to validate blockchain transactions. The new law's moratorium applies to air permit issuance and renewal for electric generating facilities that utilize a carbon-based fuel and that provide, in whole or in part, behind-the-meter electric energy consumed or utilized by cryptocurrency mining operations that use proof-of-work authentication methods to validate blockchain transactions. The law also requires the New York State Department of Environmental Conservation to complete of a comprehensive generic environmental impact study of cryptocurrency mining operations using proof-of-work methodology in the State of New York. Issuance of permits for electric energy facilities that use alternatives to carbon-based fuel, such as hydropower, are still allowed.
NYDFS issues guidance to banking organizations on virtual currency-related activity. On December 15, the New York State Department of Financial Services (NYDFS) issued an Industry Letter: Prior Approval for Covered Institutions' Virtual Currency-Related Activity. The letter sets forth the NYDFS's expectations for New York banking organizations and branches and agencies of foreign banking organizations licensed by the NYDFS that wish to engage in virtual currency-related activity. The letter also reminds these organizations that, as a matter of safety and soundness, they are expected to seek approval from the NYDFS before engaging in new or significantly different virtual currency-related activity.
ENFORCEMENT ACTIONS AND LITIGATION
SEC initiates administrative proceedings against DAO. On November 18, the SEC announced the filing of an order instituting public administrative proceedings against American CryptoFed DAO LLC, a Wyoming decentralized autonomous organization, with respect to its 2021 filings seeking to register two crypto assets, the Ducat and Locke tokens, as securities under Section 12(g) of the Securities Exchange Act of 1934, and the SEC's denial of the DAO's June 2022 request to withdraw its registration statement. The order alleges that the DAO omitted material information in its registration statement, including a failure to furnish required financial statements, and made materially misleading statements in the registration statement. Additionally, the order asserts that the SEC is examining whether the DAO failed to cooperate with the examination of its registration statement.
SEC charges Samuel Bankman-Fried with fraud. On December 13, the SEC announced it had filed charges against Samuel Bankman-Fried for "orchestrating a scheme to defraud equity investors in FTX Trading Ltd., the crypto trading platform of which he was CEO and co-founder. According to the announcement, the complaint alleges that Bankman-Fried "orchestrated a years-long fraud to conceal from FTX’s investors (1) the undisclosed diversion of FTX customers’ funds to Alameda Research LLC, his privately-held crypto hedge fund; (2) the undisclosed special treatment afforded to Alameda on the FTX platform, including providing Alameda with a virtually unlimited 'line of credit' funded by the platform’s customers and exempting Alameda from certain key FTX risk mitigation measures; and (3) undisclosed risk stemming from FTX’s exposure to Alameda’s significant holdings of overvalued, illiquid assets such as FTX-affiliated tokens." The complaint further alleges that Bankman-Fried used commingled FTX customers’ funds at Alameda to make undisclosed venture investments, lavish real estate purchases, and large political donations. The complaint charges Bankman-Fried with violating the anti-fraud provisions of the Securities Act of 1933 and the Securities Exchange Act of 1934 and seeks injunctions against future securities law violations; an injunction that prohibits Bankman-Fried from participating in the issuance, purchase, offer, or sale of any securities, except for his own personal account; disgorgement of his ill-gotten gains; a civil penalty; and an officer and director bar. Investigations as to other securities law violations and into other entities and persons relating to the alleged misconduct are ongoing.
CFTC charges FTX, Alameda Research and Bankman-Fried. On December 13, the Commodity Futures Trading Commission (CFTC) announced the filing of a complaint against Samuel Bankman-Fried, FTX Trading Ltd. Dba FTX.com and Alameda Research LLC. The complaint charges all three defendants with fraud and material misrepresentations in connection with the sale of digital commodities in interstate commerce, causing the loss of over $8 billion in FTX customer deposits. The complaint further alleges that FTX customer assets were routinely accepted and held by Alameda and commingled with Alameda’s funds, and Alameda, Bankman-Fried, and others appropriated customer funds for their own operations and activities, including luxury real estate purchases, political contributions, and high-risk, illiquid digital asset industry investments. Additionally, the complaint alleges that FTX employees created features in the FTX code which were not publicly disclosed that favored Alameda and allowed it to execute transactions even when it did not have sufficient funds available, including an “allow negative flag” and effectively limitless line of credit that allowed Alameda to withdraw billions of dollars in customer assets from FTX. The CFTC seeks restitution, disgorgement, civil monetary penalties, permanent trading and registration bans, and a permanent injunction against further violations of the Commodity Exchange Act and CFTC regulations.
Rhode Island man ordered to pay restitution for virtual currency fraud. On December 1, the CFTC announced the entry of a consent order on November 29 for a permanent injunction, restitution, and equitable relief against Jeremy Spence of Bristol, Rhode Island. Spence, at times, conducted business as Coin Signals. The consent order resolves a CFTC action filed against Spence on January 26, 2021 alleging that he operated a virtual currency Ponzi scheme in which he fraudulently solicited individuals to invest in digital assets such as bitcoin and ether. The order requires Spence to pay $2,847,743 in restitution to victims of the fraudulent scheme and permanently prohibits Spence from engaging in further violations of the Commodity Exchange Act and CFTC regulations.
Spence had been separately indicted by the Southern District of New York, pled guilty and received a sentence on May 11, 2022, of forty-two months of incarceration and three years of supervised release.
Celsius Network ordered to return cryptocurrency not in interest-bearing accounts. On December 7, a US Bankruptcy judge reportedly rendered a verbal order requiring Celsius Network LLC to return nearly $44 million in cryptocurrency that was held in Celsius custody accounts and was never held in Celsius interest-bearing accounts. According to a court filing, the $44 million represents a minority of the overall customer funds held by Celsius. The legal treatment of cryptocurrency held in Celsius interest-bearing accounts has yet to be decided.
BlockFi files for Chapter 11 bankruptcy. On November 28, BlockFi Inc. and eight of its affiliates announced the filing of a Voluntary Petition for Bankruptcy under Chapter 11 in the US Bankruptcy Court for the District of New Jersey. According to the announcement, BlockFi will focus on recovering all obligations owed to BlockFi by its counterparties, including FTX and associated corporate entities. Due to the recent collapse of FTX and its ensuing bankruptcy process, which remains ongoing, BlockFi expects that recoveries from FTX will be delayed. According to the petition, BlockFi has more than 100,000 creditors with $1 to $10 billion in estimated assets and liabilities, and funds will be available for distribution to unsecured creditors. The SEC is listed as a creditor for $30 million resulting from the SEC's holding In the Matter of BlockFi Lending LLC, No. 3-20758 (SEC Feb. 14, 2022).
CFPB denies Nexo’s motion to modify CID. On November 22, the Consumer Finance Protection Bureau (CFPB) denied the motion of Nexo Financial LLC to modify the CFPB's civil investigative demand (CID) to exclude digital assets held by Nexo in a type of interest-bearing account known as its Earn Interest Product. Nexo argued that the CFPB did not have jurisdiction over digital asset interest-bearing accounts, as the SEC claimed jurisdiction over this type of account as a "security" in its order issued under In the Matter of BlockFi Lending LLC, No. 3-20758 (SEC Feb. 14, 2022). In its order denying the motion, the CFPB noted that Nexo never conceded that its Earn Interest Product was a security, and Nexo never sought registration of the Product under US securities laws.
OFAC settles with Kraken. Ion November 28, the Office of Foreign Assets Control (OFAC) announced a settlement with Payward, Inc. dba Kraken, a virtual currency exchange, which requires Kraken to pay $362,158.70 to resolve alleged violations of the Iranian Transactions and Sanctions Regulations. Kraken also agreed to invest an additional $100,000 in sanctions compliance controls. The settlement asserted that Kraken failed "to timely implement appropriate geolocation tools, including an automated internet protocol (IP) address blocking system" to prevent users who appeared to be in Iran from engaging in transactions on Kraken's platform. This system was required in addition to Kraken maintaining a sanctions compliance program with ID verification, as individuals who opened accounts with Kraken from non-sanctioned jurisdictions apparently used the accounts from Iran. The settlement amount reflects OFAC's determination that Kraken's apparent violations were non-egregious and voluntarily self-disclosed.
FTX accounting firms made defendants in class action complaints. Two class action complaints have been filed against accounting firms that audited FTX as a result of the FTX bankruptcy. On November 23, a case was filed in the US District Court for the Northern District of California naming Amanino LLP and Prager Metis CPAs, LLC, firms that audited FTX, alleging the violations of the Racketeering Influenced and Corrupt Organizations Act (RICO) and conspiracy to conduct a RICO enterprise. The second case, Gonzalez v. Armanino LLP, was filed in the Superior Court of the State of California for the County of Contra Costa naming Armanino LLP and alleging claims of negligent misrepresentation unfair competition under California law.
Law firm sues SEC for declaratory relief. On November 21, the Hodl law firm filed a complaint in the US District Court for the Southern District of California against the SEC seeking declaratory relief declaring that the Ethereum network and ether digital currency are not securities or investment contracts under the Federal Securities Act of 1933. The complaint alleges "years-long, purposeful delay and obfuscation by the [SEC] regarding its jurisdictional authority with respect to [digital assets]." The plaintiff further describes the SEC's approach to digital assets as "intentional, weaponized ambiguity as to why the [SEC] provides no guidance or rules regarding [digital assets]," and claims that the "[SEC] has refused to provide plaintiff – and millions of other [Ethereum] network users – any concrete guidance as to whether such activity could, at the [SEC's] whim, be prosecuted as engaging in the sale of unregistered securities." The complaint also seeks damages, attorney fees and a jury trial.
SDNY files charges against Bankman-Fried. On December 13, the US Attorney's Office for the Southern District of New York announced the unsealing of an indictment charging Samuel Bankman-Fried with conspiracy to commit wire fraud, wire fraud, conspiracy to commit commodities fraud, conspiracy to commit securities fraud, conspiracy to commit money laundering, and conspiracy to defraud the Federal Election Commission and commit campaign finance violations. The charges stem from the collapse and bankruptcy of FTX. The announcement stated that Bankman-Fried was arrested December 12 in the Bahamas on these charges.
SDNY files charges against founders of cryptocurrency mining and trading companies for Ponzi schemes. On December 14, the US Attorney for the Southern District of New York announced the filing of two indictments against the founders and promoters of IcomTech and Forcount AKA Weltsys. The indictments charge the following individuals with conspiracy to commit wire fraud and/or wire fraud: David Carmona, Marco Ruiz Ochoa, Moses Valdez, Juan Arellano, David Brend, and Gustavo Rodriguez (IncomTech) and Francisley Da Silva, Juan Tacuri, and Antonia Perez Hernandez (Forcount). Silva and Tacuri were also charged with conspiracy to commit money laundering and Hernandex is also charged with making false statements. The promoters allegedly siphoned off hundreds of thousands of dollars in investor funds which they withdrew as cash, spent on promotional expenses for the schemes, and used for personal expenditures such as luxury goods and real estate.
SDNY charges CTO of blockchain company with fraud. On December 7, the US Attorney for the Southern District of New York announced the unsealing of an indictment against Rikesh Thapa charging him with fraud against a company he co-founded and was employed by in excess of $1 million in cash and 10 bitcoin which Thapa used for personal purposes.Thapa also falsified records to conceal the theft. Thapa is charged with one count of wire fraud, which carries a maximum sentence of 20 years in prison.
Eastern District of Texas announces multi-year investigation into transnational cryptocurrency money laundering networks. On November 30, the US Attorney for the Eastern District of Texas announced the unsealing of indictments charging 21 individuals with their roles in transnational money laundering networks, including those that laundered millions of dollars stolen from United States fraud victims through romance scams, business email compromises, technical support schemes, and other fraud schemes. The announcement also revealed Operation Crypto Runner, an Organized Crime Drug Enforcement Task Forces (OCDETF) investigation into transnational cryptocurrency money laundering networks that facilitate the movement of fraud proceeds from victims in the United States to foreign criminal organizations. To date, the Operation has disrupted more than $300 million in annual money laundering transactions, seized and forfeited millions in cash and cryptocurrency, and identified thousands of victims.
SPOTLIGHT ON INDUSTRY DEVELOPMENTS
Blockdata report on the state of CBDCs in 2022. On December 5, Blockdata, a research, intelligence and data gathering firm focused on the blockchain and DLT ecosystem, released The State of CBDCs in 2022, a report describing the status of CBDC developments in 2022 among various central banks around the world. Notably, the report describes stakeholder opposition to CBDCs, including the American Banking Association which asserted that "a US Fed-issued CBDC lacks 'compelling use cases' and would 'fundamentally rewire' the banking system." The report states that the ABA "believes that innovation in digital currencies should be within the ambit of the private sector through the evolution of real-time payment systems and a mechanism of well-regulated stablecoins."
SPOTLIGHT ON INTERNATIONAL DEVELOPMENTS
Canadian Securities Administrators warn investors about risks of crypto asset trading. On November 21, 2022, The Canadian Securities Administrators (the “CSA”) issued a warning regarding the elevated risks that investors face when trading in crypto assets. The high volatility in the value and liquidity of crypto assets may not be suitable for certain investors, particularly retail investors. Read more
Hong Kong securities regulator warns of risks with virtual assets. On December 13, the Hong Kong Securities and Futures Commission issued a Statement on Virtual Asset Arrangements Claiming to Offer Returns to Investors. The statement focuses on virtual asset deposit, savings, earnings and staking services.
DLA Piper ranked in 2023 Chambers FinTech Guide. DLA Piper is pleased to announce that the firm's FinTech Legal: Blockchain & Cryptocurrencies practice has been ranked nationwide by the prestigious legal publisher Chambers and Partners. Margo Tank and Mark Radcliffe each received individual rankings. Overall, the firm received 21 practice rankings and 16 individual lawyer rankings in the Chambers FinTech 2023 edition.
Cryptocurrency and Digital Asset Regulation, published by the American Bar Association and co-edited by Deborah Meshulam and Michael Fluhr, includes chapters by Meshulam and Fluhr and by Margo H.K. Tank and Andrew Grant.
Transferring digital assets under UCC Article 8
TOKO - Using tokenization to boost property syndicate investment in New Zealand
Future-proofing real estate businesses with ESG metrics and blockchain technology
Creating an insider trading policy for your company’s digital assets: why to write one and what to consider
Listen to our podcasts and webinars
Casey Sobhani joined Neil Mandt, Founder and CEO of Metaverse Rights, and Steve Weikal, Industry Chair at MIT Real Estate Technology Initiative (RETi), for Digital & Physical: What the Metaverse Means for Real Estate.
Tech Disputes - Looking to the Future - podcasts
In the first episode of Tech Disputes – Looking to the Future, Phillip Kelly and Dan Jewell discuss NFTs from an English law perspective, covering issues relating to the rights acquired when purchasing NFTs, the risk of fraud and how to guard against it, and the regulatory framework applicable to NFTs and how it might develop. The podcast is on Apple Podcasts, Spotify, LinkedIn, and the DLA Piper website.
In the second episode of Tech Disputes – Looking to the Future, Phillip Kelly and Dan Jewell discuss smart legal contracts from an English law perspective and the issues businesses need to be aware of when embedding smart contract technology into their legal agreements. The podcast is available on Apple Podcasts, Spotify, LinkedIn, and the DLA Piper website.
Law of Code podcast Can't Be Evil NFT licenses featuring Mark Radcliffe.
Learn more about our Blockchain and Digital Assets practice by contacting any of our editors:
Margo H.K. Tank
Guy E. Flynn
Contributors to this issue
Andrew W. Grant
The editors send their thanks and appreciation to Marc Aronson and Raymond Janicko for their contributions to this and prior issues.