CFTC settles enforcement action against DeFi platform Polymarket

The Commodity Futures Trading Commission (CFTC) recently announced a settlement with the company that operates Polymarket, a blockchain-powered online trading platform that allows users to bet on the outcomes of binary events.  The agency’s order is its first major enforcement action in the blockchain space since the Commission’s new chair, Rostin Behnam, proposed making the agency the government’s “primary cop on the beat” of digital asset markets.  While the order is short on legal analysis, it provides important insights for developers and operators of DeFi (decentralized finance) markets. 

Polymarket’s model

According to the order, Polymarket allows users to purchase event-based options that amount to winner-take-all bets on binary outcomes, such as whether a certain political candidate will win an election or yes/no questions like “Will $ETH [Ethereum] be above $2,500 on July 22?”  This prediction market runs on blockchain-enabled smart contracts that use Automated Market Makers (AMMs), software algorithms that dynamically reprice the premiums for each binary option contract based on relative demand.  The AMM rebalances contract prices after each transaction so that the prices of the “yes” and “no” contracts always total $1.00.  Polymarket’s market resolution conditions (ie, how each option is resolved) are defined solely by Polymarket.

Each market offered by Polymarket relies on its own liquidity pool.  These liquidity pools are composed of “tokens” submitted by liquidity providers.  Options purchasers are charged a 2 percent fee on each transaction, which is used to compensate liquidity providers. 

Options can be purchased and liquidity provided and withdrawn directly via the blockchain; Polymarket’s web-based interface allows access to these transactions.  While use of Polymarket’s web-based interface is not strictly necessary for the purchase of options or the provision of liquidity, the CFTC noted that “[s]ubstantially all trading volume . . . has been facilitated by Polymarket’s website.” Purchases are made using USD Coin, an Ethereum-based stablecoin that has a value pegged to the U.S. dollar. 

The CFTC and the Polymarket order

In its January 3, 2022, order, the CFTC found that the event-based binary option contracts offered on Polymarket’s platform constitute “swaps” under the Commodity Exchange Act (CEA), and that Polymarket’s provision of an unregistered facility or non-designated contract market for the trade of such swaps violated the CEA and related regulations.

As part of the settlement, Polymarket agreed to wind down existing noncompliant contracts and pay a $1.4 million civil penalty.  Polymarket also announced that it has “built out an exceptional compliance team and robust internal practices and procedures” because of the investigation.

Implications for DeFi platforms

This order provides important insights into the way that regulators of securities, commodities, and other assets view decentralized marketplaces.

Absent centralized maintenance and oversight, an open question has emerged as to the conditions under which such marketplaces might be regulated as exchanges or similar marketplaces. The analysis is complicated by the reality that, like Polymarket, many blockchain-based decentralized marketplaces are supported by the efforts of centralized parties, such as through the provision of a web-based interface (even if not strictly necessary) or market resolution rulings. Here, the CTFC deemed provision of such an interface and other efforts by Polymarket sufficient to subject Polymarket to regulation for facilitating the trade of swaps.

The extent to which the CFTC and other regulators may attempt to assert authority over other decentralized marketplaces for similar reasons remains unknown but a hot topic in DeFi. It also remains to be seen whether DeFi projects can provide more decentralized front-end interfaces, which might attract less scrutiny.