Category Archives: cftc

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Why SEC Should Take a Close Look at an ICO Amnesty Plan

Daniel S Alter, former general counsel for the New York State Department of Financial Services (DFS) and writer for Coindesk has suggested that the SEC should consider an amnesty for illegal ICOs.

In his article, he points out that 2017 saw a monumental rise in the number of coin offerings (ICOs). At one point, up to 50 companies a month were raising funds, most of these unregistered.

This changed later in 2017 after the DAO report based on the Howey Test earlier that year in July, resulted in certain tokens being classified as “investment contracts”, thereby becoming liable for US Securities and Exchange Commission’s (SEC) registration.

It took precedent from the famous court case of the WJ Howey Co-owned Florida citrus groves, the fruits from which would typically be considered a commodity when sold on an exchange. However, the Howey Co also leased about half of its groves in order to finance future grove developments. Howey’s own fruit groves, therefore, were found to be tied to its leased groves, which qualified as an “investment contract” instrument – or a security.

According to Alter, 2018 saw a wave of “SEC subpoenas and enforcement actions targeting similar token offerings – many of which smacked of fraud”. The result is that many ICO tokens have seen a fall in value due to reduced liquidity, market instability for existing tokens, and US companies registering overseas where token sales are unrestricted.

Alter suggests that a model amnesty “clean up” plan should be forged between participating ICOs and the SEC in order to integrate the new asset class into the current structure and introduce a mechanism for protecting “legally flawed investments”. Reports suggest that this process may have begun already, with firms and their lobbyists meeting with the SEC to try and effect a regulatory exemption for unregistered security tokens.

Currently, there are five agencies involved in discussing and setting cryptocurrency regulation in the US, including the US Securities and Exchange Commission (SEC), FinCEN, the Commodity Futures Trading Commission (CFTC), the Department of Justice (DOJ), and the Internal Revenue Service (IRS).

This past February, the Commission’s enforcement division announced the Share Class Selection Disclosure Initiative (SCSD Initiative), self-described as a self-reporting initiative that seeks to protect advisory clients from undisclosed conflicts of interest and return money to investors. Those reporting illegal activity under the initiative would be free from penalty themselves.

Alter feels that a similar approach could work with the case of unregistered security tokens by offering an amnesty. He suggests a method of achieving this would be for issuers of unregistered tokens to make a formal presentation to the SEC to replace the “old” tokens for “new” tokens. This could be formulated under section 12 of the Securities Act of 1933 (establishing a cause of action for rescission or damages in connection with the sale of unregistered securities).

“As an incentive to exchange old tokens for new ones, issuers would probably need to offer some additional consideration – possibly paid in new tokens rather than cash in order to preserve the company’s operating capital,” says Alter.

Ethereum is now under regulatory scrutiny by the SEC, which is considering whether it should be classified as a commodity or a security, according to the New York Times. The SEC is likely to use the Howey Test to establish if Ethereum trading qualifies as an investment contract, thus becoming a security.

 

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Global Conference Fireworks Over Crypto

A recent panel discussion at the Milken Institute Global Conference in Beverly Hills became heated when panelists aired their conflicting views on the future of cryptocurrency.

Every seat in the conference auditorium was filled for the discussion which included United States Commodity Futures Trading Commission (CFTC) chairman Christopher Giancarlo, economist Nouriel Roubini, and Commissioner at the United States Securities and Exchange Commission (SEC) Michael Piwowar.

SEC’s commissioner Piwowar, issued an early warning, making reference to the current argument surrounding ICOs, which has occupied much debate recently, suggesting that if an ICO token is a security it falls into one of three categories:

“The first is the registered public offerings; this is the normal IPO, public offer. We’ve not had anybody register a public offering for an ICO. The next bucket is exempt offerings, so if you have an ICO, you have to fit into one of those types of exempted. And the third bucket is illegal […] if you are not falling into the first two buckets, we’ve said we’re coming after you.”

Piwowar added, “Bitcoin itself is not a security, but these customized tokens for these initial coin offering – most of them are.”

Christopher Giancarlo was upbeat,  suggesting that there should be more respect for the generation’s “new instrument”, referring to cryptocurrencies, and said that rather than derision, markets needed policy initiatives that were “thoughtful and forward-looking”. He continued:

“There is something going on here that is generational… Just as the baby boomer generation lost faith in the leaders that came before them and tried to seek a cultural change in those days through sex, drugs and rock and roll, I think there is a generation that also has lost faith in us that led them through the financial crisis and they see technology as a way of disintermediating institutions for which they don’t have a great deal of respect.”

He went on to explain the CFTC’s problems of applying outmoded regulations to completely new technology.

Nouriel Roubini, tagged as ‘Dr Doom’, an economist known for predicting the 2008 financial crisis, caused friction when describing blockchain as “a glorified Excel spreadsheet” and described investors entering the Bitcoin market “bubble” in 2017 as “suckers.”

His description of decentralization as bullsh*t provoked blockchain entrepreneur Alex Macshinsky to respond, “Everything you just said is irrelevant.”

Ex-CIA cryptographer Bill Barhydt, clearly bemused by Roubini’s comments, retorted with “I don’t even know where to begin”.

 

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Marco Santori – Bitcoin Law In The U.S., Part I

Marco Santori – Bitcoin Law In The U.S., Part I:

Marco Santori, Chairman of Bitcoin Foundation (@BTCFoundation)’s Regulatory Affairs Committee, gives a basic primer on the state of US law as it applies to digital currency entrepreneurs.  Excerpts of the post on Coindesk:

If the last few months have taught us anything, it is that there will soon exist a new and evolving body of law: The Law of Digital Currency, or, as some would prefer it: Bitcoin Law.”

”[…] ‘virtual currency’ is something of a loaded term, and bitcoin may not even be best described as a currency at all.”

“[In addition to regulators FinCEN and the SEC, the] consensus among legal professionals is that two more government agencies might soon have a hand in the market as well: the Commodity Futures Trading Commission (CFTC) and the Consumer Financial Protection Bureau (CFPB).”

“Some have called [FinCEN’s issuance of guidance] bitcoin’s ‘watershed moment’ because of its clear, unequivocal positive message: bitcoin is not illegal. The negative consequence, though, was just as obvious: Many bitcoin businesses models are illegal.”

“In effect, the [Bank Secrecy Act (BSA)] deputizes financial institutions, requiring them to act as the government’s foot soldiers in its war on money laundering.”

 – http://www.coindesk.com/bitcoin-law-what-us-businesses-need-to-know
 – http://bitcointalk.org/index.php?topic=276614.0 (Further discussion of the article)

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