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The CFTC Proposes Expansive Business and Governance Rules for Registered Derivatives Markets

The Commodity Futures Trading Commission ("CFTC") recently proposed new and modified conflicts of interest, fitness, and governance regulations for swap execution facilities ("SEFs") and designated contract markets ("DCMs")....more

Who Needs Customers, Anyway? New SEC Rules Turn Traders Into Dealers

The Securities and Exchange Commission (the "SEC" or "Commission") has adopted new rules that further define the phrase "part of a regular business" for purposes of determining whether a person is a "dealer" or "government...more

The CFTC Proposes Rules to Protect Clearing Member Funds Held by DCOs

In Short - The Situation: In a December 13, 2023, Open Meeting, the Commodity Futures Trading Commission proposed amendments to the Commission's regulations concerning clearing member funds held by a derivatives clearing...more

Wait, There's More: The CFTC Proposes Additional Swap Reporting and Recordkeeping Amendments

The Commodity Futures Trading Commission ("CFTC") has proposed swap reporting and recordkeeping amendments that would: designate a unique product identifier ("UPI") and product classification system ("PCS") for the "other...more

SEC Reopens Comment Period for Rule Proposing New Disclosures for Security-Based Swaps

The Situation: The Securities and Exchange Commission ("SEC") has reopened the comment period for its proposed rule requiring public disclosure of security-based swap ("SBS") positions that exceed certain thresholds....more

Ripple and Terraform Labs: Two New York District Courts Address the Status of Certain Crypto Assets as Securities

In Short - The Situation: Recently, two judges in Southern District of New York were required to apply the Howey test in separate cases to decide whether sales of certain crypto assets were investment contracts, and thus...more

Federal Agencies Coordinate Action Against Celsius for Fraud and Manipulation

In Short - The Situation: In parallel federal actions, the Department of Justice ("DOJ"), Securities and Exchange Commission ("SEC"), Commodity Futures Trading Commission ("CFTC"), and Federal Trade Commission ("FTC")...more

CFTC Staff Advisory Warns That SEF Prime Brokerage Arrangements Might Require DCO Registration

This advisory is the latest Commodity Futures Trading Commission ("Commission" or "CFTC") staff action conveying a Commission or staff view that CFTC registrants conducting business in nontraditional ways may need to register...more

SEC Seeks Additional Comment on Whether DeFi Systems Must Register as "Exchanges"

In Short - The Situation: The U.S. Securities and Exchange Commission ("SEC" or "Commission") has reopened the comment period for its January 2022 proposal to amend Exchange Act Rule 3b-16 to broadly expand the...more

Economic Report of the President to the Crypto Industry: Thanks, But No Thanks

In Short - The Situation: For the first time, the Economic Report of the President (the "Report") includes a chapter on digital assets....more

New Law Exempts M&A Brokers from SEC Registration

In Short - The Situation: Congress recently amended the Securities Exchange Act of 1934 (the "Exchange Act") to exempt certain "M&A brokers" from registration as broker-dealers with the U.S. Securities and Exchange...more

California Moves to Regulate Digital Asset Exchanges and Cryptocurrency Companies

California's new Digital Financial Asset Law ("DFAL") will impose a variety of regulatory requirements on digital asset companies and cryptocurrency exchanges. Governor Newsom is expected to sign the DFAL into law, and new...more

Digital Assets Defined: SEC, CFTC, and Ancillary (Illusory?) Assets

In "Digital Assets Defined: How Lummis-Gillibrand Will Shape the Coming Fintech Debate," we provided a high-level overview of the Responsible Financial Innovation Act (the "Bill") and examined some of its significant...more

Don't Call it a Swap: The CFTC Asserts Jurisdiction Where it Shouldn't

In Short - The Situation: In a federal district court complaint against Archegos Capital Management, LP ("Archegos"), the Commodity Futures Trading Commission ("CFTC") has asserted jurisdiction over what many view as...more

7/25/2022  /  CFTC , Dodd-Frank , ETFs , Security-Based Swaps

SEC Proposes Rules to Clarify Dealer-Trader Distinction

The SEC's Proposal - On March 28, 2022, the SEC released a rulemaking proposal (the "Proposal") for new rules to clarify the meaning of certain terms in the statutory definitions of "dealer" and "government securities...more

SEC Proposes to Broadly Expand the Definition of an "Exchange" and Amend Regulation ATS

The SEC's Proposal - On January 26, 2022, the SEC released a rulemaking proposal that, among other things, would expand the definition of "exchange" under Rule 3b-16 of the Exchange Act. ...more

SEC Proposes Three New Rules for Securities-Based Swaps

The SEC is considering new rules that would require public position reporting and other requirements for security-based swaps. On December 15, 2021, the SEC proposed three rules under the Securities Exchange Act to...more

Countdown to Security-Based Swap Registration and Compliance Deadlines

Unless otherwise exempted, entities engaging in SBS dealing activity in the immediately preceding 12 months, as of the Counting Date and thereafter, must register as an SBS dealer if the SBS positions connected with its SBS...more

Recent SEC Enforcement Action Stresses Importance of Not Impeding Whistleblower Communications with Regulators

The Situation: The SEC has brought another in a growing list of whistleblower cases critical of entities for potentially attempting to impede an individual from communicating with the agency. In July 2010, the Dodd-Frank Wall...more

Litigation and Regulatory Considerations and Risks for Financial Market Participants in a Post-Pandemic Society

More than a year ago the world fell victim to a global pandemic that would change life in ways that could never have been predicted. In the early stages of the pandemic, we published a White Paper directed at financial...more

SEC’s Division of Examinations Signals Continuing Focus on Broker-Dealer AML Compliance Obligations

The Situation: The Securities and Exchange Commission’s Division of Examinations ("EXAMS") released a Risk Alert on March 29, 2021, reminding broker-dealers of their obligation to comply with anti-money laundering ("AML")...more

SEC's Division of Examinations Issues 2021 Examination Priorities

The Situation: The U.S. Securities and Exchange Commission's ("SEC") Division of Examinations (the "Division") issued its 2021 examination priorities ("2021 Exam Priorities"). The Result: The 2021 Exam Priorities set...more

SEC Chairman Nominee Expected to Usher in Era of Increased SEC Enforcement, Regulation

The Situation: President Joe Biden nominated Gary Gensler, former Chairman of the Commodity Futures Trading Commission ("CFTC") under the Obama administration, for Chairman of the Securities and Exchange Commission ("SEC"). ...more

SEC's Division of Examinations Reiterates Focus on Digital Asset Securities

On February 26, 2021, the SEC's Division of Examinations released a Risk Alert to make digital asset market participants aware of recurring issues that have arisen in the course of recent examinations, and provide notice of...more

SEC to Review Climate-Related Disclosure: The Start of Things to Come

On February 24, 2021, Securities and Exchange Commission ("SEC") Acting Chair Allison Herren Lee issued a Statement on the Review of Climate-Related Disclosure in which she directed the SEC's Division of Corporation Finance...more

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