Blockchain Week in Review - July 2018 #2

by Perkins Coie

U.S. Developments

Regulatory Updates

CFTC Issues Customer Advisory Urging Public to Use Caution When Buying Virtual Currencies

On July 16, 2018, the U.S. Commodity Futures Trading Commission (“CFTC”) issued a customer advisory about virtual currencies, urging customers to use caution and perform research before purchasing digital coins or tokens, including self-described “utility coins” or “consumption coins.” Without providing specific citations, the CFTC referenced a broad range of estimates of fraud, ranging from 5% to 80% of initial coin offerings, and encouraged customers to exercise caution and conduct extensive due diligence prior to investing.

The advisory also provides a list of factors that could impact the future value of a digital coin or token that customers should keep in mind, including:

  • the potential for forks in open-source applications that could split away market participants, increase the number of digital coins, or make coins obsolete;
  • decreasing mining or validation costs (if price is tied to those factors);
  • acceptance of other currencies, coins, or tokens for offered goods and services;
  • the link between the value of a digital coin or token and the offered product or service;
  • adoption of the digital coin or token as a broad medium of exchange or store of value;
  • future competitors or technological changes that could disrupt the underlying business;
  • future demand or uses for an application, network, product, or service;
  • liquidity in the market for a specific digital coin or token;
  • changes to the underlying technology that could devalue digital coins or tokens; and
  • risk of theft from hacking.

This is the fourth customer advisory that the CFTC has issued about virtual currencies.

Please click here for the CFTC press release. Click here for the full text of the customer advisory.

New York Approves BitLicense Application of Virtual Currency Payment Processor BitPay

On July 16, 2018, New York’s Department of Financial Services (“DFS”) approved BitPay, Inc.’s application for a BitLicense, making BitPay the first wholesale payment processor to be approved for a BitLicense, and the eighth recipient of a BitLicense. Other BitLicense holders include Square, Inc., Xapo, Inc., Genesis Global Trading Inc., bitFlyer USA, Coinbase Inc., XRP II and Circle Internet Financial.

Please click here for a link to the press release.

FinCEN Improvement Act of 2018 Introduced in the House of Representatives

On July 17, 2018, the FinCEN Improvement Act of 2018 (“Act”) was introduced in the U.S. House of Representatives. As part of the proposed legislation, the Act would include a provision allowing for cooperation with Tribal law enforcement agencies and another section responding to terror-related financial crimes. The Act as drafted, however, would not contain any substantive revisions to existing law with respect to virtual currencies. The Act, sponsored by U.S. Representative Ed. Perlmutter (D-CO) and co-sponsored by U.S. Representative Stevan Pearce (R-NM), is currently pending in the House Committee on Financial Services

Please click here to find the text of H.R. 6411.

House Agriculture Committee Holds Hearing on Virtual Currencies

On July 18, 2018, the House Agriculture Committee held a hearing entitled “Cryptocurrencies: Oversight of New Assets in the Digital Age.” Panelists included Joshua Fairfield, Professor of Law at Washington and Lee University; Amber Baldet, CEO of Clovyr; Scott Kupor, Managing Partner of Andreessen Horowitz; Daniel Gorfine, Director of LabCFTC; Gary Gensler, former CFTC Chairman and Senior Lecturer at MIT Sloan School of Management; and Lowell Ness, Managing Partner of the Palo Alto office of Perkins Coie.

On July 18, 2018, the House Financial Services Subcommittee on Monetary Policy and Trade held a hearing entitled “The Future of Money: Digital Currency.” Panelists included Dr. Rodney J. Garratt, Professor of Economics at the University of California Santa Barbara; Dr. Norbert J. Michel, Director of the Center for Data Analysis at The Heritage Foundation; Dr. Eswar S. Prasad, Professor of Trade Policy at Cornell University; and Mr. Alex J. Pollock, Distinguished Senior Fellow at the R Street Institute.

Please click here for a link to footage of the hearing.

House Financial Services Subcommittee Holds Hearing on Virtual Currencies

On July 18, 2018, the House Financial Services Subcommittee on Monetary Policy and Trade held a hearing entitled “The Future of Money: Digital Currency.” Panelists included Dr. Rodney J. Garratt, Professor of Economics at the University of California Santa Barbara; Dr. Norbert J. Michel, Director of the Center for Data Analysis at The Heritage Foundation; Dr. Eswar S. Prasad, Professor of Trade Policy at Cornell University; and Mr. Alex J. Pollock, Distinguished Senior Fellow at the R Street Institute.

U.S. Representative Brad Sherman (D-CA) kicked off the hearing with opening remarks that included calling for a blanket ban on all buying and mining of cryptocurrencies for U.S. citizens. Discussion topics included general monetary policy and history, along with the question of whether central banks should introduce a central bank digital currency, to which Pollock suggested that, while “quite conceivable,” “hav[ing] a central bank digital currency is one of the worst financial ideas of recent times,” while Prasad noted the potential for crypto to have a positive impact on the financial services industry, including “mak[ing] transactions much easier…and bring[ing] down the cost.”

Please click here for a link to footage of the hearing.

Chairman of the Federal Reserve Discusses Cryptocurrencies in Testimony to Congress

On July 18, 2018, Chairman of the Federal Reserve, Jerome Powell, testified before the House Financial Services Committee in a hearing entitled “Monetary Policy and the State of the Economy.” Chairman Powell reportedly noted that the cryptocurrency market is not a priority and that the U.S. central bank isn’t looking to regulate it while also expressing concerns about investor and consumer protections with respect to cryptocurrencies, particularly with respect to unsophisticated investors. Chairman Powell also distinguished between fiat currency and cryptocurrency by noting that cryptocurrency has no intrinsic value.

Please click here for a link to the archived webcast.

University of Pennsylvania Study Finds Centralized Control in ICOs

Findings in “Coin-Operated Capitalism,” a new paper authored by researchers from the University of Pennsylvania published July 18, 2018, indicate that a significant number of initial coin offering (“ICO”) issuers retained centralized control through undisclosed code. The researchers collected information on the 50 ICOS of 2017 that raised the most capital and analyzed “the relationship between the ‘paper’ promises made by ICO promotors in their offering documents, and the actual functionality of the cryptoassets” they delivered. Their basic finding was that the code and the contracts very often did not align. Most notably, while 37 firms promised vesting in their marketing documents or white papers, only 7 of those firms coded the vesting rules into their tokens. Additionally, of the 42 firms that promised a supply restriction, 10 did not deliver coded limits, and of the 17 firms that promised to burn supply, 6 failed to code that promise. The researchers summarized their findings by noting that while “[p]rojects are making governance claims that look to be modeled off of offline VC or traditional equity-based rules intended to reduce agency costs…they are not encoding those promises into the sort of trustless, decentralized systems which undergird their networks’ purported sky-high values.”

Please click here for a link to the full paper.

CFPB Launches Regulatory Sandbox for Fintech Firms

On July 18, 2018, the acting chief of the Consumer Financial Protection Bureau (“CFPB”), Mick Mulvaney, announced that the CFPB has launched a regulatory “sandbox” to help fintech firms develop new products and services. Mulvaney also announced on July 18 that he has selected Paul Watkins to lead the CFPB’s new Office of Innovation, which will oversee the project and “will focus on creating policies to facilitate innovation, engaging with entrepreneurs and regulators, and reviewing outdated or unnecessary regulations.” Watkins joins the CFPB from the Arizona attorney general’s office, where he helped manage the nation’s first state-level fintech sandbox.

Please click here for a link to the press release.

NFA Proposes Heightened Disclosure Requirements for NFA Members Engaging in Virtual Currency Activities

By letter dated July 20, 2018, the National Futures Association (“NFA”) submitted an interpretive notice proposal to the Commodity Futures Trading Commission (“CFTC”) for the adoption of certain disclosure requirements with respect to NFA members engaging in virtual currency activities.

In response to concerns that virtual currencies and virtual currency derivatives “may be attracting customers that do not fully understand their nature, the substantial risk of loss that could arise from trading them and the limitations of NFA’s oversight role,” the NFA’s proposed interpretive notice includes heightened disclosure obligations related to the lack of regulatory involvement of the NFA (for futures commission merchants and introducing brokers) and the unique features of virtual currencies, price volatility, challenges with respect to valuation and liquidity, cybersecurity risks, and asset verification risks associated with the opaque nature of the underlying or spot virtual currency market, among others (for commodity pool operators and commodity trading advisors).

Please click here to find the full text of the proposed interpretive notice.

House Committee Approves Financial Technology Protection Act for Consideration by the House of Representatives

On July 24, 2018, the House Financial Services Committee unanimously passed H.R. 5036, the Financial Technology Protection Act (“FTPA”), 57-0, which will now go the full U.S. House of Representatives to be considered. The FTPA would establish an Independent Financial Technology Task Force “to provide rewards for information leading to convictions related to terrorist use of digital currencies” and “establish a FinTech Leadership in Innovation Program to encourage the development of tools and programs to combat terrorist and illicit use of digital currencies.”

Please Click here for a press release from the bill’s sponsor, U.S. Representative Ted Budd (R-NC). Click here to find the text of H.R. 5036.

SEC Commissioners Vote 3-1 to Reject Winklevoss Bitcoin ETF

On July 26, 2018, the U.S. Securities and Exchange Commission (“SEC”) issued an order that blocks the listing of shares of what would have been the first-ever bitcoin ETF on a regulated exchange. In the order, which relied heavily on concerns regarding fraud and market manipulation, the SEC found that Bat BZX Exchange, Inc.’s proposal to list and trade shares of the Winklevoss Bitcoin Trust was not consistent with the Securities Exchange Act of 1934 (“Exchange Act”) Section 6(b)(5), which requires that “the rules of a national securities exchange be designed to prevent fraudulent and manipulative acts and practices and to protect investors and the public interest.”

Commissioner Hester M. Peirce dissented from the SEC’s order, finding the proposed rule change consistent with the Exchange Act, and voicing concerns that the SEC’s approach “undermines investor protection by precluding greater institutionalization of the bitcoin market” and “sends a strong signal that innovation is unwelcome in [U.S.] markets.”

Please click here to find the text of the order. Click here for Commissioner Peirce’s dissent.


Operator of Defunct Bitcoin Exchange Pleads Guilty to Lying, Securities Fraud and Obstruction

Jon E. Montroll, former operator of and WeExchange Australia, Pty. Ltd., pled guilty to one count of securities fraud and one count of obstruction of justice as announced by the United States Attorney for the Southern District of New York on July 23, 2018. He is currently awaiting sentencing. Montroll has been accused of misappropriating user funds, failing to disclose the theft of users’ bitcoins while soliciting investments, and providing falsified information and materially false and misleading responses to the government in the course of its investigation.

Montroll operated the BitFunder platform from December 2012 to November 2013. The U.S. Securities and Exchange Commission (“SEC”) alleges that the BitFunder platform was run as an unregistered securities exchange through which users could buy and sell virtual shares of various virtual currency-related enterprises in exchange for bitcoins. Customers’ bitcoins were commingled in an online wallet maintained by WeExchange, an Australian virtual currency exchange owned by Montroll, from which he withdrew funds belonging to the platform’s users. During July and August of 2013, a group of BitFunder users hacked into the platform and stole more than 6,000 bitcoins, then valued at approximately $775,075 and worth over $69 million when Montroll was arrested on February 21. BitFunder allegedly lacked the bitcoins to cover user losses; however, Montroll continued to operate the platform until finally closing it in November 2013. In a resulting SEC probe about the cyberattack, Montroll denied that that the hack had been successful and allegedly produced a screenshot that misrepresented the amount of bitcoins available to users on the platform.

Please click here for a link to the press release. Click here for a link to the Information filed in the United States District Court, Southern District of New York. Click here for a link to our earlier coverage on the SEC lawsuit.

Commodity Pool Operator Ordered to Pay More than $1.9 Million in Connection with Bitcoin and Binary Options Fraud Scheme

In a press release issued July 23, 2018, the U.S. Commodity Futures Trading Commission (“CFTC”) reported that on July 9, 2018, a New York federal court ordered Dillon Michael Dean and his UK-registered company, The Entrepreneurs Headquarters Limited (collectively, “Defendants”), to pay approximately $1.5 million in civil monetary penalties and approximately $430,000 in restitution to customers who had been solicited, in part, from YouTube videos and Facebook posts, in connection with a civil enforcement suit filed by the CFTC in January 2018. The court found that from April 2017 to January 2018, Defendants had “engaged in a fraudulent scheme to solicit Bitcoin from members of the public, misrepresented that customers’ funds would be pooled and invested in products including binary options, and misappropriated pool participants’ funds.” In addition, the court found that Defendants had failed to register with the CFTC as a Commodity Pool Operator and Associated Person of a Commodity Pool Operator, respectively.

Please click here for a link to the press release. Click here for a link to our earlier coverage on the enforcement action filed in January 2018.

International Developments

FSB Publishes Report on its Work and Standard-Setting Bodies on Crypto-Assets

On July 16, 2018, the Financial Stability Board (“FSB”) published its report to the July 2018 G20 Finance Ministers and Central Bank Governors’ meeting on the work of the FSB and standard-setting bodies with respect to crypto-assets. The FSB noted that it did not believe crypto-assets pose a material risk to global financial stability at this time and recognized the need for vigilant monitoring. In connection with the report, the FSB outlined a framework it created in collaboration with the Committee on Payments and Market Infrastructures, to monitor the financial stability implications of developments in crypto-asset markets.

Please click here for a summary and a link to the report.

FATF Releases New Guidance on Virtual Currency and Risks Related to Money Laundering and Terrorist Financing

On July 18, 2018, the Financial Action Task Force (“FATF”), published its report to the July 2018 G20 Finance Ministers and Central Bank Governors’ meeting. The report sets out the FATF’s ongoing work to fight money laundering and terrorist financing, and in particular the FATF’s work programme on virtual currencies, including the money laundering and terrorist financing risks of virtual currencies, the regulatory environment for virtual currencies, and the revision of global standards and guidance to accommodate virtual currency business activity.

Please click here to read our coverage on this topic, which highlights the findings of the FATF report and provides a few key takeaways for market participants from recent regulatory activity designed to fight money laundering and terrorist financing. Click here for a link to the full text of the report.

Malta Announces World’s First Blockchain and Cryptocurrency Stock Exchange

On July 19, 2018, Malta announced the inauguration of the world’s first blockchain and cryptocurrency stock exchange and the creation of a new subsidiary which will become the Fintech and Digital Asset arm of the Malta Stock Exchange.

Please click here for a link to the announcement issued by the Malta Stock Exchange’s official twitter account. Click here for a link to a news article on the topic.

Russia Provides Some Clarification on Taxation of Cryptocurrencies

The Chairman of the Russian State Duma Committee on Financial Markets announced that a new bill on cryptocurrencies was being considered and that it would not include a separate section on taxation specifically for cryptocurrency trading or mining, meaning no special tax status would apply to cryptocurrencies, although he did not rule out separate taxation systems for the mining and trading of cryptocurrencies in the future.

Please click here for a link to a news article on this topic.

Iran Preparing to Develop its Own Digital Currency

With U.S. economic sanctions looming, the Iran Directorate for Scientific and Technological Affairs of the Presidential Office announced this week through Alireza Daliri, its deputy for management and investment affairs, its plan to work with domestic companies and the Central Bank of Iran to create a “domestic digital currency.” The timeline for integration is reportedly within the next three months.

An article on this topic can be read here.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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