Despite the new administration, the Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC) have both continued to make novel interpretations and to bring enforcement actions that break new ground.

Cryptocurrency Developments. There have been a number of developments in the cryptocurrency space as the law has started to catch up to the technology in 2018:

• The SEC staff made official statements regarding when a token may be a security and may no longer be a security

• The SEC continued to bring actions related to cryptocurrency offerings against market participants, including an adviser to a fund organized to invest in cryptocurrencies that was not structured to rely on Section 3(c)(1) or 3(c)(7) of the Investment Company Act of 1940, and a website that acted as a broker and a dealer in cryptocurrency offerings and secondary trading

• A court ruled that a particular cryptocurrency may be a security such that securities fraud claims may be brought

• Another court ruled that a cryptocurrency may be a commodity so that the CFTC would have jurisdiction

• The CFTC proposed an interpretation of what “actual delivery” constitutes for cryptocurrency forward contracts making it more difficult to trade in or offer cryptocurrency tokens in the spot markets on a delayed basis

• The National Futures Association (NFA) required immediate notice to the NFA if a member planned to engage in cryptocurrency or cryptocurrency derivatives transactions

• The NFA also required specified disclosure by its members to clients regarding cryptocurrency risks and regulation

• The SEC continues to reject the listing of exchange-traded funds that hold cryptocurrency.