Ripple Labs Inc. Ordered to Pay $125 Million for Unregistered Token Sales

 On August 7, SDNY Judge Analisa Torres ordered Ripple Labs Inc. (“Ripple”) to pay $125 million and enjoined Ripple from future violations of securities laws. This high-profile ruling addressed the SEC’s motion for remedies and entry of judgment on Ripple’s Section 5 violations, stemming from the 2020 lawsuit regarding unregistered sales of Ripple’s XRP token. In 2023, Judge Torres found that the token only qualified as a security when sold to institutional investors, a significant ruling in applying securities laws to digital assets. In this week’s ruling, the Court reinforced the gravity of the violation while still noting that there were no allegations of intentional wrongdoing or fraud by Ripple.

The civil penalty falls far short of the $2 billion penalty requested by the SEC. The SEC’s request for disgorgement was also denied, as the Court found that institutional investors did not suffer direct monetary harm as a result of the unregistered sales relying on the Supreme Court’s decision in Liu v. SEC and the Second Circuit’s decision in SEC v. Govil clarifying the meaning of “victims.”[1] The penalty does exceed the $10 million fine requested by Ripple; however, Judge Torres noted that “there is no question that [Ripple’s] recurrent, highly lucrative violation of Section 5 is a serious offense.” Further, the Court issued a permanent injunction on the basis that Ripple’s “willingness to push the boundaries” of the Court’s previous Order demonstrated a reasonable probability of future violations. Still, Ripple has characterized the ruling as a victory.

 

To read more: https://www.law360.com/capitalmarkets/articles/1867540/ripple-ordered-to-pay-125m-penalty-in-sec-case

To read our analysis of the 2023 Order: https://www.pastore.net/s-d-n-y-issues-ruling-regarding-cryptocurrency-regulation-the-ripple-effect/

[1] Liu v. SEC, 591 U.S. 71 (2020); SEC v. Govil, 86 F.4th 89 (2d Cir. 2023).

Digital Assets: A Brief Summary of the Current Legal Landscape

Since Bitcoin’s creation in 2009, cryptocurrency and digital assets have skyrocketed in both popularity and value. Today, the global cryptocurrency market cap is roughly $2.78 Trillion.[1] This quick growth has led to people and entities attempting to fraudulently enter the market and perform illegal activities under the guise of a mysterious new asset class. As such, these currencies have received considerable attention from administrative agencies such as the SEC, CFTC, and FTC.

Relevant Supreme Court Cases Relied Upon by the SEC

The 75-year-old Howey test guides courts’ inquiry into allegations of the Securities and Exchange Acts when the SEC finds questionable behavior.[2] Under Howey, an investment contract exists when there is: (1) the investment of money (2) in a common enterprise (3) with a reasonable expectation of profits (4) to be derived from the efforts of others. This test is flexible and may apply to any contract, scheme, or transaction, regardless of whether it has any characteristics of traditional securities.

The Reves test aids Howey in digital asset litigation. Unlike Howey, where clear prongs must be met for an investment contract to be present, Reves lays out factors to balance while considering whether notes are securities. When applying the Reves test, courts “begin with a presumption that every note is a security. From there, the analysis turns on four factors: (1) the motivations of the parties; (2) the plan of distribution of the instrument; (3) the reasonable expectations of the investing public; and (4) whether some factor such as the existence of another regulatory scheme significantly reduces the risk of the instrument.”[3] The SEC has applied this test several times in cease-and-desist orders and has relied on it in recent litigation involving digital assets. Like Howey, Reves is a Supreme Court decision released decades before the emergence of crypto and digital assets.

The SEC acknowledges that tokens, in and of themselves, are not securities. Thus, the appropriate question becomes whether transactions, in which a particular token is implicated, qualify as investment contracts.

Recent and Unfolding Developments

Last year, separate lawsuits brought by the SEC—involving Ripple Labs, Inc. (“Ripple”)[4] and Terraform Labs PTE Ltd (“Terraform”)[5]—resulted in, unsurprisingly, inconsistent results. In Ripple, the Southern District of New York analyzed three types of sales: institutional, programmatic, and “other distributions under written contracts.” The court held that institutional sales of XRP, a cryptocurrency, were investment contracts, and therefore subject to securities regulations. Programmatic sales, however, did not meet the third Howey prong, because it was not certain that buyers had an expectation of profits from Ripple’s efforts. The “other distributions” were given to employees in exchange for consideration other than money, so the court could not find the first Howey prong.

Terraform saw the Southern District of New York rule that three separate currencies were securities based on Terraform’s conduct while advertising the currencies, promised profits, and were responsible for developments that would play a large role in the currencies’ future value. Terraform, decided a few days after Ripple, expressly rejects Ripple’s distinction between secondary markets and direct sales, saying Howey makes no such distinction. The clear divide between courts within the same District is yet another example of how the SEC’s regulation by enforcement is not conducive to innovation or growth within the digital assets market.

The SEC has attempted to strike while the Iron is hot post-Terraform, commencing actions against prominent cryptocurrency platforms Binance, Coinbase and Kraken over the last year. These suits are still unfolding, with hearings set throughout 2024.

Looking at one of the actions brought in the wake of the Ripple and Terraform decisions, the Southern District of New York recently held that the SEC’s action against, among others, Coinbase, Inc. (“Coinbase”) may, for the most part, proceed.[6] The SEC had charged Coinbase with acting as a national securities exchange, a broker, and a clearing agency with respect to transactions in 13 identified crypto assets, which the SEC contended were securities, and of offering and selling securities without a registration statement. Coinbase moved for judgment on the pleadings, arguing that the SEC’s claims should be dismissed, as even if the SEC’s allegations as pleaded were true, they fail to give rise to an entitlement to relief. The Court found that “the SEC has sufficiently pleaded that Coinbase operates as an exchange, as a broker, and as a clearing agency under the federal securities laws, and, through its Staking Program, engages in the unregistered offer and sale of securities.”[7] The Court followed Terraform in not refusing to accept a distinction between secondary markets and direct sales stating,

with specific regard to the Crypto-Assets at issue here, there is little logic to the distinction Defendants attempt to draw between the reasonable expectations of investors who buy directly from an issuer and those who buy on the secondary market. An investor selecting an investment opportunity in either setting is attracted by the promises and offers made by issuers to the investing public. Accordingly, the manner of sale has no impact on whether a reasonable individual would objectively view the issuers’ actions and statements as evincing a promise of profits based on their efforts.[8]

Thus, for now, there remains no clear answer on the status of secondary markets. While this does not mean that the SEC will ultimately be successful in proving the merits of its claims, it does mean that the SEC overcame a huge initial hurdle.

Key Considerations for Developers

While Ripple and Terraform provide thorough inquiries into digital assets as securities, neither are binding precedent nor have they brought clarity to the market. With this in mind, the Howey test remains instructive to assets in the digital assets class, with factual distinctions serving as helpful guides on how an asset may fall within or outside of the definition of a security.

Tangible and definable. The Court’s decision holding Ripple’s “other distributions” fell outside of the realm of a security rested squarely on its failure to satisfy the first prong of the Howey test, as Ripple provided its token in exchange for nonmonetary contributions. Ripple is a rare case where the first Howey element is not met. Providing money in exchange for a currency, though, is usually a straightforward inquiry and typically met.

Commonality of enterprise. Commonality can be found through either horizontal or vertical commonality. Horizontal commonality exists when there is a pooling of assets, usually combined with the pro-rata distribution of profits. Vertical commonality is present when the fortunes of investors are linked with those of promoters. The common theme here is that funds from investors are linked to the company providing the currency itself. On the other hand, Bitcoin and Ethereum are not regulated by securities laws because they do not possess the requisite centralization and are sold exclusively through secondary markets.

Setting expectations of profits. Leading investors to expect financial gain typically comes through the advertising campaign and how the currency is marketed to investors. Guaranteeing a specific return on investment with no hedging language (think “may” return a certain percentage as opposed to “will” return a certain percentage), speaking to how much better a currency is than others, and similar behavior are key cues that lead the average investor to expect a return on investment, likely making the currency a security.

Active participation. A party to the transaction bearing responsibility for the continued development of an asset or exercising continued management or promotion of a network contributes to a reasonable investor’s expectation of a profit derived from the profits of others. This can be important both at the time of investment and after the investment. An investment will be reevaluated at a later date depending on how important the continued efforts are to the asset’s value.

Attachment to an investment. Coins themselves are not securities. They need to be tied to something that may appreciate over time. Additionally, buying something purely for consumptive value may lead to its falling outside of securities laws’ purview.

Companies considering launching digital assets through initial coin offerings or on a decentralized finance platform should be mindful of the factors courts have weighed in recent cases. This area of law is evolving rapidly, and it is essential to stay abreast of developments in current cases and in changes to the regulatory framework. Pastore LLC has securities lawyers with expansive experience in securities litigation, aiding broker-dealers, investment banks, and investment advisers, and can be effective counsel advising clients on digital assets and cryptocurrencies’ status as securities.

[1] Digital Assets, Forbes, https://www.forbes.com/digital-assets/crypto-prices/?sh=1c9647f62478 (last visited Mar. 30, 2024).

[2] Framework for “Investment Contract” Analysis of Digital Assets, U.S. Securities & Exchange Commission, https://www.sec.gov/corpfin/framework-investment-contract-analysis-digital-assets (last visited Mar. 30, 2024).

[3] SEC v. Genesis Glob. Capital, LLC, No. 23-cv-00287 (ER), 2024 U.S. Dist. LEXIS 44372, at *25-26 (S.D.N.Y. Mar. 13, 2024) (internal quotation marks omitted) (citing Reves v. Ernst & Young, 494 U.S. 56, 65-67 (1990)).

[4] SEC v. Ripple Labs, Inc., 2023 U.S. Dist. LEXIS 120486 (S.D.N.Y. July 13, 2023).

[5] SEC v. Terraform Labs Pte. Ltd., No. 23-cv-1346 (JSR), 2023 U.S. Dist. LEXIS 132046 (S.D.N.Y. July 31, 2023).

[6] SEC v. Coinbase, Inc., 2024 U.S. Dist. LEXIS 56994 (S.D.N.Y. Mar. 27, 2024).

[7] Id. at *105.

[8] Id. at *68 (citing Terraform I, 2023 WL 4858299, at *15).

Pastore Attorney Tyler W. Rutherford Quoted By Slate Concerning Sam Bankman-Fried’s Trial

Tyler W. Rutherford was recently interviewed and quoted in Slate Magazine’s recent breaking news article about the Sam Bankman-Fried’s criminal trial in the Southern District of New York. The article can be accessed here. Sam Bankman-Fried is the former CEO and Founder of FTX, which was previously one of the largest cryptocurrency exchanges in the world.

As a firm that applies a long history of practice in traditional finance and securities to the realm of decentralized financial platforms, Pastore LLC can advise clients on best practices for compliance with regulations related to digital assets, and dispute resolution.

Why Looming Crypto Lull Will End

Crypto will reach its potential in the next two years.

For those who may think that is a long time, remember that this burgeoning digital asset industry has percolated in the background since the first block of bitcoin was mined in 2009.

For those who may think that it is way too soon amid today’s environment, keep the faith.

Figuratively speaking, crypto 2023 is like accumulating debris in a back churn, where a creek’s flow attempts to force its way into a much larger lake. That is where crypto is right now. It is trying to make it out into the mainstream but is being held back. There is no momentum pushing it forward.

But crypto’s lull is coming to an end.

Ford Motor Company founder Henry Ford, who revolutionized the automobile industry with his assembly-line innovation, once said, “Patience and foresight are the two most important qualities in business.”

There are several reasons why today’s headlines signal a final push forward for crypto’s acceptance.

Too Difficult to Regulate Through Litigation

The Securities and Exchange Commission (“SEC”) continues to argue that it should oversee cryptocurrencies because they are securities—aside from Bitcoin—under the Howey test, which is a 1946 Supreme Court decision that is used today to determine what is an investment contract.

SEC Chair Gary Gensler said, “At the core, these (altcoin) tokens are securities because there’s a group in the middle and the public is anticipating profits based on that group,” during an interview with New York Magazine.

The SEC has turned its belief as the presumed overseer into a basis for lawsuits against significant players in the crypto space. Despite the SEC’s stance, regulation through litigation is not an appropriate method for the crypto industry.

The agency has filed 13 charges against the world’s largest crypto exchange, Binance, and its founder, Changpeng Zhao, alleging that both allowed certain U.S. residents on its exchange despite restrictions.

The SEC also has sued the world’s second-largest crypto exchange, Coinbase, alleging the platform operated as an unregistered national securities exchange and broker. The agency also alleged that at least 13 specific crypto assets that Coinbase offered were “crypto asset securities” and that its staking program counts as an investment contract for an unregistered security.

Coinbase has stated in an article on its website that it had met 30 times with the SEC during a nine-month period to set up a registration process for crypto companies. Instead of a path forward, however, the exchange said it received legal threats in the form of a Wells Notice.

At some point, most likely by the first of next year, both cases will be settled. The decisions in the Coinbase and Binance matters will help push crypto forward.

Too Difficult to Argue with Success

U.S. District Judge Analisa Torres handed crypto a memorable win in July, ruling that Ripple Labs’ XRP crypto token is not necessarily a security on face value—an opinion that counters the SEC’s stance.

The judge segmented the different sales methods involving XRP, which included programmatic sales, institutional sales and “other distributions” like employee compensation. XRP was ruled a security when it involved institutional sales that were distributed to sophisticated individuals. However, XRP was ruled not to be a security during “retail” or programmatic sales and other distributions.

Judge Torres also dismissed the agency’s interlocutory appeal, which is essentially an appeal before a final outcome. The court has set an April 24, 2024, date to decide the remaining issues regarding XRP.

But the matter may not be settled yet. Sometimes courts disagree.

In a separate securities case involving the collapsed TerraUSD, Anchor Protocol and LUNA, U.S. District Court Judge Jed Rakoff has rejected Judge Torres’ ruling, which parsed the nature of distributions.

“Howey makes no such distinction between purchasers,” said Rakoff, whose comments were published in Coindesk. “And it makes good sense that it did not. That a purchaser bought the coins directly from the defendants or, instead, in a secondary resale transaction has no impact on whether a reasonable individual would objectively view the defendant’s actions and statements as evincing a promise of profits based on their efforts.”

Crypto’s formal acceptance will most likely include notes from the highest court in the land. Do not be surprised if the U.S. Supreme Court adds an additional layer to the existing Howey test in the next two years to address Crypto’s status.

Too Difficult to Stifle Innovation

Fictional race car star Ricky Bobby, played by actor Will Ferrell in Talladega Nights, once said, “If you ain’t first, you’re last.”

That is the American ethos in a single sentence.

It is also another reason why the United States lagging, global position will change soon. After years of inaction from a nation built on innovation, the United States finds itself trailing other countries and regional blocks like Singapore, Japan and the European Union on advancing a framework that would allow crypto and digital assets to stake its place.

However, additional court wins have already started a momentum shift, which will lead to new products in the marketplace.

The D.C. Circuit Court of Appeals, for example, ruled that the SEC’s rejection of Grayscale Investments (“Grayscale”) proposed conversion of its closed-end bitcoin trust into an ETF was “arbitrary and capricious.” The three-judge panel said the agency failed to explain the difference between a futures bitcoin EFT, which it had approved, and a spot bitcoin ETF.

Grayscale’s victory will most likely have far-reaching implications that will change the financial landscape, ushering in a new asset class. Competitors such as BlackRock, Fidelity, Invesco and WisdomTree are also standing in line waiting to have their spot bitcoin ETF proposals approved by the SEC. The agency has 240 days to approve or deny applications, which means the first deadline for the earliest applicant would be January 10, 2024.

Nothing is holding the SEC back from approving all the applications, including ones for a spot Ethereum ETF, at the same time.

“The fact that SEC is actively engaging with spot bitcoin issuers on their current applications—which hasn’t ever happened before—we think a rejection is unlikely and hold a 75% chance of approval by end of this year,” said Bloomberg Senior ETF Analyst Eric Balchunas in a recent Forbes article.

To encourage even more momentum, the next bitcoin “halving,” an event that in effect cuts supply every four years, will occur in April. This event typically starts the next crypto bull run.

Right now, my Texas intuition tells me that crypto is a lot like a nice piece of brisket in the making. Trim off the fat on top to let the smoke in and then slow-cook the rest until tender. It rewards those who are patient.

The crypto lull is coming to an end.

(Tyler W. Rutherford is an associate attorney at Pastore with expertise in regulatory compliance, contract law and corporate law. He represents a wide range of clients, including crypto and blockchain companies.)

S.D.N.Y. Issues Ruling Regarding Cryptocurrency Regulation – The Ripple Effect

The U.S. District Court for the Southern District of New York recently issued a significant ruling regarding cryptocurrency regulation. In 2020, the U.S. Securities and Exchange Commission (the “SEC”) sued Ripple and two executives concerning Ripple’s XRP token and the sale thereof. The SEC alleged the XRP token was an unregistered security; thus, their sales of the XRP token amounted to illegal sales of securities. In response, Ripple argued that XRP was not a security. Judge Torres ruled that Ripple’s sales of XRP to institutional investors constituted an illegal sale of securities. However, the token was not considered a security when it was sold on digital asset exchanges to the general public. The distinction, according to the judge, depended on whether the buyers knew that their money could fund Ripple’s operations and result in the generation of potential profits. Certain elements of the case are still undecided, such as whether the two executives aided and abetted the illegal sales and can therefore be held responsible. However, there is already discussion emerging on this ruling, which may impact the SEC’s ongoing case against Coinbase, and within 24 hours following the ruling, XRP’s price increased by nearly 100%.

 

To read more:

https://www.wsj.com/articles/ripple-wins-early-dismissal-of-some-claims-in-sec-lawsuit-over-xrp-sales-f88f968f?ns=prod/accounts-wsj

https://www.marketwatch.com/story/ripple-token-not-a-security-in-retail-sales-judge-rules-in-partial-win-for-crypto-3228f499?mod=search_headline&mod=article_inline

https://www.coindesk.com/markets/2023/07/13/ripples-xrp-token-surges-28-after-court-rules-xrp-sales-arent-investment-contracts/

3 Ways Crypto Prepares for Looming Regulation

Uncle Sam is taking “internet money” seriously.

As a result, elected officials are spending more time talking about crypto.

Do you know what that means? Regulation will follow the buzz.

In an interview with Yahoo!, U.S. Rep. Jim Himes (D-Conn.) characterized the current crypto climate as a showdown with Securities Exchange Commission Chairman Gary Gensler: “We’re sort of in a vapor lock around this issue of the registration of entities, exchanges, etcetera with Gary Gensler at the SEC saying, ‘I don’t need more statute. I’ve got all the law I need. What I need is for people to comply.’ And, of course, many people are saying, ‘Well, we don’t agree with that, and we are not going to comply’. So that suggests we are going to need to figure out whether additional statute is necessary, and Gary Gensler is wrong or whether Gary Gensler just needs to do a lot more enforcement to get people to see his point of view, that they should be registering under existing law.”

To make things more interesting, former SEC Chair Jay Clayton disagrees with Gensler’s stance, asking the agency to provide guidance on the custody of tokenized assets. In an op-ed piece, Clayton said the SEC should take the next step and present guidelines for crypto assets.

In the meantime, Gensler has embraced regulation through enforcement. He firmly believes the existing security laws on the books are fine for crypto.

So, what’s the play?

Here are three moves that will help small/midsize crypto companies prepare for looming regulation:

Register With The SEC

There remains a cavalier mindset about crypto. And that needs to change.

Crypto is not like going outside and throwing the frisbee, even though there is social media chatter about “going to the moon.” It is not fun and games; Crypto is an actual financial asset that has value. The notion that crypto is a novel, foreign idea wrapped in technology needs to give way to reality.

To protect your company, now is the time to register with the SEC. Long-awaited regulation for cryptocurrency is on the horizon. It is better to prepare now to fit into the current scheme than sit on the sidelines.

Do not wait for the government’s final verdict. Err on the side of caution. It is better to fill out more paperwork and “over-comply” than wait one year later to have the Securities Exchange Commission come knocking. When the agency files a complaint against your company, your reputation could take a hit—along with a hefty legal bill.

Eliminate ‘Dirty’ Money

Part of crypto’s allure is its anonymity, which could make it a prime vehicle for fraudulent activity that includes funding for terrorism. The government will soon introduce regulations that strongly encourage crypto companies to have anti-money laundering programs in place.

No matter how small your company is, you will need to have a designated compliance officer on the payroll. This person can perform other duties, but they must have the title. They also must maintain written policies and procedures. The anti-money laundering plan should be well thought out and detailed, not a two-page report. Ideally, your compliance officer would have the proper credentials, such as the ALMA designation, and appropriate experience. Each organization involved in a chain of transactions involving “dirty money” is accountable.

Sens. Elizabeth Warren (D-Mass.) and Roger Marshall (R-Kan.) have introduced The Digital Asset Anti-Money Laundering Act of 2022, which extends the Bank Secrecy Act. The objective is to subject crypto companies to the same rules as banks and broker-dealers. The bill would address a gap with digital wallets and prohibit financial institutions from transacting with forms of technology that enhances anonymity. Last summer, the currency-mixer Tornado Cash was sanctioned by the U.S. Department of Treasury, alleging money laundering activity with North Korea.

Add A Layer of Governance

Governance is a big part of compliance.

Board members can play a pivotal role. You will need seasoned professionals in many areas, ranging from marketing to technology. Make sure you have board members with deep experience in finance, compliance and internal controls.

Know Your Customer (“KYC”) is a process that identifies your customers and their activities. From a corporate level, do you have the entity’s EIN, articles of incorporation and financial statements? For individual investors, should you recommend a volatile asset to an investor in her 90s? What’s the rest of the story? What are the procedures to address these situations?

Back in 2019, the Commodities Futures Trading Commission, Financial Crimes Enforcement Network and SEC classified crypto exchanges as money service businesses (MSBs), which means they must follow the Bank Secrecy Act of 1970, as well as the anti-money laundering and KYC rules.

While your staff manages the day-to-day operations, your board members can still be part of the mix. Give them oversight of key committees, such as risk and compliance, to provide another layer of review, which would protect the firm.

(Tyler Rutherford is an associate attorney at Pastore with expertise in regulatory compliance, contract law and corporate law. He represents a wide range of clients, including crypto and blockchain companies.)

FTX’s Bankruptcy Shines Light on Selling Trade Claims

In the wake of FTX’s downfall and bankruptcy filing, more crypto companies are expected to file for bankruptcy.[1] With a tumultuous year in the crypto world, creditors have been left with billions of dollars worth of claims. Unfortunately, bankruptcy proceedings can take years to resolve, thus leaving a creditor in a state of limbo and waiting to learn what portion of its claim will be paid out. As a result of this uncertainty, creditors may wish to consider selling their claims.[2] By selling a claim, a creditor can receive an upfront payment for the claim instead of monitoring the debtor’s bankruptcy case for years. Reconciling and distributing claims in the bankruptcy process is notoriously slow, particularly for very large debtors such as FTX.

Unlike stocks, bankruptcy claims are not sold or traded on the New York Stock Exchange. Instead, creditors must sell their claims through individually negotiated assignment agreements.[3] While there are no standardized forms for claim assignments, creditors tend to use assignment agreements that contain universally accepted terms in addition to negotiating the details, such as whether the buyer can force the creditor to repurchase the claim. Conveniently, creditors do not need to disclose the purchase price or other details of the assignment in the bankruptcy process.

While the prospect of quickly monetizing a claim may be enticing to a creditor, a creditor should consult an attorney to ensure that risks, such as the purchase price being returned to the buyer if the claim’s validity is questioned, are considered and mitigated. We are confident a market for FTX bankruptcy claims will emerge over the next 60 days.

[1] MacKenzie Sigalos and Rohan Goswami, Crypto firm BlockFi files for bankruptcy as FTX fallout spreads, CNBC (Nov. 28, 2022), https://www.cnbc.com/2022/11/28/blockfi-files-for-bankruptcy-as-ftx-fallout-spreads.html.

[2] Bruce S. Nathan and Scott Cargill, A Primer on Selling Bankruptcy Trade Claims, Business Credit (Feb. 2021), https://www.lowenstein.com/media/6418/nathanpluscargill-a-primer-on-selling-bankruptcy-trade-claims-business-credit-22021.pdf.

[3] Bankruptcy Claims Trading: What is it? How do I maximize my returns?, Nossaman (Mar. 25, 2010), https://www.nossaman.com/newsroom-insights-bankruptcy-claims-trading-what-how-do-i.

Opportunity for U.S. Backed Digital Currency

Cryptocurrency (“Crypto”) is an easily accessible digital asset used for financial transactions.[1] Crypto has become a source of payment on virtual platforms and utilizes blockchain technology.[2] While digital transactions eliminate the need for intermediaries such as banks, credit card companies, or third-party payment processors, it is an unregulated and volatile field.[3] The recent events with FTX highlight this issue.

The use of Crypto rose globally at an unprecedented rate during the COVID-19 pandemic.[4] Developing countries in particular accounted for 15 of the top 20 economies in 2021 using Crypto.[5] One of the most notable countries attempting to adopt Crypto is El Salvador. In 2021, El Salvador became the first country in the world to recognize Bitcoin as legal tender.[6] As such, El Salvador attempted to turn an impoverished area around the Conchagua volcano into a Bitcoin City.[7] The President of El Salvador, Nayib Bukele, hoped to create a futuristic metropolis from Crypto using the Conchagua volcano as a geothermal plant.[8] Unfortunately, President Bukele invested $100 million of government funds into Bitcoin when prices peaked, which led to a further debt crisis in El Salvador. One of the issues El Salvador and other developing countries have run into with the use of Crypto as legal tender is the volatility of the market. Since 2021, Bitcoin has dropped 61%, and El Salvador is likely to default on its debts in the next few years due to the dramatic drop in value.[9] The price of Crypto is open to fluctuation, fraud, and tax evasion due to the lack of regulation and backing by a central bank or government.[10]

One solution that has been proposed to bring stability to the Crypto market is a Central Bank Digital Currency (“CBDC”), which is a digital token, similar to Crypto, issued by a central bank. In the United States, the digital form of the token would be the equivalent of the U.S. dollar.[11] President Biden and the Federal Reserve are evaluating the creation of a U.S. CBDC and how it would work alongside the existing form of physical currency.[12]

The benefits of a U.S.-issued CBDC include privacy-protected digital currency, improvements to cross-border payments, and support to the U.S. dollar’s international role.[13] A U.S. CBDC would offer access to digital money that is free from credit and liquidity risks, unlike money held in a traditional bank.[14] Currently, Federal Reserve notes are the only central bank money available to the public. The use of a CBDC would provide a cheaper, faster form of transferring money and bring people who do not have bank accounts into the financial market.[15]

The dollar is the world’s most widely used currency for payments and investment.[16] A CBDC would expand the U.S. economy by creating a financial market with the global use of a CBDC.[17] Recently, China introduced its own CBDC, which may decrease the demand for the U.S. dollar abroad. The creation of a U.S. CBDC would allow competition on a global scale with China and other countries that have developed a digital currency backed by their central bank.[18]

Despite the benefits to the U.S. consumer and the global financial system, a U.S. CBDC has several issues. Many Americans actively use and prefer cash.[19] Additionally, there are privacy issues with digital currency. A Federal Reserve-backed CBDC system would allow the central bank to see every user transaction.[20] Additionally, banks have questioned the legal authority of the Federal Reserve to issue a digital currency without authorization from Congress.[21]

The White House, the Office of Science and Technology Policy, and the National Science Foundation continue to work on the National Digital Assets Research and Development Agenda.[22] The Executive Branch has placed a high priority on advancing research concerning Crypto and how it could provide financial inclusion and equity to Americans.[23]  While the benefits of a U.S. CBDC are plentiful, there are many moving parts to the initiation of a central bank backed digital currency in the United States. However, even with the lack of regulation and its volatile nature, Crypto is not going away. Crypto provides businesses and consumers with easily transferable, convenient, less expensive means of transferring money.[24] A U.S. backed stable coin may provide such stability. Clearly, the U.S. would not want the European Union or another Western power to issue such a coin and undermine the U.S. leadership in global currencies.

 

[1] Molly Mastantuono, Cryptocurrency 101: A Guide to Digital Dollars (Dec. 17, 2021), https://www.bentley.edu/news/cryptocurrency-101-guide-digital-dollars.

[2] Id.

[3] Id.

[4] UN trade body calls for halting cryptocurrency rise in developing countries, United Nations (Aug. 10, 2022), https://news.un.org/en/story/2022/08/1124362.

[5] Id.

[6] Joe Hernandez, El Salvador Just Became The First Country To Accept Bitcoin As Legal Tender, NPR (Sept. 7, 2021), https://www.npr.org/2021/09/07/1034838909/bitcoin-el-salvador-legal-tender-official-currency-cryptocurrency.

[7] Zeke Faux, El Salvador’s $300 Million Bitcoin ‘Revolution’ Is Failing Miserably (Nov. 4, 2022), https://www.bloomberg.com/news/features/2022-11-04/el-salvador-s-bitcoin-revolution-is-failing-badly.

[8] Id.

[9] Id.

[10] UN trade body calls for halting cryptocurrency rise in developing countries, supra note 4.

[11] Dr. Alondra Nelson, Alexander Macgillivray, Nik Marda, Technical Possibilities for a U.S. Central Bank Digital Currency (Sept. 16, 2022), https://www.whitehouse.gov/ostp/news-updates/2022/09/16/technical-possibilities-for-a-u-s-central-bank-digital-currency/.

[12] Money and Payments: The U.S. Dollar in the Age of Digital Transformation, Board of Governors of the Federal Reserve System (Jan. 2022), https://www.federalreserve.gov/publications/files/money-and-payments-20220120.pdf.

[13] Money and Payments: The U.S. Dollar in the Age of Digital Transformation, supra note 12.

[14] Id.

[15] Andrew Ackerman, What is a Central Bank Digital Currency and Should the U.S. Issue it? (May 26, 2022), https://www.wsj.com/articles/should-the-u-s-issue-a-digital-dollar-which-could-compete-with-crypto-assets-11646921329.

[16] Money and Payments: The U.S. Dollar in the Age of Digital Transformation, supra note 12.

[17] Id.

[18] Boucher, supra note 16.

[19] Andrew Ackerman, Fed Launches Review of Possible Central Bank Digital Currency (Jan. 20, 2022), https://www.wsj.com/articles/fed-launches-review-of-possible-central-bank-digital-currency-11642706158

[20] Id.

[21] Id.

[22] Money and Payments: The U.S. Dollar in the Age of Digital Transformation, supra note 12.

[23] Id.

[24] Shobhit Seth, What is a Central Bank Digital Currency (CBDC)?, Mar. 9, 2022, https://www.investopedia.com/terms/c/central-bank-digital-currency-cbdc.asp.

Pastore’s Managing Partner Leads Discussion with Congressman Jim Himes

On September 23, the Connecticut Crypto Forum (the “Forum”) held an event at the University of Connecticut at Stamford. The Forum connects large and sophisticated capital pools with leading players and thinkers across the crypto, defi and Web 3.0 markets to strengthen investor knowledge, understanding and skill. Pastore LLC is proudly a Founder and Sponsor of the Connecticut Crypto Forum. The Forum’s September 23 event was an invite-only session.

In the first half of the event, a panel of speakers discussed the current maturity of the crypto and blockchain markets.  The panel addressed the current challenges facing the evolving asset class and concluded that crypto/blockchain assets are still “metaphorically” in their teenage years. The asset class still is characterized by volatility. Moreover, the panelists noted the time of hyper valuation of projects in the industry is over. What follows now is a time of acquisitions. Many companies and projects will likely fail, but the ones with worthwhile technology that lack sufficient cashflows to continue operation will likely be consolidated within larger players and ultimately be poised to make the industry more efficient. However, the panelists agreed that the industry’s best days are ahead of it.

During the second half of the event, Pastore LLC’s Managing Partner, Christopher Kelly, led a discussion with Congressman Jim Himes, an emerging leader in the crypto/blockchain industry on Capitol Hill. Congressman Himes noted the significant attention that crypto and blockchain assets have received in Congress. He noted that he is working with other members of Congress on legislation concerning the industry.

When a member of the crowd asked what should businesses do considering the lack of legal and regulatory clarity surrounding crypto assets, Mr. Kelly gave a poignant response: Don’t be afraid, be transparent and work with counsel to navigate the murky regulatory waters. Pastore, as a thought leader in the field, is positioned to help businesses and individuals plan a path forward despite the uncertainty.

 

SEC Proposes Change to Cybersecurity Reporting Requirements for Public Companies

With the threat of irrevocable reputational harm and damage to consumer trust brought on by data breaches to public companies, the United States Security and Exchange Commission (“SEC”) recently proposed new cybersecurity reporting requirements. In March, SEC Chair Gary Gensler noted these new amendments will, “strengthen investors’ ability to evaluate public companies’ cybersecurity practices and incident reporting.”[1] If the proposed amendments pass, it would impose new requirements on board of directors, including management reporting, organization, and board composition.[2]

The proposals aim to promote incident disclosure and increase risk management, strategy, and governance disclosure of data breaches.[3] One amendment would require a company to notify shareholders and the SEC within four business days when a material cybersecurity incident occurs.[4] The SEC would also require standardized disclosure of a company’s cybersecurity risk management and strategy, management’s role in implementing cybersecurity policies, and the board of directors’ cybersecurity expertise.[5]

As the SEC signals the necessity of new disclosure policies, companies should assess their current cyber reporting practices and procedures. The proposals aim to bridge the gap between business executives and security executives to ensure cybersecurity is included in their everyday business conversations and reporting practices.[6] In preparation of these proposals, companies can educate their board on their policies and procedures regarding cyber security risks. It is no longer the sole job of the chief information security officer to translate technology risk to business risk.[7]

[1] SEC Proposes Rules on Cybersecurity Risk Management, Strategy, Governance, and Incident Disclosure by Public Companies, SEC (Mar. 9, 2022), https://www.sec.gov/news/press-release/2022-39

[2] Id.

[3]  Public Company Cybersecurity, Proposed Rules, https://www.sec.gov/files/33-11038-fact-sheet.pdf (last visited Sep. 22, 2022).

[4] Id.

[5] Id.

[6] Insight Report, World Economic Forum Global Cybersecurity Outlook (January 2022), https://www3.weforum.org/docs/WEF_Global_Cybersecurity_Outlook_2022.pdf.

[7] Bob Ackerman, New SEC Cybersecurity Reporting Requirements: Three Things Companies Need To Do Now, Forbes (May 25, 2022) https://www.forbes.com/sites/forbesfinancecouncil/2022/05/25/new-sec-cybersecurity-reporting-requirements-three-things-companies-need-to-do-now/?sh=2d78e01e6f05.