Non-Fungible Insights: Blockchain Decrypted

Regulatory uncertainty has haunted the digital asset space since its inception. The U.S. Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC) have been engaged in a multi-year turf war over which agency has the power to regulate various aspects of digital assets.

On July 17, 2024, the Financial Services and Treasury Bureau (FSTB) and Hong Kong Monetary Authority (HKMA) jointly issued a legislative proposal on stablecoin regulation in response to a two-month public consultation period with industry stakeholders. The consultation—which began earlier this year—generated 108 responses from market participants, industry associations, business organizations, and individuals, many of whom expressed support for a “well-regulated environment” as “a prerequisite for sustainable and responsible development of the stablecoin ecosystem in Hong Kong.”

On February 16, 2024, the Cabinet of Japan approved a bill to amend, among three other laws, the Limited Partnership Act for Investment (the Act). The proposed amendment provides for crypto assets to be added to the list of assets that investment limited partnerships (LPs) can acquire or hold.

On February 7, 2024, the Securities and Exchange Commission (SEC) announced charges against TradeStation Crypto, Inc. for “failing to register the offer and sale of a crypto lending product” that it offered to U.S. investors from approximately August 2020 to June 2022.

Winston’s “NFT Litigation and Regulatory Proceedings Tracker” on Lexis+ provides timely updates on significant litigation and administration proceedings involving NFTs brought by U.S. regulatory agencies and private litigants.

Yesterday marked a historic milestone in the history of bitcoin. On January 10, 2024, the U.S. Securities and Exchange Commission declared effective the applications to list shares of the following 11 spot bitcoin exchange-traded products and greenlighted the commencement of trading shares of the spot bitcoin ETPs beginning today.

Although the U.S. Securities and Exchange Commission in 2022 approved two exchange-traded funds (ETF) holding bitcoin futures, the Commission has rejected several efforts to list bitcoin spot ETFs.

On August 10, 2023, French securities regulator Autorité des marchés financiers (AMF) published a press release announcing amendments to Book VII of its General Regulation as it relates to digital assets service providers (DASPs) to be consistent with the enhanced registration requirements introduced by the DDADUE Law.

On August 7, 2023, the Securities and Futures Commission of Hong Kong (SFC) issued a warning to virtual asset trading platforms (VATPs) engaging in “improper practices” under the SFC’s new regulatory regime for VATPs. In its statement, the SFC specifically called attention to the potential legal and regulatory consequences associated with false license application claims, established entity non-licensing, and the impacts of current VATP noncompliance on respective future license applications.

On July 4, 2023, the United Kingdom’s Financial Conduct Authority (FCA) issued a letter regarding crypto-asset financial promotion rules effective as of October 8, 2023. The new guidance supplements the FCA’s previously issued policy statement applying the U.K.’s financial promotions regime “to all firms marketing cryptoassets to UK consumers r,egardless [sic] of whether the firm is based overseas or what technology is used to make the promotion.”

On May 18, 2023, House Majority Whip Tom Emmer (R-MN) and Representative Darren Soto (D-FL) proposed the bipartisan Securities Clarities Act (the “Act”). The purpose of the Act is to “clarify and codify that an asset sold pursuant to an investment contract….including an asset in digital form…, that is not otherwise a security…does not become a security as a result of being sold or otherwise transferred pursuant to an investment contract.”

On May 30, 2023, the U.S. Securities and Exchange Commission (SEC) settled its case against a former Coinbase employee and his brother for alleged “insider trading” of digital assets. At the heart of the dispute was whether several digital assets trading on the platform were properly regarded as “securities” under U.S. law.

On May 18, 2023, Commodity Futures Trading Commission (CFTC) Chairman Rostin Behnam clarified his position on the CFTC’s authority over digital asset markets. Behnam’s comments are consistent with Securities and Exchange Commission Chair Gary Gensler’s recommendation of greater CFTC authority over cryptocurrency and pushes for increased regulation of digital asset markets generally.

On May 15, 2023, the Securities and Exchange Commission responded to Coinbase, Inc.’s request for writ of mandamus instructing the SEC to act on Coinbase’s previously filed rulemaking petition. In its response, the SEC argued that its regulatory regime is not egregiously delayed and that the SEC is not withholding any decisions already made.

On April 21, 2023, United States District Judge John F. Walter ruled for Yuga Labs, Inc. (Yuga) and its Bored Apes Yacht Club (BAYC) NFT collection in its trademark infringement suit against conceptual artists Ryder Ripps and Jeremy Cahen (collectively, the “Artists”).

On April 20, 2023, the European Parliament greenlighted the first, harmonized European Union (EU) framework governing crypto-assets, known as the Markets in Crypto-Assets Regulation (MiCA), with 517 votes in favor, 38 votes against, and 18 abstentions.

On February 23, 2023, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, and the Office of the Comptroller of the Currency (collectively, the “agencies”) issued their second joint statement of the year regarding crypto-asset market vulnerabilities.

In this more recent joint statement, the agencies have drawn their attention to the liquidity risks created by funding from crypto-asset-related entities, and the methods to mitigate such risks.

On February 17, 2023, the Securities and Exchange Commission charged former NBA star Paul Pierce—nicknamed “the Truth”—with violations of Section 17(b) of the Securities Act of 1933, as amended, which makes it unlawful for any person to promote a “security” without fully disclosing the receipt and amount of compensation received for such a promotion. Section 17(b) is known as the SEC’s “anti-touting rule.”

On February 22, 2023, the Southern District of New York denied a motion to dismiss by blockchain company Dapper Labs and its CEO Roham Gharegozlou. Dapper Labs is behind the “NBA Top Shot Moments” Non-Fungible Token collection and also controls the private Flow blockchain network, on which the NFT transactions occur via the exclusive FLOW tokens.

On February 13, 2023, Paxos Trust Company, LLC, a New York State-chartered trust company regulated by the New York State Department of Financial Services, confirmed via a statement that it received a Wells Notice from the Securities and Exchange Commission on February 3, 2023.