A recent guilty plea in U.S. v. Wahi in the U.S. District Court for the Southern District of New York, a crypto insider trading case, sets up an interesting situation where the defendants — who have already pled guilty to wire fraud — are challenging the SEC’s parallel civil charges. Among other things, they are
NFTs Used to Serve Complaint; Treasury Official, SEC Chairman Address Crypto Compliance; NYAG Sues Crypto Exchange; DOJ Takes Down Crypto Mixer
In this issue:• NFT Integration Software Released; NFTs Used to Serve Complaint in Civil Action• US Treasury Official Signals Forthcoming DeFi Illicit Finance Risk Assessment• SEC Chairman Comments on Crypto Activities, NYAG Sues Crypto Exchange• US and International Law Enforcement ‘Takedown’ Crypto Mixing Service• Hackers Use ‘Flash Loan Attack’ to Steal
DOJ Announcements on Corporate Compliance Programs, Compensation Clawbacks and National Security
The US Department of Justice made several recent announcements expanding on its expectations for corporate compliance programs and unveiling new guidance on executive compensation structures, consequence management and business communications and ephemeral messaging.
National Futures Association to Expand Compliance Rulebook to Address Member Activities in Spot Digital Asset Commodities
On February 28, 2023, the National Futures Association (NFA), the self-regulatory organization for U.S. derivatives market participants, submitted to the Commodity Futures Trading Commission (CFTC) for approval a new Compliance Rule 2-51: Requirements for Members and Associates Engaged in Activities Involving Digital Asset Commodities.
Compliance Rule 2-51 would impose compliance
Bank Turmoil Brings Increased Risk of Litigation and Investigations
Hunton Andrews Kurth LLP continues to assist clients and monitor developments in the financial markets arising from the liquidity challenges and market volatility currently facing the banking industry. Late Tuesday brought the first inevitable wave of lawsuits and government investigations. There will be many more in the days ahead.
Bank Term Funding Program: Understanding Borrowing from the Federal Reserve Bank
In its ongoing efforts to stabilize the banking system, the Federal Reserve announced the creation of the new Bank Term Fund Program (“BTFP”). The Federal Reserve established the BTFP to make available additional funding to eligible depository institutions in order to help ensure that banks have the ability to meet the needs of all their depositors.
What You Need to Know: Historically Large Bank Closures Resulting in Unprecedented Actions Taken by Regulators
We have linked three client alerts that highlight the key events that occurred over this past weekend in the wake of the failure of Silicon Valley Bank.
Australia and BIS Address CBDCs; OCC, PCAOB and U.S. Senators Address Crypto Risks; SEC, DOJ and USSS Continue Crypto Enforcement Actions
• Reserve Bank of Australia and BIS Commence Efforts to Advance CBDCs• Acting Comptroller of the Currency and PCAOB Address Crypto Risks• Binance and Binance.US Face Inquiry from U.S. Senators• SEC and DOJ Continue Enforcement Actions Targeting Crypto Fraud Schemes• Bitcoin ATM Operators Arrested, Charged with Criminal Violations
Goodwin Shares 2022 Year in Review: Digital Currency and Blockchain Litigation and Enforcement Developments
Throughout a tumultuous 2022, the digital currency and blockchain space saw a number of significant investigation, litigation, and enforcement matters as regulators continue their laser focus on the industry. Our 2022 Year in Review, authored by members of Goodwin’s leading Digital Currency and Blockchain team, recaps the most significant litigation and enforcement developments from the
Regulation in the Post-FTX Environment: SEC’s Proposed Enhanced Custody Rule and Its Effects on Crypto
When it rains, it pours. On January 23, 2023, the New York Department of Financial Services announced that it had issued certain Guidance on Custodial Structures for Customer Protection in the Event of Insolvency in which it emphasized the importance of sound custody and disclosure practices to protect customers in the event of an insolvency or similar proceeding. This month, the Securities and Exchange Commission (“SEC”) followed suit.
On February 15, 2023, the SEC proposed amendments to the Custody Rule under the Investment Advisers Act of 1940, which, among other changes, expands the current custody rule’s application to a broader array of client assets under the rule managed by registered investment advisers and clarifies certain aspects of the existing rule (see more digestible SEC Fact Sheet here).
The SEC’s proposed amendments are aimed at reducing the risk of loss of client assets by expanding the types of assets covered by the rule beyond “funds and securities” that will be subject to custodial safeguards and helping ensure assets are properly segregated. The proposed amendment would also impose certain reporting and compliance requirements on investment advisers, including requiring them to provide information about their practices in safeguarding client assets. Notably, if the amended rule is adopted after the 60-day comment period, which is not certain, then crypto assets will undoubtedly be affected. In a statement discussing the proposed amendments, SEC Chair Gary Gensler noted that the rule “covers a significant amount of crypto assets” and that “most crypto assets are likely to be funds or crypto asset securities covered by the current rule.”
Custody is a safekeeping activity by a financial institution involving storing, protecting, and securing assets separately from those of other customers or the investment firm itself. TradFi investment advisers are typically required to maintain customer funds and securities with a qualified financial firm (i.e., a custodian). Most assets are intangible assets held “on account” with a broker-dealer (i.e., stocks and bonds, which are rarely held in certificate form), though some assets may consist of physical certificates, cash, or other tangible assets. On the other hand, crypto custody consists primarily of bookkeeping because there is no physical asset and no centralized ownership record for a digital asset: the blockchain records wallet activity and balances. While there is the option for self-custody of crypto assets, a crypto investor may allow a custodian or crypto exchange to hold their private keys for them, enabling the custodian to use the wallet to transact. This arrangement potentially opens up a range of risks, including the risk of hacking, insolvency risk, or malfeasance involving the commingling of investors’ cryptoassets with those of other investors or institutional assets.