26 September 2024 • 18 minute read

Blockchain and Digital Assets News and Trends - September 2024

Written by:Margo Tank James Williams Elizabeth (Liz) Caires Eric Hall

This monthly bulletin is designed to help companies identify important legal developments governing the use and acceptance of blockchain technology, smart contracts, and digital assets.

While the use cases for blockchain technology are vast, this bulletin focuses on uses of blockchain and smart contracts in the financial services sector. With respect to digital assets, we have organized our approach to this topic by discussing it in terms of traditional asset type or function (although the types and functions may overlap) – that is, digital assets as:

Securities
Virtual currencies
Commodities
Deposits, accounts, intangibles
Negotiable instruments
Electronic chattel paper
Digitized assets

In addition to reporting on the law and regulation governing blockchain, smart contracts, and digital assets, this bulletin will discuss the legal developments supporting the infrastructure and ecosystems that enable the use and acceptance of these new technologies.

INSIGHTS

SEC fines investment adviser for holding crypto assets outside a qualified custodian

By David Solander

On September 3, the Securities and Exchange Commission (SEC) announced it instituted and settled its first proceedings against an SEC-registered investment adviser for failing to custody crypto assets at a “qualified custodian” as required by Rule 206(a)-4 (the Custody Rule) under the Investment Advisers Act of 1940 (Advisers Act). The limited availability of qualified custodians (generally banks or registered broker-dealers) for custody of crypto assets has long been a concern for the SEC and industry participants, but it appears that the SEC is now actively seeking to require strict compliance with the Custody Rule for crypto assets. Perhaps the tea leaves were there for increased enforcement when the SEC proposed a new asset safeguarding rule to replace the Custody Rule in February 2023, indicating that it believed there were sufficient options in the marketplace for many crypto assets to be held at a qualified custodian.

In the SEC’s order, Galois Capital, a crypto hedge fund management firm, was charged with misleading investors about its redemption practices and a violation of the Custody Rule, as well as compliance deficiencies. It is difficult to determine whether the Custody Rule charge would have been brought by itself in the absence of the other charge for misleading investors. Certainly, the facts in the case increased the likelihood of the Custody Rule charge as Galois’s hedge fund lost approximately half of its assets as a result of the FTX collapse. Galois had been continuously holding fund assets in trading accounts on the FTX platform, which was not a qualified custodian, when FTX collapsed. Galois was fined $225,000 for the violations.

SEC again sets enforcement sights on NFTs

By James Williams

On September 16, the SEC announced it had charged, and simultaneously settled with, Flyfish Club, LLC (Flyfish) for the unregistered offer and sale of the two different versions of a non-fungible token (NFT). More specifically, the SEC’s cease and desist order alleges that, between August 2021 and May 2022, Flyfish publicly sold approximately 1,600 NFTs at two price points. The first price point was for the Flyfish NFT priced at 2.5 ETH (approximately $8,400), and the second price point was for the Omakase NFT priced at 4.25 ETH (approximately $14,300). The offering generated gross proceeds of approximately $14.8 million.

The order charges Flyfish with violating Sections 5(a) and 5(c) of the Securities Act of 1933 by offering and selling these crypto asset securities to the public in an unregistered offering that was not exempt from registration. Without admitting or denying the SEC's findings, Flyfish agreed to a cease-and-desist order, to pay a $750,000 civil penalty, and to comply with certain undertakings.

The order further alleges that:

The purpose of the NFT offering was to fund the construction and operation of a members-only club, restaurant, and bar called “Flyfish Club,” in New York City

Ownership of a Flyfish NFT was to be the exclusive means of obtaining membership in the club

Flyfish principals publicly told prospective purchasers that they could actively profit by buying Flyfish NFTs and reselling them on the secondary market and also passively generate income by “leasing” NFTs to those seeking to dine at the restaurant

Additionally, the SEC alleged that nearly half of the primary purchasers bought more than one NFT “even though they needed only one to become a member of the club” (implying that these excess purchases were for speculation rather than utility) and that the NFTs “almost immediately” began trading on the secondary market after the initial sales, with Flyfish receiving a ten-percent royalty on each secondary sale.

Of note, Commissioners Hester Pierce and Mark Uyeda issued a sharp dissent wherein they stated “Howey is inapt [here] because holders of Flyfish NFTs had a reasonable expectation of obtaining in the future wonderful culinary experiences and other exclusive membership experiences based on the managerial and entrepreneurial efforts of Flyfish and its principals. Might… many purchasers have purchased the NFTs with speculative intent? Sure. … [but] [t]he intent of a buyer cannot transform a non-security into a security.”

STATUTORY AND AGENCY DEVELOPMENTS

FEDERAL DEVELOPMENTS

FTC

FTC reports data showing losses from bitcoin ATM scams. On September 3, the Federal Trade Commission (FTC) announced the release of new data showing a “massive increase” in the amount of money consumers report losing to scammers involving bitcoin ATM machines. The FTC asserts that the amounts lost increased nearly tenfold between 2020 and 2023 to over $110 million. According to the FTC, the majority of reported scams result from either government impersonation, business impersonation, or tech support scams.

FBI

FBI warns of North Korea targeting crypto industry. On September 3, the Federal Bureau of Investigation (FBI) warned that North Korea is aggressively targeting the crypto industry by conducting “highly tailored, difficult-to-detect social engineering campaigns against employees of decentralized finance (DeFi), cryptocurrency, and similar businesses to deploy malware and steal company cryptocurrency.” The announcement includes a description of the tactics used, indicators of such activity, and mitigation measures.

FBI publishes 2023 crypto fraud report. On September 9, the FBI announced publication of its Cryptocurrency Fraud Report for 2023. The announcement asserts that, “In 2023, the FBI’s Internet Crime Complaint Center received more than 69,000 complaints from the public regarding cyber-enabled crime and financial fraud involving the use of cryptocurrency, with over $5.6 billion in reported losses.” In addition to providing complaint statistics, the report offers guidance for cryptocurrency scheme victims.

CFPB

CFPB issues advisory on video game payments and virtual currencies. On August 28, the Consumer Financial Protection Bureau (CFPB) issued an advisory statement on video game payments, including the use of virtual currencies in such online games, stating that video game companies use design tricks and in-game currencies “to conceal the real costs of transactions in game.” Additionally, the advisory warns that “[m]any games use gambling-like design tricks to hide the odds and encourage compulsive spending.” The CFPB recommends that consumers use gift cards to limit spending, use available parental controls, and opt out of third party sharing of data.

ENFORCEMENT ACTIONS AND LITIGATION

FEDERAL

Securities

SEC settles with DeFi protocol. On September 18, the SEC announced settled charges against Rari Capital, Inc., a DeFi protocol, and its co-founders, Jai Bhavnani, Jack Lipstone, and David Lucid, for allegedly misleading investors and engaging in unregistered broker activity in connection with the operation of two blockchain-based investment platforms that, at their peak, collectively held crypto assets worth more than $1 billion. Rari Capital also settled SEC charges that it conducted unregistered offerings of three securities tied to those platforms. In a separate order, Rari Capital Infrastructure LLC, which took over operations from Rari Capital in 2022, settled charges that it engaged in unregistered securities offerings and unregistered broker activity.

According to the SEC’s complaint, Rari Capital offered two investment products, Earn pools and Fuse pools, which functioned like crypto asset investment funds, allowing investors to deposit crypto assets in lending pools, either managed by Rari (Earn) or user-created (Fuse), and earn returns from their investments. The SEC’s complaint alleges that investors in the pools received a token representing their interest in the pools and the right to receive profits earned by the pools. Certain Earn pool investors also received a governance token, called the Rari Governance Token (RGT). By selling interests in these pools and RGT, the complaint alleges, Rari Capital conducted unregistered offers and sales of securities.

Furthermore, the SEC’s complaint alleges that Rari Capital and its co-founders falsely told investors that the Earn pools would automatically and autonomously rebalance their crypto assets into the highest yield-generating opportunities available when, in reality, the rebalancing mechanism often required manual input, which Rari Capital sometimes failed to initiate. The SEC also alleges that Rari Capital and its co-founders misleadingly touted the high annual percentage yield that investors would earn, but they failed to account for various fees and, ultimately, a significant percentage of Earn pool investors lost money on their investments.

To settle the Commission’s charges, Rari Capital and the three co-founders, without admitting or denying the SEC’s allegations, consented to the entry of final judgments ordering various forms of relief, including permanent injunctions, conduct-based injunctions, civil penalties, disgorgement with prejudgment interest, and equitable officer-and-director bars against the co-founders for a period of five years. The settlements are subject to court approval.

SEC settles with eToro crypto trading platform. On September 12, the SEC announced that eToro USA LLC has agreed to pay $1.5 million to settle charges claiming that it operated an unregistered broker and unregistered clearing agency in connection with its trading platform that facilitated buying and selling certain crypto assets. The SEC’s order finds that, since at least 2020, eToro operated as a broker and clearing agency by providing US customers the ability, through eToro’s online trading platform, to trade crypto assets being offered and sold as securities, but eToro did not comply with the registration provisions of the federal securities laws.

eToro publicly announced that, going forward, subject to the provisions of the SEC’s order, the only crypto assets that US customers will be able to trade on the company’s platform will be bitcoin, bitcoin cash, and Ether. eToro will provide its customers with functionality to sell all other crypto assets for only 180 days after the issuance of the SEC’s order.

Without admitting or denying the SEC’s findings, eToro agreed to the entry of a cease-and-desist order, to pay a penalty of $1.5 million, and, within 187 days of the order, to liquidate any crypto assets being offered and sold as securities that eToro is unable to transfer to its customers, and return the proceeds to the respective customers.

Federal Court denies motion to dismiss SEC allegations against Kraken. On August 23, the US District Court for the Northern District of California denied the motion to dismiss filed by Payward, Inc. and Payward Ventures (dba Kraken) in a lawsuit filed by the SEC alleging that Kraken operates as a broker, dealer, exchange, and clearing agency for crypto asset securities without proper registration. The court found that “the SEC has plausibly alleged that at least some of the cryptocurrency transactions that Kraken facilitates on its network constitute investment contracts, and therefore securities, and are accordingly subject to securities laws.”

Commodities

CFTC issues order against Uniswap for illegal digital asset derivatives trading. On September 4, the Commodity Futures Trading Commission (CFTC) announced it issued an order filing and settling charges against Universal Navigation Inc. (dba Uniswap Labs) for illegally offering leveraged or margined retail commodity transactions in digital assets via a decentralized digital asset trading protocol. The CFTC found that Uniswap helped develop and deploy a decentralized digital asset trading protocol that offered trading in digital assets, including some leveraged tokens and margined commodity transactions, to non-eligible contract participants without registering with the CFTC as a contract market. The order requires Uniswap to pay a $175,000 civil monetary penalty and to cease and desist from violating the Commodity Exchange Act (CEA). The order acknowledges Uniswap Labs’ substantial cooperation, resulting in a reduced civil monetary penalty.

Commissioners Caroline Pham and Summer Mersinger each filed dissenting statements. Commissioner Pham asserted that a lack of evidence describing the terms and/or characteristics of the “Leveraged Tokens” made it impossible to perform an appropriate product legal analysis to determine whether the tokens are a CFTC-jurisdictional product, and, therefore, whether the CFTC has the authority to bring the enforcement action and whether a violation of the CEA or CFTC regulations occurred. Commissioner Mersinger denounced the CFTC’s “enforcement-first” approach instead of providing guidance or notice-and-comment rulemaking.

STATE

Virtual currency

California court upholds daily transaction limit for crypto kiosks. On September 4, the California Department of Financial Protection and Innovation (DFPI) announced that the Superior Court for Los Angeles County upheld the state Digital Financial Assets Law’s consumer protections for users of crypto asset kiosks, or bitcoin ATMs. The plaintiff alleged that the $1,000 per customer per day crypto kiosk withdrawal limit in the Digital Financial Assets Law was unreasonable and exceeded the authority of the state legislature. In response to the DFPI’s demurrer, the Court entered a judgment of dismissal in favor of the DFPI and dismissed the complaint in its entirety with prejudice.

Money laundering

Federal Reserve Board enters into consent order against Texas bank for AML/BSA violations. On September 4, the Federal Reserve Board announced entry of a consent cease-and-desist order with United Texas Bank in connection with an examination of the bank that identified significant deficiencies, including in connection with virtual currency customers relating to anti-money laundering (AML) and Bank Secrecy Act (BSA) violations. In addition to other requirements, the consent order requires the Bank to submit revised programs acceptable to the supervisors for BSA/AML compliance, customer due diligence, suspicious activity monitoring and reporting, and OFAC compliance.

DLA PIPER NEWS

The Financial Times recognizes DLA Piper as one of the Most Innovative Law Firms in North America.

The Legal 500 ranks DLA Piper Tier 1 in FinTech: Crypto. DLA Piper was also ranked in Tier 2 for FinTech, and Margo Tank was ranked as a “Leading Individual.”

Chambers FinTech Legal ranks DLA Piper in all four categories including Band 2 for Blockchain and Digital Assets, with Margo Tank individually recognized in Band 3 in the Blockchain & Digital Assets and Payments & Lending areas.

DLA Piper’s Commodities, Digital Assets, and Carbon Compliance and Enforcement team draws on decades of collective experience in the commodities and securities industry to help companies navigate new and complex commodities enforcement matters, including those related to agriculture, metals, energy, digital assets, and carbon/sustainable commodities, among others.

RECENT AND UPCOMING EVENTS

Join DLA Piper on October 15 from 4:30 – 7:15 pm ET for an engaging discussion on the findings from our new global financial services report, Financial Futures: Disruption in US and Global Financial Services. The report identifies and analyzes disruptors in the industry such as AI use, ESG requirements, digitization of financial services, privacy and cyber risks, and the issues that matter most to senior leaders of financial institutions and fintechs. The report findings are based on nearly 800 surveyed decision-makers in the global financial services sector. Key insights include the following:

More than 70 percent of respondents across the global sector believe that digitalization will have a transformative effect on financial services over the next two years, and more than 86 percent believe the same about AI

More than 80 percent of financial services organizations believe that it is “the new normal” for ESG concerns to be a core driver of the industry, and

Half of respondents state that the greatest impact on their businesses over the past two years has been managing risks related to cybersecurity and financial crime, and more than half (57 percent) expect this issue to affect them in the immediate future.

The discussion will include a keynote from Ambassador Marc Grossman on “Geopolitics, the Global Economy, and Driving Change.” Ambassador Grossman served as US Ambassador to Turkey, Assistant Secretary of State for European Affairs, and Under Secretary of State for Political Affairs. He was most recently the US Special Representative for Afghanistan and Pakistan and is currently a Vice Chairman of The Cohen Group, a business strategic advisory firm headed by former US Secretary of Defense William Cohen, and a Vice Chair of the German Marshall Fund board of trustees.

The report launch and networking reception offers CLE credit and will take place at the NYY Steak at The Hard Rock Hotel at 159 West 48th Street in New York. Registration is required.

DLA Piper attorneys presented at the following:

On September 25, DLA Piper presented the latest webinar in our Global Expansion and Operation series. The webinar discussed intellectual property, technology, and contracts issues, including key considerations when looking to monetize and commercialize IP and technology as part of a global expansion. The webinar featured Victoria Lee, Co-Chair, of the Technology and Life Sciences Licensing and Commercial Transactions group, and Tim O’Leary, the former Vice President Worldwide Commercial Legal at NetApp.

On July 24, Joseph Piesco spoke on a webinar panel entitled, “Digital Accessibility Lawsuits in 2024.”

In June, Michael Fluhr and Christina Sharma co-chaired a webinar panel entitled, “Cryptoassets: Emerging legal trends in common law and civil law jurisdictions.” The panel discussed how courts in the UK, Europe, and the US have been determining crypto asset disputes and what that means for creators, developers and owners. Panelists were Edwald Netten, Dan Jewell, Andrea Pantaleo, Matthew Miller, and Deborah Meshulam.

PUBLICATIONS

DLA Piper’s Tech Index 2024: Riding the next big wave. Is the tech industry buoyant or sinking? Our Tech Index 2024: Riding the Next Big Wave explores this topic and more, drawing insights from 1,200 industry leaders and policymakers across the world. While our previous editions focused primarily on Europe, we have expanded the scope of this year’s Index to include all major regions, offering a more comprehensive view of the sector’s growth prospects, anticipated challenges, and emerging opportunities. Some key insights include the following:

63 percent of respondents view AI as the most important frontier for growth. Yet, AI adoption is not being driven by CEOs.

50 percent report that ESG is more of a priority now than in 2022. However, 61 percent do not have a comprehensive ESG framework – or any framework at all.

98 percent see opportunities in data monetization. But only 38 percent employ data scientists to harness these opportunities.

In the newly published book, Banking [on] Blockchain: A Legal and Regulatory Primer, published by the American Bar Association, David Stier, Emily Honsa Hicks, and Eric Hall co-authored a chapter on AML/KYC requirements and the BSA, as well as provided general editorial assistance on other chapters. The book, a comprehensive guide to the legal and regulatory landscape surrounding the use of blockchain technology, decentralization, and digital assets within the financial services while offering guidance on how financial institutions may navigate the complex regulatory environment.

Cryptocurrency and Digital Asset Regulation, published by the American Bar Association and co-edited by Deborah Meshulam and Michael Fluhr, includes chapters by Meshulam, Fluhr, and Margo Tank.