On May 3rd, New York Attorney General Letitia James introduced legislation that, if passed, would substantially increase oversight and regulation of the cryptocurrency industry in New York. James touts the bill as the “Crypto Regulation Protection, Transparency and Oversight Act,” also to be known as the “CRPTO Act.” (the “Bill”).
Jeff Kern is a partner in the Governmental Practice and serves as a Managing Partner of Sheppard Mullin’s New York office. Jeff also heads the firm’s Securities Enforcement & Litigation Team and is a charter member of the Blockchain & Digital Assets Team.
A Securities and Exchange Commission (“SEC”) plan to create a registration exemption for certain finders has generated a mixed response. The nearly 90 comments received by the SEC by the November 12, 2020 close of the comment period reflect a clear divide along predictable lines. Broker-dealers, issuers, and some practitioners lauded the proposal for bringing regulatory clarity to what has long been a cloudy issue while regulatory groups and investor advocates criticized the plan for allowing unregistered finders to conduct brokerage activities without sufficient investor protection mechanisms.
Continue Reading SEC Proposal to Exempt Finders from Registration Generates Split Reaction
Earlier this month, the Securities and Exchange Commission (“SEC”) took a break from its recent focus on digital assets and the Best Interest fiduciary standard to publish a Risk Alert encouraging investment advisers and broker-dealers to revisit their policies and procedures relating to Regulation S-P (“Reg S-P”) (17 C.F.R. Part 248, Subpart A), which sets out requirements designed to protect customer information and records. The Alert highlights several key compliance issues identified by the SEC’s Office of Compliance Inspections and Examinations (“OCIE”) during exams completed in the past two years.
Continue Reading SEC Issues Risk Alert on Customer Privacy Safeguards
On January 22, 2019, the Financial Industry Regulatory Authority, Inc. (“FINRA”) released its annual priorities letter highlighting its regulatory program’s points of emphasis for the coming year. The most immediately recognizable difference between this year’s edition and previous ones is that its traditional title, “Examination Priorities,” has been updated to include “Risk Monitoring,” the process by which the self-regulatory organization initially identifies problem areas through surveillance, firm reporting, surveys, questionnaires, and examination findings.
FINRA’s 2019 “Risk Monitoring and Examination Priorities Letter” (the “Letter”) also discusses three entirely new priorities: online distribution platforms, fixed income mark-up disclosure, and regulatory technology. Finally, the Letter lists ongoing areas of focus, and alerts firms that it will continue to assess protocols to handle the risks posed by “bad actors” with problematic regulatory histories.
Continue Reading FINRA ANNOUNCES 2019 REGULATORY PRIORITIES
The Enforcement Division of the United States Securities and Exchange Commission (“SEC”) recently released its annual enforcement report (“Report”) for fiscal year 2018. The Report reflects an increased focus on retail investors, cryptocurrency, cybercrime, and individual accountability. Further, it showcases that SEC enforcement continues to be robust under the Trump administration, despite industry and media expectations to the contrary.
In fiscal year 2018, the SEC brought 821 enforcement actions, an approximately 8.8% increase from last year. The SEC collected approximately $3.9 billion in monetary penalties, a 4% increase from last year. Notably, however, a significant portion of this amount came from a single case, in which $1.8 billion in disgorgement and penalties were awarded for a large-scale corruption scheme. Moreover, while total monetary penalties rose, there was a decrease in the total amount of disgorgement imposed. This is likely due in part to the Supreme Court’s 2017 Kokesh decision, which held that SEC claims for disgorgement are subject to a five-year statute of limitations. …
Continue Reading SEC Enforcement’s Annual Report Prioritizes Retail Investors, Cryptocurrency, Cybercrime, and Individual Accountability
Over the past couple of years, the crypto industry has come under heavy scrutiny from skeptical regulators seeking to root out fraud and protect investors amid the initial coin offering boom that generated over $4 billion in 2017. However, this skepticism is starting to give way to a more business-friendly attitude.
Crypto firms have made notable headway with regulators in recent months, securing authorizations to act as custodians of digital assets and working towards approval of the first bitcoin-based exchange traded fund (“ETF”). These developments may reflect an evolving collaborative environment that bodes well for the future of blockchain-based innovations.
Continue Reading Crypto Firms Make Inroads with State and Federal Regulators
On July 18, 2018, the SEC ramped up its oversight of alternative trading systems (“ATSs”) by adopting a series of rule amendments imposing public disclosure requirements on ATSs that trade NMS (“National Market System”) stocks (i.e., stocks listed on a national securities exchange). The amendments also require ATSs to establish written procedures to protect subscribers’ confidential trading information. Initially proposed in 2015, the amendments will take effect on October 9, 2018, per the July 18th Notice of Final Rulemaking.
Continue Reading SEC Tightens Alternative Trading Platform Oversight
On April 17, 2018, the New York State Attorney General (“NYAG”) sent a “Virtual Markets Integrity Initiative Questionnaire” to 13 companies operating virtual currency trading platforms. The questionnaire consists of 34 questions covering a number of topics, including ownership and control, operation and fees, trading policies and procedures, outages and other suspensions of trading, internal controls, and privacy and money laundering. …
Continue Reading New York’s AG Enters the Cryptocurrency Ring as Federal, State Authorities Find Regulatory Footing
On February 21, 2018, the Supreme Court issued a pivotal decision narrowing the definition of a whistleblower under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank,” or the “Act”). In Digital Realty Trust, Inc. v. Somers, the Court unanimously held that to qualify as a whistleblower, a person must first report a securities law violation to the Securities and Exchange Commission (the “SEC”). 583 U.S. __, No. 16-1276, 2018 WL 987345 (Feb. 21, 2018).
Continue Reading Supreme Court Resolves Circuit Split on Scope of Whistleblower Protections
One of the most eye-catching items in the recently released 2017 Annual Report of the Enforcement Division of the Securities and Exchange Commission (SEC or the Commission) is the significant decline in enforcement activity from 2017. The report, issued on November 15th and summarizing the agency’s activity from October 1, 2016 to September 30, 2017, has drawn scrutiny from numerous commentators, who view the decline as the result of an ideological shift from the aggressive, prosecutorial style of enforcement of ex-Chairwoman Mary Jo White to a more restrained approach under new Chairman Jay Clayton. However, the SEC insists that despite this shift, it is not “slowing down.” Instead, the SEC has identified new target areas that financial industry professionals should keep in mind.
Continue Reading The Numbers Don’t Lie: The SEC Pursues a More Streamlined Enforcement Agenda
Blockchain technology (“Blockchain”), also known as Distributed Ledger Technology, stands poised to transform the future of the financial industry. Generally speaking, Blockchain enables the creation of a continuously growing ledger of transactions that is resistant to alteration and ensures the integrity of new transactions through a system of checks-and-balances built into the system’s code. The combination of its speed, versatility, and built-in security features lend the technology well to applications in the financial industry. In a timely effort, the Financial Industry Regulatory Authority (“FINRA”) recently gathered top U.S. financial regulators and industry stakeholders to participate in its 2017 Blockchain Symposium. In a series of engaging discussions, panelists hashed out the potential benefits and pitfalls of the dynamic technology.
Continue Reading FINRA Fetes Emerging Blockchain Technology at Industry Conference