FTX filed its presentation to the Official Committee of Unsecured Creditors (UCC), reporting that FTX has located about $5.5 billion of cash and other liquid assets but less than $1.8 billion of digital assets identified with both FTX.com and FTX US, excluding illiquid tokens. FTX reported that it expects to find and liquidate additional assets and value. This additional value is anticipated to be realized through selling securities, subsidiaries, and real estate, as well as through lawsuits (known as adversary proceedings in bankruptcy cases) yet to be filed. Examples of litigation targets seem to include recipients of: (1) over $2 billion in loans to insiders, (2) a $2.1 billion payment to Binance to repurchase Series A shares, (3) $93 million in political donations, (4) transfers to Voyager of over $440 million within the “preference period,” (5) parties involved with Alameda’s use of “artificial collateral,” and (6) others.

Time will tell how much (and what) is collected, from whom, and at what cost.

Meanwhile, FTX reports that representatives of all the FTX debtors, the UCC, and the joint provisional liquidators appointed in the Bahamas have reached an agreement to coordinate their efforts and jointly work on possible structures for a Chapter 11 bankruptcy plan for the FTX Chapter 11 debtors; they have also filed a copy of their Settlement and Cooperation Agreement on the docket. Not an easy task.

Perkins Coie LLP is pleased to bring you this updated Digital Asset SEC Timeline.

The Digital Asset SEC Timeline serves as an interactive compilation of select SEC guidance, enforcement actions, and speeches relating to the application of the federal securities laws to digital assets. Beginning with the release of the DAO Investigative Report in July 2017, the Timeline includes relevant information for analyzing the offering, issuance, and trading of certain digital assets in the context of the federal securities laws.

This Timeline is meant to be a resource for those following SEC actions and guidance related to digital assets and to assist experienced securities counsel in assessing the applicability of the federal securities laws. The Timeline is for informational purposes only and does not constitute legal advice. If you are, or are planning to engage in transactions involving digital assets, you may want to contact experienced securities counsel.

Information in the Timeline is provided “as-is,” and may not reflect the latest guidance from the SEC and/or other federal or state regulatory authorities. The Timeline contains links to third-party websites. Such links are only for the convenience of the reader or user. Use of and access to the Timeline, including the links contained within the Timeline, do not create an attorney-client relationship with Perkins Coie LLP.

Easter eggs are basically messages or particular references deliberately hidden throughout a movie that the usual movie-goer often fails to notice but they are always there.”

Most articles about Chief United States Bankruptcy Judge Michael Glenn’s opinion that “Earn Assets in Earn Accounts constitute property of the Estates” (opinion, p. 45) focus on the court’s reliance on the terms of service for the Celsius Earn Accounts and how those terms effectively transferred ownership of the assets in those accounts. But did Judge Glenn place an Easter egg in the opinion that could be argued in the future?

Sharp-eyed bankruptcy professionals will note the following statement by Judge Glenn on p. 41 of the opinion:

Thus, even if the parties’ contract purports to provide the creditor with a security interest in property, unless the security interest is perfected under applicable non-bankruptcy law, a trustee can assert strong-arm power under section 544(a) of the Bankruptcy Code to avoid the lien. 11 U.S.C. § 544(a). See also In re Castle Ventures, Ltd., 167 B.R. 758, 765 (Bankr. E.D.N.Y. 1994) (“However, section 544(a) of the Code, also referred to as the ‘strong arm’ clause, allows a trustee in bankruptcy to avoid liens and security interests against the debtor’s estate which were not properly perfected under state law prior to the debtor’s bankruptcy filing.”).

The “strong arm” power in a bankruptcy case allows a bankruptcy trustee to set aside (or “avoid”) an interest in property that could be reached by a judgment lien creditor. See 11 U.S.C. § 544. If a party places assets in the possession of a debtor in such a way that a judgment creditor of that debtor could levy execution on that asset, the asset can become property of the debtor’s bankruptcy estate. This provision has been in the U.S. Bankruptcy Code since it became effective in 1979 and has been used innumerable times in the last 40-plus years to allow bankruptcy trustees, Chapter 11 debtors in possession, and others to recover assets for bankruptcy estates.

Celsius apparently did not argue the strong arm clause as a basis to justify its argument that its stablecoins and the assets in the Earn Accounts would be property of its bankruptcy estate. Could the reference to the “strong-arm” power be Judge Glenn’s way of telling customers that the terms of service might not be the only way that Celsius might take and use what had been in their Earn Accounts? That remains to be seen.

The Commodity Futures Trading Commission (CFTC) Settlements Timeline serves as an interactive compilation of select CFTC guidance, enforcement actions, and speeches relating to the application of the federal securities laws to digital assets. Beginning with the Order filed in September, 2015 by the CFTC requiring Coinflip and its chief executive officer Francisco Riordan to cease and desist from further violations of the Commodity Exchange Act (CEA) and CFTC Regulations, specifically, by operating a facility for the trading or processing of commodity options without complying with the CEA or CFTC Regulations otherwise applicable to swaps or conducting the activity pursuant to the CFTC’s exemption for trade options.

This Timeline is meant to be a resource for those following CFTC actions and guidance related to digital assets and to assist experienced counsel in assessing the applicability of the CFTC Regulations.

The Timeline is for informational purposes only and does not constitute legal advice. If you are, or are planning to engage in transactions involving digital assets, you may want to contact experienced securities counsel.

Information in the Timeline is provided “as-is,” and may not reflect the latest guidance from the CFTC and/or other federal or state regulatory authorities. The Timeline contains links to third-party websites. Such links are only for the convenience of the reader or user. Use of and access to the Timeline, including the links contained within the Timeline, do not create an attorney-client relationship with Perkins Coie LLP.

Bankruptcy court hearings are often recorded and can be listened to at your convenience. The “first-day hearing” in the FTX Trading case occurred on November 22, 2022, was saved into two files with the first part available here and the second part available here.

The links will download a PDF file that contains an audio file as an attachment. To listen to the audio file, save it on your local drive, open the PDF document in Adobe Acrobat, and click on the paperclip image (usually in the left margin) to launch your audio player.

You can find future hearings at FTX Trading’s Claim Agent site and search for either “pdf” or “audio” to find the recordings. Please note, these files work well on computers but not on mobile devices.

Bankruptcy court hearings to confirm Chapter 11 plans, which set forth how the company seeks to exit bankruptcy, are frequently delayed. These hearings are infrequently canceled. But on November 15, 2022, Voyager canceled its scheduled December 8, 2022, confirmation hearing, citing the FTX bankruptcy filing as the cause.

Continue Reading Voyager Bankruptcy Exit Derailed by FTX’s Bankruptcy Entrance

Perkins Coie LLP is pleased to bring you this updated Digital Asset SEC Timeline.

The Digital Asset SEC Timeline serves as an interactive compilation of select SEC guidance, enforcement actions, and speeches relating to the application of the federal securities laws to digital assets. Beginning with the release of the DAO Investigative Report in July 2017, the Timeline includes relevant information for analyzing the offering, issuance, and trading of certain digital assets in the context of the federal securities laws.

This Timeline is meant to be a resource for those following SEC actions and guidance related to digital assets and to assist experienced securities counsel in assessing the applicability of the federal securities laws. The Timeline is for informational purposes only and does not constitute legal advice. If you are, or are planning to engage in transactions involving digital assets, you may want to contact experienced securities counsel.

Information in the Timeline is provided “as-is,” and may not reflect the latest guidance from the SEC and/or other federal or state regulatory authorities. The Timeline contains links to third-party websites. Such links are only for the convenience of the reader or user. Use of and access to the Timeline, including the links contained within the Timeline, do not create an attorney-client relationship with Perkins Coie LLP.

The Federal Reserve Board, on August 15, 2022, issued final guidelines for regional Reserve Banks to use when considering applications for Federal Reserve “master accounts”—deposit accounts that enable direct access to the Federal Reserve’s payment systems and provide critical infrastructure to financial institutions operating in the United States. The final guidelines comprise a set of principles and three-tiered review framework that, according to the Board, should bring greater transparency and consistency to the application process. 

Although the final guidelines will help to move forward the discussion around account access, the Board left key issues open. The fintech community must continue to wait for resolution as Reserve Banks and federal courts grapple with the ultimate question: What types of nontraditional financial services providers are eligible for master accounts, and on what terms?

The Crypto-Related Bankruptcies Timeline serves as an interactive compilation of select dates relating to bankruptcies of companies involved in cryptocurrency, including hedge funds, lending companies, and exchanges.  Beginning with Mt. Gox filing for Chapter 15 bankruptcy protecting in February 2014, the Timeline includes relevant information regarding crypto-related companies that filed for bankruptcy protection, as well as, where applicable, their suspension of deposits and withdrawals in advance of filing for bankruptcy.  

This Timeline is meant to be a resource for those following bankruptcies in the crypto market.  The Timeline is for informational purposes only and does not constitute legal advice.  If you are planning to file for bankruptcy, you may want to contact experienced bankruptcy and restructuring counsel.

Information in the Timeline is provided “as-is,” and may not reflect the latest information regarding crypto-related bankruptcies. The Timeline contains links to third-party websites.  Such links are only for the convenience of the reader or user.  Use of and access to the Timeline, including the links contained within the Timeline, do not create an attorney-client relationship with Perkins Coie LLP.

Voyager Holdings filed a Notice of Auction with the bankruptcy court announcing an Auction* of its assets (or the assets Voyager believes it is entitled to sell). The Auction will start on September 13 in New York and promises to be anything but simple or dull. Whatever occurs and whichever bidder(s) emerge(s) successful, expect a hotly contested Sale Hearing.

An interesting aspect of bankruptcy auctions is their flexibility compared to a regular auction. Voyager has been soliciting bids on anything and everything—up to and perhaps including a bid for the whole kit and kaboodle. Qualified bidders were invited to submit offers for 100% of Voyager’s equity, all of Voyager’s assets, or some unspecified subset of the assets.

Continue Reading Voyager—The Auction to Come