Blockchain Week in Review: Week of February 11-15, 2019

U.S. Developments

Regulatory Updates

SEC Commissioner Peirce Says Guidance on Crypto Token Sales Is Coming

In a speech at the University of Missouri School of Law, Hester Peirce, one of the SEC’s commissioners, said that the agency is working on “supplemental guidance” to help projects determine when securities laws might apply to crypto token sales. The commissioner said that the traditional standard for determining whether something is a security—the Howey Test—can sometimes be “overbroad” and that there is a “need to tread carefully” as token offerings do not always resemble traditional securities offering. She did not give any indication as to when the guidance might be issued, however.

Read the full speech here. Continue Reading

Blockchain Attacks and the Fight for Immutability

The Ethereum Classic blockchain was the victim of a 51% attack (often called a majority or Sybil attack) last month that reorganized portions of the blockchain and allowed the attackers to double-spend 219,500 ETC ($1.1 million). As a result of this attack, and similar majority attacks over the past year, the concept of immutability within blockchain technology has been revealed to be a potentially costly oversimplification.

This update presents a more nuanced understanding of blockchain immutability, along with providing a practical understanding of mining algorithms, market trends and how they relate to the efficacy of blockchains serving as immutable repositories of transaction data. The update concludes by summarizing some of the ways that market participants are using legal solutions to mitigate risks and respond to attacks.

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ISDA Publishes Guidelines for Smart Derivatives Contracts

The International Swaps and Derivatives Association (ISDA) has published the first in a series of guidelines for what it colloquially refers to as “smart derivatives contracts” (the Guidelines).* A smart derivatives contract is a derivative that incorporates software code to automate aspects of the derivative transaction and operates on a distributed ledger, such as a blockchain. This series of papers is intended to “provide high-level guidance on the legal documentation and framework that currently governs derivatives trading, and to point out certain issues that may need to be considered by technology developers when introducing technology into that framework.” Read the full post on our sister blog, Derivatives and Repo Report.

Blockchain Week in Review: Week of February 4-8, 2019

U.S. Developments

Florida Court of Appeals Rules That Direct Sales of Bitcoin Constituted Money Transmission and the Sale of Payment Instruments

Reversing the order issued by the Miami-Dade County Circuit Court, the Florida Court of Appeals issued an opinion on January 30 in the case of Florida v. Espinoza in which the appellate court ruled that an individual’s sale of bitcoin for cash constituted money transmission and the sale of payment instruments. Largely basing its conclusions on definitional interpretation of the terms “payment instrument” and “money transmitter” under Florida statute, the court of appeals found that the sales of bitcoin involved a “medium of exchange” with “monetary value,” and thus bitcoin fell within the definition of “payment instrument.” The court of appeals relied on similar analysis to conclude that Mr. Espinoza’s sales qualified as money transmission and that, since Mr. Espinoza was not licensed to act as a money services business, he could be charged with engaging in unlawful money transmitter services. Continue Reading

Fintech Regulatory Sandboxes: Update on Arizona’s Sandbox and Other Developments

Arizona’s financial technology (“fintech”) sandbox (“Sandbox”), the first of its kind in the United States, has been open for several months and has accepted three participants.  A month after the program’s launch, Arizona’s Attorney General announced his approval of the first participant, payment platform Omni Mobile, Inc.[1]  Two other companies providing consumer lending services, Sweetbridge NFP, Ltd. and Grain Technology, Inc., joined Omni as Sandbox participants shortly thereafter.[2]  Arizona’s Sandbox may serve as a helpful illustration of what entrepreneurs can expect in Arizona (should they also wish to participate in the Sandbox) as well as in other states that decide to implement similar programs.[3]  To that end, this client update provides an overview of regulatory sandboxes generally, Arizona’s Sandbox, and potential future developments. Continue Reading

Blockchain Week in Review: Week of January 28 – February 1, 2019

U.S. Developments

Kik Publicizes Response to Possible SEC Enforcement

On January 27, the Wall Street Journal published an article describing the impending legal battle over cryptocurrency Kin and its 2017 ICO. That same day, Ted Livingston, the founder and CEO of Canadian company Kik Interactive (Kik) and the developer behind Kin, published the Wells Notice he received from the Securities and Exchange Commission (SEC) on November 16, 2018, as well as Kik’s response. Continue Reading

Blockchain Week in Review: Week of January 21-25, 2019

U.S. Developments

Cboe Withdraws and Then Submits a Proposed Rulemaking for a Bitcoin ETF

On January 22, 2019, Cboe BZX Exchange (Cboe) withdrew its proposed rulemaking with the U.S. Securities and Exchange Commission (SEC).  Had the proposal been approved, Cboe would have been allowed to list shares of bitcoin electronically-traded funds (ETFs) backed by VanEck and SolidX.  On January 30, 2019, Cboe submitted a new proposed rulemaking to list the VanEck and SolidX bitcoin ETFs. Continue Reading

Blockchain Week in Review: Week of January 14-18, 2019

U.S. Developments

 Flood of State Virtual Currency Legislation

Since the start of the new year there have been roughly nine virtual currency bills introduced or passed in four different states. Overall, the bills demonstrate a growing interest among the states in supporting virtual currency businesses through the codification of blockchain terminology for legal effect or by proposing regulatory exemptions for certain virtual currency activities. The bills also show that many state legislatures are interested in learning about how blockchain and distributed ledger technology (DLT) can support state governments.

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Blockchain Week in Review: Week of January 7-11, 2019

U.S. Developments

Regulatory Updates

Texas Clarifies that Stablecoins Backed by Sovereign Currency Qualify as “Money” Under Money Transmission Statute

The Texas Department of Banking recently issued a Supervisory Memorandum clarifying how its money transmission statute applies to stablecoins backed by sovereign currency. The Department reiterated—consistent with its 2014 guidance—that Texas’s money transmission statute only regulates “money” or “monetary value” and that most virtual currencies fall outside the statute’s scope. But the Department stated that stablecoins backed by sovereign currency, such as Tether, qualify as “money” or “monetary value.” Under Texas’s statute, money or monetary value includes either sovereign-issued currencies or claims that can be converted into such currencies. The Department concluded that, unlike most virtual currencies, stablecoins backed by sovereign currency are money or monetary value because they represent claims that can be redeemed for currency. The Department explained that, as a result, entities doing business in Texas that hold stablecoins backed by sovereign currency for third parties—such as custodial wallet providers or intermediated exchanges—will most likely need a Texas money transmission license.

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Takeaways on the Regulation of Crypto Assets from Late 2018 Comments of Several SEC Officials

On Wednesday, December 12, 2018, the D.C. Bar hosted a panel to discuss current developments in the world of crypto.  Among the panelists were two senior SEC officers: Jonathan Ingram, Deputy Chief Counsel, Division of Corporation Finance, and Jennifer Leete, Assistant Director, Division of Enforcement.  Also participating on the panel was Era Anagnosti, a former senior manager in the Division of Corporation Finance of the SEC who in part oversaw the process relating to, among other things, various crypto-related registration filings.  The following is a summary of certain topics discussed at the panel regarding both corporate finance and enforcement as well as some key takeaways.

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