2023 – FinTech and Blockchain Law Watch

California is Seeking Industry Input on New Crypto Rules

Nov 21 2023

The California Department of Financial Protection and Innovation (DFPI) is requesting comments on potential rules it will promulgate to implement the state’s recently-enacted Digital Financial Assets Law (DFAL), which establishes a formal licensing regime for digital asset service providers. Please review our client alert for a detailed analysis of the new law, which takes effect 1 July 2025.

Tokenized Products of SFC-Authorized Investment Products Can Be Offered to Retail Customers in Hong Kong

Nov 20 2023

By: Jay Lee and Natalie Chow

The Securities and Futures Commission of Hong Kong (SFC) will now allow tokenized authorized investment products to be offered to retail investors. Recognizing the growing interest in the tokenization of investment products in Hong Kong, on 2 November 2023, the SFC issued a circular outlining the public offering scheme and requirements of tokenized authorized investment products under the Securities and Futures Ordinance for primary dealings. However, secondary trading of such tokenized investment products is not allowed yet.

Singapore to Share Cryptocurrency Tax Information With Other Countries

Nov 14 2023

By: Nicolet-Serra and Josh Durham

Singapore has just become the 48th nation (joining the US) to begin implementing the international Crypto-Asset Reporting Framework (CARF), which is intended to standardize the automatic exchange of personal financial information between countries and to reduce tax evasion by those engaging in cryptocurrency transactions.

CFPB Wants to Oversee Large Nonbank Digital Payment Providers

Nov 08 2023

By Jeremy McLaughlin and Josh Durham

Yesterday the Consumer Financial Protection Bureau (CFPB) issued a Notice of Proposed Rulemaking (NPRM) that, according to the agency, aims to “crack down on [fintech] regulatory arbitrage by ensuring large technology firms and other nonbank payment providers are subjected to appropriate oversight.”

NY AG Sues Gemini, Genesis, and DCG for Fraud

Oct 20 2023

By Josh Durham

On 19 October 2023, New York Attorney General Letitia James filed a lawsuit against cryptocurrency companies Gemini Trust Company, LLC (Gemini), Genesis Global Capital, LLC (Genesis), Digital Currency Group, Inc. (DCG), and several of their affiliates and controlling persons, in relation to Gemini’s digital asset investment program called Gemini Earn (Earn). In addition to claims that Earn constituted the offering of an unregistered security, which we have seen recently in other SEC and state regulator enforcement actions, the lawsuit also claims that the defendants allegedly defrauded investors by concealing the program’s risks and misleading investors about the financial stability of Genesis.

Australia: Licensing Comes to the Crypto Industry

Oct 17 2023

By Daniel Knight

Yesterday the Australian Federal Government released its proposal paper on regulating the crypto industry (Paper). The government proposes to regulate exchanges, custodians and other digital asset service providers within the scope the Australian Financial Services (AFS) licensing regime.

CFTC Files Complaint Against Voyager’s Former CEO Stephen Ehrlich Alleging Fraud and Registration Failures

Oct 16 2023

By Cliff Histed, Cheryl Isaac, and Josh Durham

On 12 October, the Commodity Futures Trading Commission (CFTC) filed a complaint against Stephen Ehrlich, the former CEO of the now-defunct cryptocurrency platform, Voyager Digital (Voyager), in the US District Court for the Southern District of New York. In its 55-page complaint, the CFTC asserts both fraud and registration failures by Ehrlich in connection with the Voyager platform and Voyager’s operation of an unregistered commodity pool.

Connecticut Stifles Employees’ Access to their Earned Wages

Sep 25 2023

By John ReVeal and Jeremy McLaughlin

Earned Wage Access (or EWA) programs are popular programs that allow employees to access their salary or wages that have already been earned, prior to the scheduled payroll date. Many argue that these beneficial programs are not truly “loans” because employees are accessing their own money without paying the high fees charged by payday lenders. However, some state regulators disagree, making EWA programs more difficult to access, depending on what state in which the employee lives.

New FTC Guidance: The INFORM Consumers Act’s Impact on Online Marketplaces’ Third-Party Sellers

Sep 01 2023

By Adam Husik and John ReVeal

The Federal Trade Commission (FTC) has issued guidance on how the Integrity, Notification, and Fairness in Online Retail Marketplaces for Consumers Act (the “INFORM Consumers Act” or “Act”) may impact online sellers who offer consumer products through online marketplaces.

The Act, as described in our prior blog post, is aimed at addressing consumer complaints about online purchases of stolen, counterfeit, or defective products. As of the Act’s 27 June 2023 effective date, online marketplaces are now generally required to obtain, verify, and disclose certain financial and business information about high-volume sellers on their platforms.

An SEC First: NFTs are Sold as Securities

Aug 29 2023

By Drew Hinkes, Eden Rohrer, and Josh Durham

On 28 August 2023, in its first enforcement action for securities registration violations brought against an issuer of NFTs, the SEC settled with media and entertainment company, Impact Theory, LLC (Impact).

The settlement order included findings that from 13 October 2021 to 6 December 2021, Impact sold non-fungible tokens called Founder’s Keys (KeyNFTs) raising approximately US$30 million. Broadly interpreting Howey, the SEC found that the NFTs were sold in investment contracts, based on the company’s public statements about the expected rise in value of the NFTs and its use of profits from sales to develop the company.

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