Category: News

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custody rule – facts

A proposed change to a Securities Exchange Commission (SEC) custody rule has created more fog in the crypto universe.

At an SEC Open Meeting yesterday, and according to the the SEC’s fact sheet, the changes would “expand the current custody rule to protect a broader array of client assets and advisory activities to the rule’s protections” such as crypto; “enhance the custodial protections that client assets receive under the rule; [and] update related recordkeeping and reporting requirements for advisers.” Read the rule (PDF).

What is crypto custody? – see here.

custody rule – Chair

SEC Chair Gary Gensler argues in support of the rule change in a press release: “Congress gave us authority to expand the advisers’ custody rule to apply to all assets, not just funds or securities. Further, investors would benefit from the proposal’s changes to enhance the protections that qualified custodians provide. Thus, through this expanded custody rule, investors working with advisers would receive the time-tested protections that they deserve for all of their assets, including crypto assets, consistent with what Congress envisioned.” Read his statement, too.

Side tip: With the participation and comments of several SEC staff on the “Open Meeting” webcast, these rule edits would appear to have been in the works for months if not longer.

custody rule – dissent

Though she provided five concerns about the proposed custodian rule changes, Commissioner Hester Peirce ended her statement hopefully such that she could vote for the rule change (with edits) when it approaches a vote on final adoption.

Peirce, one of two Republicans on the Commission along with Mark Uyeda, was the only commissioner to vote “no” on the proposal. Two of her chief concerns were directly related to crypto: first, a stated supposition in the changes that all crypto assets were securities; and secondly, crypto custody choices would be even more limited than today as a result of changes. She said, “By insisting on an asset neutral approach to custody we could leave investors in crypto assets more vulnerable to theft or fraud, not less.”

crypto custody rule – 3 commissioners

Commissioner Mark Uyeda (statement) – like Peirce, a Republican appointee – expressed his misgivings about the rule changes and shared: “How could an adviser seeking to comply with this rule possibly invest client funds in crypto assets after reading this release?” Nevertheless, Uyeda voted for the rule change process to move forward saying, “The Commission should make changes through notice and comment rulemaking.” Perhaps Uyeda believes the comment period will shoot this rule change down.

Continue reading “SEC Custody Rule Change May Affect Crypto; Gillibrand Criticizes SEC Chair Gensler”

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digital asset AML returns

Building on momentum from her appearance at yesterday’s Senate Banking hearing, Senator Elizabeth Warren (D, MA) announced yesterday afternoon that she would re-introduce her and Senator Roger Marshall’s (R, KS) Digital Asset Anti-Money Laundering Act of 2022. “… Legislation that would put up guardrails around crypto by closing loopholes in the existing anti-money laundering and countering of the financing of terrorism (AML/CFT) framework and bringing the whole of the digital asset ecosystem into compliance with the rules that govern the rest of the financial system.”

Read yesterday’s press release by Senator Warren.

Also, read Senator Warren’s press release from last December on the bill.

The bill puts stringent Anti-Money Laundering (AML) and Know-Your-Customer (KYC) restrictions on crypto and is generally reviled by the industry including industry organization Coin Center which called it “unconstitutional” when it was initially introduced. Read that one.

Warren’s bipartisan coalition – Marshall

The bipartisan coalition focused on reining in crypto and put together by Senator Elizabeth Warren (D, MA) is the subject of a feature on Politico. One of her Republican partners, Senator Roger Marshall (R, KS) says, “The physician in me says the risks [of crypto] do not outweigh the benefits. (…) Until they solve the national security issues, I don’t see the benefits outweigh the risks.” Read more.
Continue reading “Digital Asset AML Bill Returns; Bitcoin Miners In Contempt”

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stablecoin stopped #1

Paxos, a cryptocurrency and stablecoin infrastructure platform, announced it will “end its relationship with Binance for the branded stablecoin BUSD” and thereby stop offering BUSD.  See yesterday’s Paxos statement.

stablecoin stopped #2

Effectively, BUSD is getting shut down at the request of state regulator New York Department of Financial Services (NYDFS) – see the NYDFS statement. A spokesperson for NYDFS told Reuters, “Paxos ‘violated its obligation to conduct tailored, periodic risk assessments and due diligence refreshes of Binance and Paxos-issued BUSD customers to prevent bad actors from using the platform.'” More on CoinDesk.

stablecoin stopped #3

The Securities and Exchange Commission will reportedly sue Paxos shortly, the first “enforcement action against a major stablecoin issuer,” according to The Wall Street Journal. And, more crackdowns are expected says The WSJ in a follow-up last night.

SEC’s Gensler on stablecoins

Last September, SEC Chair Gensler said stablecoins may need to be registered as securities: “Stablecoins have features similar to, and potentially competing with, money market funds, other securities, and bank deposits, and raise important policy issues.” See that speech.
Continue reading “Senate Banking’s Crypto Hearing Today; Stablecoin Stopped”

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letter #1: investigating SEC

Republicans apparently never forgot that last December former FTX CEO Sam Bankman Fried (SBF) was arrested the day before he was scheduled to appear in front of the House Financial Services (HFS) Committee.

On Friday, Republicans, who represent the new majority of HFS sent a letter (see it) requesting a record of all Securities and Exchange Commission (SEC) communications about FTX founder Sam Bankman Fried (SBF) from November 2, 2022 to last Thursday, February 9, 2023.

Chair Rep. Patrick McHenry (R, NC) and Rep. Bill Huizenga (R, MI), who is Chair of the House Oversight Subcommittee on HFS signed the letter and gave the SEC and its Chair, Gary Gensler, two weeks to deliver. They write, “The timing of the charges and his arrest raise serious questions about the SEC’s process and cooperation with the Department of Justice.” Unspoken is that Republicans believe that some sort of partisan malfeasance may have been perpetrated to willfully undermine the ability for the Committee to talk to SBF. Gensler is a Democrat appointed by the Biden Administration in 2021.

In Friday’s tweet containing the screenshots of the letter, Rep. Huizenga explained, “Since [Gary Gensler] won’t abide by his own polices to ‘come in and talk’, the House GOP will hold him accountable.” Republicans have kept their request strictly to SBF rather than a broader focus of SEC communications about FTX.

In addition to Gensler, the SEC’s head of enforcement, Gurbir Grewal, is also singled out in the letter. Given the Feb. 24 delivery requirement for the SEC by the Committee, an update from the Committee on next steps such as a hearing would likely come the week of Feb. 27. 

letter #2: investigating SBF

On Friday evening, House Financial Services Ranking Member Maxine Waters (D, CA) delivered in a letter the Democratic response to McHenry/Huizenga and requested that the Committee pursue SBF rather than the SEC:  “I believe that the Committee’s efforts would be best spent obtaining a complete understanding of the improper activities that took place at FTX, why they occurred, and who was responsible for those actions, so the Committee can assess whether additional statutory or regulatory reforms are necessary to prevent such events in the future.”

Back in early December, and prior to SBF’s arrest, then-Chair Waters and SBF communicated openly on Twitter about Bankman-Fried’s possible appearance in front of the Committee on December 13.

Continue reading “Dueling Letters: Republicans Want SEC; Democrats Want SBF”

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agriculture committee democrats

Ranking Member David Scott (D, GA) announced the 23 new Democratic House Agriculture Committee members yesterday. The list included 10 holdovers from the previous Committee when Dems were in the majority. It’s hard to predict how the committee’s new faces will divide and conquer when it comes to digital assets. But, given the Biden Administration’s actions lately and yesterday’s Kraken news (below), digital asset interest may be difficult to pursue -especially for junior Democrats. In general, bipartisan Congressional power has lurched both pro- and anti-crypto in the past year.

On the House Ag Committee in the 118th Congress, and among the higher profile Democratic names in digital asset legislation, Rep. Darren Soto (FL) joins and Rep. Ro Khanna (CA) is no longer assigned. See the complete list. Democratic subcommittee assignments – especially on the newly re-named “Subcommittee on Commodity Markets, Digital Assets, and Rural Development” – could be illuminating on Democratic direction on digital asset legislation when announced. To date, only the Ranking Member, Rep. Yadira Caraveo (CO) has been revealed. Her position on digital assets is unknown.

Notably, Rep. Andrea Salinas (OR) joins the committee after beating a May ’22 primary challenger backed by Sam Bankman-Fried. And, committee newcomer Rep. Jill Tokuda (HI) beat a Republican in the General Election who was supported by Web3 Forward -a PAC associated with FTX executives and investors.

Rep. Jasmine Crockett (TX) and Jonathan Jackson (IL) join the Committee and were both supported by Web3 Forward.

In the last Congress, this House committee was responsible for the [H.R. 7614] Digital Commodity Exchange Act (DCEA) introduced by Chair Glenn “GT” Thompson with bipartisan co-sponsorship. The Committee also oversees the Commodity Futures Trading Commission.

Kraken down

Stressing the importance of investor protections, The Securities and Exchange Commission (SEC) announced a settlement with crypto exchange Kraken and its entities on Thursday which included a fine of $30 million and agreeing to shutdown its “staking-as-a-service program.” Read the SEC release.

Proper disclosures associated with the offering and the fact it was not registered as a security is cited. For example, on needed disclosures according to the SEC release: “When investors provide tokens to staking-as-a-service providers, they lose control of those tokens and take on risks associated with those platforms, with very little protection.” 

SEC Chair Gary Gensler said in a tweet (with a video): “Whether it’s through staking-as-a-service, lending, or other means, crypto intermediaries must provide the proper disclosures & safeguards required by our laws.”

Continue reading “New Democrats On House Agriculture; Kraken May Signal End Of Bipartisanship”

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choke point drumbeat

Perhaps building on the theme of a Nic Carter tweet on Monday that suggested a “Choke Point” type of operation “targeting the crypto space in the US”, Senator Bill Hagerty (R, TN) offered up his own tweet yesterday saying, “Regulators singling out business activities should alarm all Americans. It doesn’t matter if it’s crypto assets, firearms, or any other lawful business, using banking regulators to advance political agendas should not be tolerated.” Is he talking about a new Choke Point for crypto? Hagerty then linked to an early January Blockworks article about U.S. banks dabbling in crypto under the watchful gaze of U.S. government regulators.

Last year, Hagerty, who is considered to be pro-crypto, introduced one of many stablecoin bills in Congress along with Rep. Trey Hollingsworth (R, IN) called the “Stablecoin Transparency Act‘ -an attempt to provide clarity on how the US Dollar stablecoins can be created, used and managed. Any clear regulation saying how cryptocurrency, even stablecoins, can be used in connection to the U.S. dollar would be significant.

Alexander Grieve of D.C. government relations Tiger Hill firm tweeted, “Operation Chokepoint (using bank policy to deny banking services to sectors for political reasons) has been an issue in the past. Recent bank regulatory statements and actions seem to confirm it’s happening again – this time with crypto.”

This is a developing story.

Coinbase staking

Coinbase CEO Brian Armstrong tweeted last night, “We’re hearing rumors that the SEC would like to get rid of crypto staking in the U.S. for retail customers. I hope that’s not the case as I believe it would be a terrible path for the U.S. if that was allowed to happen.” He then links out to a Paradigm document on why Ethereum staking does not make ETH a security – see it here.

In the final tweet on his thread, Armstrong makes a plea, “Hopefully we can work together to publish clear rules for the industry, and come up with sensible solutions that protect consumers while preserving innovation and national security interests in the U.S.”

The crypto industry in the United States seems increasingly on edge. Is some big announcement coming?

Continue reading “Choke Point Drumbeat Echoed By Senator Hagerty; Coinbase Staking Rumors”

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broad regulatory jurisdiction

“The Securities Exchange Commission (SEC) is trying to seize broad regulatory jurisdiction over a massive new industry via an enforcement action against a 32-year old former Coinbase employee and his kid brother.” And so begins law firm Jones Day’s argument – which was submitted Monday to the courts – on why the SEC’s securities fraud case against Coinbase Manager Ishan Wahi should be dismissed.  Read the argument which includes comparison’s to the Howey Test beginning on page 17 of the request for dismissal (PDF)

Meanwhile, a guilty plea has been agreed to by the same Coinbase employee this week according to Reuters (subscription).  What’s going on here?

First, how the alleged scheme worked: before at least 9 different tokens were listed on Coinbase’s exchange, the Coinbase executive, Ishan Wahi, informed his brother about the imminent listing. His brother, Nikhil, would then buy the tokens on exchanges where they were already available. Once the coins were listed on Coinbase – which is an exchange with enormous liquidity relative to any other marketplaces – the token price invariably went up across the token’s entire market including Coinbase’s. And then Mr. Wahi’s brother would sell and profit.

The double-edged sword here is that there were two sets of charges: wire fraud and securities fraud driven by the Securities Exchange Commission (SEC).  There’s more to come on this legal battle as the SEC has until early April to respond to the request for dismissal.

Similar to Grayscale’s Bitcoin ETF case against the SEC coming March 7, the courts are increasingly being tasked with regulation. In this case: are these 9 digital asset tokens securities?

Mining

A new letter sent by 8 Democratic members of Congress led by Senator Elizabeth Warren (MA) expresses concern about the impact of mining cryptocurrency: “The urgency of the climate crisis, combined with the rapid growth of cryptomining in the U.S., dictates a comprehensive mandatory disclosure and data collection regime.” See the letter.

Continue reading “SEC Seizing Broad Regulatory Jurisdiction; Democrats Urge Mining Disclosures”