Proposed bipartisan legislation aims to clarify the crypto regulatory landscape

New, sweeping bipartisan legislation proposes to define the contours of regulating digital assets and the crypto industry. Among other things, the bill:

  • Gives the CFTC primary jurisdiction over digital assets and exchanges, limiting the SEC’s ability to regulate the industry;
  • Calls for federal and state cooperation in monitoring and regulating the various aspects of the industry, including tax and money transmitter issues; and

Includes a number of measures designed to address cybersecurity and ESG concerns.

Read more here.

Best practices for Mitigating Regulatory and Legal Risks of Electronic Signatures

Recently the SEC indicated that advisory firms should have policies and procedures in place to ensure that electronic signatures are not being exploited to perpetrate fraud that could harm advisory clients.

To that end there are various methods that can be employed to ensure that the person receiving the request for electronic signature is the intended recipient/signer. Among other things, the recipient can be required to authenticate their identity before reviewing/signing the document through various methods including

  • the sending of a code via text to a mobile number that the sender already has on file prompting the recipient to enter the validation code to confirm its identity
  • requiring the recipient to answer questions about the recipient’s identity/background to validate that the recipient is the intended signer.

Advisers should utilize only those electronic signature services that have a validation method, such as the above, to authenticate that the person signing the document is the intended recipient/signer.

Read more here.

California and New Jersey setting the pace in nationwide race to write the rules for crypto

Last week, California and New Jersey both upped the ante in the nationwide race to write the rules for the crypto industry:

  • The California Department of Financial Protection and Innovation published an Invitation for Comments related to issues impacting blockchain and crypto businesses.
  • The New Jersey State Assembly Financial Institutions and Insurance Committee approved bills that would require licenses for digital assets businesses and establish a crypto regulatory scheme.
  • Players in the blockchain and digital asset industry should take advantage of opportunities to help shape the evolving regulatory landscape, such as by responding to the Invitation for Comments.

Read more here. 

DOJ brings first-ever NFT “insider trading” case

The US Department of Justice and Federal Bureau of Investigation announced the first-of-its kind indictment of an “insider trading” scheme involving non-fungible tokens (or NFTs).

  • A former employee of an online marketplace for NFTs allegedly used confidential business information for personal financial gain.
  • The charged individual used new blockchain technologies to conceal the proceeds of the alleged illicit activity.
  • The DOJ brought charges without characterizing NFTs as securities.

Read more here. 

SEC proposes amendments to expand the reach of the fund “Names Rule,” with a specific focus on ESG

On May 25, 2022, the US Securities and Exchange Commission (the SEC) proposed amendments (the Proposal) to Rule 35d-1 (the Rule) under the Investment Company Act of 1940, as amended (the 1940 Act). The Proposal comes over 20 years after the original adoption of the Rule and seeks to greatly expand the scope of the Rule in the name of investor protection and modernization.  The Proposal includes the following primary amendments to the Rule:

  • Expansion of the 80% policy requirement to include funds with names that suggest the fund focuses on investments that have, or whose issuers have, “particular characteristics.”
  • A requirement that any unlisted closed-end funds or BDCs that are required to have an 80% policy under the Rule, adopt such policy as a fundamental policy.
  • Identification of particular circumstances under which a fund may depart from its 80% policy and specific time frames for getting back into compliance.
  • Establishment of the “notional amount” as the appropriate value for a derivative instrument used by a fund when calculating compliance with a fund’s 80% policy.
  • Clarification of what the SEC deems a materially deceptive and misleading use of environmental, social and governance (ESG) terminology.
  • A requirement that any terms used in a fund’s name that suggest an investment focus or a tax-exempt fund, must be consistent with those terms’ plain English meaning or established industry use.
  • Modernization of shareholder notice requirements.
  • Establishment of certain recordkeeping requirements related to a fund’s 80% policy.

Read more here.