Regulators Increase Focus on Virtual Currency and Digital Tokens, Including ICOs: Recent SEC, FinCEN and CFTC Actions Demonstrate Continued Focus of U.S. Regulators on Virtual Currency and Digital Token Businesses

Sullivan & Cromwell LLP - August 8, 2017

During the last full week in July, three U.S. regulators took actions that could have a significant effect on the development of virtual currencies and digital tokens.  (1) The SEC determined that some digital “tokens,” including those issued and/or created in the context of some initial coin offerings (“ICOs”), may be securities for purposes of federal securities regulations, depending on the facts and circumstances surrounding the tokens and the offering.  (2) FinCEN assessed a $110 million civil money penalty against BTC-e, a virtual currency exchange, for its lack of anti-money laundering (“AML”) efforts and alleged complicity in bitcoin-related criminal enterprises; the DOJ also indicted the exchange and its operator.  (3) The CFTC issued an order granting approval for LedgerX (an exchange and clearinghouse that plans to offer customers the ability to trade and clear fully collateralized swaps and options on virtual currency, including bitcoin) to register as a derivatives clearing organization (“DCO”), following an earlier CFTC order granting LedgerX registration as a swap execution facility (“SEF”).  Together, these three developments represent a further maturation in the regulatory status and treatment of digital currencies and related businesses in the U.S., a rapidly growing segment of the FinTech industry.