H. Gregory Baker, Partner

On June 6, 2022, U.S. Senator Kirsten Gillibrand of New York and U.S. Senator Cynthia Lummis of Wyoming proposed federal regulation of digital assets in the Responsible Financial Innovation Act (“RFIA”).[1] The RFIA provides a definition of digital assets and assigns regulatory authority over various types of digital assets to the Securities Exchange Commission (“SEC”) and the Commodity Futures Trading Commission (“CFTC”). This post will provide an overview of the RFIA’s proposed treatment of digital assets and the political implications of the RFIA.

A pair of recent legal developments cast doubt on the long term ability of the Securities and Exchange Commission (“SEC”) to try contested actions before the agency’s in-house administrative law judges (“ALJ”).  First, the Supreme Court accepted a petition to hear the matter of SEC v. Cochran, Petition No. 21-1239, which concerns whether the SEC’s ALJs are unconstitutionally protected from removal. Second, the U.S. Court of Appeals for the Fifth Circuit issued an opinion holding that (1) a respondent in an SEC administrative proceeding was deprived of his right to a jury trial; (2) that Congress unconstitutionally delegated legislative powers to the SEC by failing to provide it with an intelligible principle by which to exercise its delegated power, and (3) that the administrative law judges were unconstitutionally protected from removal. These developments could have long term implications not only for the SEC, but for all federal administrative agencies.

Non-fungible tokens (NFTs) are the latest trend to sweep markets from the art industry to professional sports leagues. These digital assets have existed for several years but have achieved explosive popularity only recently. In fact, the global market for NFTs reportedly hit over $40 billion in 2021. Despite this, the legal frameworks governing NFTs—which could significantly impact the risks and rewards of buying or selling NFTs—are still catching up. In this series of articles, we will explore the developing legal landscape surrounding NFTs and the increased legal and regulatory scrutiny that lawyers should consider.

To continue reading Gregory Baker, Anne-Laure Alléhaut and Catherine J. Djang's New York Law Journal article on this topic, please click here. 

On June 29, 2021, a major cryptocurrency exchange (the “Crypto Exchange”) announced a new program called “Lend” in which it proposed offering customers a 4% interest rate on cryptocurrency tied to USD.[i] But on September 7, 2021, the Crypto Exchange announced that the U.S. Securities and Exchange Commission (the “SEC”) had issued a Wells notice, a formal notice that the agency was planning to sue them for offering the program.[ii] While the Crypto Exchange took the position that it was unclear why the SEC had issued this notice, it was evident from public comments that the SEC had been contemplating whether investment cryptocurrency programs should be classified as securities.[iii]  On September 20, 2022, the Crypto Exchange announced that it was dropping its Lend program.

A California Court recently allowed the Securities and Exchange Commission (the “SEC” or “Commission”) to proceed with its first insider trading prosecution based on a theory of “shadow trading.”[1] On January 14, 2022, Judge William H. Orrick, sitting in the District Court for the Northern District of California, issued a ruling denying defendant’s motion to dismiss the SEC’s civil action, which alleges a single violation of Section 10(b) of the Securities and Exchange Act of 1934.[2]

In 2021, there were 613 initial public offerings (“IPOs”) of Special Purpose Acquisition Companies (“SPACs”), after 248 SPACs went public in 2020 and 59 in 2019.[1]  Prior to 2021, there had not been more than 500 IPOs of any kind in one year in the U.S. markets since the 1990s.[2]  The SPAC explosion has led, inevitably, to litigation; often similar to the squabbles over disclosures, contracts, and failed negotiations that are standard in litigation surrounding IPOs and mergers.  However, in a ruling in January, a Delaware Court of Chancery judge cast doubt on whether decisions by SPAC boards of directors to merge with private companies are entitled to the deference of the business judgment rule, which shields directors from liability for their decisions gone wrong.[3] 

When it comes to settlements with the SEC’s Division of Enforcement (“Enforcement Division”), a question respondents often ask is how the SEC arrives at a given penalty amount?  This blog post will discuss the SEC’s current approach to determining penalty amounts, as recently articulated by Gurbir Grewal, the Director of the SEC’s Enforcement Division, and also considers how the SEC’s recent settlement with Global Infrastructure Management, LLC (“Global”) may be indicative of the SEC’s new approach to penalties.