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Bridging the Week: September 11 to 15 and September 18, 2017 (ICOs; Digital Tokens; Spoofing; Advertising Standards)

Another non-US financial services regulator cautioned its citizens that some digital tokens issued as part of an initial coin offering may be securities subject to local securities law requirements, while the Securities and Exchange Commission in the US convinced at least one promoter of an ICO to cancel an in-progress offering and refund amounts already paid by investors in ether (the digital coin of the Ethereum blockchain network). Separately, another criminal proceeding was filed against a trader for spoofing, based on his trading activities involving precious metals futures listed on the Commodity Exchange, Inc. from July 2008 through November 2013. However, the specific criminal charge for spoofing seems to embrace alleged conduct that occurred before the relevant provision of law was effective in July 2011. As a result, the following matters are covered in this week’s edition of Bridging the Week:

  • SEC Begins Proactively Suggesting Some Promoters Halt ICOs; the UK Financial Conduct Authority Joins Worldwide Regulators Saying that Digital Tokens Issued as Part of ICOs May Be Securities (includes My View);

  • Spoofing Case Filed in Connecticut Against Overseas-Based Precious Metals Trader (includes Legal Weeds);

  • SEC OCIE Advises on Common Advertising Compliance Issues Identified During Investment Adviser Reviews (includes Compliance Weeds); and more.

Video Version:

Article Version:

Briefly:

SEC Begins Proactively Suggesting Some Promoters Halt ICOs; the UK Financial Conduct Authority Joins Worldwide Regulators Saying that Digital Tokens Issued as Part of ICOs May Be Securities: Following the release of the Report of Investigation by the Securities and Exchange Commission in July, which concluded that certain digital tokens issued as part of initial coin offerings may be securities subject to regulatory requirements, the SEC has apparently begun contacting promoters of ICOs to alert them that their specific ICO may raise registration issues. One organization contacted a few weeks ago was Protostarr, in connection with an ICO of its digital tokens begun on August 13 to fund its Ethereum-based application.  

In response to the SEC’s inquiry, Protostarr voluntarily ended its ICO. According to a press release issued by the organization, “Unfortunately, as a startup, we do not have the necessary resources to both develop our [application] and challenge the SEC’s investigation regarding our ICO and its interpretation under US securities law.”

In addition to terminating its ICO, Protostarr indicated it would refund all ether—the digital currency of the Ethereum network—paid by individuals to its initial crowdsale payment address in a process that began on September 2.

Similarly, BTC China, one of the world's largest Bitcoin exchanges by volume and based in Shanghai, announced that it would end trading as of September 30 in response to the recent edict by seven regulators in China aimed at halting new ICOs.

Separately, last week the UK Financial Conduct Authority joined a host of other international regulators in issuing guidance on ICOs that warned that some ICOs may involve regulated investments and firms conducting regulated activities, and that persons involved with an ICO should therefore consider their potential regulatory obligations.

My View: Last week, the leader of a major financial services firm labeled Bitcoin a fraud

As background, Bitcoin—a type of digital token commonly referred to as a "cryptocurrency"—is first and foremost the reward to system administratorsmore commonly known as “miners”—for validating and maintaining the decentralized, open, distributed and inviolable ledger—known as the blockchain—that electronically records transactions involving Bitcoin between parties. This reward is a powerful incentive that encourages miners to invest in the necessary computer hardware and to pay the attendant costs of running computer systems that perform the critical function of maintaining the blockchain and ensuring its integrity. Bitcoin has perceived value much like gold and artistic works; similar to other valuable assets, there will only be a finite number of Bitcoin (approximately 21 million). In the secondary market, Bitcoin is a medium of exchange that that can be used like a fiat currency for purchases and has a relationship value with other cryptocurrencies and fiat currencies (into which Bitcoin can be converted). As a result of the secondary market and the perceived value of Bitcoin, miners can sell to others the Bitcoin they received as rewards for maintaining the blockchain to generate liquid funds to pay for the necessary hardware and attendant costs and potentially make a profit.

Bitcoin and the blockchain is a technology that allows disparate persons located almost anywhere on Earth to securely conduct financial transactions with each other without any intermediating agents very quickly and without material transaction fees. Notwithstanding the potential threat to such enterprises, many credible investment banks, banking organizations and other large companies are substantial investors in blockchain application initiatives because of the way the technology can potentially quicken transaction processing, eliminate certain current intermediation steps, and generate non-alterable records Such firms are determined to learn how to leverage this new technology for themselves and their clients and not be sidelined by it.

In fairness, Bitcoin—just like the US dollar—has been used for money laundering and for other illegal purposes. By design, transactions in Bitcoin are ordinarily conducted on a totally anonymous basis. However, the identities of participants can be known. This is why the Financial Crimes Enforcement Network of the US Department of Treasury and state regulators have been endeavoring more and more to tighten controls around certain intermediators of Bitcoin and other cryptocurrencies to ensure that robust anti-money laundering protocols are applied. However, Excel spreadsheets—far less sophisticated private ledgers compared to the blockchain distributed ledger—are not fraudulent solely because some crooks use them now and again to account for their profits, and no one is asking that the US dollar be banned because it is used widely for illicit purposes.

Additionally, Bitcoin is just one of many digital tokens and not all digital tokens have the same pedigree or purpose. Ethereum and its associated cryptocurrency, ether, for example, offer a more advanced form of the blockchain, and are particularly conducive for the development and use of so-called smart contracts—agreements between parties that will automatically self-execute pursuant to their terms without ongoing manual intervention. Other digital tokens are more like securities (cryptosecurities) and evidence a payment in kind for the funding of projects with an expectation of appreciated value after the development of a project by other persons. Some other digital tokens are more like private contracts (utility tokens) in that they are rewards for paying to play in a game or for participating in the development of a project—not as an investor but as an active consultant or in a similar capacity. Frankly, to me, there is often a blur among these categories and there is likely a profound quality difference among different types of digital tokens (not to mention their promoters).

Accordingly, going forward—as with any nascent industry—there will be bumps in the road. For sure, for example, the prices of Bitcoin and other cryptocurrencies are likely to go down as well as up and may, at times, evidence great volatility. However, over time, as the understanding of digital currencies and other digital tokens heightens, thoughtful regulation (and likely some government enforcement actions and private litigation too) will address many peripheral concerns, and the acceptance of digital tokens (along with their associated technology) will become more widespread.

Thus, there are many ways to describe Bitcoin. A fraud is not one. The blockchain is real and Bitcoin is integrally linked to this increasingly important new technology. We are at the beginning of a new technological revolution—not remotely near its end!

Publisher's Note: In a version of this My View prior to 10 am on September 18 I inadvertently referenced the "intrinsic" value of Bitcoin; This has been changed to the "perceived" value of Bitcoin. I don't believe that Bitcoin has intrinsic value anymore than gold has real intrinsic value (however, there are some very limited commercial uses for gold); both commodities have perceived value based on what economists reference as the "network effect."

Spoofing Case Filed in Connecticut Against Overseas-Based Precious Metals Futures Trader: Last week, a criminal complaint was filed against Andre Flotron, a former precious metals trader for UBS Investment Bank, for engaging in alleged spoofing‑type trading activity from at least July 2008 through at least November 2013 involving precious metals futures contracts listed on the Commodity Exchange, Inc. The complaint was filed in a federal district court in Connecticut.

Mr. Flotron apparently worked for UBS in Stamford, CT from January 2006 through October 2010, and in Zurich, Switzerland from October 2010 through January 2014; he currently resides in Zurich, but was arrested last week in connection with the complaint in New Jersey.

According to the complaint, on multiple occasions during the relevant time, Mr. Flotron along with others placed small-lot orders in gold, silver, platinum or palladium futures contracts on one side of the market close to the prevailing price, and around the same time, placed larger orders on the other side of the market, also close to the prevailing price. The objective of the large order, said the complaint, was to “trick other market participants by injecting materially misleading information into the market that indicated increased supply or demand, but was not genuine…” As soon as at least one lot of his small order was executed, Mr. Flotron would cancel the large order within no more than five seconds, alleged the complaint.

According to the complaint, many of the allegations against Mr. Flotron were based on the testimony of a non-identified subordinate trader—“Trader 1”—who joined Mr. Flotron’s trading operations in Stamford in July 2008, and was trained by Mr. Flotron.

The complaint charged Mr. Flotron specifically with conspiracy, wire fraud, commodities fraud and spoofing, although the provision of law addressing spoofing adopted as part of the Dodd‑Frank Wall Street Reform and Consumer Protection Act was not effective until July 16, 2011—three years after the beginning of Mr. Flotron's purported illegal conduct.

Legal Weeds: Last month, Michael Coscia’s criminal conviction and sentencing for spoofing was unanimously upheld by a three-justice Federal Court of Appeals panel in Chicago. Mr. Coscia was the first person criminally charged under the anti‑spoofing provision of Dodd-Frank. Some of my colleagues believe that, "[u]nderstood in context, the holding of Coscia is narrow, and preserves courts’ ability to limit prosecutors’ and regulators’ authority to label trading they do not like as 'spoofing'..."

OCIE Advises on Common Advertising Compliance Issues Identified During Investment Adviser Reviews: The Office of Compliance Inspections and Examinations of the Securities and Exchange Commission issued guidance setting forth the most frequent compliance issues it has recently identified in deficiency letters sent to investment advisers under its advertising rule. Under this rule, IAs generally are prohibited from using advertisements that contain any “untrue statement of a material fact” or are otherwise misleading or false. The rule also provides for various specific prohibitions. Advertising is broadly defined as any type of written communication intended for more than one person, as well as more traditional advertisements, which are to be used to make a determination to buy or sell a security or which security to buy or sell. According to OCIE, the most frequent compliance issues involved the use of misleading performance results, misleading one-on-one presentations (e.g., including performance results gross of fees), misleading claims of compliance with voluntary performance standards (e.g., those of the Global Investment Performance Standards), advertisements that contained cherry-picked profitable stock selections and misleading selection of past specific investment recommendations. OCIE also found advisers that did not always have compliance procedures reasonably designed to prevent advertising practices contrary to regulatory requirements, and sometimes used advertisements that referenced third-party rankings or awards in a misleading fashion (e.g., rankings that were no longer timely).

Compliance Weeds: For Commodity Futures Trading Commission registrants, National Futures Association Rule 2-29 provides detailed guidance regarding what constitutes acceptable communications with the public in connection with their trading or potential trading of futures and related options. In general, communications cannot be deceptive or misleading, and may not use high-pressure sales tactics or be part of a high-pressure approach. In addition, NFA has published a separate brochure, “A Guide to NFA Compliance Rules 2-29 and 2-36,” to provide additional guidance.

More briefly:

CFTC  Chairman Urges EU Regulators to Not Unilaterally Change CFTC‑EU Equivalence Agreement on Supervision of Cross-Border Clearinghouses: J. Christopher Giancarlo, Chairman of the Commodity Futures Trading Commission, said in speeches delivered last week in two European locations that the European Commission should not amend its regulatory framework for the recognition of clearinghouses (CCPs) under the European Market Infrastructure Regulation, as recently proposed, to potentially exercise direct oversight over third-country CCPs, including those potentially in the US. He said that when the current equivalence agreement was previously negotiated “[w]e got it right,” and it should not be unilaterally changed now. In general, Mr. Giancarlo argued that each home jurisdiction regulator should have primary oversight over its domestic CCPs to which foreign regulators should defer. “Such deference should be underpinned by a robust, outcomes-based comparability assessment of the consistency of the home regulator’s relevant regulations and supervisory program,” Mr. Giancarlo said. In June, apparently as a reaction to Brexit, the EC proposed measures that would substantially amend its process for the approval of CCPs operated outside the European Union that provided services in the EU. (Click here for background in the article “EC Proposes Two-Tier System for Classifying Third-Country CCPs; Certain Systemically Important CCPs May Be Required to Relocate to the EU” in the June 18, 2017 edition of Bridging the Week. Click here for background regarding the equivalency agreement between the EU and CFTC agreed in February 2016 in the article “Common Approach to Transatlantic CCPs Finally Agreed by EC and CFTC” in the February 14, 2016 edition of Bridging the Week.)

FINRA Panel Fines Broker-Dealer US $750,000 for Failing to Tailor AML Program to Actual Business: C.L. King & Associates, Inc., a broker-dealer, was fined US $750,000 by a hearing panel of the Financial Industry Regulatory Authority for misleading issuers during the redemption of certain debt securities regarding the status of certain joint accounts maintained by the principal of a hedge fund and terminally ill persons. The accounts were established purposely to facilitate the purchase of certain corporate debt securities at a discount that included a survivor benefit permitting the principal to redeem the securities upon the death of the joint tenant for the full principal amount. Additionally, the panel held that C.L. King and Gregg Miller, the firm’s anti-money laundering chief compliance officer, failed to implement an AML program reasonably designed to detect and report transactions regarding the liquidation of “billions of shares” of penny stocks by two of the firm’s customers.

Introducing Broker and Principal Settle NFA Charges That IB Benefitted from Third-Party Misleading Promotional Material: The National Futures Association settled a complaint brought against Kingsview Futures LLC and Joshua Lewis, the firm’s sole owner and chief executive officer, for accepting retail customer accounts referred to it by Trading Advantage, a third-party unregistered firm that trained persons to trade futures and that purportedly used materially misleading promotional materials. Mr. Lewis owned Trading Advantage exclusively from 1999 through 2005, and afterwards co-owned the company with Larry Levin. Kingsview Futures agreed to pay a fine of US $50,000 to settle the NFA’s charges against it and Mr. Lewis. Previously, Noel Sinclair, Kingsview’s chief compliance officer from March 2012 through August 2016, also resolved charges brought against him by NFA related to this matter by agreeing not to act as a principal of an NFA member or in any compliance capacity for two years. NFA alleged that Mr. Sinclair failed to query Kingsview’s clients, who were customers of Trading Advantage, regarding whether Trading Advantage’s promotional literature was materially misleading, and to correct any misleading statements.

©2019 Katten Muchin Rosenman LLP

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About this Author

Gary DeWaal, Securities Attorney, Katten Law Firm, New York
Special Counsel

Gary DeWaal focuses his practice on financial services regulatory matters. He counsels clients on the application of evolving regulatory requirements to existing businesses and structuring more effective compliance programs, as well as assists in defending and resolving regulatory disciplinary actions and enforcement matters. Gary also advises buy-side and sell-side clients, as well as trading facilities and clearing houses, on the developing laws and regulations related to cryptocurrencies and digital tokens.

Previously, Gary was a senior...

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