With A Growing Number of Regulators Eyeing Crypto, Are Companies Being Scared Off?
The answer appears to be a resounding "no," according to attorneys working in this space.
March 19, 2018 at 04:32 PM
3 minute read
Credit: REDPIXEL.PL/Shutterstock.com
Around every corner, it seems, companies and individuals involved in the burgeoning cryptocurrency sector are running into regulators.
Lately, authorities including the U.S. Securities and Exchange Commission, the U.S. Commodity Futures Trading Commission and, most recently, the Federal Trade Commission have sent various warnings and taken action against companies that have allegedly taken advantage of investors with various types of virtual currency schemes.
The SEC and CFTC, as well as fintech companies, have actively engaged with lawmakers to discuss whether legislation is necessary in this space and what more can be done to police fraudulent behavior. All the while, there has been a fair amount of debate about whether cryptocurrency counts as a security, a commodity, or both.
With the tricky web of regulators, companies might be having trouble figuring out which agency controls crypto. But attorneys say that's not stopping them from dealing in virtual currency or planning initial coin offerings.
James Walker, an attorney with Richards Kibbe & Orbe, said many of his firm's clients are investing in cryptocurrency. “I do expect we'll hear from more individuals who have been targeted,” he said.
“What regulators are hoping is that [their enforcement and warnings] cause people to tread more carefully, but there's no thinking it will slow the activity,” Walker said. “For investors, they're just figuring out how to do it the right way. There is real risk if it's not done correctly.”
Ariel Neuman, principal at Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, said that regulatory enforcement won't be slowing in the near future. In fact, it will only be a matter of time until the U.S. Department of Justice joins the regulatory fray. In recent weeks, the Justice Department revealed it would be exploring strategies for enforcement against cryptocurrency companies. The department will initially start by targeting clear-cut fraud, which is low-hanging fruit, at least in Neuman's opinion.
“In the near future, the enforcement actions will come in the form of easy to understand outright fraud or Ponzi schemes,” Neuman said. He explained that existing investigative strategies and laws can easily be applied to fraud scenarios, and victims are often easy to pinpoint as well.
He predicted it will be some time before the DOJ cracks down on other possible wrongdoing in the crypto space, like securities fraud, because the SEC and other regulators still need to clarify which currencies will be considered securities.
Generally, though, Neuman doesn't think enthusiasm from companies and his clients has dwindled. While they are asking questions as a precaution, he said the interest from regulators “isn't at all unexpected.”
Then there's Nimish Patel, partner at Mitchell Silberberg & Knupp. His response to the question of whether regulators are scaring companies away from ICOs, paints a pretty clear picture that interest is alive and well.
“I would say in the first half of 2017, about 10 percent of our [firm's] inbound calls were about cryptocurrency,“ he said. This is among existing and potential clients. “Now that number is closer to 90 percent.”
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