Just shy of a month since FTX declared bankruptcy, the US Securities and Exchange Commission’s (SEC’s) Division of Corporation Finance (Division or staff) published informal guidance on how public companies could be asked to address the possible impact of financial distress in the cryptoasset market. The guidance includes a “sample” crypto-specific comment letter focused on disclosure that public companies should consider providing in filings made under the Securities Act of 1933 (Securities Act) and Securities Exchange Act of 1934 (Exchange Act), as applicable.
LATEST REGULATORY DEVELOPMENTS IMPACTING
THE FINANCIAL SERVICES INDUSTRY
THE FINANCIAL SERVICES INDUSTRY
At its next open meeting on December 14, 2022, the US Securities and Exchange Commission is expected to propose a series of rules and rule amendments that have the potential to fundamentally reshape the structure of the US securities markets.
The Senate Agriculture, Nutrition & Forestry Committee held a hearing, “Why Congress Needs to Act: Lessons Learned From the FTX Collapse,” on December 1, 2022, receiving testimony from Commodity Future Trading Commission (CFTC) Chairman Rostin Behnam. With the exception of very few exchanges during the Q&A portion of the hearing, the committee, which asked several questions about the CFTC’s oversight of FTX’s CFTC-registered affiliate, LedgerX, was supportive of the CFTC and did not lay much blame at the feet of the regulator. Rather, many senators were most eager to discuss robust, “whole of government” oversight and regulation of the digital asset economy.
The House of Representatives and the Senate took the first steps in response to the collapse of FTX this week. The Senate Agriculture Committee has announced a hearing at which the chair of the Commodity Futures Trading Commission (CFTC) will testify, while the House Financial Services Committee announced its intention to hold bipartisan oversight hearings and to take testimony from companies and individuals involved, including Sam Bankman-Fried, Alameda Research, Binance, FTX, and related entities, among others. Separately, a spokesperson from the US Senate Committee on Banking, Housing, and Urban Affairs stated that the committee would also hold oversight hearings into the FTX bankruptcy.
FINRA has announced that it is conducting a targeted examination of broker-dealer practices related to retail communications about “crypto asset” products and services. As part of this sweep, FINRA is asking broker-dealers for all retail communications that were distributed or made available by a broker-dealer or its affiliates on behalf of the broker-dealer that refer or relate to crypto assets or services involving crypto transactions or the holding of cryptocurrency during the period of July 1, 2022, to September 30, 2022.
Kwasi Kwarteng, the Chancellor of the Exchequer of the new UK government led by Prime Minister Liz Truss, presented his “Growth Plan 2022” to Parliament on 23 September 2022. The Growth Plan 2022 outlines the UK government’s plans to tackle inflation, the cost of living, and energy crises and expand the supply side of the economy. In particular, the chancellor announced new measures to unlock investment by UK pensions schemes in private assets.
The Financial Crimes Enforcement Network (FinCEN) of the US Department of the Treasury issued a final rule on September 29, 2022, implementing the bipartisan Corporate Transparency Act’s beneficial ownership information reporting provisions. What’s noteworthy is that FinCEN used this as an opportunity to expand the definition of beneficial ownership to include any individual who exercises substantial control over the reporting company.
New cryptocurrency legislation awaits California Governor Gavin Newsom’s signature after passing the California Assembly on August 30, 2022. If signed into law, California’s Digital Financial Assets Law would create sweeping requirements that, among other things, would mandate that digital asset exchanges and crypto companies obtain licenses to operate within the State of California, but not until January 2025, as described in more detail below. Many observers have compared the new California legislation to New York State’s BitLicense regulation, which was adopted in 2015.
As of August 11, 2022, approval is now required by the UK Financial Conduct Authority (FCA) before acquiring direct or indirect control of an FCA-registered cryptoasset business. Failure to attain such approval is a criminal offense. This is due to the UK Money Laundering Regulations (MLRs) having been updated to apply the change in control regime under Part 12 of the Financial Services and Markets Act 2000 (FSMA), as modified by Schedule 6B of the updated MLRs, to FCA-registered cryptoasset exchange providers and custodian wallet providers.
A group of state treasurers and state attorneys general (AG) have raised concerns that certain environmental, social, and governance (ESG) features of certain fund disclosures and other marketing collateral could create liability under state Unfair and Deceptive, or Abusive Acts or Practices (UDAAP) and Anti-Boycott, Divestment, and Sanctions (Anti-BDS) laws.