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Cryptocurrency: DOJ's Enforcement Framework and the Current Regulatory Landscape

ICOs and the Howey Test, Custody Issues, Virtual Currency as a Commodity, Regulating Stablecoins

Recording of a 90-minute premium CLE webinar with Q&A

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Conducted on Wednesday, December 16, 2020

Recorded event now available

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This CLE course will provide an up-to-date look at the current regulatory landscape for cryptocurrency. The panel will discuss what the recently heightened regulatory and enforcement activity by several agencies (SEC, CFTC, DOJ, FinCEN, OCC, state regulators, etc.) means for companies engaged in blockchain ventures supported by cryptocurrency.


Public and investor interest in blockchain technology and cryptocurrency has grown steadily over the past few years. Products and applications are rapidly evolving and advancing but investing in cryptocurrency involves significant risk. Counsel advising issuers and investors must navigate the complex regulatory and enforcement landscape relating to cryptocurrency.

In recent years, the SEC and the CFTC have made public statements and brought several enforcement actions related to token sales, alleging violations of federal securities laws. The SEC's view is that investors in most initial coin offerings (ICOs) are purchasing digital tokens as an investment, making them securities subject to registration requirements and the full panoply of other securities laws. The CFTC has stated that virtual currencies are commodities, giving it authority to bring actions for fraud and manipulation. The FinCEN has deemed convertible virtual currency to be subject to FinCEN jurisdiction, and has issued guidance on how its regulations apply. NASAA and a host of states have also carved out their role in the current patchwork of crypto regulation.

Government-wide coordination is crucial in this space. In its recent "Cryptocurrency Enforcement Framework," the DOJ has noted how it partners with other federal regulators for comprehensive enforcement. State authorities, including New York's attorney general, are also an important part of DOJ's cryptocurrency enforcement arsenal.

Listen as our panel examines the regulatory framework which now exists for blockchain and cryptocurrency. The panel will present recent regulatory developments and enforcement actions by several agencies against various issuers, investors, and traders, and discuss the lessons learned and future prospects in this space.



  1. SEC
    1. Highlights from an empirical analysis of almost seven years of SEC enforcement on cryptocurrency: milestones and future trends
    2. Compliant ICOs: an economic analysis of the alternative mechanisms to raise capital
    3. Impact of recent regulatory changes on the development of ICOs as a capital formation mechanism
    4. Challenges and risk beyond ICOs and the Howey test: the SEC's approach to broker-dealer custody of digital assets, Bitcoin ETFs, stablecoins, and more
  2. CFTC
    1. Highlights from an empirical analysis of CFTC enforcement activities on virtual currencies
    2. CFTC approach to virtual currencies: virtual currency as a commodity, LabCFTC, robust enforcement, and government-wide coordination
  3. Other regulatory and enforcement activity
    1. DOJ's Cryptocurrency Enforcement Framework
    2. FinCEN: overview of cryptocurrency requirements and 2019 guidance on business models involving convertible virtual currencies
    3. NASAA and state regulation: virtual currency business models under state law and crypto-sweeps and coordinated investigations
    4. Other agencies
  4. Effects of COVID-19 on cryptocurrency activities


The panel will review these and other key issues:

  • Why does the SEC view most digital tokens as securities and what are the registration requirements?
  • When is cryptocurrency viewed as a commodity and what are the ramifications for traders?
  • How do the recent amendments to accredited investors and exempt offerings impact capital formation in this space?
  • What makes a token a convertible currency and what kinds of FinCEN enforcement actions have resulted?
  • What are some of the recent developments in other regulatory areas related to cryptocurrencies (e.g. banking and the OCC)?
  • How has the COVID-19 pandemic impacted this space?


Fallon, Zachary
Zachary Fallon


Mr. Fallon carries nearly fifteen years of practical legal and regulatory experience advising companies, investors, and...  |  Read More

Mola, Simona
Dr. Simona Mola

Senior Manager
Cornerstone Research

Dr. Mola conducts financial and economic analyses in complex commercial litigation and regulatory proceedings. She...  |  Read More

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