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How Bankruptcy Courts Will Treat Cases Involving Cryptocurrency Exchanges
The blockchain, or distributed ledger technology, has created a new and arguably more efficient and reliable way of recording data. Rather than storing data in a central location, the blockchain keeps a running tally in a decentralized network of computers that verify the source of "blocks" of data before adding them to the existing "chain." Although the blockchain has many applications, perhaps its most visible use is serving as an electronic platform for issuing and recording transfers of cryptocurrencies on the Internet. It is now estimated that there are over 1,600 forms of cryptocurrency, with bitcoin, ethereum and XRP being the most widely used.
Some cryptocurrencies function like currency. Some serve as an investment for speculators. Other cryptocurrencies are used like stocks or bonds, such as when an entity wishes to sell an interest in its enterprise through an initial coin offering or "ICO." Still others are referred to as "utility coins" and can be exchanged for specific goods or services, usually from the issuer.
In different legal contexts cryptocurrencies have been treated like currencies, securities, property or commodities. The Internal Revenue Service treats cryptocurrency as property (IRS Notice 2014-21). FinCEN treats cryptocurrency like government-issued currency (see, Application of FinCEN's Regulations to Persons Administering, Exchanging or Using Virtual Currencies (March 18, 2013)). One court has treated cryptocurrency as a commodity and subject to U.S. Commodity Trading Futures Commission (CFTC) regulations (see, CFTC v. McDonnell, 287 F.Supp. 3d 213, 228 (E.D.N.Y. 2018)), and another, in response to a motion to dismiss an indictment, recognized that a finder of fact could conclude that the cryptocurrency at issue was a security and the subject of securities fraud (see, U.S. v. Zaslavskiy, 2018 WL 4346339 (E.D.N.Y. 2018). One commentator has concluded that under the U.C.C., cryptocurrency is not money but a general intangible and, in some circumstances, an uncertificated security. See, Schroeder, Bitcoin and the Uniform Commercial Code, 24 U. of Miami L. Rev. 1, 22 (2016) (http://bit.ly/2Hs60QW). For an overall discussion, see, "Is Bitcoin a Currency, Security, Property, Commodity, or 'Mirage?'"
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Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Anti-Assignment Override Provisions
UCC Sections 9406(d) and 9408(a) are one of the most powerful, yet least understood, sections of the Uniform Commercial Code. On their face, they appear to override anti-assignment provisions in agreements that would limit the grant of a security interest. But do these sections really work?