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Business Crimes BulletinFeaturesCryptocurrencyRegulationWhite Collar Crime

Crypto Winter Leads to Explosion of Regulatory Activity

By Mark Bini, Kaela Dahan and Victoria Jaus
August 01, 2023

Legendary investor Warren Buffet famously said, "only when the tide goes out do you discover who has been swimming naked." In the past year, following the Crypto Winter, there has been an explosion of activity by United States regulators and enforcers. The Securities and Exchange Commission (SEC) in particular has made clear that it thinks everyone in the crypto pool is swimming without their trunks. Ironically, while the SEC and the Commodity Futures Trading Commission (CFTC) have brought a great deal of enforcement actions, they also have loudly disagreed with each other over who has jurisdiction, i.e., which digital assets are securities and which are commodities. Crypto companies, for their part, have complained that it is not clear what digital assets, if any, are securities, and that they have not been given clear regulatory rules of the road.

Meanwhile, the U.S. Department of Justice (DOJ) has paved its own path forward in the crypto space. Judge Rakoff once famously wrote, "to prosecutors of white collar crime, the mail fraud statute is our Stradivarius, our Colt 45, our Louisville Slugger, our Cuisinart — and our true love." Jed S. Rakoff, The Federal Mail Fraud Statute (Part 1), 8 Duq. L. Rev. 771 (1980). Modern day white-collar prosecutors have often relied on mail fraud's cousin, wire fraud, and have used that statute to great effect in the crypto space. By principally relying on the wire fraud statute, federal prosecutors have largely sidestepped the question of whether and which digital assets constitute securities or not.

Aggressive Regulatory Enforcement and Turf War

With no federal regulatory framework specifically designed for digital assets in the United States, there has been an ongoing turf war between the SEC and the CFTC over whether certain digital assets should be regulated as "securities" or "commodities" or both. The SEC has made clear that it intends to be the lead regulator in the crypto market and that it believes that virtually all digital assets are securities. On the other hand, the CFTC claims that certain digital assets, such as Bitcoin and Ether, are commodities.

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