“For cryptocurrencies,” says Forbes staff writer Maria Gracia Santilana Linares, “2023 was neither the best nor the worst of times.” On the one hand, the overall crypto market, which fell hard in 2022 after reaching $3 trillion in 2021, rebounded to $1.7 trillion. On the other hand, the industry “found itself in the crosshairs” of regulators, led by the U.S. Securities and Exchange Commission and lawmakers.
For all those and other reasons, many in the crypto universe are looking for a brand-new start in 2024, including the SEC. Noting that Blackrock recently adjusted its bitcoin spot exchange-traded fund (ETF) application to allow JP Morgan and Goldman Sachs access and the recent allowance of ETF trading as authorized by the SEC, Eric Swartz, who heads up the Web3 practice at the Sterlington law firm, says he is “super excited” about crypto’s future.
Swartz, in an exclusive interview, added that the historical resolutions to some crypto problems in the past provide “an important lesson about compliance, about working on the tough, nitty-gritty details of making sure crypto products are properly administered”.
While Congress remained in a stalemate between those who seek appropriate regulations for the industry and those, like Sen. Elizabeth Warren, who want to ban crypto altogether, regulators were quite busy suing and prosecuting crypto companies and their corporate leaders for violations, including securities fraud. The SEC’s strategy for reigning in crypto companies relies on the Howey Test that stems from a 1946 court case.
Simply put, if an asset is based on a transaction that includes investing money in a common enterprise that could profit from the labor of others, it qualifies as an investment contract under Howey. When that contract is sold to an investor, it becomes a security, and those who do not register under federal securities law are subject to prosecution.
Using that strategy, the SEC brought cases against five crypto exchanges in 2023, including Binance, CoinbaseCOIN, and Kraken, alleging they had sold unregistered securities via their platforms. In a separate case filed against Ripple Labs, a federal court ruled in July that the sale of its xrp token was a security only when it was sold to investors – not to retail traders. As of now, the SEC lawsuits against Ripple, Binance, and Coinbase are still in pre-trial mode.
Last January, the SEC charged cryptocurrency lender Genesis Global Capital and the bankrupt crypto exchange Gemini Trust with offering unregistered securities. They also accused Avraham Eisenberg of misappropriating about $116 million in crypto assets from Mango Markets.
In February, the SEC charged Singapore-based Terraform Labs PTE Ltd. and Do Hyeong Kwon with producing a multi-billion dollar crypto asset securities fraud involving an algorithmic stablecoin and other crypto asset securities. At the end of July, the SEC sued Richard Heart and Hex, PulseChain, and PulseX (unincorporated entities controls) for conducting unregistered offerings of crypto asset securities that raised $1 billion from investors.
In August, plaintiffs filed a class action lawsuit against 18 venture capital firms they claim conspired with Sam Bankman-Fried and FTX Group to commit multi-billion dollar frauds. Then, in November, Bankman-Fried was found guilty of seven counts of fraud for stealing billions of dollars from customer accounts and defrauding lenders to the FTX sister company, Alameda Research. The government then dropped a host of other charges on the grounds that a new trial would delay his sentencing.
In a separate class action lawsuit, Binance and its CEO Changpeng Zhao (CZ) were accused of violating federal and California antitrust laws by attempting to monopolize the cryptocurrency market. In November, the Department of Justice sued Binance and CZ for money laundering, unlicensed money transmission, and criminal sanctions violations. In a landmark settlement, Binance admitted to the violations and agreed to pay more than $4 billion to resolve other violations, and CZ pleaded guilty to criminal charges.
In a roundtable discussion, John Mannino, chief compliance officer at sFOX, which bills itself as the only federally chartered crypto for institutions, agreed that 2023 saw some “really terrible things” that gave the crypto industry a “big black eye.” But, he added, everyone now knows that bad actors are going to be held accountable. Mannino predicted that BlackRock’s ETFs can fill a huge pent-up desire to enter the crypto space and that Bitcoin will drive demand in 2024.
In Mannino’s view, “Many who took some dubious actions have fallen by the wayside, and the true players who focus on compliance and look to the future are beginning to see some fruits.” Referring to the Binance case, Mannino focused on some “extremely problematic” things that compliant organizations do address.
First, while the government estimated that Binance should have filed at least 100,000 suspicious activity reports, they never filed a single one. They helped finance terrorist groups, took money from ransomware criminals, never reported activity that came from child sexual abuse, and never reported dark web activity from drugs and counterfeiting. Lastly, they allowed customers to sign up with just an email and without any Know Your Client process. They just did not care.
During the discussion, Ryan Kirkley, managing partner at Singularity Venture Capital and Cryptan Labs, cautioned that the courts are saying that any Bitcoin used to launder money or for other nefarious activities cannot enter institutional funds like an ETF and that 30 to 60 percent of Bitcoin in circulation can be traced back to Silk Road activities.
Only those wearing rose-colored glasses, he said, could ignore the takedowns of SBF and CZ. For those and other reasons, Kirkley added, crypto confidence and exchange confidence are at all-time lows. And, he added, there is no preeminent leader showing a serious attempt at compliance. But it is worse in the Middle East, Asia, and Russia, where it is a “wild west.” Middle Eastern nations have no qualms about laundering Russian money, for example.
Westerners today are careful not to buy oil from Russia because the fines for doing so can be as high as the exact dollar amount of the oil being held. The same is now holding true for crypto assets, especially if there emerges a global regulatory environment that can trace coins all the way back to the first date they were mined.
Still, said Kirkley, blockchain is still “the future,” and one reason is that today, you can move money in 15 minutes, which used to take three to five business days. Yet many today do not see Bitcoin or Ethereum as realistic solutions to institutional financial problems. Mannino chimed in that large Wall Street traditional finance players like JP Morgan are betting on cryptocurrency and blockchain technology as part of the future.
Swartz suggested that a lot of confusion about blockchain comes from not understanding that it is simple – even boring – to keep books and records in immutable ledgers that cannot be easily altered. Private ledger technologies can provide additional trust, and trust is key to the future.
Mannino was hopeful that the regulatory framework being developed in Europe could guide Congress toward creating comprehensive crypto regulation in the United States, though he doubts anything can happen in a presidential election year.
Swartz pointed to compliance managers (like Mannino) as essential to the future of cryptocurrencies and blockchain. Venture capitalists and growth equity firms have known this, as have the public markets, yet every sector continues to have its share of non-compliant actors.
At the end of the day, Swartz said, “It’s just that we need to be good stewards of the future and good fiduciaries.” We need to give people confidence that we can do business without breaking the law or even bending the law into gray areas with questionable transactions.
Today, he concluded, we are having a bull market where people are actually talking about compliance and taking it seriously – and that’s a good sign. We need people who will stop bad transactions from occurring – true heroes who spread the word that bad actors are anathema to the future of the digital economy.