According to a recent Bloomberg Law article [subscription required], in the past year there has been a sharp decline in active civil suits against cryptocurrency exchanges, digital wallet, mobile phone providers and others involving claims related to crypto hacking incidents or cybertheft, due, in part, to increased security protocols and concerted electronic contracting legal strategies that have updated terms of service provisions and moved such cases to arbitration. In addition, the report suggests that providers have also reexamined user agreements to update limitations of liability provis ..read more

On January 10, 2024, the Securities and Exchange Commission (“SEC”) issued an order approving the applications of 11 different spot Bitcoin exchange‑traded products (the “Approved ETPs”) to each list and trade their shares on a national securities exchange. As a result, each Approved ETP is expected to commence trading on either the NYSE Arca, Inc., The Nasdaq Stock Market LLC, or Cboe BZX Exchange, Inc.   The SEC Order represents the first time that the SEC has permitted the listing of an exchange‑traded product (“ETP”) that invests directly in a cryptocurrency — here, Bitcoin. Read ..read more

On 24 November 2023, the Investment Association published a report on behalf of the wider Technology Working Group to the UK Government’s Asset Management Taskforce (the “Working Group”) on a “Blueprint” for the implementation of a fund tokenisation regime in the UK (the “Tokenisation Report”). The Financial Conduct Authority (“FCA”) which, along with HM Treasury is an observer to the Technology Working Group, also provided input on the Tokenisation Report and launched a new fund tokenisation page on its website. The industry focus on fund tokenisation is mainly aimed at authorised funds in th ..read more

As discussed in Part I of this series, NFT-based lending is pioneering a new avenue of investment and activity on the blockchain that will enable new and innovative use cases. In this Part II, we will discuss the implications for Lenders. I. Issues for Lenders: These on-chain loans secured by digital assets present a question for lenders: how do lenders get comfortable extending secured financing to borrowers where the secured asset is digital, like an NFT? In traditional financing, lenders and borrowers negotiate a security agreement, which governs the rights a lender will have in a transacti ..read more

Despite the protracted crypto bear market, innovators in non-fungible tokens (“NFTs”) are hard at work. Gone are the days when NFTs were merely profile pictures (“PFPs”) displayed on a pseudonymous social media account or shown for their prestige online or in real life to confused friends and colleagues. As discussed in our two-part series explaining Ordinals and their implications for NFT owners and creators, this year NFTs have expanded beyond the Ethereum blockchain, where NFTs initially grew to prominence as a result of the blockchain’s ability to execute smart contracts, to the original b ..read more

Last month, the Commodity Futures Trading Commission (CFTC) announced settled charges against three decentralized finance (DeFi) protocols for various registration and related violations under the Commodity Exchange Act (CEA) during the relevant period of investigation.  As a result, each entity paid a civil monetary penalty and agreed to cease violations of the CEA.  According to a statement by Commissioner Kristin N. Johnson, these latest settlements are the first time the CFTC charged a DeFi operator (e.g., Opyn, Inc. and Deridex, Inc.) with failing to register as a swap execution ..read more

Way back (if we’re counting tech years) in 2014, artist Kevin McCoy (“McCoy”) created a digital record of his pulsating, octagon-shaped digital artwork Quantum on the Namecoin blockchain on May 2, 2014, thereby minting “the first NFT.” A lot has happened in the digital asset and NFT space since that day.  Who could imagine that the mere creation of an original work of digital art whose provenance was immutably recorded on a blockchain (a novel act back then) would become a celebrated digital work that would garner almost $1.5 million at auction seven years later? It’s likely that the arti ..read more

On 7 September 2023, the United Kingdom’s Financial Conduct Authority (“FCA”) set expectations ahead of its new financial promotion rules for cryptoassets (which we wrote about here). From 8 October 2023, new rules for the marketing of cryptoassets come into force. The new requirements include the need for marketing materials to be “clear, fair and not misleading”, labelled with prominent risk warnings, and to not inappropriately incentivise people to invest. These rules apply to firms wherever they are based globally. The FCA has signalled that, in response to industry readiness, it will ..read more

It is not unusual for users of a platform or of software to challenge the enforceability of a company’s terms of use if they take issue with the company’s product or service and decide to bring suit. As most terms of use contain an arbitration clause (or mandated dispute resolution process) and disclaimers of liability, the questions of user assent to and the overall enforceability of the terms of use become central issues early on in litigation. In each case, judges adjudicating legal challenges to site terms generally examine the circumstances behind the online contracting process closely ..read more

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