02.06.2018
By John D'Antona

Lawyers Comment on Upcoming Senate Crypto Hearings

The crypto markets are about to go under the microscope – so to say.

As previously reported in Traders Magazine, the U.S. Senate is scheduled to hold hearings on the cryptocurrency markets beginning today – with topics ranging from Initial Coin Offerings to trading to investor concerns about protection – as these markets remain unregulated.

The Senate Banking Committee is slated to take testimony from Commodity Futures Trading Commission Chairman Christopher Giancarlo and Securities and Exchange Commission Chairman Jay Clayton.

The high-profile confab comes about cryptocurrency trading and hysteria has grabbed the globe – trading and new token sales are making headlines almost daily despite very little being known about the currencies or backers. Also, the sector is currently unregulated – making if a prime target for all kinds of nefarious activity.

Bitcoin has traded as high as $19,000 dollars in a matter of weeks and subsequently as low $9000 dollars while its sister currencies such as Ripple and Ether have also seen prices move in similar fashion. Many feel a potential bubble exists while others counter the market is merely following the age-old concept of supply and demand. Still, anyone involved in the trading of these cryptos must know right now that the only thing certain for these new instruments is “buyer beware.”

Ahead of the hearings, Morrison Cohen LLP’s Jason Gottlieb, the leader of the firm’s cryptocurrency litigation team, took a few minutes to share his thoughts with Traders Magazines editor John D’Antona Jr.  Gottlieb represents clients in litigation, arbitration and regulatory enforcement related to securities, commodities, futures and derivatives, and structured finance – including PlexCorps, the first company to face charges by the Securities and Exchange Commission’s new Cyber Unit regarding initial coin offering (ICO) fraud allegations.

“In the absence of clear guidance from Congress, the Securities and Exchange Commission and the Commodities Futures Trading Commission are working hard to find the appropriate balance between allowing technological innovations in our financial markets, and making sure that investors, and the markets themselves, are protected,” Gottlieb began. “The commissions are particularly focused on preventing small-scale frauds and scams, as well as preventing large-scale impacts to financial markets more generally. Clayton and Giancarlo have the financial crash of 2008 firmly in memory, and their most important task is to avoid a crash in cryptocurrency markets leading to a more widespread financial collapse.”

He added that the market can expect the commissions to make mistakes in approaching potential regulation and in other matters concerning cryptos. He sees the regulators overreaching to clamp down on legitimate offerings, and in failing to prevent or address numerous scams and non-compliant offerings that have proliferated.

“We hope that their mistakes will be few, and quickly self-corrected, or the judicial system will be flooded with cryptocurrency complaints – which we have already begun to see happening.”

Also, James Walker, partner at Richards Kibbe & Orbe LLP said that SEC Chairman Jay Clayton’s testimony comes against the backdrop of comments he made in December and January in which he admonished attorneys that they will be held accountable not only for deliberately advising their clients on how to conduct an ICO and avoid securities registration requirements, but—more importantly—for providing potentially negligent “’it depends’ equivocal advice” about whether an ICO is a securities offering.

“Clayton’s comments reflect an important shift from the SEC viewing lawyers as gatekeepers who play an important role in ensuring compliance with the securities laws, to lawyers as primary actors when they counsel clients on ICOs who must either discharge their compliance responsibility or risk facing charges.”

 

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