March 28, 2024

In the wake of President Biden’s March 9, 2022, executive order outlining his Administration’s desire to establish a comprehensive federal approach to crypto policy and regulation,[1] federal agencies are continuing to focus on enforcement of crypto under existing regulations. Although NFTs and cryptocurrencies are novel technologies, they still fall squarely within the jurisdiction of various federal agencies’ current jurisdictions, as illustrated by three recent enforcement actions by the CFTC, the SEC, and the DOJ.[2]

Regulatory Guidance

As illustrated below, the crypto and NFT space is ripe for regulatory clarity. In the meantime, several federal agencies have provided non-dispositive guidance.

  • Securities and Exchange Commission (“SEC”). The SEC has been one of the most active agencies in the crypto area. The SEC regulates securities and securities exchanges. While the only true guidance the crypto industry has received is the Framework for “Investment Contract” Analysis of Digital Assets, there are several no-action letters, settlements, reports, and complaints that may provide additional guidance. Please contact one of our attorneys to assist in interpreting these actions to your specific situation.
  • Commodities Futures And Trading Commission (“CFTC”). The CFTC has issued several customer protection Fraud Advisories and Articles that provide the warning signs of fraud, including one to inform the public of possible risks associated with…

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