Three recent actions in federal court illustrate the interplay among federal regulators overseeing virtual currency, offer important support for the increasingly aggressive assertion of jurisdiction by the Commodity Futures Trading Commission (CFTC) and the Securities and Exchange Commission (SEC)1 and provide guidance as to when a virtual currency may be considered a commodity subject to the CFTC’s jurisdiction or a security subject to the federal securities laws:
- On September 26, Judge Rya W. Zobel of the U.S. District Court for the District of Massachusetts handed down an important decision in a case alleging the fraudulent sale of a virtual currency called My Big Coin (MBC).2 In denying the defendants’ motion to dismiss, Judge Zobel confirmed the CFTC’s sweeping assertion of authority to police virtual currency markets under the antifraud and manipulation provisions of the Commodity Exchange Act (CEA) and its implementing regulations.
- On September 11, Judge Raymond J. Dearie of the U.S. District Court for the Eastern District of New York denied a motion to dismiss the United States’ indictment for fraud under the Securities Exchange Act of 1934 (Exchange Act) in connection with the sale of virtual currencies claimed to be backed by real estate and diamonds.3 In denying the defendants’ motion to dismiss, Judge Dearie found that the virtual currencies at issue could reasonably be considered investment contracts and thus securities
- On September 27, the SEC and the CFTC filed parallel complaints in the U.S. District Court for the District of Columbia against an online trading platform and its CEO offering swaps based on underlying securities and commodities funded with bitcoin, alleging violations of the federal securities and commodities laws. 4,5
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