Tag Archives: crypto hedge fund

Crypto Fund Offering Documents Post FTX Collapse

Items to Consider for Fund Terms / Structures

We are moving into the next phase of operations after the FTX collapse – for those crypto funds that did not face issues with assets on FTX (and even for those who did and who are remaining in business), we are now examining how this disruption changes the way managers operate their business and/or how do investors look at crypto fund terms and operational structures. 

As managers deal with questions from investors, or how they will proceed with their operations post-FTX bankruptcy, they may want to be thinking about the following items:

  1. Side Pockets – some managers may have seen their investment in FTX turn from individual crypto assets into a single asset (a bankruptcy claim) that has much different liquidity parameters.  The single asset bankruptcy claim may need to be sidepocketed and if so managers should review their fund documentation to see how that works and also discuss the mechanics with their fund administrator.  Of course, when sidepocketing any asset, managers should be careful with accounting and valuation. There are a number of other issues applicable to side pockets that managers may want to think about, including maximum percentage allocable to side pockets and when assets can be so designated.
  2. Lock-ups – in general liquid crypto funds have been able to institute longer initial and ongoing lock-up periods than traditional managers.  How these periods interact with the withdrawal provisions will determine required liquidity for any withdrawal periods. 
  3. Suspension of withdrawals – most offering documents (both in the traditional and digital asset spaces) have pretty standard suspension of withdrawals discussions.  Normally to suspend withdrawals there needs to be a major disruption in the industry.  My normal talking point is that it would be a 9-11 type event.  Here, for managers who had assets on FTX, this may be a suspension type event depending on the various circumstances of the particular fund (including total liquidity and normal withdrawal provisions, which may include a gate provision).  Managers may want to take another look at this language given the recent market events.
  4. Custody – this is always one of the most important disclosures for managers.  Custody in the digital assets space, while much improved from 2017-2018, is still all over the place.  Some managers will self-custody as much assets as possible while keeping certain assets with actual qualified custodians, and some managers will keep some or most assets on-exchange.  Whatever the technical expertise the manager has, and the mix of cold/hot storages and off/on-exchange, should be reviewed to make sure that a manager’s current practice mirrors the disclosure in the offering documents.
  5. Conflicts of interests (COI) – COI is always a vitally important section in any offering documents and managers should always try to over-disclose here.  For most groups with streamlined structures (GP-Fund entities only), there are standard COIs.  For groups with multiple management level entities and different agreements between them, or for groups with multiple fund structures and outside entities (like staking, mining, other service businesses) there will need to be more robust disclosure of the activities.
  6. Discussion of investment program – the purpose of the investment program disclosure is to provide investors with some kind of an overview of how the assets will be invested.  Some managers have multiple pages of disclosures and some will have a couple of paragraphs.  Some will include a discussion of everything they could potentially do and percentages etc, and some will be purposefully vague (and then augment the discussion with more detail in a pitchbook or other marketing materials).  Managers sould review the program and make sure it accurately describes their current state of affairs as well as how the program may change in the future.
  7. Risk factors – perhaps the most important part of the documents for a crypto fund manager is the risk factor section. There are some limitations in what ultimately is disclosed because at any particular time because the industry is constantly evolving, and quickly.  For managers in the traditional investment management space, most risks for any particular investment strategy has been developed over a long period of time.  In the digital asset space, risk factors are constantly being added and also modified over time.  For our manager clients, the risks related to exchanges and counterparties, both domestic and offshore, were robust and accurately depicted the issues that the FTX bankruptcy brought to the forefront.  Many times we work hand in hand with managers to understand the risks of a particular part of the industry and we develop them together.  Our specific risk factors have been informed by our interactions with regulators.  

For each of the sections above, there are many different ways for managers to think about the issues presented. We believe that it is important to discuss and think about these items on the front end, and we also believe that investors will be giving greater weight to these items in the future (especially with respect to side pockets and liquidity) so crypto fund managers should give these items extra thought during the fund formation process. While the above items were written with the crypto space in mind, the concepts apply equally to those groups in the traditional investment management space.

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Bart Mallon is a founding partner of Cole-Frieman & Mallon LLP.  Cole-Frieman & Mallon has been instrumental in structuring the launches of some of the first cryptocurrency focused hedge funds. For more information on this topic, please contact Mr. Mallon directly at 415-868-5345.

Crypto Funds Selling FTX Bankruptcy Claims

Contracting for the Sale of a FTX Bankruptcy Claim

There are a number of digital asset focused funds that have their assets on FTX frozen pending the bankruptcy process.  These managers now have a claim against FTX and it is unclear when such claims will ultimately be settled and for how much.  For a variety of reasons then many of these groups are looking to sell their claims and move on with their operations (either to continue their investment program or to close down). 

In the event a crypto manager does decide to sell a claim, we believe the sale should be memorialized in a contact of some kind, as would be normal operating procedure. However there are not really any standardized contracts for these types of claims.  What we are seeing though is that parties are modifying existing OTC trade document to fit the particulars of this situation.  In these documents we are seeing the following as the main sections:

  1. Discussion of the parties – this is pretty clear here, but the main selling party is the fund that holds the claim.  That fund may be a standalone or may be the master fund in a master-feeder structure.
  2. Discussion of the claim – the claim will normally be identified by the name of the selling party, but there may be additional information included as well including account numbers, account activity, outstanding amount, etc.
  3. Price – obviously this is the most important part for the selling party.  We are seeing/hearing anywhere from 3 cents to 8 cents on the dollar depending on a number of factors.  Managers should speak to at least two counterparties to see what the prevailing price and other terms are for these claims. 
  4. Buyer due diligence – the contract may have a discussion about continued buyer due diligence on the claim. [Note: this seems a bit odd and kind of turns the “contract” into more of a kind of “binding term sheet”…]
  5. Reps and warranties – manager sellers should be careful of any contract here that requires reps and warranties on the managers behalf.  This is especially true if the manager will be shutting the fund down after the sale of the claim.  It is unclear how the process will play out and the manager does not want to be creating a headache for themselves in later years based on a rep made in haste while trying to sell the asset. We would recommend negotiating this section pretty aggressively. Notwithstanding the above, normal reps regarding AML/KYC, ability to contract, etc are likely to not pose any issues to manager sellers.
  6. Miscellaneous items – there are standard miscellaneous items in these contracts around jurisdiction, which is turning into an interesting issue in this bankruptcy case.

If the manager ultimately does decide to sell a bankruptcy claim, they should talk with their various service providers to make sure that all important items are addressed (legal, tax, accounting, audit). 

With respect to the auditor, the most important item is to make sure that title over the claim has fully passed to the third-party so the auditor can determine that the transfer of the asset/claim to the buyer is complete and therefore off the books of the fund. Please note again there may be jurisdictional issues (needing Bahamian counsel) or issues with respect to the bankruptcy process (which may require bankruptcy counsel). We expect that these sales will pick up as managers try to get these claims off of their books by the end of the year.

We are also recommending to clients that they draft some kind of compliance memo to file that discusses all aspects of the decision to sell and the factors around the ultimate sale price.

Please feel free to reach out if you have questions on this process and we will try to keep this post updated as we deal with more of these sales over time.

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Bart Mallon is a founding partner of Cole-Frieman & Mallon LLP.  Cole-Frieman & Mallon has been instrumental in structuring the launches of some of the first cryptocurrency focused hedge funds. For more information on this topic, please contact Mr. Mallon directly at 415-868-5345.

CoinAlts Fund Symposium Recap

Remarks from Digital Asset Private Fund Conference

A couple of weeks ago on November 3rd our law firm sponsored and ran our digital asset fund conference called CoinAlts. While originally an open conference for all in the digital assets space, it has more recently turned into a client event centered around crypto fund managers.  The goal has always been the same though – to come together to discuss topical digital asset items and to figure out ways for our manager clients to operate their business better.  We were lucky that the conference happened just before the FTX debacle unfolded because the panels were engaged with the real day-to-day issues involved in running a crypto investment management business. 

Below I’ve published my opening remarks and my quick closing remarks.  For a list of the speakers and the panel topics, you can visit our CoinAlts website. 

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OPENINING REMARKS

By Bart Mallon

Before we get into everything, I wanted to ask this question – why are we here today?  What are we hoping to accomplish?  

Welcome everyone to CoinAlts 2022.  This is the 5th full installment of the conference series which was started in 2017 dedicated solely to digital asset fund managers and put on by four founding sponsor firms – Cole-Frieman & Mallon, MG Stover, Cohen & Co, and Harneys.  My name is Bart Mallon and I’ll be saying a few items this morning and will be with you throughout the day. 

I often ask myself what am I trying to get out of a conference before I go – many times, it is just that I want to get away and see friends and have a few drinks.  But in general, when I am going to conferences I try to look at what panels will help me with information help me be better in my business or how will it help me look at the world in a different way.    

Over the last few crytpo conferences, I’ve felt there was not much new stuff or one good idea that I could carry through back to day to day life – the narratives that I’ve heard lately at these conferences are generally “well we’re in bear market and new good things are coming because that’s how the cycles work”…

So, I guess, if that’s where we are – that it’s a bear market and we have to wait until the next cycle until there is something interesting or important, then why are we here?  Before I tell you my thoughts on that, let’s take a quick look at where we have been and what has been accomplished over these last five years since coinalts started.  

Let’s start with just the sheer amount of different crypto strategies we’ve seen during this time:

  • Long bitcoin
  • Long bitcoin and other tokens
  • Token trading
  • Long/short tokens
  • High frequency trading
  • Exchange arbitrage 
  • Blended or Multi-Strat offerings
  • Crypto VC
  • Mining focused funds and operations
  • Yield farming
  • Offshore focused exchange trading
  • Staking (and the rise of staking specific service entities)
  • Ecosystem dedicated strategies
  • Lending and DeFi strategies
  • NFTs
  • Web3, and,
  • DAO focused strategies

We all know that each of these are unique strategies, some literally having not existed even a couple of years ago.   From these strategies the founding sponsors have collectively worked with our manager clients (many of you here today) to develop “the firsts” in an industry and I’ll list off a few of these:

  • The first to really force the definition of crypto tokens as securities – we started with the question of what are crypto assets?  I am not sure we know for sure still – we know that bitcoin is not a security (at least for now), but what about ETH and Ripple?  At some point we will gain clarity, but our law firm was adamant from the very beginning that many assets would “likely be deemed to be securities” and therefore are subject to many of the traditional investment management laws.
  • The first firm to specialize in the crypto audit – how do you even audit something that is not physical and may not have a traditional custodian?  There are so many questions here that the team at Cohen had to deal with from the theoretical of “what does it mean to have the ability to control an asset?” to the mundane – “how do we see this asset on a blockchain?”
  • The first to deal with issues around Net Asset Value:
    • Traditional investment managent space markets don’t trade 24/7
    • Concept of first/last business day of a month or quarter versus the last calendar day
    • We collective saw themovement from midnight ET to UTC (which I now understand means Universal Time Coordinated – I had to look that up, perhaps Matt can confirm)
    • The first full crypto NAV process (as opposed to NAV Lite)
    • The first daily NAV crypto hedge fund
  • The first questions around Hard Forks – how do you deal with these from an accounting and tax standpoint?  How do you deal with any legal issues.  Operational items?  What to be careful with?  Same thing with Airdrops.
  • In-Kind Crypto Subscriptions and Redemptions – same thing here – this is a completely different process from the tradfi space and we helped facilitate all aspects of these transactions, from legal to tax to operations. 
  • Custody – for a few years this was one of the bigger legal and compliance issues for our managers.  How do you deal with the various issues around self-custody given the lack of qualified custodians?  It’s been a pretty constant five years of dealing with this front and center issue and there are many knowledgeable people here.
  • SEC registration – similar to the custody issue, how would digital asset managers actually register with the SEC if they were trading digital assets.
  • SEC examination – perhaps even a bigger question than registration was examination.  We didn’t know how the SEC would react to our clients – we helped our clients with both of these and found out that they did ok.
  • Many people here were some of the first people to speak with regulators of all kinds – SEC, state securities regulators, the IRS – about digital assets.  Many people here have been and currently are involved with discussions with legislators for future tax and regulatory bills.
  • Finally, the firsts for really building the basis for the industry – obviously legal and audit and tax were huge in this space, but we literally had the folks at MG Stover building APIs into exchanges.  Helped correct/fix/create APIs for various exchanges and custodians.  Build pricing sources. Standardized OTC trade confirms. Standardized custody reporting.  None of the day-to-day nuts and bolts for reporting would happen without these items…and

They even found $5mm hack of a client through their reconciliation process and the client ended up recouping all the crypto.

All of these things are the firsts that were developed hand in hand between our clients and our firms through many hours of phone calls, collaborations, research, a lot of “I thinks” and “we’ll see” and “hopefullys”…some “I don’t knows”…these are the things you go through when you are building the infrastructure of an industry…

I’ve already mentioned the four founding sponsors, but this conference also could not be put on without our Partner level sponsors Cowen Digital, Figment, Standard Custody and Trust Company; and out Supporter level sponsor Aspect Advisors, IQEQ, Silvergate, Withum, Copper, and Nova.  We also had our Women in Crypto networking event yesterday which was sponsored by Aspect, Strix Leviatian (a crypto fund manager), and StoneX that had about 75 attendees.  CalAlts, HF Alert, Help for Children were also our partner sponsors and we appreciate all their help.

For the first time our conference auctioned off an NFT 1.07ETH to a private collector in the Bay Area…the proceeds from this transaction will be donated to Help for Children, along with a match from our law firm.  Anyone else who wants to match, please see Sharon Hamilton over there.  I will spend more time thanking Sharon later today, but she is the main person who put this conference on, along with Karen Thornton, so please thank her if you see her today. 

We have six panels that will cover topics ranging from legal to custody to raising assets.  We also have two special keynotes from Mark Yusko and Punk6529, a lunch, breaks and networking reception at the end.  There is no shortage of current topical items that will probably be discussed during these times today:

  • Is crypto simply a risk-on asset that will move in lockstep with tech?
  • When is the crypto spring?
  • How do we not yet have a bitcoin ETF?
  • How will the recent OFAC rulings affect business going forward?
  • What did Terra Luna tell us about systemic risks of the industry?
  • Will the SEC and CFTC begin to regulate through rulemaking or continue with regulation by enforcement?
  • What does the successful ETH merge mean, if anything?
  • How will midterm elections affect the crypto space, if at all? 
  • Will FTX continue buying everything in sight?
  • Apple, Twitter, Google, Starbucks, Reddit…each one of them have real and interesting crypto use cases…which of these are going to emerge as real things that will be integrated into our daily lives?
  • And… funds have raised hundreds of millions of dollars, there are billion dollar funds, and even multi-billion dollar crytpo and crypto VCs fund that have been raised over the last 12 months…what will they be doing with that capital?

So I go back to the original question – why are we here?

I submit we might not know the reason right now but I am hoping we all find ideas, or hints of ideas, during the panels today that will help us in our day to day business and in life going forward.  I also hope that something here will spark another first we can add to our list…

With that as perhaps one reason for us to be here, we’ll move into our first item of the day, our Keynote discussion with Mark Yusko, Managing Partner of Morgan Creek Digital, talking here with Matt Stover of founding sponsor MG Stover.

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CLOSING REMARKS

Thanks to all of the speakers, panelists and moderators today – there were a number of distinct takeaways for me – from not calling NFTs NFTs (instead digital property rights), do not make misrepresentations in your offshore account paperwork, that exchanges and custody will continue to bifurcate, the importance of crypto fund service providers to work together, that defi platforms generally worked, that there is an opportunity with respect to asset prices right now because of the crypto winter, and operational due diligence for crypto funds is in a much different place than it was even a couple of years ago.

Thank you again to all of our sponsors who helped make this event possible and specific thank yous go out to Sharon Hamilton of Cole-Frieman & Mallon and Karen Thornton – I know these two spent an inordinate amount of time working to make sure this symposium would be a success and we obviously could not have done this without them.

At the beginning of the conference I had asked everyone why we were here today…I didn’t realize we would get such a forceful call to action from Punk 6529 but I think that he’s right – we have to look to ourselves to see what we have individually done to help this industry and we have to fight for it.  It is not guaranteed. 

And with that I’d like to invite you all to our cocktail reception.

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Bart Mallon is a founding partner of Cole-Frieman & Mallon LLP.  Cole-Frieman & Mallon has been instrumental in structuring the launches of some of the first cryptocurrency focused hedge funds. For more information on this topic, please contact Mr. Mallon directly at 415-868-5345.

Cole-Frieman & Mallon 2019 Third Quarter Update

Below is our quarterly newsletter. If you would like to be added to our distribution list, please contact us.

Clients, Friends, Associates:

We hope you had an enjoyable summer. Typically, the third quarter is quieter than the second quarter from a compliance perspective, however we continue to see meaningful enforcement actions taken by regulatory authorities and rapid developments in the digital asset space. Entering the fourth quarter, we would like to highlight some items we hope will help you stay on top of the business and regulatory landscape in the coming months.  But first, a couple of items of firm news:

  • CoinAlts Fund Symposium. In September, In September, founding sponsor CFM broke new ground to host its fourth successful Symposium in Chicago. An impressive line-up of speakers addressed pressing issues for institutions in the digital asset ecosystem, including legal and operational concerns for fund managers, recent trends and innovations in blockchain, and raising capital from institutional allocators.
    • Cole-Frieman & Mallon’s Anniversary. On September 17th CFM celebrated with family, friends, colleagues and clients 10 years of successful growth to become the largest hedge fund practice in the West Coast. We very much appreciate the continued support from our clients and friends in the industry and look forward to the next decade of success.

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Privacy Regulations

Cayman Islands Data Protection Law Effective September 30, 2019. The Cayman Islands Data Protection Law, 2017 (“DPL”) became effective on September 30, 2019 and applies to all investment advisers providing investment advice to Cayman Islands funds. Under the DPL, Cayman investment funds are considered “data controllers” whether or not they are registered with the Cayman Islands Monetary Authority and investment advisers to such funds are considered “data processors.” The DPL requires data controllers to update their Cayman fund’s subscription agreements to include language specific to the DPL and otherwise provide investors with an updated DPL-compliant privacy notice. There is no specific deadline to provide investors with such privacy notice. Fund administrators must also ensure that they are DPL-compliant and updates to the fund’s administration agreement may be required.

California Consumer Privacy Act to be Effective January 1, 2020. The California Consumer Privacy Act (the “Act”) was passed into California law on June 28, 2018 and will be effective on January 1, 2020. The Act will not apply to most fund managers and will generally only impact managers that serve California residents and have at least $25 million in annual gross revenue, have personal data on at least 50,000 Californians, or receive over half their revenues from the sale of personal data of California residents. The Act does not apply to current client data and, on October 11, 2019, Governor Newsom signed seven amendments into law that generally limit the Act’s reach even further. If the Act were to apply to a fund manager, to be in compliance, such fund manager should post a privacy policy on its website disclosing its collection of personal information, maintain an organized data collection process, and provide investors information regarding the use of their information and the right to opt-out of the sale and request the deletion of such information.

New York SHIELD Act Heightens the State’s Privacy Regulations. On July 25, 2019, the Stop Hacks and Improve Electronic Data Security Act (the “SHIELD Act”) was signed into New York law and amends the State’s data breach notification law. The SHIELD Act, which is set to take effect in March 2020, requires certain businesses or individuals implement safeguards to protect the security, confidentiality and integrity of information. The SHIELD Act broadens the definition of “private information” to include credit card or debit card numbers, usernames and passwords (or security questions and answers) used to access an individual’s online accounts, and biometric information, like fingerprints. The SHIELD Act also expands the definition of “breach”, from unauthorized acquisition of private information to include unauthorized access to private information, as well as the scope of the breach notification requirement to include any person or business that owns or licenses private information of a New York resident. This means the law is no longer limited to those conducting business in New York, but could affect managers who, for example, only store a New York investor’s private information. Because of the broad scope of the SHIELD Act, managers who own private information of a New York resident should review the updated security requirements the Act imposes on them, including the need to implement a data security program, as more specifically discussed in the SHIELD Act.

SEC Matters

SEC Publishes Risk Alert on Principal and Agency Cross Trading Compliance Issues. On September 4, 2019, the Securities and Exchange Commission (“SEC”) published a Risk Alert advising readers on common compliance issues identified in investment adviser examinations, related to principal and agency cross transactions under Section 206(3) of the Investment Advisers Act of 1940, as amended (the “Advisers Act”). These transactions occur when investment advisers execute client transactions as a broker or dealer, either acting as a broker or dealer for its advisory client or doing so for both its advisory client and its brokerage client on the other end of the same transaction. The examinations the SEC conducted showed advisers either did not know they had engaged in principal trades or did not disclose or obtain the required consent before completing the transactions. With respect to agency cross transactions, the examinations also showed advisers often engaged in agency cross transactions without properly disclosing this to clients or could not show proof they had complied with the applicable consent or disclosure requirements. The Risk Alert also expressed concern that many advisers engaging in these transactions either did not have proper compliance policies and procedures or failed to follow the policies and procedures that had been established. Advisers should look closely at potential transactions to determine whether they qualify as either principal trades or agency cross transactions and if so, what actions need to be taken to comply with the respective requirements.

SEC Charged RIA for Nondisclosure of Conflicts Arising from Revenue Sharing. On August 1, 2019, the SEC  charged an SEC RIA for failure to disclose conflicts of interest relating to a revenue sharing agreement with the broker used by most of its clients. The revenue sharing agreement provided that, if the adviser invested its client assets in certain classes of mutual funds that paid the broker to be listed on its platform, the adviser would receive a portion of those payments. The adviser received over $100 million from the broker from July 2014 to December 2018 because of this arrangement. However, the adviser never disclosed to its clients that there were other mutual fund investments less expensive than the investments subject to the revenue sharing agreement. The SEC considered these to be material omissions and determined the adviser’s clients did not make these investments with full knowledge of the adviser’s incentives. Fund managers should ensure that all pertinent conflicts of interest, including those related to the receipt of compensation from third parties, are properly disclosed to their clients.

FINRA Matters

FINRA Proposes Changes to Restricted Person and Spinning Provisions.  On July 26, 2019, FINRA, along with the SEC, proposed certain amendments to FINRA Rules 5130 and 5131. One of the amendments would exempt certain additional persons and certain types of offerings from the scope of the rules. Among other changes (eight total), the proposals would (i) include the definitions of “family member” and “family client” as defined under the Advisers Act in the definition of “family investment vehicle” under Rule 5130, (ii) exempt foreign employee retirement benefit plans that meet certain conditions from Rules 5130 and 5131 and (iii) exclude unaffiliated charitable organizations from the definition of “covered non-public company” in Rule 5131. If these changes are approved and become effective, fund managers can expect further regulatory consistency and clarity to result.

Digital Asset Matters

Bakkt Announces that it’s “Cleared to Launch” Bitcoin Futures. Bakkt, a bitcoin futures exchange and digital assets platform founded by the Intercontinental Exchange (“ICE”), announced in mid-August that the CFTC gave its go-ahead for Bakkt’s futures contracts. The announcement discussed that Bakkt’s bitcoin futures would be exchange-traded on ICE Futures U.S. and cleared on ICE Clear US, both of which are regulated by the CFTC. Bakkt further announced that it acquired a New York state trust charter through the New York State Department of Financial Services, and that this approval to create Bakkt Trust Company, a qualified custodian, would allow the Bakkt Warehouse, which is part of Bakkt Trust Company, to provide bitcoin custodial services for physically delivered futures. On September 23, 2019, Bakkt launched its custody and physically-settled bitcoin futures contracts products. Many disagree whether the launch, which had a trade volume during the first seven days of $5.8 million, was successful or not, and certain researchers speculate the launch was partially why bitcoin’s price has recently decreased. Despite this, the news of the launch can potentially benefit fund managers as Bakkt aims to provide access to this market and address issues that have slowed institutional participation in this market in the past.

SEC Delays Decision on Three Bitcoin ETFs. On August 12, 2019, the SEC once again delayed a decision on three bitcoin ETF proposals.  As of yet, the SEC has not approved a bitcoin ETF. In previous decisions, the SEC expressed concerns with market manipulation, market surveillance and a possible divergence with futures trading. One of the entities proposing a bitcoin ETF published reports addressing these concerns and indicating that the actual bitcoin market is more regulated and surveilled than expected. This ETF proposal received support from a number of well-known individuals in the industry. In fact, Cole-Frieman & Mallon submitted a comment to the SEC with respect to this ETF proposal in June. Unfortunately, on October 9, 2019, this ETF proposal was rejected as the proposal reportedly did not meet the legal requirements necessary to prevent market manipulation or other fraudulent activities. As another of the entities proposing a bitcoin ETF recently withdrew its proposal from SEC review, there remains only one bitcoin ETF proposal sitting before the SEC. Fund managers interested in the digital asset space should stay apprised of future developments regarding this ETF proposal and others that may follow.

FINRA Approves Membership of Placement Agent for Privately Placed Digital Securities. On August 7, 2019, FINRA approved the membership application of a placement agent for privately placed, digital securities on a permissioned blockchain platform developed by its parent company. It took the placement agent 18 months to get approved, which is longer than what is typically seen, as it had to prove to FINRA that it met regulatory requirements. The approval allows the placement agent to issue securities, provide services as a broker for digital securities, and potentially enter the secondary trading business. This approval stands out as many applications have been waiting to hear back from FINRA for months, and sometimes more than a year. Specifically, this approval will expand investment opportunities for investors and provide fund managers with a streamlined tool to utilize in its investment processes.

SEC Freezes $8 Million in Assets Related to Fraudulent Scheme to Sell Digital Securities to Investors. On August 12, 2019, the SEC froze $8 million in assets raised by an individual and two companies he owns. Allegedly, the parties sold their own token on the internet and induced investors to invest in the token based on material misrepresentations and omissions. The complaint also alleged that the individual manipulated the token price and transferred a significant amount of investor assets to his own personal account. The SEC charged the parties with violating the registration and antifraud provisions of the Federal securities laws and further charged the individual for violating antifraud provisions by manipulating the price of tokens. While this digital asset age has certainly shown promise and innovation, fund managers should be on alert for fraudulent schemes such as this.

SEC Charges Group Operating Unregistered Digital Asset Exchange. On August 29, 2019, the SEC settled charges with a company and its founders who created and sold unregistered tokens to more than 13,000 investors. The founders allegedly falsely claimed each token provided an interest in the company’s cryptocurrency mining facility using below-market rate electricity. In reality, the mining facility did not exist. The company and its founders also allegedly illegally operated an unregistered national security exchange to trade the single token. As new and exciting opportunities in the digital asset space continue to emerge, investors should proceed with caution and should conduct ample due diligence prior to moving forward with such opportunities.

IRS Targets Cryptocurrency Investors with Educational Letter about Back Taxes. In July, the IRS began sending educational letters to taxpayers who have purchased or sold cryptocurrencies but either did not report the income entirely or did not report the income correctly. There are three variations of this letter that more than 10,000 taxpayers will receive, depending on how or if the transactions were reported: Letter 6173, 6174 and 6174-A. In mid-August, the IRS began sending a second round of letters to relevant taxpayers. This notice, which the IRS calls CP2000, is aimed at taxpayers that the IRS has actual records of, showing that there is a discrepancy between the trading profits or losses reported by the taxpayer and what third parties (like exchanges) report to the IRS. The notice includes an amount that each recipient taxpayer is expected to pay in 30 days, with interest. Taxpayers trading cryptocurrency can expect the IRS to ramp up these types of letters and notices and should properly report their transactions to the IRS when filing tax returns to avoid penalties.

SEC Approves First-Ever Reg A+ Token Offering. On July 12, 2019, Blockstack became the first company in history to receive SEC approval for a public securities offering where investors would receive tokens, in this case, called “Stacks”. Blockstack raised a total of $23 million from more than 4,500 investors. $15.5 million was raised through a Reg A+ sale in the United States and the other $7.6 million was raised through a Reg S offering in Asia. Blockstack is working with international exchanges to list Stacks tokens potentially as soon as October 2019. While the full effects of this approval are not yet determined, the SEC’s approval has potential to create a new regulatory roadmap for public token offerings.

FINRA and SEC Issue Joint Statement on Custody of Digital Assets by Broker-Dealers. On July 8, 2019, FINRA and the SEC issued a statement expressing the challenges facing broker-dealer’s custody of digital assets. The statement discussed that a broker-dealer seeking to custody such assets must, like all broker-dealers, comply with the SEC’s Customer Protection Rule. This rule protects customer securities and funds held by broker-dealers by requiring broker-dealers to keep customer assets separate from their firm’s assets, making it more likely that customers’ securities and assets can be returned to them in the case of a broker-dealer’s failure. Many unregistered entities and registered broker-dealers that want to engage in activities involving digital asset securities have been submitting applications to FINRA in the hope that FINRA will allow them to engage in such activities. How these entities could custody digital asset securities while complying with the Customer Protection Rule is still under discussion, but as a start, broker-dealers would need to put in place significant technological enhancements unique to digital asset securities.

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Compliance Calendar.

Please note the following important dates as you plan your regulatory compliance timeline for the coming months:

Deadline Filing
October 10, 2019 Form 13H amendment due if there were changes during Q3
October 15, 2019 Quarterly Form PF due for Large Liquidity Fund Advisers
October 15, 2019 Extended deadline to file Reports of Foreign Bank and Financial Accounts (FBAR)
October 30, 2019 Registered investment advisers must collect access persons’ personal securities transactions
November 1, 2019 Registered investment advisers that seek to withdraw registration with the SEC may begin to submit Form ADV-W‘s, which must be dated 12/31/19
November 11, 2019 Firm may view, print and pay preliminary notice filings (RIA) with all appropriate states
November 14, 2019 Form 13F is due for certain institutional investment managers
November 14, 2019 Form PR filings for registered CTAs that msut file for Q3 within 45 days of the end of Q3 2019
November 29, 2019 Form PF filings for Large Hedge Fund Advisers with December 31 fiscal year-ends filing
November 29, 2019 Large registered CPOs must submit a pool quarterly report (CPO-PQR)
December 16, 2019 Deadline for paying annual IARD charges and state renewal fees
December 31, 2019 Small and mid-sized registered CPOs must submit a pool quarterly report (CPO-PQR)
December 31, 2019 Cayman funds regulated by CIMA that intend to de-register (i.e. wind down or continue as an exempted fund) should do so before this date in order to avoid 2020 CIMA fees
January 1, 2020 California Consumer Privacy Act goes into effect
Periodic Fund managers should perform “Bad Actor” certifications annually
Periodic Amendment due on or before anniversary date of prior Form D and blue sky filing(s), as applicable, or for material changes
Periodic CPO/CTA Annual Questionnaires must be submitted annually, and promptly upon material information changes

 

Bart Mallon is a founding partner of Cole-Frieman & Mallon LLP.  Mr. Mallon can be reached directly at 415-868-5345.