Cryptocurrencies

Are We Facing a Pro Crypto-Securities Future in the U.S.? – Announcement of the New SEC Chair and the Future of Bill FIT21

December 16, 2024 | Jacqueline Candella

On December 4, President-elect Trump announced that his pick for the next Securities and Exchange Commission (SEC) chair would be Paul Atkins. There seems to be a positive response to the news, as Bitcoin quickly traded over $100,000.

As Malecki Law has previously blogged, the current chair, Gary Gensler, has often been perceived a crypto skeptic. Although crypto fans were seemingly hopeful that Hester Peirce would be appointed, a current commissioner who is also known as “Crypto Mom,” the community does not seem disappointed in the direction of the SEC at all. Malecki Law gets sometimes multiple calls a day from people scammed around crypto based investments. This is likely due to the lack of regulation. If your advisor recommended that you purchase crypto securities against your best interests, and you suffered losses, you may have a claim. You should reach out to a Crypto-Securities law firm in New York, like Malecki Law, to review your situation. If someone in a foreign jurisdiction has your money, you may be out of luck.

Future SEC Chair Atkins’ Background

Single and Special Purpose Broker-Dealers in the Crypto Securities Space

November 20, 2024 | Jacqueline Candella

In recent times, we have seen an increase in retail investors wanting to invest in cryptocurrencies. However, the unknown and unregulated aspects of the cryptocurrency world may deter retail investors from owning cryptocurrency coins and tokens outright. A seemingly safer way curious retail investors can invest in crypto is to purchase and hold crypto based securities at their brokerage firm. Retail investors may see this as a mode to protect the investments against additional volatility and to provide some sort of oversight, but should be wary. If your broker recommended crypto based securities that were not in your best interest, you should reach out to a Crypto-Securities law firm in New York, like Malecki Law.

Additionally, with recent crypto spot ETF approvals by the SEC (first – Bitcoin, and second – Ether), we may see integration of crypto based securities into retail investors’ accounts at traditional brokerage firms. In fact, many investments you already own may have their own exposure to crypto.

In line with the growing interest in owning crypto based securities, it seems as though more single purpose brokerage firms that sell only crypto based securities continue to enter the investment markets, like Galaxy Digital Partners, LLC or Grayscale Securities, LLC.

What is the Potential Impact of the Presidential Election on the Uncertainty of Crypto Regulation?

November 6, 2024 | Jacqueline Candella

Malecki Law’s founder, Jenice Malecki, was recently quoted in a Crypto Times article about crypto regulation as it relates to the impending presidential election.

Ms. Malecki shared her thoughts that no matter who is to be elected as President, that there is one obvious takeaway –“the crypto industry needs regulation.” Ms. Malecki further explained that the current non-regulation hurts investors, like yourself, which also gives room for bad actors to flourish. Did your advisor recommend that you purchase crypto based securities? It may not have been in your best interest based on your investor profile. A Crypto-Securities law firm in New York, like Malecki Law, can help you analyze and conclude whether Regulation Best Interest was violated.

Ms. Malecki and Malecki Law have experience in cases involving crypto based securities, and have seen that there is more work to be done. At least, if the product is clearly a security under the Howey test, the SEC will regulate it. However, if the crypto product is not clearly a security, there is more gray area as to which regulator (SEC or CFTC) has jurisdiction and why. This naturally leaves a gap in regulation, allowing misconduct to not just occur but to succeed without monitoring.

Robinhood Crypto Received a SEC Wells Notice Regarding Alleged Unregistered Sale of Securities

May 8, 2024 | Jacqueline Candella

On May 6, 2024, Robinhood announced that its crypto unit (Robinhood Crypto) received a Wells Notice from the SEC on May 4, 2024. According to MarketWatch, Robinhood’s stock price dropped more than 9% following the public disclosure of the Wells Notice.

Robinhood further disclosed that the Wells Notice was related to an investigation that was previously disclosed at the end of February, due to receipt of subpoenas related to its crypto operations. If your company received a Wells Notice or a subpoena, you should retain a SEC Regulatory Defense law firm, like Malecki Law in New York, to communicate directly with the SEC on your behalf.

According to CNBC, Robinhood’s disclosure of receipt of the Wells Notice further indicated that the SEC believes it violated both Sections 15(a) and 17A of the Securities Exchange Act of 1934. More specifically, it appears that the SEC believes digital assets offered on the Robinhood Crypto platform qualify as securities, and therefore should have been registered with the SEC. However, it is unclear which digital assets are in question, or if the SEC is simply targeting all digital assets offered on the platform.

NYSBA’s Current State of Crypto Cases Panel

April 16, 2024 | Jacqueline Candella

On Wednesday, April 17, 2024, Malecki Law’s Jenice L. Malecki, Esq., will participate in a virtual panel organized by the New York State Bar Association (NYSBA). This is a joint effort by the NYSBA’s Commercial and Federal Litigation Section’s Securities Arbitration Committee and the Dispute Resolution Sections’ Securities Disputes Committee. Ms. Malecki will speak alongside her colleagues in the industry, Howard Fischer, and Joe Wojciechowski. If you incurred investment losses due to crypto-based products, you need to consult with a Crypto-Based Investment attorney in New York, like the lawyers at Malecki law.

The panel is called “The Current State of Crypto Cases: What Theories Are Being Developed to Support claims Relating to Crypto Losses?” It will begin at 12:00 p.m. EST and end at 1:00 p.m. EST. The panel will focus on liability related to crypto recommendations and broker-dealers. It is free to attend, please click here to register.

Ms. Malecki is looking forward to discussing her first-hand experiences with broker-dealer liability as it relates to crypto-based investment recommendations. Malecki Law has recently settled with a large crypto-based broker-dealer, where Ms. Malecki had the opportunity to learn more about broker-dealer liability in the context of crypto losses. Further, Ms. Malecki enjoys speaking on panels and sharing information with other lawyers in the industry, in an effort to protect investors like yourself. Did your broker recommend that you invest in crypto-based investments? Were those investment recommendations in your best interest? You should reach out to a Crypto-Based Investment law firm, like Malecki Law in New York.

Pending Ethereum Spot ETF Applications – Will the SEC Approve or Deny Them?

March 26, 2024 | Jacqueline Candella

On January 10, 2024, the Securities and Exchange Commission (SEC) approved eleven applications for the first ever Bitcoin Spot exchange-traded funds (ETFs), which have been publicly listed and subsequently trading in the secondary market since their approval. This was the first time that the marketplace had seen an attempt to make crypto-based securities available to a regular retail investor, like yourself. Click here for the related Malecki Law firm blog post [to link to Adam’s general blog about the approval]. If your broker has recommended that you purchase Bitcoin Spot ETFs, you may need to consult with a Crypto-Based Securities lawyer in New York, like the lawyers at Malecki Law, to determine whether that investment recommendation was made in your best interest.

The SEC’s approval of the Bitcoin Spot ETFs may have opened the door for similar Spot ETFs tied to other cryptocurrencies. The SEC’s second round of ETF reviews is currently underway, as there are at least eight issuers with pending applications for Ethereum Spot ETFs, including Fidelity, BlackRock, Invesco with Galaxy, Grayscale, Hashdex, 21 Shares with ARK, VanEck, and Franklin Templeton. These ETFs would work in the same practical sense as the Bitcoin Spot ETFs, except, they would be tied to the cryptocurrency Ethereum rather than Bitcoin. If your financial advisor is recommending that you invest in Ethereum Spot ETFs, if they are approved by the SEC, you should consult with a lawyer from Malecki Law, a Crypto-Based Securities law firm in New York, to see if your advisor is making investment recommendations in your best interest, as required by Regulation Best Interest.

Bitcoin and Ethereum generally maintain the largest market capitalizations for cryptocurrencies, Bitcoin being number one and Ethereum being number two. As of March 26, 2024, Bitcoin had a market capitalization of over $1.3 trillion while Ethereum had a market cap over $425 billion. Based on this, it would make sense for Ethereum Spot ETFs to follow Bitcoin Spot ETFs. However, there may be less optimism for Ethereum. Noelle Acheson, a crypto researcher, author, and host of the Markets Daily podcast, indicated that there is a “conceptual problem for Ether that didn’t apply to bitcoin.” At the same time, others in the industry maintain the belief that Ethereum Spot ETFs make sense (click here for a related Nasdaq article). Did your broker recommend that you invest in crypto-based securities? Did your broker obtain important investor profile information, like your risk tolerance and liquidity needs, before making such a recommendation? If the answer is no, you should speak with a lawyer at a Crypto-Based Securities law firm, like the lawyers at Malecki Law in New York, to review your situation.

Crypto ETFs by a Little Bit – BitWise is up Next

January 14, 2024 | Malecki Law Team

On Wednesday, January 10, 2024, for the first time in U.S. history, the Securities and Exchange Commission (SEC) approved the listing and trading of spot bitcoin exchange-traded funds (ETFs). Among those includes the Bitwise Bitcoin ETF (BITB)—the first spot bitcoin ETF issued by Bitwise Asset Management. Less than two months later, on Friday March 8, 2024, the price of Bitcoin, the largest cryptocurrency by market capitalization, reached an all-time high of more than $70,000. With the inflated price of Bitcoin and its newfound accessibility that BITB provides, there is a crucial question that every investor should have on their mind: is investing in BITB in my best interest? The purchase of these investments, according to Regulation Best Interest, should only be made by an investment recommendation if it is in your best interest after diligent consideration by your financial professional. A Crypto-Securities law firm in New York, like Malecki Law, can help you determine whether Regulation Best Interest was violated.

As demonstrated by its name, an ETF is a pooled investment security that has attributes similar to both a stock and a mutual fund. “Exchange-traded” refers to the security’s ability to be traded on the market like a stock, while “fund” refers to its ability to consist of a diverse allocation of assets like a mutual fund. The concept of Bitcoin ETFs is not new to the world of securities, for example, Bitcoin futures ETFs, or ETFs that invest in Bitcoin Futures contracts (time-limited agreements to buy or sell Bitcoin at some point in the future), have been around since 2021. However, Bitcoin futures ETFs have unappealing features like “roll premiums,” which are costs incurred when selling expiring contracts and buying new ones. Additionally, futures contracts do not accurately track the spot prices of Bitcoin, meaning the immediate or current price of Bitcoin, so returns may never be as high as spot market prices. You may need a Crypto-Securities attorney in New York, like the lawyers at Malecki Law, to analyze your crypto-based investments to determine your potential losses.

On the other hand, spot Bitcoin ETFs do in fact provide investors with the spot price of Bitcoin and do not rely on futures contracts. Spot Bitcoin ETFs hold Bitcoin as its underlying asset, meaning the ETF actually holds an equivalent amount of Bitcoin to back every share of the ETF that is sold. These shares, which are priced to reflect the spot price of Bitcoin, can be traded on traditional stock exchanges. Therefore, purchasing shares of a spot bitcoin ETF is a relatively easy way for investors to gain Bitcoin exposure to his or her investment portfolio.

Grayscale may have won its ETF battle with the SEC, but can it win the war between crypto and the U.S. financial system?

January 12, 2024 | Malecki Law Team

Grayscale led the fight at the Securities and Exchange Commission (“SEC”) for approval of spot bitcoin-exchange traded funds (“ETFs”). The battle began in 2022 after the SEC rejected Grayscale’s application to convert its bitcoin trust into a spot bitcoin exchange-traded fund because spot markets are unregulated and susceptible to fraud and market manipulation. Any Crypto-based attorney will tell you that the SEC has a long way to go in regulating these new products.

In June 2023, the SEC approved the first ever leveraged bitcoin futures ETF, which gave Greyscale the ammunition it needed to march into battle with the SEC to get its own bitcoin spot-based ETF approved. Greyscale argued that, by denying bitcoin spot-based ETFs, the regulator was treating similar bitcoin investment products differently. Rather than raising the white flag, Grayscale further argued that distinguishing between bitcoin futures and bitcoin spot markets is flawed because the two are interrelated in that bitcoin futures prices closely tracked bitcoin spot markets. Unlike a futures-based ETF, spot-based ETFs own actual bitcoins and are stored in a digital vault managed by registered custodians. Futures-based ETFs replicate bitcoin prices using futures contracts.

Grayscale experienced a major victory on August 29, 2023, when a federal court ruled that the SEC’s decision to approve two bitcoin futures funds while rejecting Grayscale’s application to turn its bitcoin trust into a bitcoin spot ETF was [“arbitrary and capricious”]. Further, the court found that the SEC’s denial was in violation of federal administrative law because the SEC failed to explain its inconsistent treatment of similar products.

Crypto ETFs In Your Traditional Brokerage Account… What Could Go Wrong?

January 10, 2024 | Adam G. Schreck

On January 10, 2024, the Securities and Exchange Commission (“SEC”) released a statement announcing the approval of the listing and trading of spot bitcoin exchange-traded product shares on national securities exchanges. This move by the SEC comes after years of heated debate between financial professionals, regulators, members of Congress, and the general public over the regulation of cryptocurrencies and other digital assets. The SEC’s approval of crypto ETFs signals the first step in the widespread adoption of cryptocurrencies in traditional investment portfolios, but are the necessary guardrails in place to ensure investors are protected?

In the statement, the SEC noted that sponsors of crypto ETFs are required to provide investors with full and fair disclosures about the products being offered, similar to the requirements on sponsors of traditional investment products. Further, the SEC explained that the standards for recommending and selling traditional investment products, like Regulation Best Interest and fiduciary duties, will also apply to the recommendation and sale of crypto ETFs as well. While these requirements represent a solid foundation for the protection of investors, the experienced Securities Crypto Fraud Law attorneys at Malecki Law feel investors are still at risk when investing in crypto ETFs and digital asset private placements. Malecki Law has represented some, if not the first, crypto-related securities investors successfully in FINRA arbitration.

Exchange Traded Funds, or ETFs, are funds that trade on national securities exchanges, generally track a basket of securities, and sometimes viewed as safer investments because they are inherently diversified. However, cryptocurrencies, like Bitcoin, have a remarkably brief history compared to traditional investment products, like stocks, bonds, or ETFs. Cryptocurrencies are known to be extremely volatile, meaning they can experience large price swings in a short period of time, and have, in part, been historically used for nefarious purposes, such as money laundering and illicit online purchases. While being on an exchange may “seem” regulated, the underlying asset, Bitcoin, is still largely unregulated, subject to fraud risk, and can be volatile to the point of no return. Investors must stay hyper vigilant about the risks associated with crypto ETFs that are recommended and sold to them. These ETFs are highly speculative. If you have suffered investment losses in crypto ETFs or cryptocurrency-related private placements, the New York City Securities Digital Asset Fraud Attorneys at Malecki Law may be able to help you recover your losses.

Theft in My Coinbase Account – What Can I Do Now?

November 13, 2023 | Jacqueline Candella

Malecki Law regularly receives calls from people distraught by having funds stolen from their cryptocurrency (“crypto”) accounts. Unfortunately, the scant regulation in the crypto space has yet to be fully tested. In fact, according to Reuters, “[the] illicit use of cryptocurrencies hit a record $20.1 billion last year…” However, if you lost money in your Coinbase account, you may have an avenue to recoup those funds. If funds were stolen from your crypto account, you need to contact a Crypto-Based Theft law firm in New York, like Malecki Law, to review your potential claim.

Interestingly, Coinbase markets itself as safe to customers by representing that it takes “extensive security measures” to ensure investors’ crypto investments are “safe.” Notwithstanding the supposed safety and security measures it has in place, Coinbase is reportedly prone to scams and hacks, which can result in theft from customers’ accounts. Crypto investors who have had funds stolen from their accounts often find themselves left with no way to get their funds returned to them, but there might be recourse. In January 2023, Coinbase settled with New York State’s Department of Financial Services (“DFS”) for $100 million due to cybersecurity, anti-money laundering (“AML”), and compliance-related issues. Specifically, Coinbase was ordered to pay $50 million in civil monetary penalties, and an additional $50 million “on further improvements and enhancements to its compliance program.” See In the Matter of Coinbase, Inc.

What is the relevant law providing for recourse? The Electronic Funds Transfer Act (“EFTA”) is a possible way to get your funds back.