SEC Maintains Focus on Cryptocurrency Enforcement under Chair Gensler

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New administration brings first-of-their-kind cryptocurrency enforcement actions.

WashingtonUnder the new administration, the Securities and Exchange Commission has continued its role as one of the main regulators in the cryptocurrency space, bringing 20 enforcement actions against digital asset market participants in 2021, according to a Cornerstone Research report released today.

The report, SEC Cryptocurrency Enforcement: 2021 Update, found that the SEC brought 14 litigation actions in U.S. federal courts and six administrative proceedings in 2021. Of the 20 total enforcement actions, 70% were related to initial coin offerings (ICOs). The SEC also issued four delinquent filing orders, brought two follow-on actions, and filed an action seeking compliance with investigative subpoenas during the year.

SEC enforcement in this area was notably high between the end of May and mid-September, when the SEC brought some first-of-a-kind actions against a crypto lending platform, an unregistered digital asset exchange, and a DeFi lender.

“Since taking office in April 2021, Chair Gensler has made cryptocurrency enforcement a key priority,” said Simona Mola, the report’s author and a senior manager at Cornerstone Research. “SEC enforcement in this area was notably high between the end of May and mid-September, when the SEC brought some first-of-a-kind actions against a crypto lending platform, an unregistered digital asset exchange, and a decentralized finance (DeFi) lender. It also imposed one of the largest monetary penalties we have seen in an ICO-related enforcement action after Telegram.”

Of the 20 enforcement actions in 2021, 65% alleged fraud under Section 17(a) of the Securities Act and/or Section 10(b) and Rule 10b-5 of the Exchange Act; 80% alleged an unregistered securities offering violation under Sections 5(a) and 5(c) of the Securities Act; and 55% actions included both allegations.

Since its first cryptocurrency-related enforcement action in 2013, the SEC has brought 58 litigation actions and 39 administrative proceedings against digital asset market participants. Over the same period, the agency has imposed approximately $2.35 billion in total monetary penalties.

“Under the new administration, the SEC has continued to bring ICO-related enforcement actions based on its implementation of the Howey test, which determines whether a transaction qualifies as an investment contract subject to SEC regulation,” said Abe Chernin, a Cornerstone Research vice president and cohead of the firm’s FinTech practice. “Given the SEC’s continued focus on this space, in 2022 we may see further scrutiny of certain market participants such as DeFi platforms.”

SEC Cryptocurrency Enforcement: 2021 Update

Additional Highlights
  • In addition to its enforcement actions, the SEC has issued 20 trading suspension orders and 10 delinquent filing orders since 2013.
  • In 40 of the 58 litigations the SEC has brought since 2013, the defendants were a mix of individuals and firms. In the remaining 18 litigations, the defendants were individuals only (15 actions) or firms only (three actions).
  • In 23 of the 39 administrative proceedings since 2013, the respondents were firms only. In the remaining 16 administrative proceedings, the SEC charged individuals only (six actions) or a mix of individuals and firms (10 actions) as respondents.
  • Half of the 58 enforcement actions litigated in U.S. courts since 2013 occurred in the state of New York, with 23 in the Southern District and six in the Eastern District.

Contact

Zinie Sampson
Baretz+Brunelle
804.381.1272
zsampson@baretzbrunelle.com
Elisabeth Gaubinger
Cornerstone Research
202.912.8909
egaubinger@cornerstone.com