Bankruptcy filings in the digital asset space continue, as cryptocurrency exchange Bittrex filed for bankruptcy protection in the U.S. Bankruptcy Court for the District of Delaware on Monday, May 8, 2023. The Bankruptcy Docket can be found here. Desolation Holdings LLC and its affiliated debtors, Bittrex, Inc., Bittrex Malta Holdings Ltd., and Bittrex Mala Ltd., as debtors and debtors in possession (“Bittrex US”) filed their chapter 11 petitions alongside a plan of liquidation. Unlike other exchanges that have sought to reorganize in fits and starts, Bittrex US heads directly to liquidation. Activities outside of the US, including Bittrex Global, shall continue uninterrupted by the filing.

Continue Reading Bittrex: Regulatory Enforcement and Macroeconomic Headwinds Lead to Another Crypto Bankruptcy

On May 3, 2023, Nathaniel Chastain, the former product manager of the NFT marketplace OpenSea, was convicted by a federal jury in the Southern District of New York for what is being called the first insider trading conviction in the digital asset space. 

Continue Reading First Insider Trading Conviction Against NFT Insider

Many of those active in the non-fungible token (NFT) market have been nervously anticipating action from the U.S. Securities and Exchange Commission (SEC) regarding whether or not they will categorize NFTs as securities and further regulate them. U.S. regulators have not yet definitely opined on whether NFTs in general are securities.  However, a recent ruling, Friel v. Dapper Labs Inc et al, U.S. District Court, Southern District of New York, No. 21-05837, may have set the stage for some much-needed clarity with respect to the legal characterization of NFTs.

Continue Reading NFTs as Securities?

Following many months of discussion and review by a working group of traditional finance institutions and crypto-native exchanges and platforms led by the International Swaps and Derivatives Association, Inc. (“ISDA”), ISDA published the Digital Asset Derivatives Definitions (the “Definitions”) on January 26, 2023 for use with Bitcoin (BTC) and Ether (ETH) non-deliverable forward and options transactions.

ISDA also published a number of supporting materials including:

(i)        A whitepaper on netting and collateral enforceability – these are two vital credit risk mitigation features of derivatives arrangements governed by ISDA documentation, and they impact a number of areas from regulatory capital relief for regulated financial institutions to counterparty default risk, while limiting the risk of contagion in the event of an institution’s bankruptcy.

(ii)       A user’s guide to the Definitions’ fork disruption events – these provisions set out the consequences on digital asset derivative transactions if a “protocol change” results in two or more digital assets (emanating from the original blockchain) being available for trading.

Parties have been utilizing bespoke in-house templates, crafted through a combination of existing ISDA publications for documenting derivative transactions where the underlying reference asset consists of other asset classes (namely currencies, commodities and equities) and incorporating provisions specific to the features of the relevant digital asset(s). This is not much of a surprise given the complexity around the nature and legal characterization of digital assets, taking into account their technological and economic features. The publication of the Definitions represents a significant step towards developing industry-wide contractual standards.

As noted, however, that the Definitions are currently limited in scope: they only contemplate non-deliverable forwards and options that reference either BTC or ETH. Market participants will still need to analyze their transactions for appropriate structuring and drafting solutions with respect to other product types (e.g., deliverable transactions, or staking yield swaps), other digital assets, bespoke contractual arrangements (e.g., optional early termination), and where the derivative forms part of a wider financing structure (e.g., secured loans, or staking arrangements).

ISDA has further projects and updates in the pipeline for digital asset derivatives, which will cover, amongst other things, ISDA standard collateral and credit support documentation, custody and intermediary or triparty arrangements, and a detailed jurisdiction-based analysis of netting and collateral enforceability. Analysis is also ongoing regarding the treatment of digital asset derivatives under existing derivative regulatory framework (including, Dodd Frank and EMIR).

All of the above will need to be considered alongside the rapidly evolving regulatory framework for digital assets, which is being accelerated in light of the recent spate of bankruptcy and insolvency filings of crypto-exchanges, lending platforms, investment funds and mining operations. It is clear that the publication of the Definitions is therefore an important, but preliminary step toward a more liquid and secure derivatives trading market for digital assets.

The fallout continued last week for embattled crypto trader Avraham Eisenberg, as Mango Labs filed litigation in the Southern District of New York to recover $47 million Eisenberg drained from decentralized crypto lending platform Mango Markets by manipulating the value of the Mango Markets native token. The lawsuit from Mango Labs is just the latest in a series of actions against Eisenberg, who was arrested by U.S. law enforcement officials in Puerto Rico in December, and charged by the Department of Justice (“DOJ”) with commodities fraud and commodities manipulation. Following his arrest, the Commodity Futures Trading Commission (“CFTC”), U.S. Securities and Exchange Commission (“SEC”), and now Mango Labs have proceeded to bring parallel claims against Eisenberg.

Eisenberg’s alleged scheme essentially involved taking advantage of the fact that the Mango Markets decentralized platform allowed investors to borrow cryptocurrency based on the value of the investor’s assets posted as collateral on the platform. Eisenberg allegedly took advantage of this feature by selling large amounts of the Mango Markets native token, MNGO, to another account he controlled, which artificially increased the value of the token by more than 2,200%. Eisenberg used the inflated value of the token to borrow and withdraw approximately $114 million worth of various cryptocurrencies from Mango Markets, effectively draining all of the assets from the platform and harming other investors. Shortly after, Eisenberg publicly defended his actions, which he referred to as a “highly profitable trading strategy,” as “legal open market actions, using the protocol as designed, even if the development team did not fully anticipate all the consequences of setting parameters the way they are.” The DOJ, SEC, CFTC, and Mango Markets disagree, and are alleging Eisenberg’s conduct constitutes illegal market manipulation.

The dispute regarding whether Eisenberg’s conduct is actionable fraud or market manipulation seems poised to turn on whether Eisenberg made any false statements, or failed to disclose any material facts, which made his actions misleading under the circumstances. The actions taken by Eisenberg that potentially fit this criteria include, selling MNGO tokens to himself in order to artificially inflate the price, as well as borrowing and withdrawing assets using the artificially inflated MNGO tokens as collateral, knowing that he would not repay the borrowed assets and would surrender the artificially overvalued MNGO tokens.

The case has significant implications for the cryptocurrency trading markets, and decentralized exchanges, which have seen numerous “pump and dump” schemes over the years. In many ways, Eisenberg’s scheme resembles a traditional “pump and dump” scheme in that he deceptively profited from artificially inflating the value of a token at the expense of other investors. What separates Eisenberg’s conduct from the standard “pump and dump” scheme was that he was able to inflate the value of the MNGO token by trading it amongst accounts he controlled (without luring any unsuspecting investors into participating in the “pump” portion of the scheme), and was able to cash out on his scheme by converting the inflated value of his MNGO tokens into other cryptocurrencies by exploiting the design of the platform. The fact that Eisenberg appears to have operated within the parameters of the Mango Market exchange will likely not help him avoid liability for fraud or market manipulation. Like “pump and dump” or other market manipulation schemes, the potential criminal violation does not come from breaking the rules of the platform, but from operating within those rules deceptively in a way that causes harm to others.

Thus, the resolution of these cases will go a long way towards drawing a line between opportunistic trading strategies and illegal market manipulation.

Genesis Global’s Chapter 11 filing on January 20th was little surprise to those closely following the cryptocurrency markets and after its decision to “pause” withdrawals in mid-November. Digital Currency Group, Inc. (“DCG”), the parent of Genesis Global Holdco LLC (“Genesis”) and its largest borrower, is not part of the bankruptcy case and instead may find itself a defendant in an adversary proceeding. The company reported that it is conducting an investigation that will examine the circumstances surrounding approximately $850 million of unsecured loans advanced to DCG and certain of its affiliates, the DCG Note, including the purported setoff of approximately $52 million in November, and dividends paid to DCG, among other things. The outcome of the investigations will be of considerable interest to Genesis’ customers and creditors. The bankruptcy case also does not include Genesis’s OTC derivatives trading or custody businesses.

The company’s “first day” pleadings show a large institutional creditor base, many of which extended loans to Genesis pursuant to “master digital asset loan agreements.” Of nearly $2.6 billion in loans, only a small fraction of which were secured by Genesis’ collateral (approximately $350 million). It also had borrowed from customers of Gemini Trust Company (“Gemini”), with Gemini acting as agent on their behalf (the company states that it is not aware of the identities of the Gemini customers). Genesis had pledged certain interests in Grayscale Bitcoin Trust to secure its loans from Gemini customers. Another tranche of shares were intended to be pledged — originating from DCG — but that pledge was never consummated.  According the pleadings, Gemini foreclosed on the first tranche of pledged shares, an action that may be challenged by Genesis. According to Genesis’ schedules, the Gemini customers have an aggregate general unsecured claim of nearly $766 million.  

Following the playbook of Voyager, concurrently with their petitions, the company filed a proposed plan of reorganization which provides, very generally, (i) that holders of general unsecured claims will receive some combination of (a) cash and other assets, (b) equity interests in a reorganized entity and (c) interests in a trust to be established to pursue claims and causes of action that the company may have, including against DCG and Gemini. In order to maximize recoveries to creditors, Genesis Global says that will conduct a marketing process to sell the company or otherwise raise capital. The company suggests that it can complete a marketing process and confirm a plan of reorganization in four months. While complications are due to arise, recent rulings in Celsius’ bankruptcy case regarding the ownership of assets reflected in customers’ earn (or similar) accounts, may erase certain of the uncertainty and ease the path to confirmation.

Initially, given the large institutional credit base and nature of the lending based claims, the Genesis bankruptcy may have more straight-forward investment opportunities for distressed investors relative to FTX and other crypto-bankruptcies (which had a larger portion of retail investor claims and more uncertain claw-back risks). We will provide updates as circumstances warrant.

Earlier this month, the SDNY Bankruptcy Court answered one of the gating questions at the center of Celsius Network’s Chapter 11 bankruptcy regarding the ownership of the approximately $4.2 billion in crypto assets.  Celsius account holders had been demanding the return on their crypto deposits in interest-bearing accounts (“Earn Accounts”), while Celsius debtors asserted that these assets were, pursuant to Celsius’ Terms of Use, property of the Celsius bankruptcy estate. The court sided with the Celsius debtors and ruled that, according to Celsius’ unambiguous Terms of Use, these assets became the property of Celsius when they were deposited in the Earn Accounts on Celsius’ platform.

 In providing its rationale, the Court found that the Terms of Use, as amended, and accepted by 99.86% of Celsius account holders, gave Celsius “all right and title to such Eligible Digital Assets, including ownership rights”. Accordingly, any assets remaining in these accounts on the date of the bankruptcy petition became property of the bankruptcy estate and each such account holder became an unsecured creditor. The court viewed the ownership of these assets as a contract issue governed by New York law, and under New York law, when a contract’s terms are unambiguous, courts must apply them as written. This finding, while unsurprising, will have important consequences, not only in Celsius’ bankruptcy, but also for the billions of dollars in cryptocurrencies trapped on other insolvent platforms.

The simple but important takeaway is that contracts matter. Investors onboarding onto exchanges or trading platforms or entering into new trading relationships should closely review trading documentation to ensure their assets are treated as they expect. Are you lending the digital assets as a secured lender, or entering into a repurchase arrangements for digital assets where title is transferred? If and when is the exchange or counterparty permitted to rehypothecate digital assets? Are set-off rights mutual, or is only the exchange or counterparty permitted to exercise rights of set-off under the agreement? The answers to these questions may mean different treatment in a bankruptcy of the exchange or counterparty.  For distressed investors attempting to purchase claims, underwriting of the claim should include a deep dive into the trading agreements, terms of use or other documentation governing the applicable claims.

On January 3, 2023, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, and the Office of the Comptroller of the Currency (the “Federal Banking Regulators” or “Agencies”) issued a Joint Statement (“Joint Statement”) highlighting key risks for banking organizations associated with crypto-assets and the crypto-asset sector. 

The Joint Statement notes the marked volatility of crypto-assets and crypto-related exposure in 2022, and highlights, among others, the following risks banking organizations should be aware of:

  • Risk of fraud and scams among crypto-asset sector participants;
  • Legal uncertainties related to custody practices, including ownership rights of crypto-assets, which the Federal Banking Regulators note is an issue currently subject to litigation;
  • Inaccurate or misleading representations, including about federal deposit insurance, and other unfair or deceptive practices that could substantially harm retail and institutional investors, customers, and counterparties;
  • Stablecoin run risk, which could create deposit outflows for financial institutions holding stablecoin reserves;
  • Contagion risk in the crypto-asset sector resulting from interconnectedness among various participants through “opaque lending, investing, funding, service, and operational agreements.”  Such risks may also present concentration risks for financial institutions with exposure to the crypto-asset sector; and
  • “Heightened risks associated with open, public, and/or decentralized networks,” including but not limited to, “lack of governance mechanisms establishing oversight of the system, the absence of contracts or standards to clearly establish roles, responsibilities, and liabilities,” cyber-risks, and illicit finance risks.

The Agencies stress the importance of ensuring that crypto-asset sector risks “that cannot be mitigated do not migrate to the banking system.”  The Agencies emphasize that they will continue to take a cautious approach to current and proposed crypto-asset related activities and exposures at banking organizations.  This includes assessments of financial institutions on how crypto-related activities may be conducted in ways that addresses safety and soundness, anti-money laundering and illicit finance statutes, consumer protection, and compliance with laws and regulations. 

While the Joint Statement notes that federally-regulated banking organizations, generally speaking, “are neither prohibited nor discouraged from banking” any specific type or class of customers, the Agencies express an ominous view of crypto-assets in the banking system.  Specifically, they note that based on their current understanding and experience, they believe that “issuing or holding as principal crypto-assets that are issued, stored, or transferred on an open, public, and/or decentralized network, or similar system is highly likely to be inconsistent with safe and sound banking practices.”  The Federal Banking Regulators also highlight “significant” safety and soundness concerns associated with business practices that are concentrated in crypto-asset related activities, or have concentrated exposure to the crypto-asset sector.

Takeaways

Given the risks highlighted by the Agencies and their doubts as to safety and soundness of certain crypto-related activities, federally-regulated financial institutions may wish to review their crypto-asset exposure.  This could include a review of their own activities or customer base, and assess whether the Agencies’ highlighted risks are present, and how to manage such risks, including through board oversight, policies, procedures, and monitoring.  For example, recent events, including regulatory enforcement actions, have highlighted the importance of heightened due diligence on crypto-market participants, particularly around issues of custody, anti-money laundering (AML) and sanctions compliance, and cybersecurity. 

Conversely, crypto-market participants, particularly newer entrants, should assess their policies, procedures, and controls, as appropriate, around crypto custody, AML and sanctions compliance, and cybersecurity.  Such areas, including compliance with stated terms of service, may be subject to increased diligence by federally-regulated financial institutions as they consider onboarding such participants, maintaining existing relationships, or otherwise transacting with them, consistent with such institutions’ risk management practices and procedures, and potential regulatory notification obligations.

While legal, regulatory and tax uncertainty continues to affect financial transactions in digital assets, we are seeing incremental guidance developing on US federal taxation issues. The Infrastructure Investment and Jobs Act (Infrastructure Act), enacted in 2021, amended provisions in sections 6045 and 6045A to clarify and expand the rules regarding the reporting of information on digital assets by brokers.

On December 23, 2022, the United States Treasury Department and Internal Revenue Service (IRS) released Announcement 2033-2 (“Announcement”). Under the Announcement, brokers are not required to report additional information with respect to dispositions of digital assets which were not otherwise subject to reporting prior to the enactment of the Infrastructure Act until final regulations are issued under sections 6045 and 6045A.[1]

Section 6045(a) provides that every person doing business as a broker shall make a return showing the name and address of each customer, with such details regarding gross proceeds and such other information as may be required by IRS forms or Treasury regulations with respect to such business. The term “broker” includes a dealer, a barter exchange, any person who (for consideration) regularly acts as a middleman with respect to property or services, and any person who (for consideration) is responsible for regularly providing any service effectuating transfers of digital assets on behalf of another person.[2] Brokers must furnish payee statements to customers by February 15 of the year following the calendar year of the sale. Brokers must file information returns on Form 1099-B, Proceeds from Broker and Barter Exchange Transactions, with the IRS by February 28 (or March 31 if filing electronically) of the year following the calendar year of the sale. The existing regulations under section 6045 do not specifically address the extent to which these requirements apply to sales or exchanges of digital assets and do not specifically include digital assets as a specified security subject to basis reporting.

Section 6045A(a) generally requires a broker who transfers to another broker securities that are covered securities in the hands of the transferring broker to furnish to the receiving broker a written statement setting forth information required by the regulations. The existing regulations under section 6045A require transfer statements to include specified information about the customer, the brokers involved, and the original acquisition information about the covered security. Brokers must furnish the transfer statements required under section 6045A(a) not later than 15 days after the date of the transfer. The existing treasury regulations under section 6045A do not specifically address the extent to which these requirements apply to transfers of digital assets which were not subject to reporting prior to the enactment of the Infrastructure Act.

This transitional guidance applies only to information returns filed or furnished by brokers. In contrast, taxpayers are still required to report any income they receive from transactions involving digital assets. They are also required to answer the digital asset question on page 1 of either Form 1040 or Form 1040-SR.

[1] All references to sections are references to sections of the Internal Revenue Code of 1986, as amended.

[2] Section 6045(c)(1)