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Crypto Clarity Is Up to Congress: Taking Stock of the Latest Lummis‐​Gillibrand Bill

Jack Solowey and Jennifer J. Schulp

Last Wednesday, July 12, an updated version of the Lummis‐​Gillibrand Responsible Financial Innovation Act (RFIA) became public. The updated RFIA, like its predecessor, looks to tackle crypto regulation comprehensively, covering in its 274 pages major topics including market structure, crypto exchanges, stablecoins, illicit finance, and taxation.

The proposal confronts the reality of longstanding legal uncertainty for American crypto market participants. Last week’s highly anticipated order in the case of Securities and Exchange Commission v. Ripple Labs, Inc., along with both the RFIA in the Senate and ongoing efforts in the House, all demonstrate that there’s still significant work to be done before the United States can credibly claim regulatory clarity for crypto.

The RFIA takes important steps toward providing more legal certainty to U.S. market participants, but on some of crypto policy’s most nettlesome questions there remains room for improvement. We offer our initial thoughts on the RFIA’s market structure, crypto exchange, and stablecoin components below. (Our colleague Nicholas Anthony will cover the illicit finance and taxation portions in forthcoming posts.)

Market Structure

One of the most hotly contested issues in crypto policy is the seemingly endless debate over whether and when a crypto token is properly considered to be a security or a commodity under U.S. law. The RFIA takes a swing at this issue by seeking to establish the concept of a crypto token as an “ancillary asset.” The idea is that while a crypto token may be sold pursuant to a type of securities transaction known as an investment contract, the token itself need not be considered a security.

Under the RFIA, the Commodity Futures Trading Commission (CFTC) would have exclusive jurisdiction over a crypto token that qualifies as an ancillary asset but not the “security that constitutes an investment contract.” To qualify as an ancillary asset, the token must not offer the holder any financial rights in a business, such as to debt or equity, liquidation, or interest or dividend payments.

The Securities and Exchange Commission (SEC), however, would have a role to play: where the average daily aggregate value of transactions in the ancillary asset exceeds a certain threshold and where the issuer engaged in “entrepreneurial or managerial efforts that primarily determined the value of the ancillary asset,” the issuer would be required to file detailed disclosures with the SEC. (Where the issuer certifies—and the SEC does not reject—that those efforts have ceased, disclosures are no longer required.) When the issuer complies with the disclosure requirement, ancillary assets owned by the issuer or affiliates will be “presumed” to be commodities and not securities. This presumption could be overturned by a court finding that an ancillary asset does confer a financial right.

Required disclosures to the SEC hinge on whether the issuer is engaged in relevant entrepreneurial or managerial efforts. This “efforts” language is familiar; the third prong of the Howey test for investment contracts asks whether the purchaser “is led to expect profits solely from the efforts of the promoter or a third party.” This element is frequently key to thinking about whether a crypto token should be treated as a security. One reason is that crypto technology allows token projects to develop such that the issuer’s efforts are no longer essential to the functioning or benefits of the project—in other words, projects can become decentralized.

The RFIA does not explicitly invoke decentralization when it comes to classifying crypto tokens as securities or commodities, but it implicitly grapples with the concept to some extent by incorporating the third prong of Howey. Perhaps for that reason, the RFIA’s co‐​author Senator Kirsten Gillibrand (D‑NY) told Yahoo! Finance that, at least in general, decentralization is relevant in determining a token’s legal character: “If it meets the Howey test, then it’s a digital security. If it does not, and it is fully decentralized and has the hallmarks of a commodity, then it’s a digital commodity.”

One benefit of the “ancillary asset” approach is that it potentially streamlines the token classification process. Nonetheless, as the RFIA’s effort to implement the approach demonstrates, it remains difficult in practice to avoid the “efforts of others” concept given the realities of existing (and convoluted) capital markets regulation and the characteristics of crypto. And in incorporating the idea of entrepreneurial or managerial efforts without further defining it—such as by more explicit reference to and definition of a decentralized token network—the current version of the RFIA leaves important questions unanswered.

Fortunately, one place to turn for such a definition—in addition to other proposals—would be the RFIA itself, which defines a decentralized crypto asset exchange (DEX). The RFIA largely defines DEXs as software where no person, or group of people agreeing to act together, can unilaterally control that protocol, including by altering transactions or functions. That’s a sound place to begin defining a decentralized token network as well.

In addition, distinguishing the token from the investment contract “arrangement or scheme” through which the token is offered or sold can leave questions about the investment contract itself. As noted above, under the RFIA, the SEC would retain jurisdiction over the investment contract. Yet the bounds of that jurisdiction are not clearly circumscribed. For example, would SEC jurisdiction over the investment contract be strictly limited to primary market token sales between the issuer and the counterparty, or could the SEC also extend its investment contract jurisdiction to secondary market token sales on theories related to the overall arrangement or scheme? Nothing about the SEC’s recent crypto enforcement activity suggests anything other than a willingness to aggressively assert, or expand, its jurisdiction. And the recent Ripple opinion, while containing important implications for secondary markets in crypto assets, expressly left open the question of whether secondary market token sales constituted offers and sales of investment contracts. If the RFIA envisions SEC crypto jurisdiction as covering only primary—not secondary—market token sales, it should say so unequivocally.

Exchanges

The RFIA contains provisions addressing both centralized and decentralized crypto asset exchanges. The bill requires any trading facility offering a market in crypto assets or stablecoins to register with the CFTC as a crypto asset exchange. Registered exchanges must both confirm that ancillary assets meet applicable disclosure requirements before they’re listed, as well as comply with core exchange principles, including safeguarding systems and customer assets, monitoring trading to provide an efficient market and prevent manipulation, and providing price and trade volume information.

While making important strides to define decentralized exchanges, as described above, the RFIA leaves somewhat uncertain their ultimate regulatory obligations. On the one hand, some sections regulate DEXs only indirectly by imposing risk management requirements on the centralized institutions that interact with DEXs, not the DEXs themselves. That registered crypto asset exchanges are subject to specific requirements regarding their interactions with decentralized crypto asset exchanges also suggests that the former (registered exchanges) does not necessarily include the latter (DEXs). Similarly, the RFIA defines a crypto asset exchange to expressly include a “centralized or decentralized platform” only for purposes of a tax provision, implying that the term crypto asset exchange is not generally meant to cover both centralized and decentralized platforms when used elsewhere in the bill.

On the other hand, by amending the Commodity Exchange Act’s definition of “trading facility,” which excludes systems that allow for bilateral transactions, to clarify that decentralized crypto asset exchanges that allow for multiple bids and offers to interact are distinguishable from such excluded systems, the RFIA suggests that at least some DEXs could be considered trading facilities subject to crypto asset exchange registration requirements. How exactly a DEX that enables trading pairs of crypto assets would mesh with this provision is perhaps open to interpretation.

Given these questions, the RFIA should make more explicit that disintermediated crypto exchange protocols are not subject to inapt requirements designed for centralized intermediaries.

Stablecoins

The RFIA would only permit “depository institutions,” such as banks, credit unions, and savings associations, to issue payment stablecoins (tokens redeemable on a 1‑to‑1 basis with instruments denominated in U.S. dollars). Notably, the RFIA would amend the definition of depository institution under the Federal Reserve Act to incorporate a category of “covered depository institutions” that includes non‐​banks exclusively engaged in issuing payment stablecoins and approved to operate by the Office of the Comptroller of the Currency (OCC) or a similar state authority. Under the RFIA, such OCC‐​authorized payment stablecoins would not be required to maintain federal deposit insurance.

It’s welcome when a bill allows for the operation of stablecoin issuers beyond federally insured depository institutions. Nonetheless, in giving federal banking regulators discretion to reject applications of prospective stablecoin issuers on the basis of subjective and open‐​ended criteria beyond basic reserve and disclosure requirements, the RFIA risks further constraining future payment services competition.

Concluding Thoughts

Providing clarity to crypto entrepreneurs, developers, and users in the United States remains a work in progress. Even with important case law evolving in the courts, Congress ultimately must provide a stable and practical framework for U.S. crypto policy.

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