Ji Kim
@_jikim
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Chief Legal & Policy Officer @crypto_council . Formerly @Gemini , @KrakenFX , & @WillkieFarr . Tweets are not legal or financial advice. Views mine.
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Joined June 2023
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It's unfortunate that the WH issued the below Statement of Administration Policy indicating that the President would veto H.J. Res 109, the resolution to nullify SAB 121.
SAB 121 would require custodians to record customers' digital assets as liabilities on their balances
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1/ Today, the House of Representatives voted 228-182 to repeal the SEC’s Staff Accounting Bulletin 121 (SAB 121) under the Congressional Review Act.
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1/ The
@crypto_council
just submitted an amicus brief in support of
@coinbase
challenging the SEC’s denial of its rulemaking petition.
TL;DR: The SEC’s pursuit of its flawed interpretation of securities laws through regulation by enforcement while refusing to engage in
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Treasury & IRS released proposed rulemaking on tax treatment regarding sales and exchanges of digital assets by "brokers." While it is encouraging to see that participants validating transactions through mining or staking are exempt from tax rules, the proposed definition of
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1/ Initial thoughts to Judge Failla’s Order RE:
@coinbase
's Mtn for Judgment on the Pleadings:
First, what happened? The court denied most of the motion (i.e., decided that SEC’s case against CB will move fwd on most of the alleged claims) but agreed that CB is entitled to
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Eight attorneys general of Montana, Arkansas, Iowa, Mississippi, Nebraska, Ohio, South Dakota, and Texas "opposes the SEC's regulation of crypto assets absent an investment contract because Congress HAS NOT delegated this authority to the SEC."
"The SEC's enforcement action
Eight state AGs in US challenge SEC's authority in Kraken lawsuit with joint amicus brief
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1/ The SEC filed a pre-mtn letter seeking interlocutory appeal in Ripple as to J. Torres’ holdings that programmatic sales in blind/bid ask transactions and distributions of XRP to employees are not securities under Howey. Simply put, SEC is asserting J. Torres got it wrong.
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The SEC's baseless regulation by enforcement approach unfortunately continues. The below reflects that the Commission fails to understand that the Uniswap Protocol, wallet, web app, etc do NOT meet the legal definitions of securities exchange or broker.
Our industry is one that
1/ Today’s Wells notice against
@Uniswap
is disappointing, but is not unexpected from this SEC
It’s another abuse of power – unsurprising from an SEC that:
Last month, a federal judge ruled committed a "gross abuse of power" by lying in court about a crypto project
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1/ ETH ETFs approved! Today's approval underscores that the SEC never had any legal basis to deny these ETFs and marks another win for market participants, the digital assets industry, U.S. innovation and the rule of law.
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1/ The SEC voted today 3-2 (Cmmsrs Peirce and Uyeda dissenting) to adopt rules to redefine and expand what it means to be a securities “dealer.” The expanded and vague definition broadly sweeps in more entities trading any crypto assets that the SEC deems to be securities,
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1/ I reviewed the below amicus brief suggesting that the major questions doctrine should not apply in the SEC v.
@coinbase
matter and respectfully would like to offer a few reactions, including on my areas of disagreement (no surprise) w/ the authors.
Today,
@beau_baumann
and I filed an amicus brief in the
@SECGov
v.
@coinbase
case, with the great help of lawyers at
@DemocracyFwd
. We argue that the SEC's enforcement action does not trigger the major questions doctrine. 1/
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The SEC just filed its opposition to
@coinbase
's mtn for judgment on the pleadings.
The SEC is wrong again. They make the sweepingly broad assertion that any investment w/ an expectation of profit is a security (e.g., page 8).
As mentioned (see below tweet), if we apply that
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1/ There’s been a lot of commentary regarding J. Rakoff’s opinion in Terra, but there is nothing in there that contradicts J. Torres’ ruling in Ripple that the investment contract is the security, NOT the underlying crypto asset.
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The SEC's continued regulation by enforcement approach needs to stop. 🙏 to
@amandatums
,
@millercwl
, the
@fund_defi
team, and
@BebaCollection
for suing to hold the SEC accountable. 🔥🔥🔥
The complaint has two claims: (1) a declaratory judgment action seeking a ct. order that
Today, we
@fund_defi
sued the SEC. It has everything to do with airdrops + stopping the SEC’s regulation by enforcement crusade against our industry. 🧵
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1/ The
@crypto_council
, in partnership with
@BlockchainAssn
,
@ProgressChamber
, and
@CTATech
, filed an amicus brief in support of
@coinbase
's mtn for judgment on the pleadings in the
@SECGov
action. A fun Friday 🧵 below:
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The WH states that it will not support measures that jeopardize the well-being of investors and consumers but SAB121 does exactly that by making it impossible for banks and responsible custodians to safeguard crypto. You should want such institutions to properly custody/safeguard
Disappointed but not surprised by the veto of SAB121 CRA- as I often say, silence is golden, because some positions once publicly stated wind up being tough to walk back.
This is a mistake and will actually undermine the very safety the administration seeks.
Interesting to
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2/ We applaud
@USRepMikeFlood
,
@RepWileyNickel
, and
@SenLummis
for their leadership on this important issue to help promote a more transparent process for making rules that significantly impact the U.S. financial system.
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It is beyond unfortunate that the SEC has attempted to regulate the digital assets industry through a regulation by enforcement approach without providing any needed guidance or clarity. As
@crypto_council
and I have previously stated, this is why it is so critical for Congress,
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4/ As SEC Commissioner
@HesterPeirce
said, SAB 121 is “yet another manifestation of the Securities and Exchange Commission’s scattershot and inefficient approach to crypto.”
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The below reflects a tremendous outcome when it comes to bankruptcies in the U.S. Kudos to
@cameron
@tyler
and the entire
@Gemini
team for all the work, negotiations, and behind the scenes commitment to ensure that Earn users receive the below outcome.
At the core of the U.S.
Today, Earn users received $2.18 billion of their digital assets in kind. These initial distributions represent:
• 97% of digital assets owed to Earn users
• $1 billion more than when Genesis halted withdrawals
• A 232% recovery from when Genesis halted withdrawals
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🔥 🔥🔥
Wyoming passed a new law yesterday to recognize DAOs as legal entities, which will enable blockchain networks to operate w/i the bounds of applicable laws without compromising their decentralization. Law goes into effect 7/1/24.
Why is this so significant? Among other
🚨Big News🚨Wyoming just enacted a game-changing law for web3.
It creates a new entity for DAOs – the Decentralized Unincorporated Nonprofit Association (DUNA) – that’s been years in the making.
@CowrieLLC
and I provide everything you need to know below:
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3/ SAB 121 marks a major policy shift in how banks and other entities custody assets, requiring responsible custodians who hold digital assets for their clients to keep those assets ON their balance sheets and subjecting them to enormous associated capital requirements.
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6/ The SEC argued that SAB 121 does not meet the APA definition of a rule because it is not an “agency statement” of “future effect.” The Government Accountability Office (GAO) disagreed, and clarified that SAB 121 qualifies as a rule under the APA because of its substantive
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5/ I’ll end with my favorite part of J. Torres’ ruling: “XRP, as a digital token, is not in and of itself a “contract, transaction[,] or scheme” that embodies the Howey requirements of an investment contract.” 🔥
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Commissioner
@HesterPeirce
's comments at SEC Speaks are a worthwhile read. 👇
She comments on the "dwindling of genuine Commission and staff engagement with the public" and how "[t]he Commission -- not the staff or market participants -- is to blame."
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5/ Alarmingly, the SEC issued SAB 121 without adhering to the notice-and-comment rulemaking process. The Administrative Procedure Act (APA) defines a rule as “the whole or a part of an agency statement of general or particular applicability and future effect designed to
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9/ We again applaud Congress for stepping in to address the SEC’s continued approach of sidestepping the rulemaking process, which only creates uncertainty and confusion in the marketplace.
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Extremely positive news/update for Earn users 👇. If the settlement is finalized and approved by the BK Court, Earn users will receive 100% of its digital assets IN KIND and any and all appreciation since assets were lent. AND Gemini is contributing $40 million to Earn users'
Earn Update: Today, we are pleased to announce that we have finally reached a settlement in principle with Genesis and other creditors in the Genesis Bankruptcy that will, if approved by the Bankruptcy Court, result in all Earn users receiving 100% of their digital assets back in
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12/ CCI strongly supports this bipartisan and bicameral effort to correct the SEC’s approach towards digital assets. It is essential to uphold the integrity of regulatory processes and support the growth of all sectors within the U.S. financial system.
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2/ Second, it is impt to keep the procedural context in mind. This, again, was a “motion for judgment on the pleadings,” which means that the court is required to assume that all plead facts are true in order to see if the SEC “plausibly” stated a claim against CB–this only
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8/ At a time when the digital assets industry needs clarity, this rule delivers further confusion. And this despite the industry repeatedly seeking to engage constructively and in good faith with the SEC through comments and dialogue. Our system of government requires better.
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Here are the facts: the SEC previously stated that it had at most limited authority over digital assets just to CHANGE course under this Chairman to pursue an aggressive regulation by enforcement approach w/o providing needed clarity despite the industry's repeated asks--such an
Today
@coinbase
filed our opening brief in the Third Circuit challenging the SEC’s denial of our rulemaking petition. Tl;dr: the SEC’s denial is arbitrary and capricious, an abuse of discretion, and a violation of the Administrative Procedures Act. 1/7
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10/ The broad consensus is clear: using SAB 121 as a vehicle to set precedent for digital asset custodians is inappropriate and misleading. This is not how critical financial regulations should be established.
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7/ Traditionally, staff accounting bulletins are not designed to enact sweeping policy changes; they are meant to clarify existing rules. SAB 121, however, acts as a new rule, impacting core aspects of the financial and digital asset industries.
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12/ As a general matter, judges and cts may come out w/ diff conclusions depending on the underlying facts. This is even more reason for Congress to act on legislation to bring clarity. The HFSC and HouseAg advancing the MS bill was a big first step in this regard.
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8/ As I've previously stated, SAB 121 should have been subjected to public feedback and regulatory scrutiny before implementation. The SEC’s attempt to bypass established rulemaking processes under the guise of issuing 'staff-level guidance' undermines trust and due diligence
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Big news! Grayscale wins--SEC is ordered to review its rejection of Grayscale's attempt to convert its Trust into an ETF.
Will need to thoroughly review the relevant docs/details, but few initial questions/thoughts as we assess this: what are the exact next (mechanical) steps
🚨BREAKING: A DC Court of Appeals has GRANTED Grayscale’s petition for review to convert its GBTC Trust into a Bitcoin Spot ETF and has ordered the
@SECGov
’s order be vacated. Documents and detail to come.
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11/ With the disapproval resolution, Congress is taking a stand to ensure that such significant changes go through the proper public rulemaking process. This is vital for maintaining a competitive and innovative financial landscape.
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1/ Yesterday,
@crypto_council
filed our comment letter to the proposed broker reporting regulations. While CCI appreciated the opportunity to provide recommendations, there are many aspects of the proposed regs that do not take into account the unique nature of digital assets.
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6/ Lastly, while I disagree w/ the Judge on several parts of the Order, I do want to 🙏 her for her careful consideration. Footnote 1 in the Order reflects the clear fact that she really thought through and listened to arguments from all sides (including from amici) and spend
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1/ Thoughtful and helpful thread from
@AlexanderGrieve
.
Few add'l thoughts:
It goes without saying that ANYONE who funds or aids terrorism should be stopped and brought to justice–END OF SENTENCE.
‼️
@SenWarren
,
@RepCasten
, &
@RogerMarshallMD
lead letter with 28 Senators and 76 House members to Treasury & NSC on Hamas use of crypto, asking what additional authorities the admin might need (hint: their bill) to crack down on this activity. (NB: only 2 Rs on it)
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3/ Next, I respectfully disagree w/ several parts of the Order (snippet of my disagreements below).
The court seems to disagree that there needs to be a contractual undertaking for an investment contract to exist–I disagree. It seems to adopt the SEC’s common ecosystem argument
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5/ As stated before, judges and cts. may come to different conclusions--this is even more reason why we need Congress to act on needed legislation to bring clarity. Congress is the proper institution to advance a comprehensive framework for our industry.
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The IRS released a draft Form 1099-DA for reporting "Digital Asset Proceeds from Broker Transactions":
As a refresher, this is the form that "brokers" will start using in 2025 to report digital asset transactions to customers. This is a draft form
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7/ Commissioner Mark Uyeda similarly raised concerns in his dissent:
“Today’s action codifies the Commission’s view that the “dealer” definition is practically limitless. The public should be concerned about the immense scope of this claimed jurisdiction." 🔥💪
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6/ Lastly, at the risk of sounding like a broken record, even more reason why it is important for Congress to act to provide needed clarity.
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🙏 appreciation to the dedicated Hill staffers who joined
@crypto_council
's briefing on the FIT for the 21st Century Act and the current regulatory landscape. FIT21 provides for a clear process for market participants and regulators to follow to best protect investors while
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We, as an industry, have always looked to engage constructively and in good faith with regulators and policymakers around the world. We will also go on the offensive to properly and vigorously represent, defend, and advocate.
Unfortunately the finalized Dealer Rule, among other
1/ Today,
@BlockchainAssn
and the Crypto Freedom Alliance of Texas sued the SEC over the recently finalized Dealer Rule. The rule is arbitrary and capricious, and presents significant risk for digital asset market participants in the U.S.
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1/ The most impt part of the ruling speaks for itself: “XRP, as a digital token, is not in and of itself a “contract, transaction[,] or scheme” that embodies the Howey requirements of an investment contract.”
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11/ Lastly, J. Rakoff’s decision is ofc not binding on other district court judges. Imo his discussion on the secondary market should be read in the context of the specific asset and transactions in this case, rather than as a general rule.
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BIG day for our industry and for bipartisanship. US Senate voted 60-38 to overturn SAB 121, which was issued without following a proper CRA or APA process. True bipartisan effort in both the House and Senate to push back against SEC's overreach and flawed process.
What happens
1/ Today, 60 Senators on both sides of the aisle - including Majority Leader
@SenSchumer
- voted to repeal the SEC’s Staff Accounting Bulletin 121 (SAB 121) under the Congressional Review Act.
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2/ These adopted rules require market participants who provide significant liquidity to the markets (and have $50 mill or more in assets) to comply with federal securities laws (e.g., registering as a dealer), including when transacting in crypto securities (which the SEC
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4/ (Of course the question still remains what, if any, crypto assets are securities? This is guidance CCI and the broader industry has been seeking to no avail.) As one example, the expanded definition might now include the automated and algorithmic trading technology to execute
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With the NY legislative session underway,
@crypto_council
appreciated the opportunity to meet w/ key policymakers to discuss the ongoing impact and transformative potential for digital assets in NY. CCI continues to advocate for the development of modern, coherent, and
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4/ I also disagree that the MQD does not apply, but I won't rehash all of that here. See 👇:
1/ The
@crypto_council
, in partnership with
@BlockchainAssn
,
@ProgressChamber
, and
@CTATech
, filed an amicus brief in support of
@coinbase
's mtn for judgment on the pleadings in the
@SECGov
action. A fun Friday 🧵 below:
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5/ Similarly, he also said that when “a stablecoin is designed exclusively to maintain a [1:1] peg with another asset, there is no reasonable basis for expecting that the tokens – if used as stable stores of value . . . would generate profits through a common enterprise."
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Very much appreciate
@RebeccaRettig1
,
@m_mosier_
, and
@katjagilman
for the thoughtful approach to further the conversation regarding DeFi and how to best combat any illicit finance and achieve financial integrity goals. 🙏
1/ Today,
@m_mosier_
@katjagilman
& I are sharing a paper that begins a conversation around, & proposes a conceptual framework for, how to answer the "illicit finance" policy question as it relates to DeFi. A brief thread below, with links to the full paper + a summary document.
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10/ The procedural context also matters here. J. Rakoff decided that the SEC had alleged a plausible enough claim under Howey (MTD) whereas J. Torres determined that the SEC could NOT prevail on several of its Howey theories w/ a developed discovery record (MSJ).
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2/ In fact, J. Rakoff, in his ruling, agrees with the premise that crypto assets, in and of themselves, are not investment contracts. Let’s take a look at his exact words.
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10/
@crypto_council
was proud to have filed an amicus brief in support of Ripple back in 2022.
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3/ The final rules do not address fundamental differences and nuances related to crypto assets, DeFi, markets, or participants. The initial proposal merely mentioned crypto in a footnote.
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7/ With that said, if you apply the analysis for Programmatic Sales, I find it difficult to understand how secondary market sale transactions are securities (not legal advice).
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5/ Even Commissioner
@HesterPeirce
expressed her confusion that even AMMs (automated market makers) may have to register as a dealer under the current final rules–see 👇:
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2/ Here, J. Torres states that the investment contract is the security, NOT the underlying crypto asset.
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3/ “Much as the orange groves in Howey would not be considered securities if they were sold apart from the cultivator’s premise to share any profits derived by their cultivation, the term ‘security’ also cannot be used to describe any crypto-assets that were not somehow. . .
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2/ This was expected. Re-read J. Torres’ decision and still think she came to the right conclusions. It is possible that the Second Circuit affirms the conclusions for different reasons, which would still provide needed clarity and be positive for the digital asset industry.
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9/ (The other (obv) takeaway? Regulation-by-enforcement fails to provide clear rules of the road while allowing responsible innovation to flourish. Today’s monumental decision reminds us of this.)
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7/ J. Rakoff was not considering the question of whether crypto tokens initially sold as investment contracts under Howey qualify as such when they are subsequently traded b/w other parties on secondary market trading platforms.
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3/ If it goes up to the S. Ct., I just see this as another opportunity for our judicial system to reach the proper conclusion.
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6/ “The rule covers providers of liquidity in crypto asset securities. Not only do the tired questions about when a crypto asset is a security remain, but the rule raises new questions about how the rule will apply in the context of automated market makers (“AMMs”). For example,
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3/ First, the amicus authors seem to suggest that Howey is a clear framework to apply to digital assets, but this disregards the fact that federal courts have already applied this framework to reject the SEC’s arguments in finding that certain digital assets are NOT securities.
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4/ In determining that the Programmatic Sales are NOT securities, she focuses on how these were blind/bid ask transactions (i.e., buyers could NOT have known if their payments of $ went to Ripple).
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9/ J. Rakoff was focused on instances where the issuer’s marketing of the crypto could lead a reasonable buyer to conclude that their purchase $ will be pooled into a common enterprise towards a future investment return.
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The IRS just extended the comment period to its proposed broker rules to November 13. It is impt to respond and comment on these proposed rules, which will significantly affect our digital assets industry.
See below from
@crypto_council
’s filed letter requesting extension:
“The
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4/ Other things to keep in mind: (i) Ripple will have an opp to respond; (ii) J. Torres has to grant this request; (iii) the Second Circuit must also agree to take up the appeal; and (iv) SEC is asking to “stay” (pause) the remainder of the case until resolution of the appeal.
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See👇 for WH Statement of Administration Policy on FIT 21. This SAP was expected but notably there is no veto mention or threat. It even states that the "[WH] is eager to work with Congress to ensure a comprehensive and balanced regulatory framework of digital assets."
The
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8/ He also wasn’t addressing whether the platforms themselves can be said to be in any investment contract when there is no privity b/w them, issuers, or secondary market traders.
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4/ intermingled with one of the investment ‘protocols,’ did not confer a ‘right to . . .purchase’ another security, or were otherwise not tied to the growth of the Terraform blockchain ecosystem.”
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5/ Contrast that with Institutional Sales where she finds there were bilateral sales by way of an investment contract (e.g., buyers expected that Ripple would use capital to improve XRP ecosystem, etc.).
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TL;DR:
GAO reviewed SEC's SAB 121 and concluded that it is an actual RULE.
(SAB 121, among other things, requires custodians to record customers’ digital assets as liabilities on their balance sheets. This makes it commercially onerous for mature and responsible financial
Securities and Exchange Commission—Applicability of the Congressional Review Act to Staff Accounting Bulletin No. 121
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3/ TL;DR: J. Torres grants SEC’s MSJ as to “Institutional Sales” (sale to hedge funds, etc.) AND grants Ripple’s MSJ as to “Programmatic Sales” (sale on exchanges through use of trading algos), “Other Distributions” (distribs to employees), and Larson's and Garlinghouse's sales.
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6/ While a judicial clerk, I was taught that the most important things are often in the footnotes. FN 16 reflects that J. Torres is not addressing whether secondary market sales of XRP constitute offers and sales of investment contracts.
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Earlier this week,
@crypto_council
responded to HK's proposed stablecoin regs. We encouraged the establishment of an equivalence framework, capital and reserve requirements to be in-line with those in other leading jurisdictions, alignment w/ int'l standards, inclusion of diverse
1/ CCI responded to Hong Kong's proposed stablecoin regulations. The initiative is at a pivotal moment, therefore, we outlined a balanced regulatory approach that fosters innovation while ensuring consumer protection. Our key points:
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9/ The SEC is attempting to rewrite the legal definition of "investment contract" to extend its powers w/o proper Congressional authorization. The SEC's approach fails as a matter of text, history, and precedent, and invokes application of the MQD.
1/ The
@crypto_council
, in partnership with
@BlockchainAssn
,
@ProgressChamber
, and
@CTATech
, filed an amicus brief in support of
@coinbase
's mtn for judgment on the pleadings in the
@SECGov
action. A fun Friday 🧵 below:
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4/ I will respectfully note that one of the authors has argued that Congress should pass new laws regarding reg oversight of crypto. I agree. This underscores that greater clarity should come from Congress (rather than from unelected officials).
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7/ Third, I would disagree w/ the attempt to narrow the import of this case b/c it is related to only one litigant. This is a gross oversimplification as resolution of this and similar cases would have tremendous implications for an entire industry w/ millions of investors.
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2/ My main takeaway is that the amicus is further evidence that ambiguity re: the application of securities laws to digital assets should be resolved by Congress and that otherwise the U.S. will lack a comprehensive framework to allow for responsible digital asset innovation.
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12/ Read our brief in entirety 👇. Thank you also to my amazing colleagues,
@pnpkirby
and
@mccall_b_wells
, as well as the 💪 team at
@JennerBlockLLP
.
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Talk about acting with passion and conviction. Congrats to Cameron, Tyler,
@winklevosscap
,
@PeterMcCormack
, and all those involved. More generally, the below is a great example of how sports and crypto can help so many communities.
Time to get a
@realbedford
jersey. 🔥
Today,
@tyler
and I are excited to announce that
@winklevosscap
has made a $4.5M bitcoin investment in
@realbedford
, becoming co-owners alongside
@PeterMcCormack
, and creating the first-ever football club powered by bitcoin. Why did we make this investment? A few reasons:
Peter
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5/ This author has also suggested that Congress act to enhance reg oversight of spot digital commodity markets (“skeptics should push for a strong regulatory regime for crypto commodities that elucidates the differences between crypto securities and commodities”) – I again agree!
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Congrats
@matt_homer
and
@deptofxyz
! Look forward to seeing your continued leadership, expertise, and success. "Regulatory friends on speed dial...."🔥🙌
Former DFS crypto regulator
@matt_homer
raised $5.1 million for a blockchain-focused venture fund with a who's who of backers, including
@rleshner
,
@KyleSamani
, and the Winklevii.
I wrote about his approach:
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Thanks to
@DecentialMedia
and
@AmandaSWriter
for including my thoughts re: WY's DUNA.
DAOs that failed to use a legal entity for organization lacked legal existence, had potential liability exposure, and were unable to pay taxes--WY's DUNA now addresses all of this. (As we saw
Wyoming leads the way in embracing
#DAOs
(cue the confetti cannons)! 🎉
While
@SenLummis
hints at more blockchain innovation, could the state become the next hub for the
#digitalasset
industry?
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Today, Gemini Turns 8 Years Old! 🎂
We lifted off in 2015 when
#Bitcoin
was $238 and crypto was the wild west.
Let’s review the year's most exciting announcements, and take a moment to discuss our values that are core to everything we do at Gemini.
🔐Dedication to security
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It's unfortunate that during a time when the digital assets industry is seeking regulatory clarity, the SEC has failed to provide this much-needed guidance.
As
@crypto_council
previously stated in our amicus brief, the SEC's "pattern of enforcement without providing a viable
Meanwhile in the Third Circuit, the SEC filed an “update” on our petition for rulemaking. You can read it for yourself, but I’m happy to translate: “Still dragging our feet, please give us yet more unlimited time to actually do something.” We appreciate the Court’s consideration.
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8/ I stand by the MQD arguments (and reasoning) set forth in the amicus brief filed by
@crypto_council
,
@BlockchainAssn
,
@ProgressChamber
, and
@CTATech
.
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Amazing leadership by
@paradigm
@brendanpmalone
and
@RSSH273
in establishing the Policy Lab. Intentional and thoughtful collab by lawyers, policy professionals, technologists, and academics will be instrumental for our industry. 🙌
1/ we’re launching the
@paradigm
Policy Lab today to double down and broaden our policy push at a critical point in the national discourse in crypto policy
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