Cryptocurrency, Blockchain, & the SEC's Actions
To understand why governments are interested in regulating cryptocurrencies, background about their potential function is necessary.
To understand why governments are interested in regulating cryptocurrencies, background about their potential function is necessary.
The Committee on Foreign Investment in the United States (“CFIUS”) is a multi-agency committee comprised of members from executive agencies related to the economy, national security, and foreign intelligence. The agency was created during Gerald Ford’s presidency and its mandate is to review any transaction (called “covered transactions”) that might have an impact on U.S. national security (Keeler, Mayer Brown).A covered transaction is a merger, acquisition, or takeover in which a foreign national, entity, or government acquires an interest in a U.S. business that has an impact on U.S. national security (Jaramillo, Foley Hoag).This system of review was designed to be voluntary. Even so, CFIUS maintains the ability to block transactions when no notice of filing is submitted through the CFIUS system.
With Blockchain technology becoming more prevalent worldwide, particularly as it relates to cryptocurrencies and initial coin offerings (“ICOs”), regulators continue their struggle to develop appropriate legislation that embodies an ideal balance between regulation and innovation. In an effort to help shape these new regulations and encourage legislation that is favorable to the crypto industry, many crypto leaders have increased their presence in Washington, primarily through lobbying efforts. (Lydia Beyoud, Bloomberg Law). In fact, lobbying efforts increased significantly during 2018 with larger crypto groups spending six-figures per quarter on lobbying alone, and crypto-specific companies filing twice as many lobbying reports in 2018 as 2017. (Id.).
Cryptocurrency and the technology it relies on, blockchain, revolutionized both the tech and finance world. A blockchain is a distributed record of transactions, usually managed by a peer-to-peer network of computers that validates the transactions. With companies racing to take advantage of this new industry, it was only a matter of time before some companies would try to take advantage of unsuspecting investors. This is what happened with a company called Compcoin LLC. (“Compcoin”).
In Plumbers & Steamfitters Local 773 Pension Fund v. Danske Bank A/S, No. 19-cv-235 (S.D.N.Y. Jan. 19, 2019), Plumbers & Steamfitters Local Pension Fund (“Plaintiffs”) filed a class action suit against Danske Bank A/S (“Defendant”). The complaint was filed on behalf of all purchasers of Defendant’s American Depositary Receipts (“ADRs”) between January 9, 2014 and October 23, 2018. Plaintiffs claimed Defendant engaged in a series of untrue and misleading statements in response to allegations of illicit banking activities stemming from Defendant’s Estonia branch during the class period, thereby violating Rule 10b-5 of the Securities Exchange Act of 1934 (“the Act”).
On January 7th Coinbase paused trading on Ethereum Classic (ETC) after it fell victim to a 51% attack. The attack resulted in over $500,000 of ETC being spent twice (Olga Kharif, Bloomberg Law). To appreciate what this means for the ETC mining community, two things must be understood: Hash rates and a 51% attack.
“Hash rates” or “hash power” refers to the total computing power of a decentralized network. Proof of Work (PoW) blockchains, like Bitcoin and Ethereum, are driven by miners “hashing,” which is essentially solving complicated math problems. (Bisade Asolo, MyCryptopedia).
In Akorn, Inc. v. Fresenius Kabi AG (Del. Ch. 2018 WL 4719347), the plaintiff pharmaceutical company (“Akorn”) brought suit against Fresenius seeking specific performance of its signed merger agreement. Fresenius argued it was permitted to terminate the merger agreement because Akorn’s actions, performance, and misrepresentations following execution of the agreement constituted a materially adverse effect (“MAE”) under the terms of the merger agreement and thus excused Fresenius’s obligation to perform. The court held that Fresenius legally terminated its merger agreement with Akorn because: (1) Akorn made material misrepresentations with regard to its business operations and the status of its regulatory compliance before the closing date, (2) Akorn did not materially comply with or perform its obligations under the merger agreement prior to the effective closing date, and (3) Akorn suffered a general MAE that allowed Fresenius to terminate the agreement.
The recent government shutdown prevented privately held companies from submitting their requests to the Securities and Exchange Commission (“SEC”) to offer their shares to the public. The SEC is responsible for reviewing a company’s registration documents and financial data necessary for initial public offerings (“IPOs”). Prior to the shutdown, the SEC urged companies to file accelerated registration statements so that they could be approved. (Associated Press, New York Times). Although companies may go public without SEC approved registration statements, the company would certainly be subject to SEC scrutiny upon the government’s reopening. (Rob Crilly, The National). Consequently, most companies decided to wait for approval from the SEC prior to their IPOs being made available.
Proxy contests are one means through which shareholders can voice concerns about board action. Due to their excessively high cost, proxy contests were once somewhat rare; today, however, they are much more common due to the flourish of hedge funds. (Warren S. de Wied, Fried, Frank, Harris, Shriver & Jacobson LLP, Westlaw Practical Law). One such hedge fund contributing to these proxy contests is Third Point, LLC (“Third Point”), founded by Daniel S. Loeb in New York in 1995. (Campbell Soup Co.). This note introduces readers to current trends in activist-led proxy contests, summarizes a recent proxy fight between Third Point and Campbell Soup Co. (“Campbell”), and speculates on how this and similar contests may affect corporate accountability in 2019.
Last year, financial regulators around the world adapted to the rise of blockchain and cryptocurrency. Approaches to regulation have varied, but most major financial markets are striving to better understand the technology and develop methods for investor transparency and protection. In 2018, regulators such as the Securities and Exchange Commission (“SEC”) and Commodity Futures Trading Commission (“CFTC”) reacted to the cryptocurrency marketplace with heightened attention. (Jonathan Levin, Bloomberg). Last year, for example, the SEC started to examine smaller brokerage firms dealing virtual tokens for potential enforcement actions. Outside the United States, French regulator Autorite des Marches Financiers (“AMF”) blacklisted new cryptocurrency investment websites, while Russia drafted legislation to implement cryptocurrency regulation.
On May 25, 2018, the European Union (EU) began the enforcement of the General Data Protection Regulation (GDPR) with the aim of protecting all citizens residing within the EU from privacy and data breaches. (GDPR Key Changes, GDPR.org). Approximately 40% of acquiring companies that engage in merger and acquisition transactions discover cybersecurity issues in their newly-acquired entities, and companies are starting to become wearier of acquisition transactions due to the expensive repercussions of non-compliance with GDPR rules. (Harroch, Forbes). Approximately $1.3 trillion of deals have failed with 900 transactions being terminated or withdrawn due to GDPR concerns, despite 2018 being a notable year overall for mergers and acquisitions. (Thomson, Bloomberg Law).
Alibaba Group Holding (“Alibaba”), a Chinese multinational corporation, which provides internet infrastructure, e-commerce, online financial, and internet content services, has acquired German start-up data analysis company, Data Artisans (“Artisans”) . (Reuters, Bloomberg). Alibaba has been called the Chinese “Amazon” and is currently the world's fifth-largest internet company by revenue. (Yahoo Finance). Artisans, which was founded in 2014 by Kostas Tzoumas and Stephan Ewen, is attributed with creating Apache Flink, an open source stream processing framework for high-performance, scalable, and accurate real-time applications. (Ververica). The Apache Flink application essentially analyzes large quantities of data as it comes in, rather than once it is saved, providing for a more efficient stream processing method. (Stephan Scheuer, Handelsblatt).
Following Democratic control of the House, a new resolution was passed in January as a means to limit lawmakers’ control over public companies. Specifically, the resolution amended the Rules of the House of Representatives to ban House lawmakers’ membership on public company boards, with exceptions for nonprofits and board positions that do not provide compensation. (H. Res. 1043). Other rules passed at the same time direct the House Committee of Ethics to address conflict of interest concerns arising from lawmakers’ participation in other company roles. (Andrea Vittorio, Bloomberg Law). Although a similar ban and exceptions have existed for members of the Senate, until now there were no equivalent rules for the House.
Countries around the world are being forced to decide what role, if any, cryptocurrencies and initial coin offerings (“ICOs”) will play in their financial markets. The United States is no exception, as investors and leaders in the crypto industry continue to push for as little regulation as possible. But given the long, slow nature of the regulation process, many of these investors and crypto leaders are anxious to see some form of clear and uniform cryptocurrency regulations (Adrian Zmudzinski, Cointelegraph). To make matters worse, the partial shutdown of the federal government further delayed the process, particularly as it relates to agencies such as the Securities and Exchange Commission (SEC) (John Nancarrow, Bloomberg Law).
Is political endorsement considered good corporate governance practice? Patagonia says yes.
Shortly before the November 6, 2018 midterm election, Patagonia publicly endorsed two Democratic senatorial candidates, Jon Tester from Montana and Jacky Rosen from Nevada, what appears to be a first for any corporation. Patagonia stated that it endorsed the candidates because of their commitment to public lands and waters. (Dino Grandoni, Power Post). Both Tester and Rosen were victorious in the midterm elections.
International Business Machines Corporation (“IBM”) announced on October 28th of 2018 its plans to acquire American software company Red Hat, Inc. (“Red Hat”) for $34 billion. (Liana B. Baker and Greg Roumeliotis, Reuters). The deal, which is the software industry’s largest-ever acquisition, is expected to close in the latter half of 2019. Id. IBM is set to pay $190 per Red Hat share — a 63% premium on Red Hat’s closing share price on October 26, 2018. Id. IBM intends to maintain Red Hat’s headquarters, facilities, brands, and practices, as well as retain Red Hat’s management team and Chief Executive Officer Jim Whitehurst after the deal has closed. Id. This post provides an overview of the two companies, the deal, and its anticipated effects.
A settlement agreement has been reached regarding the SEC Investigation of Elon Musk and his infamous Tweet stating that he was taking Tesla private. The tweet created an array of problems for the company since its publication. Under the settlement agreement, both Tesla and Musk will each pay a $20 million dollar fine and Musk will resign as Tesla’s Chairman for three years in order to resolve other pending charges arising from this incident. (Munsif Vengattil, Business Insider). The $20 million dollar fine assessed to Tesla was not for fraud, however, but rather, for the company’s failure to have any procedures or disclosure controls over Musk’s communication practices, i.e. his Twitter account. (Kirsten Korosec, TechCrunch). As a result of Musk’s resignation, Tesla will have to appoint two new independent directors to its board. (SEC Press Release). Nevertheless, despite the settlement agreement and the backlash that ensued over his Tweet, Musk will remain as Tesla’s Chief Executive Officer and more importantly, he will not have to admit or deny the allegations of the lawsuit.
On October 31, 2018 the SEC adopted new mining disclosure requirements that were originally proposed under the Obama Administration. (Andrew Ramonas, Bloomberg Law). According to an agency press release, the amendments, which modify both the Securities Act of 1933 (Securities Act) and the Securities Exchange Act of 1934 (Exchange Act), will “provide investors with a more comprehensive understanding of a registrant’s mining properties, which should help them make more informed investment decisions.” (SEC, Press Release). The new rules eliminate and update Industry Guide 7, the current set of rules that have been called “woefully out of date.” (Anderson, Brenkert, and Doerksen, Dorsey & Whitney LLP).
On August 15, 2018, Best Buy Co., Inc. (Best Buy) announced that it signed a definitive agreement to acquire GreatCall Inc. (“GreatCall”) for $800 million as part of its growing business selling health and wellness products specifically focused on the aging population. (Investor Relations, Best Buy). GreatCall is the maker of the senior focused Jitterbug cell phones along with other devices designed to allow elderly consumers to connect with caregivers and to facilitate communication with emergency services. (Barba, Wall Street Journal). The acquisition is projected to be neutral to Best Buy’s adjusted earnings in 2019 and 2020 as well as to increase its adjusted earnings by 2021. (Investor Relations, Best Buy). The acquisition is part of Best Buy’s 2020 strategy to use technology to address key human needs among the aging U.S. population. (Barba, Wall Street Journal). GreatCall headquarters will remain in San Diego and David Inns will remain as the company’s CEO. (Press Release, Market Watch).
In September 2018, the United Kingdom’s Treasury Select Committee ("TSC") published the result of its months-long examination of the UK’s cryptocurrency sector. It provided regulatory recommendations to protect consumers and to prevent fraud and money laundering in the cryptoasset market (the “TSC Report,” House of Commons Treasury Committee Crypto-assets Report.) Certain industry players, led by the non-profit British Business Federation Authority (BBFA), objected to these recommendations. They argued the TSC’s proposed approach lacks nuance and will lead cryptomarket participants to flee the UK for jurisdictions with fewer regulations (William Suberg, Coin Telegraph.).
In Davis v. Skullcandy, Inc., No. 2:16-cv-00121-RJS-PMW, 2018 BL 96655 (D. Utah Mar. 21, 2018), the United States District Court for the District of Utah Central Division granted Skullcandy, Inc. (“Skullcandy”), CEO Seth Darling ("Darling"), CFO Jason Hodell ("Hodell"), and board member Richard Allen’s ("Allen") (collectively the “Defendants”) motion to dismiss shareholder Melanie Davis’s (“Plaintiff”) securities fraud claim alleging Defendants mislead shareholders about Skullcandy's performance. The court held Plaintiff did not allege with particularity a violation of Section 10(b) or Section 20(a) of the Securities Exchange Act of 1934 (the “Exchange Act”).
On July 16, 2010, the CEO and co-founder of Instagram, Kevin Systrom, posted the very first photo to the social media platform, which depicted a golden retriever next to a taco stand. (Olivia Waxman, The New York Times). Within 18 months, Facebook, Inc. purchased Instagram, and nearly 8 years after Instagram’s inception, the co-founders of Instagram, Kevin Systrom and Mike Krieger, announced their resignation from Facebook, Inc. in a New York Times article. (Mike Isaac, The New York Times).
When a private company decides to “go public”, it does so through an Initial Public Offering (IPO). An IPO is the private company’s first sale of stock on the public market. Benefits of going public can include a permanent and liquid source of capital for the company, and the company can increase their brand and name recognition through broadcasting their corporate narratives, which suggests legitimacy and stability. (Joe Bou-Saba, Forbes). Although the number of domestic companies listed on U.S. stock exchanges increased in the mid-1990’s, that number has since dropped by nearly half. (Editorial Board, Bloomberg; Michael Wursthorn and Gregory Zuckerman, Wall Street Journal). A study by the Center for Research in Security Prices at University of Chicago’s Booth School of Business reported in the Wall Street Journal showed that in 1996 there were over 7,400 companies listed on U.S. stock exchanges, and today that number is less than half. (Michael Wursthorn and Gregory Zuckerman, Wall Street Journal).
Initial coin offerings (ICOs) function in two capacities: they are used as a way for companies to raise capital and as investment opportunities for individuals. ICOs are relatively new, with the first ICO occurring in 2013. Initially, ICOs were not regulated by the Securities and Exchange Commission (SEC) and there were no restrictions on who could invest. In July 2017, however, the SEC released an investigative report determining that a particular coin was a security and, therefore, subject to federal securities laws. Despite new regulations and increased SEC scrutiny, ICOs continue to grow.
Corporate boards face increasing compliance responsibilities and must consider how best to handle those responsibilities. There are various sources of the increasing burdens and pressures being placed on corporate boards. Among them are the traditional legal duties of due care, good faith, and loyalty placed on directors, with possibly severe consequences if directors fail to fulfill those duties. Included in the duty of care is the especially challenging duty of establishing and monitoring internal controls, the so-called Caremark duty, which lies at the heart of fulfilling the board’s compliance responsibilities.
The Securities and Exchange Commission (SEC) held a roundtable on November 15 to discuss whether the SEC’s current proxy voting rules and procedures should be updated. (Chairman Jay Clayton, SEC Announcement). According to the announcement, the evidence and testimony presented at the roundtable will aid SEC staffers in making their recommendations about what changes should be made. (Andrew Ramonas, Bloomberg Law). The roundtable is scheduled to discuss several topics, including the voting process, retail shareholder participation, shareholder proposals, proxy advisory firms, technology and innovation, and other actions. (Chairman Jay Clayton, SEC Announcement).
Blockchain and cryptocurrency are now mainstays in financial markets and initial coin offerings (“ICO’s”) are giving companies and firms a new avenue to raise capital. Within the cryptocurrency market, “stablecoins” offer a unique form of cryptocurrency to investors. Stablecoins are cryptocurrencies pegged to real-world assets such as the dollar (“USD”) or gold. (Oscar Williams-Grut, Business Insider). Breaking from the volatility seen in other cryptocurrency markets, stablecoins are an attempt to combine the benefits of digital transfer offered by cryptocurrency with the stability of mainstream currency. (Oscar Williams-Grut, Business Insider).
On September 20th of this year, fashion industry giants Michael Kors Holdings Limited (“Michael Kors”) and Gianni Versace S.p.A. (“Versace”) issued a joint press release announcing that Michael Kors would purchase Versace for $2.12 billion. (Katina Metzidakis, Business Wire). The transaction is expected to be completed in Michael Kors’ fourth quarter, which ends April 1, 2019. (Michael Kors Holdings Limited, 2018 Annual Report). When the transaction is complete, the company will be renamed Capri Holdings Limited (“Capri”), after the famed Italian island “long recognized as an iconic, glamorous and luxury destination.” (Katina Metzidakis, Business Wire). This post provides an overview of the transaction and its anticipated effects.
Countries around the world are being forced to decide what role, if any, cryptocurrencies and initial coin offerings (“ICOs”) will play in the future of their financial markets. Russia is no exception. Russian officials’ initial actions included proposals that would prohibit private investors from investing, ban cryptocurrencies altogether, and even imprison users (Maria Prusakova, Medium). Recently, however, changes appear to be on the horizon as Russian President Vladimir Putin began pushing for legislation addressing cryptocurrencies, crypto mining, and ICOs. While the official drafts are still working their way through Parliament, the proposed regulations will allow for some form of ICOs and digital asset trading. (Id).
Vertical mergers, unlike more-litigated horizontal mergers, are governed by few guidelines from antitrust regulatory organizations and, until recently, had never been challenged in federal court. The approval of a vertical merger between AT&T and Time Warner (“The Merger”), despite protests from the Antitrust Department of the U.S. Department of Justice (DOJ), has shed some light on merger control rules for vertical mergers. This post provides an overview of: (1) vertical merger laws; (2) The Merger; and (3) the governing principles that have emerged since the approval of the AT&T transaction. (Noah Brumfield, Antitrust & Trade Regulation Report (BNA)).
Following the appointment of Chairman Joseph Simons to the Federal Trade Commission (FTC), large tech companies including Google, Facebook, and Amazon should expect tougher enforcement against anti-competitive behavior. In recent years, the FTC has become increasingly concerned that these large tech companies may be violating antitrust law and limiting competition in the market by acquiring small startups or otherwise vertically integrating.
Simons’ appointment comes at a time when mega-mergers among technology companies are commonplace.
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