New York’s chief law enforcement agency appears to have squandered an opportunity to bring much needed guidance to the digital assets space.  On October 18, the Office of New York Attorney General Letitia James (“NYAG”) issued a press release warning New York businesses offering interest-bearing accounts to customers who deposit virtual currency with them without having registered under General Business Law § 352, et seq. (the “Martin Act”) that they are breaking the law.

The Martin Act establishes the regulatory framework businesses must follow when trading securities and commodities within the State of New York.  The press release cites a list of instruments set forth in the Martin Act that qualify as securities, the trading of which would require registration under the statute.  The release goes on to state that the “nature and function of the most common virtual currency lending products or services demonstrate that they fall squarely within any of several categories of ‘security’ under the Martin Act.”  However, the release fails to specifically identify the aforementioned categories and indicates that the statutory list is “not exhaustive,” while noting that the statutory definition of security is to “be given a broad reading.”

The press release emphasizes that the NYAG stands ready to take action against what it calls “high-risk virtual currency schemes,” revealing that the NYAG has already issued two cease-and-desist letters and three information request letters in furtherance of its crackdown on unregistered businesses, providing a redacted example of each letter.  The cease-and-desist letter provides additional information regarding the NYAG’s legal position and directs the recipient to cease all unlawful activity or explain why the NYAG should not take further action, while the information request letter inquires as to the recipient’s virtual currency deposit operations.

The NYAG’s warning follows on the heels of action in the digital assets space taken by various state and federal regulators.  In the last two months, the SEC and Blue Sky authorities in Alabama, Kentucky, New Jersey, and Texas have taken aim at businesses offering interest on customers’ virtual currency deposits, arguing that such offerings constitute unregistered securities trading.

Putting It Into Practice:  While the NYAG’s press release, cease-and-desist letter, and information request letter (collectively, the “Release”) are long on tough talk, they are short on the type of meaningful analysis that an innovative industry thirsting for guidance has been seeking for more than half a decade.  New York’s opening salvo lacks the definitional clarity, factual context, and legal rationale necessary for crypto companies to make informed decisions regarding their operations.  Set forth below are several aspects of the Release that could be enhanced to provide better guardrails for the industry:

  • The Release focuses on activities relating to “virtual currencies” but neither defines the term nor directs readers to a governing legal definition. In recent years, courts and regulators have notoriously grappled with the proper classification of various types of digital assets as currencies, securities, commodities, or some other instrument.  Making no reference to this lively debate and instead resorting to the generic concept of virtual currency, the Release fails to advance the dialogue and provide industry players with concrete guidance they can use in determining whether their products fall within the NYAG warning’s ambit.
  • The Release also provides little in the way of factual detail regarding the problematic products at issue, except to state that they offer a return on virtual currency deposits and “claim to deliver those returns by, among other things, trading with, or further lending those virtual assets.” Its legal rationale is similarly lacking.  For instance, the cease-and-desist letter asserts that these products constitute “securities under the Martin Act because they promise a rate of return to investors, and deliver that return by (for instance) [REDACTED] trading with, or further lending or hypothecating, those virtual assets,” and cites two cases in support of this position: All Seasons Resorts v. Abrams, 68 N.Y.2d 81, 87 (1986); People v. Van Zandt, 43 Misc. 3d 563, 569 (Sup. Ct., Bx. Cnty. 2014).  However, the Release lists these case captions without applying the law to the facts, leaving readers to infer potential legal theories.
    • In All Seasons, the court held that campground memberships did not constitute securities based on an analysis that considered whether the instruments fell within the Martin Act’s enumerated or catch-all security definitions.
    • In Van Zandt, the court assessed on a case-by-case basis whether multiple financial instruments, which bore varying degrees of resemblance to the crypto instruments targeted by the Release, constituted securities.

The Release’s failure to apply cited law to novel facts represents another missed opportunity by the regulator to provide clarifying guidance.

  • The NYAG’s Release does not arise in a vacuum. Vigorous debates in recent years regarding the proper classification of various digital assets have yielded valuable fruit.  By relying upon the general concept of virtual currency without offering factual and legal context that would allow industry players to discern precisely what digital assets the warning targets, the Release does little to advance the conversation.  While the NYAG seems poised to go to market with enforcement actions targeting these novel instruments, the Release misses a valuable opportunity to provide an industry experiencing growing pains with actionable guidance that would promote responsible innovation.  Without such guidance, frustration may mark the relationship between New York regulators and digital asset businesses for the foreseeable future.