Monday, March 5, 2018

According to press accounts, the SEC recently issued dozens of subpoenas and Requests For Information seeking details about the targeted initial coin offerings. The correspondence accompanying the subpoenas and RFIs also reportedly make an unusual offer – in lieu of producing voluminous documents the subpoena recipients may voluntarily appear at the SEC’s office to answer questions.

At the ABA National Institute on White Collar Crime, which is underway in San Diego, California, there were two panels dedicated to U.S. securities enforcement. During the panel called “Meet the SEC Enforcement Directors,” the co-directors of the SEC’s Division of Enforcement, Stephanie Avakian and Stephen R. Peikin, discussed cryptocurrencies broadly. Ms. Avakian said that the “sheer size and scope” and the technological nature of the cryptocurrency markets have been a challenge for the SEC. Mr. Peikin said the SEC is looking at two broad categories of players, “opportunistic crooks” and those who may have “registration issues.” Neither of the co-directors mentioned the recent wave of subpoenas that the SEC has issued concerning initial coin offerings. Similarly, the SEC wave of subpoenas was not discussed during the panel called “Securities Enforcement in 2018 and Beyond.”

Given recent SEC enforcement activity, in some cases carried out in parallel with the U.S. Department of Justice, we expect to see more enforcement activity in the area of digital coins and cryptocurrencies.