Commodity Futures Trading Commission v. McDonnell et al

Filing 29

MEMORANDUM & ORDER granting a preliminary injunction in favor of CFTC and denying 18 the individual defendant's pro se motion to "Dismiss for Lack of Jurisdiction." Ordered by Judge Jack B. Weinstein on 3/6/2018. (Barrett, C)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

COMMODITY FUTURES TRADING
COMMISSION,
MEMORANDUM & ORDER
Plaintiff,
18-CV-361
– against –

PATRICK K. MCDONNELL,
and CABBAGETECH, CORP. d/b/a COIN
DROP MARKETS,
Defendants.

Parties

Appearances

Commodity Futures Trading Commission

David William Oakland
Commodity Futures Trading Commission
140 Broadway, 19th Floor
New York, NY 10005
Email: [e-mail]
Kenneth B. Tomer
Commodity Futures Trading Commission
140 Broadway
19th Floor
New York, NY 10005
Email: [e-mail]
Gates Salyers Hurand
Commodity Futures Trading Commission
140 Broadway, 19th Floor
Ny, NY 10005
646-746-9700
Fax: [phone]
Email: [e-mail]

Patrick McDonnell
CabbageTech Corp.,
d/b/a/ Coin Drop Markets

Pro se

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JACK B. WEINSTEIN, Senior United States District Judge:

I.
A.
B.
II.
III.
A.
B.
C.
D.
1.
2.
3.
IV.
A.
B.
1.

2.
C.
V.
A.
1.
2.
B.
C.
D.
VI.
VII.
VIII.
IX.

Table of Contents
Introduction ......................................................................................................................... 3
Commodity Futures Trading Commission ("CFTC") Standing ......................................... 3
Injunctive Relief.................................................................................................................. 4
Facts .................................................................................................................................... 4
Background of Bitcoin and Virtual Currencies .................................................................. 5
Description of Virtual Currencies ....................................................................................... 5
Expansion and Value .......................................................................................................... 6
Fraud and Crime ................................................................................................................. 8
Regulation and Oversight of Virtual Currency ................................................................... 9
Potential Virtual Currency Regulation ........................................................................... 10
Oversight by CFTC ........................................................................................................ 12
Concurrent Oversight from Other Agencies .................................................................. 14
Law ................................................................................................................................... 14
Jurisdiction ........................................................................................................................ 15
Standing ............................................................................................................................ 15
Enforcement Power of CFTC ......................................................................................... 15
a.
Virtual Currencies are Commodities ...................................................................... 17
b.
Commodity Exchange Act’s Definition of “Commodity”...................................... 18
c.
CFTC’s Interpretation of “Commodity” ................................................................. 19
d.
Derivative Contracts and Futures............................................................................ 20
e.
Regulation of Spot Market Fraud ........................................................................... 21
Concurrent Jurisdiction .................................................................................................. 23
Preliminary Injunction Standard ....................................................................................... 23
Application of Law ........................................................................................................... 24
CFTC Standing ................................................................................................................. 24
Virtual Currencies as Commodities ............................................................................... 24
CFTC Jurisdiction Over Virtual Currency Fraud ........................................................... 25
Prima Facie Showing of Fraud Committed by Defendants .............................................. 26
Preliminary Injunction ...................................................................................................... 26
Appropriate Research by Court ........................................................................................ 27
Conclusion ........................................................................................................................ 28
Appendix A Preliminary Injunction.................................................................................. 28
Appendix B CFTC Primer ................................................................................................ 40
Appendix C Congressional Testimony of CFTC Chairman ............................................. 60

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I.

Introduction
The Commodity Futures Trading Commission (“CFTC”) sues Patrick McDonnell and his

company Coin Drop Markets. CFTC alleges defendants “operated a deceptive and fraudulent
virtual currency scheme . . . for purported virtual currency trading advice” and “for virtual
currency purchases and trading . . . and simply misappropriated [investor] funds.” See CFTC
Complaint, ECF No. 1, Jan. 18, 2018, at 1 (“CFTC Compl.”).
CFTC seeks injunctive relief, monetary penalties, and restitution of funds received in
violation of the Commodity Exchange Act (“CEA”). Id. at 11.
Until Congress clarifies the matter, the CFTC has concurrent authority, along with other
state and federal administrative agencies, and civil and criminal courts, over dealings in virtual
currency. An important nationally and internationally traded commodity, virtual currency is
tendered for payment for debts, although, unlike United States currency, it is not legal tender that
must be accepted. Title 31 U.S.C. § 5103 (“United States coins and currency . . . are legal tender
for all debts . . .”).
A. Commodity Futures Trading Commission ("CFTC") Standing
The primary issue raised at the outset of this litigation is whether CFTC has standing to
sue defendants on the theory that they have violated the CEA. Title 7 U.S.C. § 1. Presented are
two questions that determine the plaintiff’s standing: (1) whether virtual currency may be
regulated by the CFTC as a commodity; and (2) whether the amendments to the CEA under the
Dodd-Frank Act permit the CFTC to exercise its jurisdiction over fraud that does not directly
involve the sale of futures or derivative contracts.
Both questions are answered in the affirmative. A “commodity” encompasses virtual
currency both in economic function and in the language of the statute. Title 7 U.S.C. § 1(a)(9)

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(The CEA defines “commodity” as agricultural products and “all other goods and articles . . . and
all services, rights, and interests . . . in which contracts for future delivery are presently or in the
future dealt in.”).
CFTC’s broad authority extends to fraud or manipulation in derivatives markets and
underlying spot markets. See Title 7 U.S.C. § 9(1). CFTC may exercise its enforcement power
over fraud related to virtual currencies sold in interstate commerce. See Title 17 C.F.R. § 180.1.
B. Injunctive Relief
After hearing testimony from an Investigator in the Division of Enforcement for the
CFTC, the court finds the plaintiff has made a preliminary prima facie showing that the
defendants committed fraud by misappropriation of investors’ funds and misrepresentation
through false trading advice and promised future profits.
A preliminary injunction is granted in favor of the CFTC. The court finds a reasonable
likelihood that without an injunction the defendants will continue to violate the CEA.
An order outlining the terms of relief is issued and attached. See Appendix A, Order of
Preliminary Injunction and Other Relief (“App. A, Prelim. Injunction”).
II.

Facts
Patrick McDonnell and his company CabbageTech, Corp., doing business as Coin Drop

Markets (“defendants”), offered fraudulent trading and investment services related to virtual
currency, see Description of “Virtual Currencies” infra Part III, in the spring and summer of
2017. Christopher Giglio Declaration, ECF No. 21, Feb. 26, 2018, Ex. 2 (“Giglio Decl.”) ¶¶
13,14.
Customers from the United States and abroad paid defendants for “membership” in
virtual currency trading groups purported to provide exit prices and profits of up to “300%” per

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week. Id. ¶¶ 17-20. Defendants advertised their services through “at least two websites,
www.coindropmarkets.com and www.coindrops.club,” as well as on the social media platform
Twitter. Id. ¶¶ 15-17.
“Investors” transferred virtual currency to the defendants for “day” trading. Id. ¶ 21
(“McDonnell claimed that he could generate profits of 2 to 300% each day for [an] Investor . . .
and that $1,000 in Litecoin [a type of virtual currency] should be earning $200 to $250 per day
through trading.”).
After receiving membership payment or virtual currency investments, defendants deleted
their “social media accounts” and “websites and ceased communicating with . . . customers
around July, 2017.” Id. ¶ 26. Defendants provided minimal, if any, virtual currency trading
advice and never achieved the promised return on investment. Id. ¶ 27. When customers asked
for a return of their membership fee, or virtual currency investment, the defendants refused and
misappropriated the funds. Id. ¶¶ 27-32.
III.

Background of Bitcoin and Virtual Currencies
A. Description of Virtual Currencies
Virtual currencies are generally defined as “digital assets used as a medium of exchange.”

Skadden’s Insights, Bitcoins and Blockchain: The CFTC Takes Notice of Virtual Currencies,
Jan., 2016. They are stored electronically in “digital wallets,” and exchanged over the internet
through a direct peer-to-peer system. Id. They are often described as “cryptocurrencies”
because they use “cryptographic protocols to secure transactions . . . recorded on publicly
available decentralized ledgers,” called “blockchains.” Brief of CFTC In Support of Preliminary
Injunction and Other Relief, ECF No. 21, Feb. 26, 2018, at 4 (“CFTC Brief”).

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The “blockchain” serves as a digital signature to verify the exchange. See Appendix B, A
CFTC Primer on Virtual Currencies, Oct. 17, 2017, at 5 (“App. B, CFTC Primer”). “The public
nature of the decentralized ledger allows people to recognize the transfer of virtual currency from
one user to another without requiring any central intermediary in which both users need to trust.”
CFTC Brief, at 4. Some experts believe blockchain technology underlying virtual currencies
will serve to “enhance [future] economic efficiency” and have a “broad and lasting impact on
global financial markets in payments, banking, securities settlement, title recording, cyber
security and trade reporting and analysis.” Appendix C, United States Senate Banking
Committee, Hearing on Virtual Currency, Feb. 6, 2018 (written testimony of Christopher
Giancarlo, Chairman, CFTC) (“App. C, CFTC Chair, Congressional Testimony”). Virtual
currencies are not backed by any government, fiat currency, or commodity. Robert J. Anello,
New-Wave Legal Challenges for Bitcoin and Other CryptoCurrencies, Law Journal
Newsletters, Nov. 2017.
They have some characteristics of government paper currency, commodities, and
securities. Allison Nathan, Interview with Eric Posner, Goldman Sachs Global Investment
Research, Mar. 11, 2014 (“It is a lot like gold, in fact. The difference [] is that it is digital rather
than a heavy, unwieldy object. That means that it could serve the same purposes as gold in terms
of a currency, but much more efficiently because it does not have any mass and can be sent
easily from place to place.”); cf. Power of the Executive to Change the Gold Value of the Dollar,
Columbia Law Review, Vol. 48, No. 3 (Apr. 1948) (“[T]he United States is committed to a
policy of international cooperation, and in particular, to a program of international stability of
[currency] exchange rates . . .”).
B. Expansion and Value

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The price of Bitcoin, and other virtual currencies, has risen, and then fallen, at extreme
rates. Olga Kharif, All you Need to Know About Bitcoin’s Rise, From $0.01 to $15,000,
Bloomberg Businessweek, Dec. 1, 2017 (“The initial price of bitcoin, set in 2010, was less than 1
cent. Now it’s crossed $16,000. Once seen as the province of nerds, libertarians and drug dealers,
bitcoin today is drawing millions of dollars from hedge funds.”).
As their value has increased, online exchanges have become more accessible allowing
more members of the public to trade and invest in virtual currencies.
While there are many Bitcoin exchanges around the world, Coinbase has been the
dominant place that ordinary Americans go to buy and sell virtual currency. No
company had made it simpler to sign up, link a bank account or debit card, and
begin buying Bitcoin.
The number of people with Coinbase accounts has gone from 5.5 million in
January [2017] to 13.3 million at the end of November, according to data from the
Altana Digital Currency Fund. In late November, Coinbase was sometimes
getting 100,000 new customers a day — leaving the company with more
customers than Charles Schwab and E-Trade.
Nathaniel Popper, Coinbase: The Heart of the Bitcoin Frenzy, N.Y. Times, Dec. 6, 2017; Ian
Parker, A Bitcoin A.T.M. Comes To A New York Deli, New Yorker, Sept. 18, 2017 (“A
Coinsource A.T.M. accepts dollars and in return adds the bitcoin equivalent (less Coinsource’s
seven per cent) to a customer’s digital wallet.”).
According to coinmarketcap.com (viewed Feb. 6, 2018, at approximately 9:10 a.m. EST),
there were over 1500 virtual currencies. Bitcoin had the largest market capitalization, valued at
$121,264,863,386. Id. A single Bitcoin was valued at $7,196.92. Id. The cheapest virtual
currency, Strong Hands, was valued at $0.000001. Id.
The combined market capitalization of all virtual currencies as of January 6, 2018, was
roughly $795 billion; by Feb. 6, 2018, the total value had dropped to $329 billion. Coin Market
Cap, https://coinmarketcap.com/charts/ (last visited Feb. 6, 2018); Arjun Kharpal, Over $60
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Billion Wiped off Value of Cryptocurrencies as Bitcoin Drops Below $8,000 again, CNBC, Feb.
5, 2018 (“It was not only bitcoin that fell either. Other major virtual currencies, including
ethereum and ripple, fell sharply in the last 24 hours.”).
C. Fraud and Crime
The rise in users and value of virtual currencies has been accompanied by increased fraud
and criminal activity. Edgar G. Sánchez, Crypto-Currencies: The 21st Century's Money
Laundering and Tax Havens, 28 U. Fla. J.L. & Pub. Pol'y 167, 169 (2017) (“[T]he newest
growing concern with Bitcoin, and crypto-currencies in general, are their ability to wash money
and conceal taxable income.”).
Silk Road, an online drug market that allowed for purchase through Bitcoin, was one of
the earliest and most audacious examples of crime enabled by virtual currencies.
The largest case involving Bitcoin and illegal activity was the Silk Road case,
which included billions of dollars in black market drug sales, two federal agents
caught (and convicted for) stealing, and murder-for-hire attempts. While the U.S.
government claimed a victory in curbing illegal activity facilitated with Bitcoin
by shutting down the Silk Road's massive black market for drugs, Bitcoin is still
available, and other online black markets have tripled the industry since Silk
Road's closure.
Christopher Burks, Bitcoin: Breaking Bad or Breaking Barriers?, 18 N.C.J.L. & Tech. On. 244,
251–52 (2017) (internal citations omitted); see also U.S. Attorney’s Office EDNY, Long Island
Woman Indicted for Bank Fraud and Money Laundering to Support Terrorists, Dec. 14, 2017
(The defendant allegedly “laundered and transferred the funds [using virtual currencies] out of
the country to support the Islamic State . . .”).
Virtual currency exchanges have been victims of hacking and theft. Reuters Staff, The
Coincheck Hack and the Issue With Crypto Assets on Centralized Exchanges, Jan. 29, 2018
(“Hackers have stolen roughly 58 billion yen ($532.6 million) from Tokyo-based cryptocurrency

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exchange Coincheck Inc, raising questions about security and regulatory protection in the
emerging market of digital assets.”); Alex Hern, A History of Bitcoin Hacks, The Guardian, Mar.
18, 2014 (“25,000 bitcoins were stolen from their wallet after hackers compromised the
Windows computer they were using. Even at the time, that sum was worth more than $500,000;
it would now be worth a little less than £10m.”).
These and other criminal acts have led some to call for increased governmental oversight
and regulation of virtual currency.
Having delved into the prevalence of money laundering and tax evasion both
globally and in the United States, and the rise of crypto-currencies and their use in
disguising real money, the question remains as to what steps can be taken to
legitimize crypto-currencies, or at the very least, put an end to their use for illegal
purposes.
Sánchez, supra at 188.
D. Regulation and Oversight of Virtual Currency
Congress has yet to authorize a system to regulate virtual currency. T. Gorman,
Blockchain, Virtual Currencies and the Regulators, Dorsey & Whitney LLP, Jan. 11, 2018 (“As
the CFTC recently admitted, U.S. law does not provide for ‘direct comprehensive U.S. regulation
of virtual currencies. To the contrary a multi-regulatory approach is being used.’”).
The CFTC, and other agencies, claim concurrent regulatory power over virtual currency
in certain settings, but concede their jurisdiction is incomplete. See App. C, CFTC Chair,
Congressional Testimony (“[C]urrent law does not provide any U.S. Federal regulator with such
regulatory oversight authority over spot virtual currency platforms [not involving fraud]
operating in the United States or abroad.”); cf. Doris Kearns Goodwin, The Bully Pulpit, (2013)
at 443 (“Roosevelt . . . continued to regard the judicial system as an ineffective arena for
controlling giant corporations . . . Regulation, he believed, promised a far better remedy. ‘The

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design should be to prevent the abuses incident to the creation of unhealthy and improper
combinations [] instead of waiting until they are in existence and then attempting to destroy them
by civil or criminal proceedings.’”); cf. Balleisen, Bennear, Kraweic, and Weiner, Policy Shock,
(2017) at 543-44 (“[T]ypes of regulatory responses to a crisis may vary along many dimensions.
These responses may be robust or cosmetic. They may be structural (reorganizing government or
instrumental (changing policy tools).”).
1. Potential Virtual Currency Regulation
Until Congress acts to regulate virtual currency the following alternatives appear to be
available:
1.

No regulation. See, e.g., Nikolei M. Kaplanov, Nerdy Money: Bitcoin, the Private

Digital Currency, and the Case Against Its Regulation, 25 Loy. Consumer L. Rev. 111,
113 (2012) (“This Comment will show that the federal government has no legal basis to
prohibit bitcoin users from engaging in traditional consumer purchases and transfers. This
Comment further argues that the federal government should refrain from passing any
laws or regulations limiting the use of bitcoins . . . applying any sort of regulation to
bitcoin use, [] would be ineffective and contrary to the interest of the United States
consumers.”).
2.

Partial regulation through criminal law prosecutions of Ponzi-like schemes by the

Department of Justice, or state criminal agencies, or civil substantive suits based on
allegations of fraud. See, e.g., United States v. Faiella, 39 F. Supp. 3d 544, 545
(S.D.N.Y. 2014) (“Defendants in this case are charged in connection with their operation
of an underground market in the virtual currency ‘Bitcoin’ via the website ‘Silk Road.’”);
United States v. Lord, No. CR 15-00240-01/02, 2017 WL 1424806, at *2 (W.D. La. Apr.

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20, 2017) (“Counts 2-14 charged Defendants with various other crimes associated with
operating their bitcoin exchange business.”).
3.

Regulation by the Commodity Futures Trading Commission (“CFTC”). See infra

Part III.D.2.
4.

Regulation by the Securities and Exchange Commission (“SEC”) as securities.

See, e.g., SEC v. Plexcorps, 17-CV-7007 (E.D.N.Y. Filed Dec. 1, 2017) SEC Compl.,
ECF No. 1 (“This is an emergency action to stop Lacroix, a recidivist securities law
violator in Canada, and his partner Paradis-Royer, from further misappropriating investor
funds illegally raised through the fraudulent and unregistered offer and sale of securities
called ‘PlexCoin’ or ‘PlexCoin Tokens’ in a purported ‘Initial Coin Offering.’”); see also
Jon Hill, Accused Fraudster Says Cryptocurrencies Aren’t Securities, Feb. 27, 2018
(“According to the government, those blockchain based tokens were securities . . .”).
5.

Regulation by the Treasury Department’s Financial Enforcement Network

(“FinCEN”). See, e.g., FinCEN, Treasury’s First Action Against a Foreign-Located
Money Services Business, U.S. Department of the Treasury, Jul. 27, 2017 (“The Financial
Crimes Enforcement Network (FinCEN), working in coordination with the U.S.
Attorney’s Office for the Northern District of California, assessed a $110,003,314 civil
money penalty today against BTC-e [a virtual currency exchange] for willfully violating
U.S. anti-money laundering laws.”).
6.

Regulation by the Internal Revenue Service (“IRS”). See, e.g., United States v.

Coinbase, Inc., No. 17-CV-01431-JSC, 2017 WL 3035164, at *1 (N.D. Cal. July 18,
2017) (“In March 2014, the IRS issued Notice 2014-21, which describes how
the IRS applies U.S. tax principles to transactions involving virtual currency. (Case No.

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3:16-cv-06658-JSC, Dkt. No. 2-4 at 3 ¶ 6.) In Notice 2014-21, the IRS stated its
position: virtual currencies that can be converted into traditional currency are property for
tax purposes, and a taxpayer can have a gain or loss on the sale or exchange of
a virtual currency, depending on the taxpayer's cost to purchase the virtual currency.”).
7.

Regulation by private exchanges. See, e.g., Asian Review, Japan Tries Light

Touch in Bringing Cryptocurrencies out of Regulatory Limbo, NIKKEI, Sept. 30, 2017
(“[T]here is a growing need for exchange operators to self-police to protect investors
from taking on too much risk and other dangers.”).
8.

State regulations. See, e.g., Press Release, DFS Grants Virtual Currency License

to Coinbase, Inc., N.Y. Department of Financial Services, Jan. 17, 2017 (“DFS has
approved six firms for virtual currency charters or licenses, while denying those
applications that did not meet DFS’s standards. In addition to bitFlyer USA, DFS has
granted licenses to Coinbase Inc., XRP II and Circle Internet Financial, and charters to
Gemini Trust Company and itBit Trust Company.”).
9.

A combination of any of the above.
2. Oversight by CFTC

The CFTC is one of the federal administrative bodies currently exercising partial
supervision of virtual currencies. Christopher Giancarlo, Chairman Giancarlo Statement on
Virtual Currencies, CFTC, Jan. 4, 2018 (“One thing is certain: ignoring virtual currency trading
will not make it go away. Nor is it a responsible regulatory strategy. The CFTC has an important
role to play.”).
Administrative and civil action has been utilized by the CFTC to expand its control:
On September 17, 2015, the [CFTC] issued an [administrative] order (the Coinflip
Order) filing and simultaneously settling charges against Coinflip, Inc. (Coinflip)
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and its chief executive officer. In the Coinflip Order, the CFTC took the view for
the first time that bitcoin and other virtual currencies are commodities subject to
the Commodity Exchange Act (CEA) and CFTC regulations.
Conrad Bahlke, Recent Developments in the Regulatory Treatment of Bitcoin, 28 No. 1 Intell.
Prop. & Tech. L.J. 6 (2016) (internal citations omitted); see also Reuters, U.S. CFTC Sues Three
Virtual Currency Operators for Fraud, N.Y. Times, Jan. 19, 2018 (“The U.S. derivatives
watchdog said on Friday that it has filed charges against three separate virtual currency operators
alleging the defendants had defrauded customers and broken other commodity trading rules, in a
further sign regulators globally are cracking down on the emerging asset class.”); CFTC Charges
Randall Crater, Mark Gillespie and My Big Coin Pay Inc. with Fraud and Misappropriation in
Ongoing Virtual Currency Scam, Jan. 24, 2018 (“The [CFTC] today announced the filing of a
federal court enforcement action under seal on January 16, 2018, charging commodity fraud and
misappropriation related to the ongoing solicitation of customers for a virtual currency known
as My Big Coin . . .”).
Legitimization and regulation of virtual currencies has followed from the CFTC’s
allowance of futures trading on certified exchanges. Akin Oyedele, Bitcoin Futures Trading gets
Green Light from [U.S.] Regulators, Business Insider, Dec. 1, 2017 (“In a statement, the CFTC
said the Chicago Mercantile Exchange and the CBOE Futures Exchange self-certified new
contracts for bitcoin futures products. The Cantor Exchange self-certified a new contract for
bitcoin binary options. The futures contracts will make it possible to bet on bitcoin prices without
buying the cryptocurrency.”). Two futures exchanges, Chicago Mercantile Exchange and the
CBOE Futures Exchange, as of February 23, 2018, exceeded “$150 million in daily trading
volume.” CFTC Brief, at 6. The CFTC has “actively policed” futures exchanges for “violating
core principles” such as “failing to enforce its prohibitions against unlawful wash trading and

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prearranged trades.” Id.; see In Re TeraExchange LLC, CFTC No.15-33, 2015 WL 5658082
(Sept. 24, 2015).
3. Concurrent Oversight from Other Agencies
The SEC, IRS, DOJ, Treasury Department, and state agencies have increased their
regulatory action in the field of virtual currencies without displacing CFTC’s concurrent
authority. Most current regulatory action takes the form of pursuing criminal and fraudulent
conduct after it occurs.
A new division of the Securities and Exchange Commission dedicated to socalled “initial coin offerings” (ICOs) filed its first charges on Friday,
targeting a scam that reportedly raised $15 million from thousands of
investors by promising a 13-fold profit in less than a month.
In a criminal complaint filed in Brooklyn federal court, the new SEC division,
known as the Cyber Unit, describes how Dominic Lacroix sold digital tokens
known as “PlexCoins” as part of a purported plan “to increase access to
cryptocurrency services” across the world.
Jeff John Roberts, The SEC’s New Cyber Unit Just Filed Its First Charges Over an ICO
Scam, Dec. 4, 2017; Robert J. Anello, New-Wave Legal Challenges for Bitcoin and Other
CryptoCurrencies, Law Journal Newsletters, Nov. 2017 (“Over the last few months the SEC
has demonstrated that it intends to pursue enforcement of securities law on certain
cryptocurrency transactions, especially increasingly popular [Initial Coin Offerings], in
response to concerns about fraud and manipulation.”); Tara Siegel Bernard, When Trading
in Bitcoin, Keep the Tax Man in Mind, N.Y. Times, Jan. 18, 2018 (“In late 2016, the I.R.S.
made it clear that it was searching for cryptocurrency tax evaders: The agency sent a broad
request to Coinbase, the largest Bitcoin exchange in the United States, requesting records for all
customers who bought digital currency from the company from 2013 to 2015.”).
IV.

Law

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A. Jurisdiction
District courts have jurisdiction over any action in which the United States is a plaintiff.
U.S. Const. Art. III § 2 (“The judicial Power shall extend to all Cases . . . [or] Controversies to
which the United States shall be a Party.”); 28 U.S.C. § 1345 (“Except as otherwise provided by
Act of Congress, the district courts shall have original jurisdiction of all civil actions, suits or
proceedings commenced by the United States, or by any agency or officer thereof expressly
authorized to sue by Act of Congress.”).
Under 28 U.S.C. § 1331 district courts also “have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the United States.” See U.S. ex rel.
Thistlethwaite v. Dowty Woodville Polymer, Ltd., 110 F.3d 861, 864 (2d Cir. 1997) (“[T]he
subject matter jurisdiction provisions of Title 28 having broadest application are those granting
the district courts power to entertain cases based on federal questions.”).
B. Standing
Pursuant to Title 7 U.S.C. § 13a-1(a) the CFTC may seek injunctive or other relief when
it believes that a person or entity is in violation of the CEA. (“[T]he Commission may bring an
action in the proper district court of the United States . . . to enjoin such act or practice, or to
enforce compliance with this chapter, or any rule, regulation or order thereunder, and said courts
shall have jurisdiction to entertain such actions.”); see also U.S. Commodity Futures Trading
Comm'n v. Parnon Energy Inc., 875 F. Supp. 2d 233, 241 (S.D.N.Y. 2012) (“The Commission
may [] bring claims alleging violations of the CEA.”). Relief may be sought in the “district
wherein the defendant is found or is an inhabitant or transacts business or in the district where
the act or practice occurred, is occurring, or is about to occur.” Title 7 U.S.C. § 13a-1(e).
1. Enforcement Power of CFTC

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Exclusive jurisdiction over “accounts, agreements . . . and transactions involving swaps
or contracts of sale of a commodity for future delivery” has been granted to the CFTC. Title 7
U.S.C. § 2 (emphasis added). Any commodity traded as a future must be traded on a commodity
exchange approved by the CFTC. Title 7 U.S.C. § 6.
The CEA and its “remedial statutes” are to be “construed liberally” to allow for broad
market protection. R&W Tech. Servs. Ltd. v. Commodity Futures Trading Comm'n, 205 F.3d
165, 173 (5th Cir. 2000) (“In 1974, Congress gave the Commission even greater enforcement
powers, in part because of the fear that unscrupulous individuals were encouraging amateurs to
trade in the commodities markets through fraudulent advertising. Remedial statutes are to be
construed liberally, and in an era of increasing individual participation in commodities markets,
the need for such protection has not lessened.”).
The court generally defers to an agency’s interpretation of a statute “that the agency is
responsible for administering.” Sierra Club, Inc. v. Leavitt, 488 F.3d 904, 911–12 (11th Cir.
2007) (citing Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984)); Commodity Futures Trading
Comm'n v. Am. Precious Metals, LLC, 845 F. Supp. 2d 1279, 1282–83 (S.D. Fla. 2011)
(“Chevron applies to the instant case because the CFTC is construing a jurisdictional provision
of the CEA—a statute it is responsible for administering.”) (emphasis in original).
Full deference is dependent on whether the agency’s interpretation followed a formal
rulemaking process. Commodity Futures Trading Comm'n v. Sterling Trading Grp., Inc., 605 F.
Supp. 2d 1245, 1265–66 (S.D. Fla. 2009) (citing TVA v. Whitman, 336 F.3d 1236, 1250 (11th
Cir. 2003)) (“Chevron deference is confined to those instances in which the agency renders its
interpretation in the course of a rulemaking proceeding or adjudication. [E]ven if an agency's
interpretation of its own statute is advanced in the course of litigation rather than through a

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rulemaking or agency adjudication, courts will still pay some deference to the agency's
interpretation.”).
a. Virtual Currencies are Commodities
Black’s Law Dictionary defines a commodity as “an article of trade or commerce.”
Bryan Garner, Black’s Law Dictionary, (10th ed. 2014). Merriam Webster defines it as “[a]n
economic good . . . [or] an article of commerce . . .” Merriam Webster, https://www.merriamwebster.com/ dictionary/commodity (last visited Feb. 5, 2018).
Commentators have argued that based on common usage, virtual currency should be
interpreted as a commodity.
It would make sense for regulators to treat Bitcoin as a commodity. Commodities
are generally defined as “goods sold in the market with a quality and value
uniform throughout the world.” This categorization would be appropriate because
it realistically reflects the economic behavior of Bitcoin users and squares with
traditional economic conceptions of exchange.
Mitchell Prentis, Digital Metal: Regulating Bitcoin As A Commodity, 66 Case W. Res. L. Rev.
609, 626 (2015).
Some propose that because virtual currencies provide a “store of value” they
function as commodities:
A commodity is any item that “accommodates” our physical wants and needs.
And one of these physical wants is the need for a store of value. Throughout
history humans have used different commodities as a store of value – even cocoa
beans – but, more persistently, gold. In contrast, a security is any instrument that
is “secured” against something else. As a currency is usually secured by a
commodity or a government’s ability to tax and defend, it is considered to be a
security. By these definitions, bitcoin with a lower case “b,” is a commodity, and
not a currency, while Bitcoin with a capital “B” is the technology, or network,
that bitcoin moves across. The analogy would be Shale technology versus shale
oil.
Jeff Currie, Bullion Bests bitcoin, Not Bitcoin, Goldman Sachs Global Investment Research,
Mar. 11, 2014.
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Others argue virtual currencies are commodities because they serve as a type of monetary
exchange:
Bitcoin should primarily be considered a commodity because it serves the
function of money in its community of users. Users exchange Bitcoins to obtain
property that they desire. In his seminal work, Man, Economy, and State, Murray
Rothbard argues that all monetary exchanges are actually indirect commodity
exchanges. Rothbard supports his proposition by tracing the development of
money and exchange. Before the widespread adoption of a common form of
money, people had to engage in bartering, or “direct exchange,” in order to
complete transactions . . .
Furthermore, while Bitcoin acts as a money commodity in its community of users,
from a pricing standpoint, it is valued like other commodities. The price of
traditional commodities, like gold, silver, and agricultural products, vary in
accordance with their demand and scarcity. When more people want a commodity
that has a fixed supply, the price rises.
Similarly, the price of Bitcoin fluctuates according to the same fixed supply
model. Bitcoins are scarce because the algorithm controlling how many Bitcoins
are released into the market through mining [] is designed to taper the supply of
bitcoins, until no more are created. Bitcoins are considered rare because there is a
fixed supply of them, leading users to be willing to pay increasing prices to
control them. The value of a Bitcoin is ultimately driven by supply and demand—
a coin is worth whatever someone is willing to pay for it.
Prentis, at 628–29 (internal citations omitted).
b. Commodity Exchange Act’s Definition of “Commodity”
CEA defines “commodities” as “wheat, cotton, rice, corn, oats, barley, rye, flaxseed,
grain sorghums, mill feeds, butter, eggs, Solanum tuberosum (Irish potatoes), wool, wool tops,
fats and oils (including lard, tallow, cottonseed oil, peanut oil, soybean oil, and all other fats and
oils), cottonseed meal, cottonseed, peanuts, soybeans, soybean meal, livestock, livestock
products, and frozen concentrated orange juice, and all other goods and articles . . . and all
services, rights, and interests . . . in which contracts for future delivery are presently or in the
future dealt in.” Title 7 U.S.C. § 1(a)(9) (emphasis added).

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The original grant of power to the CEA was designed to control trading in agricultural
commodities. Other goods, as well as services, rights and interests, are now covered by the
statute. See, e.g., United States v. Brooks, 681 F.3d 678, 694 (5th Cir. 2012) (“Natural gas is
plainly a ‘good’ or ‘article.’ The questions thus turns on whether it is a good ‘in which contracts
for future delivery are presently or in the future dealt with.’”).
The CEA covers intangible commodities. See, e.g., In re Barclays PLC, CFTC No. 1525 (May 20, 2015) (regulating fixed interest rate benchmarks as commodities); cf. Andrews v.
Blick Art Materials, LLC, 268 F. Supp. 3d 381, 395–96 (E.D.N.Y. 2017) (quoting Pennsylvania
Dep't of Corr. v. Yeskey, 524 U.S. 206, 212 (1998)) (“That the meteoric rise of virtual reality
through the Internet and its impact on communal and commercial affairs could not have been
anticipated by Congress does not mean the law's application to the Internet and website is
ambiguous; ‘the fact that a statute can be applied in situations not expressly anticipated by
Congress does not demonstrate ambiguity. It demonstrates breadth.’”).
c. CFTC’s Interpretation of “Commodity”
After an administrative proceeding in 2015, the CFTC issued an order finding, for the
first time, that virtual currencies can be classified as commodities. In the Matter of: Coinflip,
Inc., CFTC Docket No. 15-29 (“Bitcoin and other virtual currencies are encompassed in the
definition and properly defined as commodities.”).
Multiple statements defining virtual currency as a commodity have been issued by the
CFTC. See App. B, CFTC Primer, at 11 (“The definition of ‘commodity’ in the CEA is broad . .
. It can mean physical commodity, such as an agricultural product . . . It can mean currency or
interest rate.”); CFTC Launches Virtual Currency Resource Web Page, Press Release, Dec. 15,
2017 (“Bitcoin and other virtual currencies have been determined to be commodities under the

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Commodity Exchange Act (CEA). The [CFTC] primarily regulates commodity derivatives
contracts that are based on underlying commodities. While its regulatory oversight authority over
commodity cash markets is limited, the CFTC maintains general anti-fraud and manipulation
enforcement authority over virtual currency cash markets as a commodity in interstate
commerce.”).
d. Derivative Contracts and Futures
Regulatory authority over commodities traded as futures and derivatives has been granted
to CFTC. Inv. Co. Inst. v. Commodity Futures Trading Comm'n, 720 F.3d 370, 372 (D.C. Cir.
2013) (“The Commodity Exchange Act (CEA), Title 7, United States Code, Chapter 1,
establishes and defines the jurisdiction of the Commodity Futures Trading Commission. Under
this Act, the Commission has regulatory jurisdiction over a wide variety of markets in futures
and derivatives, that is, contracts deriving their value from underlying assets.”).
Title 7 U.S.C. § 9(1) of the CEA makes it unlawful for any person to:
use or employ, in connection with any swap, or a contract of sale of any commodity in
interstate commerce, or for future delivery on or subject to the rules of any registered
entity, any manipulative or deceptive device or contrivance, in contravention of such
rules and regulations as the Commission shall promulgate by not later than 1 year after
July 21, 2010 . . . (emphasis added).
17 C.F.R. § 180.1 further defines the regulatory power of the CFTC:
(a) It shall be unlawful for any person, directly or indirectly, in connection with any
swap, or contract of sale of any commodity in interstate commerce, or contract for
future delivery on or subject to the rules of any registered entity, to intentionally
or recklessly:
(1) Use or employ, or attempt to use or employ, any manipulative device, scheme,
or artifice to defraud;
(2) Make, or attempt to make, any untrue or misleading statement of a material
fact or to omit to state a material fact necessary in order to make the statements
made not untrue or misleading;
(3) Engage, or attempt to engage, in any act, practice, or course of business,
which operates or would operate as a fraud or deceit . . .
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Liability, under the CEA, for commodity fraud, is shown by: “(1) the making of a
misrepresentation, misleading statement, or a deceptive omission; (2) scienter; and (3)
materiality.” Commodity Futures Trading Comm'n, v. Commodity Inv. Grp., Inc., No. 05 CIV
5741(HB), 2006 WL 353466, at *1 (S.D.N.Y. Feb. 11, 2006) (quoting CFTC v. R.J. Fitzgerald
& Co., Inc., 310 F.3d 1321, 1328 (11th Cir. 2002)).
e. Regulation of Spot Market Fraud
The CFTC has recently expanded its enforcement to fraud related to spot markets
underlying the (already regulated) derivative markets. See, e.g., App. B, CFTC Primer (finding
the CFTC has jurisdiction “if there is fraud or manipulation involving a virtual currency traded in
interstate commerce”); CFTC v. Gelfman Blueprint, Inc., Case No. 17-7181 (S.D.N.Y. Filed
Sept. 21, 2017) (suit brought by the CFTC alleging a Bitcoin Ponzi scheme, not involving future
contracts).
In Gelfman, as in the instant case, the CFTC relied on the broad statutory authority in
Section 9(1) of the CEA, and regulatory authority under 17 C.F.R. § 180.1. Specifically, the
language in § 180.1 prohibiting “any person, directly or indirectly, in connection with any . . .
contract of sale of any commodity in interstate commerce” from using a “manipulative device,
scheme, or artifice to defraud,” or making “any untrue or misleading statement of a material
fact.”
The portion of the statute delegating oversight authority over “contract of sale of any
commodity in interstate commerce” allows CFTC to enforce its mandate in cases not directly
involving future trades. 17 C.F.R. § 180.1 (emphasis added); see Gary DeWaal, CFTC Files
Charges Alleging Bitcoin Ponzi Scheme Not Involving Derivatives, Sept. 24, 2017 (“The CFTC
brought its current action [Gelfman] under a relatively new provision of law (enacted as part of
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the Dodd-Frank Wall Street Reform and Consumer Protection Act) and Commission regulation
that prohibits any person from using a manipulative or deceptive device or contrivance in
connection with any ‘contract for sale of any commodity in interstate commerce’ – not solely in
connection with swaps or a commodity for future delivery.”).
Where a futures market exists for a good, service, right, or interest, it may be regulated by
CFTC, as a commodity, without regard to whether the dispute involves futures contracts. See,
e.g., Brooks, 681 F.3d at 694-95 (“[F]utures contracts for natural gas are traded on NYMEX, and
those futures are derivative of natural gas traded at Henry Hub. Nonetheless, the record shows
that natural gas may be moved from any location to Henry Hub through the national pipeline
system. Thus, it would be peculiar that natural gas at another hub is not a commodity, but
suddenly becomes a commodity solely on the basis that it passes through Henry Hub, and ceases
to be a commodity once it moves onto some other locale. While the price of that commodity may
fluctuate with its location, and the forces of supply and demand at that location, the actual nature
of the ‘good’ does not change.”).
CFTC does not have regulatory authority over simple quick cash or spot transactions that
do not involve fraud or manipulation. Title 7 U.S.C. § 2(c)(2)(C)(i)(II)(bb)(AA) (The CFTC
does not have jurisdiction over “spot” transactions that “[result] in actual delivery within 2
days.”). This boundary has been recognized by the CFTC. It has not attempted to regulate spot
trades, unless there is evidence of manipulation or fraud. See App. C, CFTC Chair,
Congressional Testimony (“[T]he CFTC does not have authority to conduct regulatory oversight
over spot virtual currency platforms or other cash commodities, including imposing registration
requirements, surveillance and monitoring, transaction reporting, compliance with personnel

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conduct standards, customer education, capital adequacy, trading system safeguards, cyber
security examinations or other requirements.”).
2. Concurrent Jurisdiction
Federal agencies may have concurrent or overlapping jurisdiction over a particular issue
or area. See, e.g., Todd S. Aagaard, Regulatory Overlap, Overlapping Legal Fields, and
Statutory Discontinuities, 29 Va. Envtl. L.J. 237, 240 (2011)) (“[T]he Environmental Protection
Agency (EPA) and the Occupational Safety and Health Administration (OSHA) manage
overlapping statutory authorities. Both the EPA and OSHA regulate certain risks in the
workplace arising from exposures to hazardous and toxic substances.”).
Agencies often cooperate to enforce their overlapping powers.
[Agencies] have explored joint rulemaking, such as the Environmental Protection
Agency (EPA) and the Department of Transportation (DOT) collaboration on fuel
standards. They have discussed coordination in individual-level adjudication, such
as the Department of Justice (DOJ) and the Department of Homeland Security
(DHS) partnering in cases involving persons without proper documentation. And
they have analyzed agency collaboration in shaping policy in complex and novel
areas, such as work by DHS and the National Security Agency (NSA) to combat
cyber threats.
Daniel A. Farber & Anne Joseph O'Connell, Agencies As Adversaries, 105 Cal. L. Rev. 1375,
1384 (2017); but see Hunter v. F.E.R.C., 711 F.3d 155, 157 (D.C. Cir. 2013) (“Stated simply,
Congress crafted CEA section 2(a)(1)(A) to give the CFTC exclusive jurisdiction over
transactions conducted on futures markets.”).
C. Preliminary Injunction Standard
Under Title 7 U.S.C. § 13a-1(a) the CFTC may seek injunctive or other relief when it
concludes that a person or entity is in violation of the CEA. “The CFTC is entitled to a
preliminary injunction upon a prima facie showing that defendants have violated the Act and
‘that there is a reasonable likelihood that the wrong will be repeated.’” Commodity Futures
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Trading Comm'n, v. Commodity Inv. Grp., Inc., No. 05 CIV 5741(HB), 2006 WL 353466, at *1
(S.D.N.Y. Feb. 11, 2006) (quoting CFTC v. British Am. Commodity Options Corp., 560 F.2d
135, 141 (2d Cir.1977)). When enforcing a statutorily prescribed injunction, the CFTC “need
not prove irreparable injury or the inadequacy of other remedies as required in private injunctive
suits.” British Am., 560 F.2d at 141. Likelihood of future violations may be inferred from a
“defendant’s past conduct.” CFTC v. Am. Bd. of Trade, Inc., 803 F.2d 1242, 1251 (2d Cir.
1986).
V.

Application of Law
A. CFTC Standing
The CFTC has standing pursuant to Title 7 U.S.C. § 13a-1(a) to seek injunctive and other

relief related to misleading advice, and the fraudulent scheme and misappropriation of virtual
currencies by defendants.
1. Virtual Currencies as Commodities
Virtual currencies can be regulated by CFTC as a commodity. Virtual currencies are
“goods” exchanged in a market for a uniform quality and value. Mitchell Prentis, Digital Metal:
Regulating Bitcoin As A Commodity, 66 Case W. Res. L. Rev. 609, 626 (2015). They fall wellwithin the common definition of “commodity” as well as the CEA’s definition of “commodities”
as “all other goods and articles . . . in which contracts for future delivery are presently or in the
future dealt in.” Title 7 U.S.C. § 1(a)(9).
The jurisdictional authority of CFTC to regulate virtual currencies as commodities does
not preclude other agencies from exercising their regulatory power when virtual currencies
function differently than derivative commodities. See, e.g., Jay Clayton [SEC Chair] and
Christopher Giancarlo [CFTC Chair], Regulators are Looking at Cryptocurrency, Wall Street

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Journal, Jan. 24, 2018 (“The SEC does not have direct oversight of transactions in currencies or
commodities. Yet some products that are labeled cryptocurrencies have characteristics that make
them securities. The offer, sale and trading of such products must be carried out in compliance
with securities law. The SEC will vigorously pursue those who seek to evade the registration,
disclosure and antifraud requirements of our securities laws.”).
The Chicago Mercantile Exchange Inc. (“CME”) has filed an amicus brief. See ECF No.
27, Mar. 6, 2018. It claims to operate the “world’s leading derivatives marketplace.” Id. at 1. It
supports the view that virtual currencies are commodities subject to the CFTC’s regulatory
protections. It writes:
CME offers for the Court's consideration an explanation of the possible
consequences of a determination that a virtual currency such as bitcoin is not a
commodity. Such a determination would put in jeopardy CME's and its market
participants' expectation to rely on . . . the CFTC’s regulatory protections for
commodity derivatives contracts based on virtual currencies. This legal
uncertainty would substantially disrupt the settled expectations of CME and
numerous market participants who are trading bitcoin futures for purposes of
hedging cash market exposures or making a market in bitcoin futures by offering
liquidity, in addition to market professionals that clear, broker or manage virtual
currency futures trading activity.
Id. at 2.
2. CFTC Jurisdiction Over Virtual Currency Fraud
CFTC has jurisdictional authority to bring suit against defendants utilizing a scheme to
defraud investors through a “contract [for] sale of [a] commodity in interstate commerce.” Title
7 U.S.C. § 9(1). Although the CFTC has traditionally limited its jurisdiction primarily to
“future” contracts for commodities, its expansion into spot trade commodity fraud is justified by
statutory and regulatory guidelines. See CFTC v. Gelfman Blueprint, Inc., Case No. 17-7181
(S.D.N.Y. Filed Sept. 21, 2017); see also Gary DeWaal, CFTC Files Charges Alleging Bitcoin
Ponzi Scheme Not Involving Derivatives, Sept. 24, 2017 (“This CFTC complaint [CFTC v.
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Gelfman Blueprint, Inc.] has significant ramifications beyond its four corners. It represents a
powerful statement by the Commission that it will exercise jurisdiction over cryptocurrencies
when there is potential fraud – even if the fraud does not involve derivatives based on
cryptocurrencies.”).
Language in 7 U.S.C. § 9(1), and 17 C.F.R. § 180.1, establish the CFTC’s regulatory
authority over the manipulative schemes, fraud, and misleading statements alleged in the
complaint. 17 C.F.R. § 180.1 (“It shall be unlawful for any person, directly or indirectly, in
connection . . . [with any] contract of sale of any commodity in interstate commerce . . . to [u]se
or employ, or attempt to use or employ, any manipulative device, scheme, or artifice to defraud;
[m]ake, or attempt to make, any untrue or misleading statement of a material fact or to omit to
state a material fact necessary in order to make the statements made not untrue or misleading;
[e]ngage, or attempt to engage, in any act, practice, or course of business, which operates or
would operate as a fraud or deceit . . .”).
B. Prima Facie Showing of Fraud Committed by Defendants
CFTC has made a prima facie showing that the defendants committed fraud by
misappropriation of investors’ funds and misrepresentation of trading advice and future profits
promised to customers. CFTC Brief, at 11 (citing Giglio Decl. ¶ 26) (“[O]nce Defendants had
solicited and obtained [] Customer funds for trading by Defendants on behalf of customers,
Defendants ceased communicating with the customers and misappropriated the customers’
funds.”). The intentional nature of the defendants’ conduct, as required by 17 C.F.R. § 180.1, is
evidenced by the blatant disregard of customers’ complaints and their refusal to return investors’
funds. See Giglio Decl. ¶¶ 29-32; see also Hr’g Tr., Mar. 6, 2018.
C. Preliminary Injunction

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A preliminary injunction is granted in favor of the CFTC. The court concludes that
without an injunction there is a reasonable likelihood that defendants will continue to violate the
CEA. A separate order outlining the terms of the relief is issued. See App. A, Prelim.
Injunction.
D. Appropriate Research by Court
In deciding jurisdictional, standing and other issues fundamental to the present litigation,
the court has engaged in extensive background research, but not on the specific frauds charged.
This is appropriate.
The ABA has issued the following opinion related to individual research by the court:
Easy access to a vast amount of information available on the Internet exposes
judges to potential ethical problems. Judges risk violating the Model Code of
Judicial Conduct by searching the Internet for information related to participants
or facts in a proceeding. Independent investigation of adjudicative facts generally
is prohibited unless the information is properly subject to judicial notice. The
restriction on independent investigation includes individuals subject to the judge’s
direction and control.
Committee on Ethics and Responsibility, Independent Factual Research by Judges Via Internet,
Formal Opinion 478, Dec. 8, 2017 (ABA) (emphasis added).
It is appropriate and necessary for the judge to do research required by a case in order to
understand the context and background of the issues involved so long as the judge indicates to
the parties the research and conclusions, by opinions and otherwise, so they may contest and
clarify. See Abrams, Brewer, Medwed, et al., Evidence Cases and Materials (10th Ed. 2017)
(Ch. 9 “Judicial Notice”). It would be a misapprehension of the ABA rule to conclude
otherwise.
Adjudicative facts involving defendants’ alleged activities have not been the subject of
investigation by the court, except at an evidentiary hearing. See Hr’g Tr., Mar. 6, 2018.

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VI.

Conclusion
CFTC has standing to exercise its enforcement power over fraud related to virtual

currencies sold in interstate commerce. A preliminary injunction is granted in favor of the
CFTC. See App. A, Prelim. Injunction.
The individual defendant’s pro se motion to “Dismiss for Lack of Jurisdiction” is denied.
ECF No. 18, Feb. 15, 2018. This court has subject matter jurisdiction pursuant to 28 U.S.C. §§
1331 and 1345. The CFTC has adequately pled and for purpose of a preliminary injunction
proved its claim of fraud in violation of the CEA.
Any person claiming improper application of the injunctive power of the court may seek
relief by motion.
SO ORDERED.

/s/ Jack B. Weinstein
Jack B. Weinstein
Senior United States District Judge
Dated: March 6, 2018
Brooklyn, New York

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Appendix A

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
COMMODITY FUTURES TRADING
COMMISSION,
Plaintiff,
18-CV-0361

v.
PATRICK K. MCDONNELL,
and CABBAGETECH, CORP. d/b/a COIN
DROP MARKETS,

Defendants.
ORDER OF PRELIMINARY INJUNCTION
AND OTHER RELIEF
I.

INTRODUCTION

On January 18, 2018, Plaintiff Commodity Futures Trading Commission (“Plaintiff” or
“Commission”) filed a Complaint for Injunctive and Other Equitable Relief and for Civil
Monetary Penalties Under the Commodity Exchange Act and Commission Regulations
(“Complaint”) against Defendants Patrick K. McDonnell (“McDonnell”) and CabbageTech,
Corp. d/b/a Coin Drop Markets (“CDM”) (collectively, “Defendants”) pursuant to Section 6c(a)
of the Commodity Exchange Act (“Act”), 7 U.S.C. § 13a-1 (2012).
On January 30, 2018, the court directed the parties to appear for an evidentiary hearing at
which the court would consider temporary relief and further administration of the action. ECF
No. 9. Subsequent Orders directed the parties to address the Commission’s authority to bring
this action and notified the parties that the court would hear the parties on jurisdictional,

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standing, and other issues at the hearing, set for March 6, 2018. ECF No. 10, ECF No. 17.
On February 26, 2018, the Commission filed its briefs and supporting documents,
including the Brief of Commodity Futures Trading Commission in Support of a Preliminary
Injunction and Other Relief, the Declaration of Christopher Giglio, that set forth its arguments,
including advocating for the issuance of an order (1) prohibiting Defendants from further
violating Section 6(c)(1) of the Act, 7 U.S.C. § 9(1) (2012), and Commission Regulation
(“Regulation”) 180.1(a), 17 C.F.R. § 180.1(a) (2017); (2) preserving the books and records of
Defendants, and providing the Commission with access thereto; and (3) ordering Defendants to
submit to an interim accounting on an expedited basis.
On March 6, 2018, the court, with advance notice, see ECF No. 23, Feb. 27, 2018, held
an evidentiary hearing on the request for preliminary injunction.
The court has considered the Brief of Commodity Futures Trading Commission in
Support of a Preliminary Injunction and Other Relief, the Complaint, the Declaration of
Christopher Giglio, all filings by Defendant McDonnell to date, and testimony and evidence
introduced at the March 6, 2018 hearing. It finds that there is good cause for the entry of this
Order and that there is no just reason for delay. The court therefore directs the entry of the
following findings of fact, conclusions of law, and preliminary injunction and other equitable
relief pursuant to Section 6c of the Act, as amended, 7 U.S.C. § 13a-1.
II.

FINDINGS AND CONCLUSIONS THE COURT FINDS
AND CONCLUDES AS FOLLOWS:

A.

FINDINGS OF FACT
The Parties
1.

Plaintiff Commodity Futures Trading Commission (“Commission” or

“CFTC”) is an independent federal regulatory agency that is charged by Congress with the
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administration and enforcement of the Act, 7 U.S.C. §§ 1-27(f) (2012), and the Regulations
promulgated thereunder, 17 C.F.R. pts. 1-190 (2017).
2.

Defendant CabbageTech, Corp. is a New York corporation based on Staten

Island, New York. It was incorporated on May 6, 2016. CabbageTech, Corp.’s last known
address is 20 Rawson Place, Suite B, Staten Island, New York, 10314. At times, CabbageTech,
Corp. did business as Coin Drop Markets (together with CabbageTech, Corp, “CDM”). CDM
has never registered with the Commission.
3.

Defendant Patrick K. McDonnell (“McDonnell”) is a resident of Staten Island,

New York. McDonnell formed, owned, and controlled CabbageTech, Corp. McDonnell has
never registered with the Commission
Defendants’ Fraud Involving Advice About Trading Virtual Currencies
4.

Defendants solicited customers in several of the United States as well as foreign

countries to become members of groups supposedly to receive Defendants’ virtual currency
consulting services and trading advice.
5.

In April 2017, Defendants advertised membership in trading groups such as

RedliteGreenLite, BTC (“RLGLBTC”), relating to Bitcoin, and RedliteGreenLite, LTC
(“RLGLLTC”), relating to Litecoin. These groups purported to provide trading advice and
guidance, such as entry and exit prices for day trading of virtual currencies. Defendants also
solicited membership or subscription to other groups and services, such as a “Turn-Key
Annual Membership” providing access, for instance, to McDonnell’s and CDM’s supposed
virtual currency trading expertise, mentorship, and guidance.
6.

CDM’s promotional materials made claims that a CDM membership in

RLGLLTC would provide “real-time . . . reports [of] critical $LTC entry/exit points via

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@RLGLLTC 24/7 including holidays/weekends.” These promotional materials further made
claims that this continuous, ongoing monitoring and trading signals “afford[ed] ‘minute-tominute’ price arbitrage, exploitation, and opportunities for swing trading profits.” These
promotional materials also made claims such as a trading group was “a dedicated team of digital
asset trading specialists trend spotting.”
7.

These materials promised to provide the membership services on an annual basis

in exchange for an up-front subscription fee. Defendants further solicited “lifetime”
memberships, at a higher price, in a more exclusive trading sector that would provide greater
opportunities to profit from virtual currency trading. One such opportunity purported to offer
profits as much as a 300% return on an investment in less than a week. In or around May 2017,
Defendants created one or more social media chatrooms, purportedly to provide agreed-upon
trading advice and services.
8.

After receiving subscription payments from multiple CDM Customers,

Defendants did not provide to such customers continuous, real-time trading signals, advice, or
trading expertise through its social media chatrooms, through online communications such as via
Twitter, or through its website. For example, Defendants never provided “real-time . . . reports
[of] critical $LTC entry/exit points via @RLGLLTC 24/7 including holidays/weekends.”
Defendants’ RLGLLTC never provided signals that “afford[ed] ‘minute-to-minute’ price
arbitrage, exploitation, and opportunities for swing trading profits.”
9.

Defendants misappropriated CDM Customers’ funds. By July 2017,

Defendants shut down the website and chatroom, deleted social media accounts, ceased
communicating with customers, and kept the customers’ funds.

4

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Defendant’s Fraud Involving Management of Customer Investments in Virtual
Currency
10.

McDonnell described himself in solicitations as a “professional trader,” and

CDM’s website included a purported example of a single virtual currency trade that had
generated more than an approximately 1,000% return.
11.

Instead of achieving enormous gains on behalf of CDM Customers, once

Defendants had solicited and obtained CDM Customer funds for trading by Defendants on behalf
of customers, Defendants ceased communicating with the customers and misappropriated the
customers’ funds.
12.

In or around May 2017, after being solicited by McDonnell, one CDM Customer provided
Litecoin to Defendants for trading by McDonnell on the customer’s behalf. McDonnell told this
customer that he would use the customer’s funds to trade the “volatility” of Litecoin. In fact,
Defendants misappropriated this customer’s funds and ultimately ceased communicating with the
customer.
CDM’s Controlling Person
13.

McDonnell founded and created CDM, and controlled content on the CDM

website and related social media. McDonnell controlled bank and virtual currency accounts to
which he directed CDM Customers to send money for the purchase of CDM services and for
Defendants-managed trading. McDonnell was responsible for developing and disseminating the
false and misleading information about CDM to CDM Customers through CDM’s solicitation
materials.

5

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B.

CONCLUSIONS OF LAW
Jurisdiction and Venue
14.

The Court has jurisdiction over the subject matter of this action under 28 U.S.C.

§ 1331 (2012) and 28 U.S.C. § 1345 (2012). Section 6c(a) of the Act, 7 U.S.C. § 13a-1 (2012),
authorizes the Commission to seek injunctive and other relief against any person whenever it
shall appear to the Commission that such person has engaged, is engaging in, or is about to
engage in any act or practice constituting a violation of any provision of the Act, or any rule,
regulation, or order thereunder.
15.

Venue properly lies in this District, pursuant to Section 6c(e) of the Act,

7 U.S.C. § 13a-1(e) (2012), because Defendants are found in, inhabit, or transact business in this
District, and because acts and practices in violation of the Act occurred within this District,
among other places.
Injunctive Relief is Appropriate
16.

The Commission has presented a prima facie case for the purpose of obtaining a

preliminary injunction based on the fact that Defendants have engaged or are engaging in
violations the Act and Commission Regulations as set forth in the Complaint.
17.

The Commission has demonstrated a reasonable likelihood of future

violations by the Defendants.
18.

A preliminary injunction and other relief are warranted in light of the allegations

set forth in the Complaint, evidence submitted at a hearing held by the court, the Commission’s
likelihood of success on the merits of its claims against the Defendants, and the reasonable
likelihood of future violations by the Defendants.

6

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III.
A.

RELIEF GRANTED

PRELIMINARY INJUNCTIVE RELIEF

IT IS HEREBY ORDERED that:
19.

Defendants, their officers, agents, servants, employees, successors, assigns, and

attorneys, and all persons in active concert or participation with Defendants who receive notice of
this Order by personal service or otherwise, are hereby restrained, enjoined, and prohibited until
further order of the court, from directly or indirectly, in connection with any swap, or contract of
sale of any commodity in interstate commerce, or contract for future delivery on or subject to the
rules of any registered entity, intentionally or recklessly:
A.

using or employing, or attempting to use or employ, any manipulative

device, scheme, or artifice to defraud;
B.

making, or attempting to make, any untrue or misleading statement of a

material fact or to omit to state a material fact necessary in order to make statements made not
untrue or misleading; and
C.

engaging, or attempting to engage, in any act, practice, or course of

business, which operates or would operate as a fraud or deceit upon any person;
in violation of Section 6(c)(1) of the Act, 7 U.S.C. § 9(1) (2012), or Commission
Regulation 180.1(a), 17 C.F.R. § 180.1(a) (2017).
20.

Defendants, their officers, agents, servants, employees, successors, assigns, or

attorneys, and all persons in active concert or participation with Defendants who receive notice of
this Order by personal service or otherwise, are hereby restrained, enjoined, and prohibited until
further order of the court, from directly or indirectly:
A.

Trading on or subject to the rules of any registered entity, as that term is

defined in Section 1a(40) of the Act, 7 U.S.C. § 1a(40) (2012);
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B.

Entering into any transactions involving “commodity interests” (as that

term is defined in Regulation 1.3(yy), 17 C.F.R. § 1.3(yy) (2017)) for their own personal account
or for any account in which they have a direct or indirect interest;
C.

Having any commodity interests traded on their behalf;

D.

Controlling or directing the trading for or on behalf of any other person or

entity, whether by power of attorney or otherwise, in any account involving commodity interests;
E.

Soliciting, receiving, or accepting any funds from any person for the

purpose of purchasing or selling any commodity;
F.

Applying for registration or claiming exemption from registration with the

Commission in any capacity, and engaging in any activity requiring such registration or
exemption from registration with the Commission, except as provided for in Regulation
4.14(a)(9), 17 C.F.R. § 4.14(a)(9) (2017); and
G.

Acting as a principal (as that term is defined in Regulation 3.1(a), 17

C.F.R. § 3.1(a) (2017)), agent, or any other officer or employee of any person (as that term is
defined in Section 1a(38) of the Act, 7 U.S.C. § 1a(38) (2012)) registered, exempted from
registration, or required to be registered with the Commission except as provided for in
Regulation 4.14(a)(9), 17 C.F.R. § 4.14(a)(9) (2017).
B.

MAINTENANCE OF AND ACCESS TO BUSINESS RECORDS

IT IS FURTHER ORDERED that:
21.

Defendants are restrained from directly or indirectly destroying, mutilating,

erasing, altering, concealing or disposing of, in any manner, directly or indirectly, any documents
that relate to the business practices or business or personal finances of any Defendant.

8

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22.

Any financial or brokerage institution, business entity, or person that receives

notice of this Order by personal service or otherwise, shall not:
A.

directly or indirectly destroy, alter or dispose of, in any manner, any

records relating to the business activities and business and personal finances of any Defendant;
and
B.

deny a request by the Commission to inspect any records pertaining to any

account or asset owned, controlled, managed or held by Defendants, or managed or held on
behalf of, or for the benefit of, any Defendants, including, but not limited to, originals or copies
of account applications, account statements, signature cards, checks, drafts, deposit tickets,
transfers to and from the accounts, debit and credit instruments or slips, currency transaction
reports, 1099 forms, and safe deposit box logs. As an alternative to allowing inspection of
records, a financial or brokerage institution, business entity or other person may provide full unredacted copies of records requested by the Commission.
C.

ACCOUNTING AND PRODUCTION OF DOCUMENTS

IT IS FURTHER ORDERED that:
23.

Within five (5) business days following the service of this Order, Defendants shall

submit in writing and serve upon the Commission an accounting identifying:
A.

all transfers or payments of funds to them or any other entity controlled by

them from any individual or entity in connection with the misconduct described in the Complaint.
The identification shall include the amount of each such transfer or payment, the date of the
transfer or payment, and the name, address, account number and financial institution of the party
making and the party receiving the transfer or payment;

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B.

in detail, the precise disposition of each such transfer or payment and

any assets derived therefrom;
C.

by name and address, all persons, entities and accounts currently holding

funds or assets derived from such transfers or payments and the reason each received the funds
or assets. The identification shall include the amount each received, the date received, the
reason received, the institution and account number or location in which the funds or other
assets are held and the name, address, account number and financial institution of the person or
entity who provided each with the funds or other assets;
D.

assets of every type and description presently owned by or held for the

direct or indirect benefit, or subject to the direct or indirect control, of any Defendant, whether
in the United States or elsewhere; and
E.

the identification number of each account or other asset controlled,

managed, or held by, on behalf of, or for the benefit of a Defendant, either individually or
jointly; the balance of each such account, or a description of the nature and value of such asset
as of the close of business on the day on which this Order is served, and, if the account or other
asset has been closed or removed, the date closed or removed, the total funds removed in order
to close the account, and the name of the person or entity to whom such account or other asset
was remitted; and the identification of any safe deposit box that is owned controlled, managed,
or held by, on behalf of, or for the benefit of a Defendant, either individually or jointly, or is
otherwise subject to access by Defendants.
24.

Upon request by the Commission, each Defendant shall promptly provide the

Commission with copies of all records or other documentation pertaining to any account or asset
identified in response to Paragraph 23 above, including, but not limited to, originals or copies of

10

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account applications, account statements, signature cards, checks, drafts, deposit tickets, transfers
to and from the accounts, all other debit and credit instruments or slips, currency transaction
reports, Internal Revenue Service Forms 1099, and safe deposit box logs.
IV.
25.

MISCELLANEOUS PROVISIONS

Definitions. For the purposes of this Order, the following definitions apply:
A.

“Assets” means any legal or equitable interest in, right to, or claim to, any

real or personal property, whether individually or jointly, directly or indirectly controlled, and
wherever located, including, but not limited to: chattels, goods, instruments, equipment, fixtures,
general intangibles, effects, leaseholds, mail or other deliveries, inventory, checks, notes,
accounts (including, but not limited to, bank accounts and accounts at other financial
institutions), credits, receivables, lines of credit, contracts (including spot, futures, options, or
swaps contracts), insurance policies, and all cash, wherever located, within or outside the United
States.
B.

The term “document” is synonymous in meaning and equal in scope to the

broad usage of the term in Federal Rule of Civil Procedure 34(a).
26.

Service of this Order. Copies of this Order may be served by any means,

including mail, electronic mail, facsimile transmission, Fedex, and United Parcel Service, upon
any financial institution or other entity or person that may have possession, custody, or control
of any document or asset of Defendants, or that may be subject to any provision of this Order.
27.

Bond Not Required of Plaintiff. Plaintiff is an agency of the United States, and

therefore, pursuant to Section 6c(b) of the Act, 7 U.S.C. §13a-1(b) (2012), no bond is required
prior to entry of this Order.

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28.

Continuing Jurisdiction of this Court. This Order shall remain in effect until

further order of the court. The court shall retain jurisdiction over this action to ensure
compliance with this Order and for all other purposes related to this action.
29.

Any person claiming improper application of the injunctive power of the

court may seek relief by motion.

SO ORDERED.

/s/ Jack B. Weinstein
Jack B. Weinstein
Senior United States District Judge
Dated: March 6, 2018
Brooklyn, New York

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Appendix B

October 17, 2017

A CFTC Primer on
Virtual Currencies

CFTC
Please note that LabCFTC cannot and will not provide legal advice. If you have specific questions regarding your activities and whether they conform
to legal or regulatory requirements, you should consult with a qualified lawyer or appropriate expert. LabCFTC has no independent authority or
decision-making power, and cannot independently provide, or create an expectation for, legal or regulatory relief. Communications from LabCFTC
shall not create estoppel against CFTC or other enforcement actions. Any formal requests for relief must be addressed by relevant CFTC staff or, as
necessary, by the Commission. LabCFTC will work with entities on such requests with the appropriate offices through established processes.
1

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Contents

This primer format is intended to be an educational tool regarding emerging
FinTech innovations. It is not intended to describe the official policy or
position of the CFTC, or to limit the CFTC’s current or future positions or
actions. The CFTC does not endorse the use or effectiveness of any of the
financial products in this presentation. It is organized as follows:
 Overview
– What is a Virtual Currency?
– Bitcoin and Related Technologies
– Potential Uses of Virtual Currencies and Blockchain Technologies

 The Role of the CFTC
– The CFTC’s Mission
– Sample Permitted and Prohibited Activities
– ICOs, Virtual Tokens, and CFTC Oversight

 Risks of Virtual Currencies
−
−
−
−

Operational Risks
Speculative Risks
Cybersecurity Risks
Fraud and Manipulation Risks
2

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OVERVIEW OF VIRTUAL
CURRENCIES

3

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What is a Virtual Currency?

 Although precise definitions offered by others are varied, an IRS
definition provides us with a general idea:
− “Virtual currency is a digital representation of value that functions as a medium of
exchange, a unit of account, and/or a store of value.
− In some environments, it operates like ‘real’ currency . . . but it does not have legal
tender status [in the U.S.].
− Virtual currency that has an equivalent value in real currency, or that acts as a
substitute for real currency, is referred to as ‘convertible’ virtual currency. Bitcoin is
one example of a convertible virtual currency.
− Bitcoin can be digitally traded between users and can be purchased for, or exchanged
into, U.S. dollars, Euros, and other real or virtual currencies.Ӡ

†IRS

Notice 2014-21, available at https://www.irs.gov/businesses/small-businesses-self-employed/virtual-currencies (emphasis added). Please
note that this definition is not a statement of the Commission’s view, and is instead offered as an aid to enhance public understanding of virtual
currencies. We further note that one prominent type of virtual currency is cryptocurrency. Cryptocurrency has been described as “an electronic
payment system based on cryptographic proof instead of trust, allowing any two willing parties to transact directly with each other without the
need for a trusted third party.” Satoshi Nakamoto, Bitcoin: A Peer-to-Peer Electronic Cash System (Oct. 31, 2008), available at
https://bitcoin.org/bitcoin.pdf.

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What is Bitcoin?

 Bitcoin is currently the largest convertible virtual currency by market
capitalization (close to $72 billion in August 2017)†
 Bitcoin was created in 2008 by a person or group that used the
name “Satoshi Nakamoto,” with the belief that:
“[w]hat is needed is an electronic payment system based on cryptographic proof instead of trust, allowing any two
willing parties to transact directly with each other without the need for a trusted third party.”

 Bitcoin:
−
−
−

−
−

Is “pseudonymous” (or partially anonymous) in that an individual is identified by an
alpha-numeric public key/address;
Relies on cryptography (and unique digital signatures) for security based on public and
private keys and complex mathematical algorithms;
Runs on a decentralized peer-to-peer network of computers and “miners” that operate
on open-source software and do “work” to validate and irrevocably log transactions on
a permanent public distributed ledger visible to the entire network;
Solves the lack of trust between participants who may be strangers to each other on a
public ledger through the transaction validation work noted in the sub-bullet above; and
Enables the transfer of ownership without the need for a trusted, central intermediary.

†

Paul Vigna, Bitcoin, Valued Like a Cool Blue Chip, Trading Like a Hot Small Cap, Wall Street Journal (Aug. 29, 2017), available at
https://blogs.wsj.com/moneybeat/2017/08/28/bitcoin-valued-like-a-blue-chip-trading-like-a-small-cap/. It is important to note that there are
many other virtual currencies with sizeable market capitalizations that are built upon various Blockchain technologies, but may have different
characteristics or functionalities than Bitcoin, including Ethereum (or Ether), Litecoin, and Ripple.

5

What is the Difference between Public
and Private Ledger Systems?

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 Certain virtual currencies operate on public distributed ledger
systems that capture “blocks” of transactions – there is no inherent
trust in this decentralized system.
− Virtual currencies create an economic incentive for dispersed, independent,
computers, or groups of computers, around the world to confirm transactions and
perform verifiable “work” (that creates consensus) to publish a new block of
transactions on the public ledger in exchange for a payment of the applicable virtual
currency.

 Private / permissioned distributed ledger networks typically have
some degree of trust between participants.
− Private ledger systems allow a network of known participants to share transaction
information between themselves more efficiently.
− While cryptography and consensus may still be involved in private ledger systems,
these systems do not necessarily involve a virtual currency that may serve as the
economic incentive for miner or validator participation in public networks.

6

Sample Potential Use Cases of Virtual
Currencies

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 Store of Value
– Like precious metals, many virtual currencies are a “non-yielding” asset (meaning they
do not pay dividends or interest), but they may be more fungible, divisible, and
portable
– Limited or finite supply of virtual currencies may contrast with ‘real’ (fiat) currencies

 Trading
– Trading in virtual currencies may result in capital gains or losses
– Note that trading in virtual currencies may involve significant speculation and volatility
risk (see Virtual Currency Risks section below)

 Payments and Transactions
– Some merchants and online stores are accepting virtual currencies in exchange for
physical and digital goods (i.e., payments)
– Some public Blockchain systems rely on the payment of fees in virtual currency form
in order to power the network and underlying transactions

 Transfer / Move Money
– Domestic and international money transfer (e.g., remittances) in order to increase
efficiencies and potentially reduce related fees

7

Sample Potential Use Cases of
Blockchain/DLT Technology

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Blockchain, or distributed ledger technology,* underpins many virtual
currencies, but can also be used within private, permissioned ledger
systems – versions of public and private systems may be used by:
 Financial Institutions
–
–
–
–

Trading & Payment Platforms / Clearing and Settlement
Regulatory Reporting, Compliance & Audit
Know Your Customer (KYC) / Anti-Money Laundering (AML)
Repurchase Agreement Transactions (“Repos,” i.e., short-term borrowing of securities)

 Governments
– General Records Management
– Title & Ownership Records Management (e.g., real property deeds and title transfer)
– Regulatory Reporting and Oversight

 Cross-Industry
– Smart Contracts (i.e., self executing agreements)
– Resource / Asset Sharing Agreements (e.g., allowing rental of a personal car left behind
during a vacation or allowing rental of excess computer or data storage)
– Digital Identity (e.g., proof of identity when entering into a contract)
* See generally Marco Iansiti and Karim R. Lakhani, The Truth About Blockchain, Harvard Business Review (Jan-Feb 2017), available at
https://hbr.org/2017/01/the-truth-about-blockchain (for a general overview of how a public Blockchain works).

8

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THE ROLE OF THE CFTC

9

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The CFTC’s Mission

 The mission of the CFTC is to foster open, transparent, competitive,
and financially sound markets. By working to avoid systemic risk, the
Commission aims to protect market users and their funds,
consumers, and the public from fraud, manipulation, and abusive
practices related to derivatives and other products that are subject to
the Commodity Exchange Act (CEA).
 To foster the public interest and fulfill its mission, the CFTC will act:
– To deter and prevent price manipulation or any other disruptions to market integrity;
– To ensure the financial integrity of all transactions subject to the CEA and the
avoidance of systemic risk;
– To protect all market participants from fraudulent or other abusive sales practices and
misuse of customer assets; and
– To promote responsible innovation and fair competition among boards of trade, other
markets, and market participants.

 Responsible innovation is market-enhancing.

10

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Virtual Currencies are Commodities

 The definition of “commodity” in the CEA is broad.
─ It can mean a physical commodity, such as an agricultural product (e.g., wheat, cotton)
or natural resource (e.g., gold, oil).
─ It can mean a currency or interest rate.
─ The CEA definition of “commodity” also includes “all services, rights, and interests . . . in
which contracts for future delivery are presently or in the future dealt in.”

 The CFTC first found that Bitcoin and other virtual currencies are
properly defined as commodities in 2015.‡
 The CFTC has oversight over futures, options, and derivatives
contracts.
 The CFTC’s jurisdiction is implicated when a virtual currency is used
in a derivatives contract, or if there is fraud or manipulation involving
a virtual currency traded in interstate commerce.
− Beyond instances of fraud or manipulation, the CFTC generally does not oversee “spot”
or cash market exchanges and transactions involving virtual currencies that do not
utilize margin, leverage, or financing.

.

‡ See, In the Matter of: Coinflip, Inc., d/b/a Derivabit, and Francisco Riordan, CFTC Docket No. 15-29, available at
http://www.cftc.gov/idc/groups/public/@lrenforcementactions/documents/legalpleading/enfcoinfliprorder09172015.pdf.

11

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Examples of Permitted Activities

 TeraExchange, LLC, a Swap Execution Facility (“SEF”) registered
with the CFTC, entered in to the virtual currency market in 2014 by
listing a Bitcoin swap for trading. Trading on a SEF platform is
limited to “eligible contract participants,” a type of sophisticated
trader, which includes various financial institutions and persons, with
assets above specified statutory minimums.
 North American Derivatives Exchange Inc. (“NADEX”), a designated
contract market (“DCM”), listed binary options based on the Tera
Bitcoin Price Index from November 2014 to December 2016. Retail
customers may trade on NADEX.
 LedgerX, LLC (“LedgerX”) registered with the CFTC as a SEF and
Derivative Clearing Organization (“DCO”) in July 2017. It plans to
list digital currency options.

12

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Examples of Prohibited Activities‡

 Price manipulation of a virtual currency traded in interstate
commerce.
 Pre-arranged or wash trading in an exchange-traded virtual currency
swap or futures contract.
 A virtual currency futures or option contract or swap traded on a
domestic platform or facility that has not registered with the CFTC as
a SEF or DCM.
 Certain schemes involving virtual currency marketed to retail
customers, such as off-exchange financed commodity transactions
with persons who fail to register with the CFTC.

‡Please

note that this is not an exhaustive list of prohibited activities.

13

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ICOs, Virtual Tokens, and CFTC Oversight

 The Securities and Exchange Commission (“SEC”) recently released a report
about an Initial Coin Offering or “ICO” (the “DAO Report”).‡
 The DAO Report explains that “The DAO” is an example of a “Decentralized
Autonomous Organization,” which is a “virtual” organization embodied in
computer code and executed on a distributed ledger or blockchain.
 Investors exchanged Ether, a virtual currency, for virtual DAO “Tokens” to
fund projects in which the investors would share in anticipated earnings.
DAO Tokens could be resold on web-based platforms.
 Based on the facts and circumstances, the SEC determined that DAO Tokens
are “securities” under the federal securities laws.
 There is no inconsistency between the SEC’s analysis and the CFTC’s
determination that virtual currencies are commodities and that virtual tokens
may be commodities or derivatives contracts depending on the particular
facts and circumstances.
−

The CFTC looks beyond form and considers the actual substance and purpose of an activity when
applying the federal commodities laws and CFTC regulations

‡ See Release No. 81207, Report of Investigation Pursuant to Section 21(a) of the Securities Exchange Act of 1934: The DAO, available at
https://www.sec.gov/litigation/investreport/34-81207.pdf.

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RISKS OF VIRTUAL CURRENCIES

15

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Virtual Currencies Have Risks

 While virtual currencies have potential benefits, this emerging space
also involves various risks, including:
− Operational Risks
− Cybersecurity Risks
− Speculative Risks
− Fraud and Manipulation Risks

 Virtual currencies are relatively unproven and may not perform as
expected (for example, some have questioned whether public
distributed ledgers are in fact immutable).
 Investors and users of virtual currencies should educate themselves
about these and other risks before getting involved.

16

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Virtual Currency: Operational Risk

 Conduct extensive research before giving any money or personal
information to a virtual currency platform.
 The virtual currency marketplace is comprised of many different
platforms where you can convert one type of virtual currency into
another or into real currency, if offered.
 Many of these platforms are not subject to the supervision which
applies to regulated exchanges. For example, if they engage in only
certain spot or cash market transactions and do not utilize margin,
leverage, or financing, they may be subject to federal and state
money transmission and anti-money laundering laws, but they do not
have to follow all the rules that regulated exchanges operate under.
 Some virtual currency platforms may be missing critical system
safeguards and customer protection related systems; without
adequate safeguards, customers may lose some or all of their virtual
assets.
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Virtual Currency: Cybersecurity Risk

 Keep your property in safe accounts and carefully verify digital wallet
addresses.
 Some platforms may “commingle” (mix) customer assets in shared
accounts (at a bank for real currency or a digital wallet for virtual
currency). This may affect whether or how you can withdraw your
currency.
 Depending on the structure and security of the digital wallet, some
may be vulnerable to hacks, resulting in the theft of virtual currency
or loss of customer assets.
− If a bad actor gains access to your private key, it can take your virtual currency with
limited or no recourse

 When transferring virtual currency, be sure to confirm the destination
wallet address, even when using “copy and paste.” It is possible for
hackers to change digital wallet addresses on your computer.
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Virtual Currency: Speculative Risk

 Only invest what you are willing and able to lose.
 The virtual currency marketplace has been subject to substantial
volatility and price swings.
 An individual or coordinated group trading a large amount of virtual
currency at once could affect the price, depending on the overall
amount of trading in the marketplace.
 Periods of high volatility with inadequate trade volume may create
adverse market conditions, leading to harmful effects such as
customer orders being filled at undesirable prices.
 Some advertisements promise guaranteed returns – this can be a
common tactic with fraudulent schemes.

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Virtual Currency: Fraud & Manipulation Risk
 Carefully research the platform you want to use, and pay close
attention to the fee structure and systems safeguards.
 Unregistered virtual currency platforms may not be able to
adequately protect against market abuses by other traders.
− For example, recent news articles discuss potential “spoofing” activity and other
manipulative behavior that can negatively affect prices

 Some virtual currency platforms may be selling you virtual currency
directly from their own account – these types of transactions may
give the platform unfair advantages and sometimes resemble
fraudulent “bucket shop” schemes.
 There is also a risk of Ponzi schemers and fraudsters seeking to
capitalize on the current attention focused on virtual currencies.

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Appendix C

WRITTEN TESTIMONY OF
J. CHRISTOPHER GIANCARLO
CHAIRMAN, COMMODITY FUTURES TRADING COMMISSION
BEFORE THE
SENATE BANKING COMMITTEE
WASHINGTON, D.C.
FEBRUARY 6, 2018

Introduction: Virtual Currency
Thank you, Chairman Crapo, for the invitation to testify before the Committee. Thank
you, Ranking Member Brown, and all the members of the Committee for this opportunity to
discuss virtual currencies.
At the outset, I would like to note that this hearing is timely, even fortuitous. Emerging
financial technologies broadly are taking us into a new chapter of economic history. They are
impacting trading, markets and the entire financial landscape with far ranging implications for
capital formation and risk transfer. They include machine learning and artificial intelligence,
algorithm-based trading, data analytics, “smart” contracts valuing themselves and calculating
payments in real-time, and distributed ledger technologies, which over time may come to
challenge traditional market infrastructure. They are transforming the world around us, and it is
no surprise that these technologies are having an equally transformative impact on US capital
and derivatives markets.
The more specific topic for today’s hearing, however, is virtual currency. Broadly
speaking, virtual currencies are a digital representation of value that may function as a medium
of exchange, a unit of account, and/or a store of value. Virtual currencies generally run on a
decentralized peer-to-peer network of computers, which rely on certain network participants to
validate and log transactions on a permanent, public distributed ledger, commonly known as the
blockchain.
Supporters of virtual currencies see a technological solution to the age-old “double
spend” problem – that has always driven the need for a trusted, central authority to ensure that an
entity is capable of, and does, engage in a valid transaction. Traditionally, there has been a need
for a trusted intermediary – for example a bank or other financial institution – to serve as a
gatekeeper for transactions and many economic activities. Virtual currencies seek to replace the
need for a central authority or intermediary with a decentralized, rules-based and open consensus
mechanism.1 An array of thoughtful business, technology, academic, and policy leaders have
1

See generally, CFTC Talks, Episode 24, Dec. 29, 2017, Interview with Coincenter.org Director of Research, Peter
Van Valkenburgh, at http://www.cftc.gov/Media/Podcast/index.htm.

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extrapolated some of the possible impacts that derive from such an innovation, including how
market participants conduct transactions, transfer ownership, and power peer-to-peer
applications and economic systems.2
Others, however, argue that this is all hype or technological alchemy and that the current
interest in virtual currencies is overblown and resembles wishful thinking, a fever, even a mania.
They have declared the 2017 heightened valuation of Bitcoin to be a bubble similar to the
famous “Tulip Bubble” of the seventeenth century. They say that virtual currencies perform no
socially useful function and, worse, can be used to evade laws or support illicit activity.3 Indeed,
history has demonstrated to us time-and-again that bad actors will try to invoke the concept of
innovation in order to perpetrate age-old fraudulent schemes on the public. Accordingly, some
assert that virtual currencies should be banned, as some nations have done.4
There is clearly no shortage of opinions on virtual currencies such as Bitcoin. In fact,
virtual currencies may be all things to all people: for some, potential riches, the next big thing, a
technological revolution, and an exorable value proposition; for others, a fraud, a new form of
temptation and allure, and a way to separate the unsuspecting from their money.
Perspective is critically important. As of the morning of February 5, the total value of all
outstanding Bitcoin was about $130 billion based on a Bitcoin price of $7,700. The Bitcoin
“market capitalization” is less than the stock market capitalization of a single “large cap”
business, such as McDonalds (around $130 billion). The total value of all outstanding virtual
currencies was about $365 billion. Because virtual currencies like Bitcoin are sometimes
considered to be comparable to gold as an investment vehicle, it is important to recognize that
the total value of all the gold in the world is estimated by the World Gold Council to be about $8
trillion which continues to dwarf the virtual currency market size. Clearly, the column inches of
press attention to virtual currency far surpass its size and magnitude in today’s global economy.

2

See Marc Andreessen, Why Bitcoin Matters, New York Times DealBook (Jan. 21,
2014), https://dealbook.nytimes.com/2014/01/21/why-bitcoin-matters/; Jerry Brito and Andrea O’Sullivan, Bitcoin:
A Primer for Policymakers, George Mason University Mercatus Center (May 3,
2016),https://www.mercatus.org/publication/bitcoin-primer-policymakers; Christian Catalini and Joshua S.
Gans, Some Simple Economics of the Blockchain, Rotman School of Management Working Paper No. 2874598,
MIT Sloan Research Paper No. 5191-16 (last updated Sept. 21,
2017),https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2874598; Arjun Kharpal, People are 'underestimating'
the 'great potential' of bitcoin, billionaire Peter Thiel says, CNBC (Oct. 26,
2017), https://www.cnbc.com/2017/10/26/bitcoin-underestimated-peter-thiel-says.html; Hugh Son, Bitcoin ‘More
Than Just a Fad,’ Morgan Stanley CEO Says, Bloomberg (Sept. 27,
2017), https://www.bloomberg.com/news/articles/2017-09-27/bitcoin-more-than-just-a-fad-morgan-stanley-ceogorman-says; Chris Brummer and Daniel Gorfine, FinTech: Building a 21st-Century Regulator’s Toolkit, Milken
Institute (Oct. 21, 2014), available at http://www.milkeninstitute.org/publications/view/665.
3
Virtual currencies are not unique in their utility in illicit activity. National currencies, like the US Dollar, and
commodities, like gold and diamonds, have long been used to support criminal enterprises.
4
Countries that have banned Bitcoin include Bangladesh, Bolivia, Ecuador, Kyrgyzstan, Morocco, Nepal, and
Vietnam. China has banned Bitcoin for banking institutions.

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Yet, despite being a relatively small asset class, virtual currency presents novel
challenges for regulators. SEC Chairman Clayton and I recently wrote:

The CFTC and SEC, along with other federal and state regulators and criminal
authorities, will continue to work together to bring transparency and integrity to
these markets and, importantly, to deter and prosecute fraud and abuse. These
markets are new, evolving and international. As such they require us to be
nimble and forward-looking; coordinated with our state, federal and
international colleagues; and engaged with important stakeholders, including
Congress5.
It is this perspective that has guided our work at the CFTC on virtual currencies.
Introduction: The Mission of the CFTC:
The mission of the CFTC is to foster open, transparent, competitive, and financially
sound derivatives markets.6 By working to avoid systemic risk, the Commission aims to protect
market users and their funds, consumers, and the public from fraud, manipulation, and abusive
practices related to derivatives and other products that are subject to the Commodity Exchange
Act (CEA).
The CFTC was established as an independent agency in 1974, assuming responsibilities
that had previously belonged to the Department of Agriculture since the 1920s. The Commission
historically has been charged by the CEA with regulatory authority over the commodity futures
markets. These markets have existed since the 1860s, beginning with agricultural commodities
such as wheat, corn, and cotton.
Over time, these organized commodity futures markets, known as designated contract
markets (DCMs) regulated by the CFTC, have grown to include those for energy and metals
commodities, collectively including crude oil, heating oil, gasoline, copper, gold, and silver. The
agency now also oversees these commodity futures markets for financial products such as
interest rates, stock indexes, and foreign currency. The definition of “commodity” in the CEA is
broad. It can mean a physical commodity, such as an agricultural product (e.g., wheat, cotton) or
natural resource (e.g., gold, oil). It can mean a currency or interest rate. The CEA definition of
“commodity” also includes “all services, rights, and interests . . . in which contracts for future
delivery are presently or in the future dealt in.”
In the aftermath of the 2008 financial crisis, President Obama and Congress enhanced the
CFTC’s regulatory authority. With passage of the Dodd-Frank Wall Street Reform and
5

Jay Clayton and J. Christopher Giancarlo, Regulators Are Looking at Cryptocurrency: At the SEC and CFTC We
Take Our Responsibility Seriously, Wall Street Journal, Jan. 24, 2018, https://www.wsj.com/articles/regulators-arelooking-at-cryptocurrency-1516836363.
6
See CFTC, Mission and Responsibilities, http://www.cftc.gov/About/MissionResponsibilities/index.htm.

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Consumer Protection Act (Dodd-Frank Act), the agency now also oversees most of the U.S.
swaps market in addition to exchange traded futures markets.
Futures, swaps and other derivatives markets are essential means for commercial and
financial risk mitigation and transfer. These markets allow the risks of variable production costs,
such as the price of raw materials, energy, foreign currency and interest rates, to be transferred
from those who cannot afford them to those who can. They are the reason why American
consumers enjoy stable prices in the grocery store, whatever the conditions out on the farm.
But derivatives markets are not just useful for agricultural producers. They impact the
price and availability of heating in American homes, the energy used in factories, the interest
rates borrowers pay on home mortgages and the returns workers earn on their retirement savings.
More than 90 percent of Fortune 500 companies use derivatives to manage commercial or
market risk in their worldwide business operations. In short, derivatives serve the needs of
society to help moderate price, supply and other commercial risks to free up capital for economic
growth, job creation and prosperity.
To ensure the integrity of US derivatives markets, the CFTC regulates derivatives market
participants and activities. The agency oversees a variety of individuals and organizations. These
include swap execution facilities, derivatives clearing organizations, designated contract markets,
swap data repositories, swap dealers, futures commission merchants, commodity pool operators,
and other entities. The CFTC also prosecutes derivative market fraud and manipulation,
including misconduct in underlying spot markets for commodities.
I.

CFTC Authority and Oversight over Virtual Currencies

In 2015, the CFTC determined that virtual currencies, such as Bitcoin, met the definition
of “commodity” under the CEA. Nevertheless, the CFTC does NOT have regulatory jurisdiction
under the CEA over markets or platforms conducting cash or “spot” transactions in virtual
currencies or other commodities or over participants on such platforms. More specifically, the
CFTC does not have authority to conduct regulatory oversight over spot virtual currency
platforms or other cash commodities, including imposing registration requirements, surveillance
and monitoring, transaction reporting, compliance with personnel conduct standards, customer
education, capital adequacy, trading system safeguards, cyber security examinations or other
requirements. In fact, current law does not provide any U.S. Federal regulator with such
regulatory oversight authority over spot virtual currency platforms operating in the United States
or abroad. However, the CFTC DOES have enforcement jurisdiction to investigate through
subpoena and other investigative powers and, as appropriate, conduct civil enforcement action
against fraud and manipulation in virtual currency derivatives markets and in underlying virtual
currency spot markets.
In contrast to the spot markets, the CFTC does have both regulatory and enforcement
jurisdiction under the CEA over derivatives on virtual currencies traded in the United States.
This means that for derivatives on virtual currencies traded in U.S. markets, the CFTC conducts
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comprehensive regulatory oversight, including imposing registration requirements and
compliance with a full range of requirements for trade practice and market surveillance,
reporting and monitoring and standards for conduct, capital requirements and platform and
system safeguards.
II.

Assertion of CFTC Authority

The CFTC has been straightforward in asserting its area of statutory jurisdiction
concerning virtual currencies derivatives. As early as 2014, former CFTC Chairman Timothy
Massad discussed virtual currencies and potential CFTC oversight under the Commodity
Exchange Act (CEA).7 And as noted above, in 2015, the CFTC found virtual currencies to be a
commodity.8 In that year, the agency took enforcement action to prohibit wash trading and
prearranged trades on a virtual currency derivatives platform.9 In 2016, the CFTC took action
against a Bitcoin futures exchange operating in the U.S. that failed to register with the agency. 10
Last year, the CFTC issued proposed guidance on what is a derivative market and what is a spot
market in the virtual currency context.11 The agency also issued warnings about valuations and
volatility in spot virtual currency markets12 and launched an unprecedented consumer education
effort (detailed in Section IV herein).
a. Enforcement
The CFTC Division of Enforcement is a premier Federal civil enforcement agency
dedicated to deterring and preventing price manipulation and other disruptions of market
integrity, ensuring the financial integrity of all transactions subject to the CEA, and protecting
market participants from fraudulent or other abusive sales practices and misuse of customer
assets. Appendix A hereto summarizes recent CFTC enforcement activities.
The CFTC has been particularly assertive of its enforcement jurisdiction over virtual
currencies. It has formed an internal virtual currency enforcement task force to garner and
deploy relevant expertise in this evolving asset class. The task force shares information and
works cooperatively with counterparts at the SEC with similar virtual currency expertise.
7

Testimony of CFTC Chairman Timothy Massad before the U.S. Senate Committee on Agriculture, Nutrition and
Forestry (Dec. 10, 2014), http://www.cftc.gov/PressRoom/SpeechesTestimony/opamassad-6.
8
In re Coinflip, Inc., Dkt. No. 15-29 (CFTC Sept. 17, 2015),
http://www.cftc.gov/idc/groups/public/@lrenforcementactions/documents/legalpleading/enfcoinfliprorder09172015.
pdf.
9
In re TeraExchange LLC, Dkt. No. 15-33 (CFTC Sept. 24, 2015),
http://www.cftc.gov/idc/groups/public/@lrenforcementactions/documents/legalpleading/enfteraexchangeorder92415
.pdf.
10
In re BXFNA Inc. d/b/a Bitfinex, Dkt. No. 16-19 (CFTC June 2, 2016),
http://www.cftc.gov/idc/groups/public/@lrenforcementactions/documents/legalpleading/enfbfxnaorder060216.pdf.
11
CFTC, Retail Commodity Transactions Involving Virtual Currency, 82 Fed. Reg. 60335 (Dec. 20, 2017),
www.gpo.gov/fdsys/pkg/FR-2017-12-20/pdf/2017-27421.pdf.
12
CFTC, A CFTC Primer on Virtual Currencies (Oct. 17, 2017),
http://www.cftc.gov/idc/groups/public/documents/file/labcftc_primercurrencies100417.pdf.

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In September 2017, the CFTC took enforcement action against a virtual currency Ponzi
scheme.13 Over the past few weeks, the CFTC filed a series of civil enforcement actions against
perpetrators of fraud, market manipulation and disruptive trading involving virtual currency.
These include:
(i)

(ii)

(iii)

My Big Coin Pay Inc., which charged the defendants with commodity fraud and
misappropriation related to the ongoing solicitation of customers for a virtual
currency known as My Big Coin;
The Entrepreneurs Headquarters Limited, which charged the defendants with a
fraudulent scheme to solicit Bitcoin from members of the public, misrepresenting that
customers’ funds would be pooled and invested in products including binary options,
and instead misappropriated the funds and failed to register as a Commodity Pool
Operator; and
Coin Drop Markets, which charged the defendants with fraud and misappropriation
in connection with purchases and trading of Bitcoin and Litecoin.

These recent enforcement actions confirm that the CFTC, working closely with the SEC
and other fellow financial enforcement agencies, will aggressively prosecute bad actors that
engage in fraud and manipulation regarding virtual currencies.
b. Bitcoin Futures
It is important to put the new Bitcoin futures market in perspective. It is quite small with
open interest at the CME of 6,695 bitcoin14 and at Cboe Futures Exchange (Cboe) of 6,695
bitcoin (as of Feb. 2, 2018). At a price of approximately $7,700 per Bitcoin,15 this represents a
notional amount of about $94 million. In comparison, the notional amount of the open interest in
CME’s WTI crude oil futures was more than one thousand times greater, about $170 billion
(2,600,000 contracts) as of Feb 2, 2018 and the notional amount represented by the open interest
of Comex gold futures was about $74 billion (549,000 contracts).
Prior to the launch of Bitcoin futures, the CFTC closely observed the evolution of virtual
currencies over the past several years. One exchange, CME Group, launched a Bitcoin
Reference Rate in November 2016. And, another exchange, CBOE Futures Exchange (Cboe),
first approached the CFTC in July 2017. The CFTC anticipated receiving proposals for the
launch of Bitcoin futures products in late 2017.

13

On September 21, 2017, the CFTC filed a complaint in federal court in the Southern District of New York against
Nicholas Gelfman and Gelfman Blueprint, Inc., see
http://www.cftc.gov/idc/groups/public/@lrenforcementactions/documents/legalpleading/enfgelfmancomplaint09212
017.pdf.
14
Each CME contract represents 5 Bitcoin.
15
The price changes day to day.

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Under CEA and Commission regulations and related guidance, futures exchanges may
self-certify new products on twenty-four hour notice prior to trading. In the past decade and a
half, over 12,000 new futures products have been self-certified.16 It is clear that Congress and
prior Commissions deliberately designed the product self-certification framework to give futures
exchanges, in their role as self-regulatory organizations, the ability to quickly bring new products
to the marketplace. The CFTC’s current product self-certification framework has long been
considered to function well and be consistent with public policy that encourages market-driven
innovation that has made America’s listed futures markets the envy of the world.
Practically, both CME and Cboe had numerous discussions and exchanged numerous
draft product terms and conditions with CFTC staff over a course of months prior to their
certifying and launching Bitcoin futures in December 2017. This type of lengthy engagement is
not unusual during the self-certification process for products that may raise certain issues. The
CFTC staff undertook its review of CME’s and Cboe’s Bitcoin futures products with considered
attention. Given the emerging nature and heightened attention of these products, staff conducted
a “heightened review” of CME’s and Cboe’s responsibilities under the CEA and Commission
regulations to ensure that their Bitcoin futures products and their cash-settlement processes were
not readily susceptible to manipulation,17 and the risk management of the associated Derivatives
Clearing Organizations (DCOs) to ensure that the products were sufficiently margined.18
Staff obtained the voluntary cooperation of CME and Cboe with a set of enhanced
monitoring and risk management steps.
1. Designated contract markets (DCMs) setting exchange large trader reporting thresholds at
five bitcoins or less;
2. DCMs entering direct or indirect information sharing agreements with spot market
platforms to allow access to trade and trader data making up the underlying index that the
futures contracts settle to;
3. DCMs agreeing to engage in monitoring of underlying index data from cash markets and
identifying anomalies and disproportionate moves;
4. DCMs agreeing to conduct inquiries, as appropriate, including at the trade settlement and
trader level when anomalies or disproportionate moves are identified;
5. DCMs agreeing to regular communication with CFTC surveillance staff on trade
activities, including providing trade settlement and trader data upon request;
16

Prior to the changes made in the Commodity Futures Modernization Act of 2000 (CFMA) and the Commission’s
subsequent addition of Part 40, exchanges submitted products to the CFTC for approval. From 1922 until the
CFMA was signed into law, less than 800 products were approved. Since then, exchanges have certified over
12,000 products. For financial instrument products specifically, the numbers are 494 products approved and 1,938
self-certified. See http://www.cftc.gov/IndustryOversight/ContractsProducts/index.htm.
17
See CEA Section 5(d)(3), 7 U.S.C. 7(d)(3); Section 5(d)4), 7 U.S.C. 7(d)(4); 17 C.F.R. 38.253 and 38.254(a), and
Appendices B and C to Part 38 of the CFTC’s regulations.
18
CEA Section 5b(c)(2)(D)(iv), 7 U.S.C. 7a-1(c)(2)(D)(iv) (“The margin from each member and participant of a
derivatives clearing organization shall be sufficient to cover potential exposures in normal market conditions.”).

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6. DCMs agreeing to coordinate product launches to enable the CFTC’s market surveillance
branch to monitor developments; and
7. DCOs setting substantially high initial19 and maintenance margin for cash-settled
instruments.
The first six of these elements were used to ensure that the new product offerings
complied with the DCM’s obligations under the CEA core principles and CFTC regulations and
related guidance. The seventh element, setting high initial and maintenance margins, was
designed to ensure adequate collateral coverage in reaction to the underlying volatility of
Bitcoin.
In crafting its process of “heightened review” for compliance, CFTC staff prioritized
visibility, data, and monitoring of markets for Bitcoin derivatives and underlying settlement
reference rates. CFTC staff felt that in gaining such visibility, the CFTC could best look out for
Bitcoin market participants and consumers, as well as the public interest in Federal surveillance
and enforcement. This visibility greatly enhances the agency’s ability to prosecute fraud and
manipulation in both the new Bitcoin futures markets and in its related underlying cash markets.
As for the interests of clearing members, the CFTC recognized that large global banks
and brokerages that are DCO clearing members are able to look after their own commercial
interests by choosing not to trade Bitcoin futures, as some have done, requiring substantially
higher initial margins from their customers, as many have done, and through their active
participation in DCO risk committees.
After the launch of Bitcoin futures, some criticism was directed at the self-certification
process from a few market participants. Some questioned why the Commission did not hold
public hearings prior to launch. However, it is the function of the futures exchanges and futures
clearinghouses - and not CFTC staff20 - to solicit and address stakeholder concerns in new
product self-certifications. The CFTC staff’s focus was on how the futures contracts and cash
settlement indices are designed to bar manipulation and the appropriate level of contract
margining to meet CEA and Commission regulations.
Interested parties, especially clearing members, should indeed have an opportunity to
raise appropriate concerns for consideration by regulated platforms proposing virtual currency
derivatives and DCOs considering clearing new virtual currency products. That is why CFTC
staff has added an additional element to the Review and Compliance Checklist for virtual
19

In the case of CME and Cboe Bitcoin futures, the initial and maintenance margins were ultimately set at 47% and
44% by the respective DCOs. By way of comparison that is more than ten times the margin required for CME corn
futures products.
20
Unlike provisions in the CEA and Commission regulations that provide for public comment on rule selfcertifications, there is no provision in statute or regulation for public input into CFTC staff review of product selfcertifications. It is hard to believe that Congress was not deliberate in making that distinction.

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currency product self-certifications. That is, requesting DCMs and SEFs to disclose to CFTC
staff what steps they have taken in their capacity as self-regulatory organizations to gather and
accommodate appropriate input from concerned parties, including trading firms and FCMs.
Further, CFTC staff will take a close look at DCO governance around the clearing of new virtual
currency products and formulate recommendations for possible further action.
The CFTC’s response to the self-certification of Bitcoin futures has been a balanced one.
It has resulted in the world’s first federally regulated Bitcoin futures market. Had it even been
possible, blocking self-certification would not have stopped the rise of Bitcoin or other virtual
currencies. Instead, it would have ensured that virtual currency spot markets continue to operate
without effective and data-enabled federal regulatory surveillance for fraud and manipulation. It
would have prevented the development of a regulated derivatives market that allowed
participants to take “short” positions that challenged the 2017 rise of Bitcoin prices.
III.

Adequacy of CFTC Authority

The CFTC has sufficient authority under the CEA to protect investors in virtual currency
derivatives over which the CFTC has regulatory jurisdiction under the CEA. As noted above,
the CFTC does NOT have regulatory jurisdiction over markets or platforms conducting cash or
“spot” transactions in virtual currencies or over participants on those platforms. For such virtual
currency spot markets, CFTC only has enforcement jurisdiction to investigate and, as
appropriate, conduct civil enforcement action against fraud and manipulation.
Any extension of the CFTC’s regulatory authority to virtual currency spot markets would
require statutory amendment of the CEA.21 The CFTC is an experienced regulator of derivatives
markets that mostly serve professional and eligible contract participants. Such extension of
regulatory authority would be a dramatic expansion of the CFTC’s regulatory mission, which
currently does not give the CFTC regulatory authority (distinct from enforcement authority) over
cash commodity markets.
IV.

Educating Investors and Market Participants

The CFTC believes that the responsible regulatory response to virtual currencies must
start with consumer education. Amidst the wild assertions, bold headlines, and shocking
hyperbole about virtual currencies, there is a need for much greater understanding and clarity.

21

The CFTC has jurisdiction over retail foreign currency markets and retail commodity
transactions that use leverage, margin or financing with some exceptions. Congress responded to
concerns in the regulation of leveraged retail FX by providing the CFTC oversight
responsibilities for Retail Foreign Exchange Dealers (RFEDs). The CFTC Re-authorization Act
of 2008 amended the CEA to create a new registration category for RFEDs that include
disclosure requirements and leverage limitations to customers.
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Over the past six months, the CFTC has produced an unprecedented amount of consumer
information concerning virtual currencies (listed in Appendix B hereto). These consumer
materials include an information “primer” on virtual currencies (Appendix C hereto), consumer
and market advisories on investing in Bitcoin and other virtual currencies (Appendix D hereto),
a dedicated CFTC “Bitcoin” webpage, several podcasts (available on the Commission’s website
and from various streaming services) concerning virtual currencies and underlying technology,
weekly publication of Bitcoin futures “Commitment of Traders” data and an analysis of Bitcoin
spot market data.
In addition, the CFTC’s Office of Consumer Education and Outreach (OCEO) is
actively engaging with responsible outside partners to better educate consumers on Bitcoin and
other virtual currencies. The OCEO is currently partnering with:








V.

The Consumer Finance Protection Bureau (CFPB) to train US public library staff to
identify and report consumer in virtual currencies;
the American Association of Retired Persons (AARP) to distribute a virtual currency
“Watchdog Alert” to 120,000 AARP members;
North American Securities Administrators Association (NASAA) Investor Educators,
who are responsible for conducting outreach to the public on avoiding investment fraud,
including in virtual currencies;
the National Attorneys General Training and Research Institute (NAGTRI), which
is the research and training arm of the National Association of Attorneys General
(NAAG), to inform State AGs about the availability of CFTC’s virtual currency
resources; and
The Federal Reserve Bank of Chicago to help consumers manage their finances better,
OCEO will again coordinate with NFA, FINRA and SEC to hold a webinar on fraud
prevention in virtual currencies.
Interagency Coordination

As noted, the CFTC’s enforcement jurisdiction over virtual currencies is not exclusive.
As a result, the U.S. approach to oversight of virtual currencies has evolved into a multifaceted,
multi-regulatory approach that includes:





The Securities and Exchange Commission (SEC) taking increasingly strong action
against unregistered securities offerings, whether they are called a virtual currency or
initial coin offering in name.
State Banking regulators overseeing certain US and foreign virtual currency spot
exchanges largely through state money transfer laws.
The Internal Revenue Service (IRS) treating virtual currencies as property subject to
capital gains tax.
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

The Treasury’s Financial Crimes Enforcement Network (FinCEN) monitoring
Bitcoin and other virtual currency transfers for anti-money laundering purposes.

The CFTC actively communicates its approach to virtual currencies with other Federal
regulators, including the Federal Bureau of Investigation (FBI) and the Justice Department
and through the Financial Stability Oversight Council (FSOC), chaired by the Treasury
Department. The CFTC has been in close communication with the SEC with respect to policy
and jurisdictional considerations, especially in connection with recent virtual currency
enforcement cases. In addition, we have been in communication with overseas regulatory
counterparts through bilateral discussions and in meetings of the Financial Stability Board
(FSB) and the International Organization of Securities Commissions (IOSCO).
VI.

Potential Benefits

I have spoken publicly about the potential benefits of the technology underlying Bitcoin,
namely Blockchain or distributed ledger technology (DLT).22 Distributed ledgers – in various
open system or private network applications – have the potential to enhance economic efficiency,
mitigate centralized systemic risk, defend against fraudulent activity and improve data quality
and governance.23
DLT is likely to have a broad and lasting impact on global financial markets in payments,
banking, securities settlement, title recording, cyber security and trade reporting and analysis.24
When tied to virtual currencies, this technology aims to serve as a new store of value, facilitate
secure payments, enable asset transfers, and power new applications.
Additionally, DLT will likely develop hand-in-hand with new “smart” contracts that can
value themselves in real-time, report themselves to data repositories, automatically calculate and
perform margin payments and even terminate themselves in the event of counterparty default.25
DLT may enable financial market participants to manage the significant operational,
22

J. Christopher Giancarlo, Keynote Address of Commissioner J. Christopher Giancarlo before the Markit Group,
2016 Annual Customer Conference New York, May 10, 2016,
http://www.cftc.gov/PressRoom/SpeechesTestimony/opagiancarlo-15.
23
Id.
24
See, e.g., Larry Greenemeier, Can't Touch This: New Encryption Scheme Targets Transaction Tampering,
Scientific American, May 22, 2015, http://www.scientificamerican.com/article/can-t-touch-this-new-encryptionscheme-targets-transaction-tampering/.
25
See Massimo Morini & Robert Sams, Smart Derivatives Can Cure XVA Headaches, Risk Magazine, Aug. 27,
2015, http://www.risk.net/risk-magazine/opinion/2422606/-smart-derivatives-can-cure-xva-headaches; see also
Jeffrey Maxim, UBS Bank Is Experimenting with “Smart-Bonds” Using the Bitcoin Blockchain, Bitcoin Magazine,
June 12, 2015, https://bitcoinmagazine.com/articles/ubs-bank-experimenting-smart-bonds-using-bitcoin-blockchain1434140571; see also Pete Harris, UBS Exploring Smart Bonds on Block Chain, Block Chain Inside Out, June 15,
2015, http://harris-on.typepad.com/block_chain_io/2015/06/ubs-exploring-smart-bonds-on-block-chain.html; See
generally Galen Stops, Blockchain: Getting Beyond the Buzz, Profit & Loss, Aug.–Sept. 2015, at 20,
http://www.profit-loss.com/articles/analysis/technology-analysis/blockchain-getting-beyond-the-buzz.

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transactional and capital complexities brought about by the many mandates, regulations and
capital requirements promulgated by regulators here and abroad in the wake of the financial
crisis.26 In fact, one study estimates that DLT could eventually allow financial institutions to
save as much as $20 billion in infrastructure and operational costs each year.27 Another study
reportedly estimates that blockchain could cut trading settlement costs by a third, or $16 billion a
year, and cut capital requirements by $120 billion.28 Moving from systems-of-record at the level
of a firm to an authoritative system-of-record at the level of a market is an enormous opportunity
to improve existing market infrastructure.29
Outside of the financial services industry, many use cases for DLT are being posited from
international trade to charitable endeavors and social services. International agricultural
commodities merchant, Louis Dreyfus, and a group of financing banks have just completed the
first agricultural deal using distributed ledger technology for the sale of 60,000 tons of US
soybeans to China.30 Other DLT use cases include: legal records management, inventory control
and logistics, charitable donation tracking and confirmation; voting security and human refugee
identification and relocation.31
Yet, while DLT promises enormous benefits to commercial firms and charities, it also
promises assistance to financial market regulators in meeting their mission to oversee healthy
markets and mitigate financial risk. What a difference it would have made on the eve of the
financial crisis in 2008 if regulators had access to the real-time trading ledgers of large Wall
Street banks, rather than trying to assemble piecemeal data to recreate complex, individual
trading portfolios. I have previously speculated32 that, if regulators in 2008 could have viewed a
real-time distributed ledger (or a series of aggregated ledgers across asset classes) and, perhaps,
been able to utilize modern cognitive computing capabilities, they may have been able to
recognize anomalies in market-wide trading activity and diverging counterparty exposures
indicating heightened risk of bank failure. Such transparency may not, by itself, have saved
Lehman Brothers from bankruptcy, but it certainly would have allowed for far prompter, betterinformed, and more calibrated regulatory intervention instead of the disorganized response that
unfortunately ensued.
26

See, e.g., Oversight of Dodd-Frank Act Implementation, U.S. House Financial Services Committee,
http://financialservices.house.gov/dodd-frank/ (last visited Mar. 2, 2016).
27
Santander InnoVentures, Oliver Wyman & Anthemis Group, The Fintech Paper 2.0: Rebooting Financial Services
15 (2015), http://santanderinnoventures.com/wp-content/uploads/2015/06/The-Fintech-2-0-Paper.pdf.
28
Telis Demos, Bitcoin’s Blockchain Technology Proves Itself in Wall Street Test, Apr. 7, 2016, The Wall Street
Journal, http://www.wsj.com/articles/bitcoins-blockchain-technology-proves-itself-in-wall-street-test-1460021421.
29
Based on conversations with R3 CEV, http://r3cev.com/.
30
Emiko Terazono, Commodities trader Louis Dreyfus turns to blockchainhttps, Financial Times, Jan. 22, 2018,
www.ft.com/content/22b2ac1e-fd1a-11e7-a492-2c9be7f3120a.
31
Frisco d’Anconia, IOTA Blockchain to Help Trace Families of Refugees During and After Conflicts,
Cointelegraph.com, Aug. 8, 2017, https://cointelegraph.com/news/iota-blockchain-to-help-trace-families-ofrefugees-during-and-after-conflicts.
32
See supra note 22.

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VII.

Policy Considerations

Two decades ago, as the Internet was entering a phase of rapid growth and expansion,
a Republican Congress and the Clinton administration established a set of enlightened
foundational principles: the Internet was to progress through human social interaction;
voluntary contractual relations and free markets; and governments and regulators were to act
in a thoughtful manner not to harm the Internet’s continuing evolution.33
This simple approach is well-recognized as the enlightened regulatory underpinning of
the Internet that brought about such profound changes to human society. During the almost 20
years of “do no harm” regulation, a massive amount of investment was made in the Internet’s
infrastructure. It yielded a rapid expansion in access that supported swift deployment and
mass adoption of Internet-based technologies. Internet-based innovations have revolutionized
nearly every aspect of American life, from telecommunications to commerce, transportation
and research and development. This robust Internet economy has created jobs, increased
productivity and fostered innovation and consumer choice.
“Do no harm” was unquestionably the right approach to development of the Internet.
Similarly, I believe that “do no harm” is the right overarching approach for distributed ledger
technology.
Virtual currencies, however, likely require more attentive regulatory oversight in key
areas, especially to the extent that retail investors are attracted to this space. SEC Chairman
Clayton and I recently stated in a joint op-ed, that:
“Our task, as market regulators, is to set and enforce rules that foster
innovation while promoting market integrity and confidence. In recent months,
we have seen a wide range of market participants, including retail investors,
seeking to invest in DLT initiatives, including through cryptocurrencies and socalled ICOs—initial coin offerings. Experience tells us that while some market
participants may make fortunes, the risks to all investors are high. Caution is
merited.

“A key issue before market regulators is whether our historic approach to
the regulation of currency transactions is appropriate for the cryptocurrency
markets. Check-cashing and money-transmission services that operate in the
U.S. are primarily state-regulated. Many of the internet-based cryptocurrency
trading platforms have registered as payment services and are not subject to
33

The Telecommunications Act of 1996 (See Telecommunications Act of 1996 (Pub. L. No. 104-104, 110 Stat. 56
(1996))) and the ensuing Clinton administration “Framework for Global Electronic Commerce” (See Clinton
administration, Framework for Global Electronic Commerce, http://clinton4.nara.gov/WH/New/Commerce/)
established a simple and sensible framework: a) the private sector should play the leading role in innovation,
development and financing; and b) governments and regulators should “do no harm” by avoiding undue restrictions,
supporting a predictable, consistent and simple legal environment and respecting the “bottom-up” nature of the
technology and its deployment in a global marketplace.

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direct oversight by the SEC or the CFTC. We would support policy efforts to
revisit these frameworks and ensure they are effective and efficient for the
digital era.”34
As the Senate Banking Committee, the Senate Agriculture Committee and other
Congressional policy makers consider the current state of regulatory oversight of cash or “spot”
transactions in virtual currencies and trading platforms, consideration should be given to
shortcomings of the current approach of state-by-state money transmitter licensure that leaves
gaps in protection for virtual currency traders and investors. Any proposed Federal regulation of
virtual currency platforms should be carefully tailored to the risks posed by relevant trading
activity and enhancing efforts to prosecute fraud and manipulation. Appropriate Federal
oversight may include: data reporting, capital requirements, cyber security standards, measures
to prevent fraud and price manipulation and anti-money laundering and “know your customer”
protections. Overall, a rationalized federal framework may be more effective and efficient in
ensuring the integrity of the underlying market.
Conclusion
We are entering a new digital era in world financial markets. As we saw with the
development of the Internet, we cannot put the technology genie back in the bottle. Virtual
currencies mark a paradigm shift in how we think about payments, traditional financial
processes, and engaging in economic activity. Ignoring these developments will not make them
go away, nor is it a responsible regulatory response. The evolution of these assets, their
volatility, and the interest they attract from a rising global millennial population demand serious
examination.
With the proper balance of sound policy, regulatory oversight and private sector
innovation, new technologies will allow American markets to evolve in responsible ways and
continue to grow our economy and increase prosperity. This hearing is an important part of
finding that balance.
Thank you for inviting me to participate.

####

34

See supra note 5.

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Appendix A
CFTC Enforcement Activities: Fiscal Year (FY) 2017 Year Through the Present
Overview of FY 2017
In the fiscal year that ended September 30, 2017, the CFTC brought 49 enforcement-related
actions, which included significant actions to root out manipulation and spoofing and to protect
retail investors from fraud. The CFTC also pursued significant and complex litigation, including
cases charging manipulation, spoofing, and unlawful use of customer funds. The CFTC obtained
orders totaling $412,726,307 in restitution, disgorgement and penalties. Specifically, in the
fiscal year, the CFTC obtained $333,830,145 in civil monetary penalties and $78,896,162
million in restitution and disgorgement orders. Of the civil monetary penalties imposed, the
CFTC collected and deposited at the U.S. Treasury more than $265 million.
Retail Fraud
The CFTC brought a significant number of retail fraud actions in FY 2017 (20 out of the 49).
For example, in February 2017, the CFTC filed and settled charges against Forex Capital
Markets LLC for $7 million for defrauding retail foreign exchange customers over a five year
time period by concealing its relationship with its most important market maker and
misrepresenting that its platform had no conflicts of interests with its customers. That month the
CFTC also brought an action charging Carlos Javier Ramirez, Gold Chasers, Inc., and Royal
Leisure International, Inc. with misappropriating millions in customer funds and engaging in
fraudulent sales solicitations in connection with a Ponzi scheme involving the purported
purchase of physical gold.
In May 2017, the CFTC filed charges against an individual and his company with defrauding 40
investors out of at least $13 million in connection with a commodity pool they operated;
investors included family members and members of his church. In June 2017, the CFTC filed
charges against two individuals and their company with fraudulently soliciting customers,
including at a church gathering, and defrauding them out of more than $11 million. The pair was
also arrested by the Federal Bureau of Investigation (FBI) on related criminal charges.
In September 2017, the CFTC filed one of the largest precious metals fraud cases in the history
of the Commission. As alleged, the Defendants defrauded thousands of retail customers—many
of whom are elderly—out of hundreds of millions of dollars as part of a multi-year scheme in
connection with illegal, off-exchange leveraged precious metal transactions.
Market Manipulation
In February 2017, the CFTC settled with RBS for $85 million for attempted manipulation of
ISDAFIX, a leading global benchmark for interest rate swaps and related derivatives. The CFTC
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also brought actions against The Royal Bank of Scotland plc and Goldman Sachs Group, Inc.
and Goldman, Sachs & Co. for attempted manipulation of the ISDAFIX, resulting in $85 million
and $120 million in penalties, respectively. In February 2018, the CFTC settled with Deutsche
Bank Securities Inc. for $70 million for attempted manipulation of ISDAFIX.
Since 2012, the CFTC has imposed over $5 billion in penalties against banks and brokers with
respect to benchmark manipulation settlements.
Disruptive Trading
In November 2016, the CFTC entered into a consent order with Navinder Singh Sarao and Nav
Sarao Futures Limited PLC to settle allegations related to the 2010 flash crash for $25.7 million
in monetary sanctions, $12.9 million in disgorgement, and a permanent trading and registration
ban. In December 2016, the CFTC settled with trading company 3Red and trader Igor Oystacher
imposing a $2.5 million penalty, a monitor for three years, and requiring the use of certain
trading compliance tools for intentionally and repeatedly engaging in a manipulative and
deceptive spoofing scheme while placing orders for and trading futures contracts on multiple
registered entities.
In January 2017, the CFTC fined Citigroup $25 million for failing to diligently supervise the
activities of its employees and agents in conjunction with spoofing orders in the U.S. Treasury
futures markets. Later that year, in July 2017, the CFTC entered into its first non-prosecution
agreements (NPA) with three former Citigroup traders who admitted to spoofing in the U.S.
Treasury futures markets in 2011 and 2012. The NPAs emphasize the traders’ timely and
substantial cooperation, immediate willingness to accept responsibility for their misconduct,
material assistance provided to the CFTC’s investigation of Citigroup, and the absence of a
history of prior misconduct.
In January 2018, in conjunction with the Department of Justice (DOJ) and FBI, the CFTC
announced criminal and civil enforcement actions against three banks and six individuals
involved in commodities fraud and spoofing schemes. The banks were fined $45.6 million in
penalties.
Virtual Currency
In September 2017, as part of its work to identify and root out bad actors in the virtual currency
markets, the CFTC brought its first virtual currency anti-fraud enforcement action in Gelfman
Blueprint, Inc., which charged an individual and his corporation with fraud, misappropriation,
and issuing false account statements in connection with operating a Bitcoin Ponzi scheme.
In January 2018, the CFTC brought three virtual currency enforcement actions: (i) My Big Coin
Pay Inc., which charged the defendants with commodity fraud and misappropriation related to
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the ongoing solicitation of customers for a virtual currency known as My Big Coin; (ii) The
Entrepreneurs Headquarters Limited, which charged the defendants with a fraudulent scheme to
solicit Bitcoin from members of the public, misrepresenting that customers’ funds would be
pooled and invested in products including binary options, making Ponzi-style payments to
commodity pool participants from other participants’ funds, misappropriating pool participants’
funds, and failing to register as a Commodity Pool Operator; and (iii) CabbageTech, Corp.,
which charged the defendants with fraud and misappropriation in connection with purchases and
trading of Bitcoin and Litecoin.

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APPENDIX B
Virtual Currency Educational Materials and Outreach Activities
CFTC’s Bitcoin web page Resources
Launched on December 15, 2017, the CFTC now has a dedicated web page,
www.cftc.gov/bitcoin, where the public can access educational materials on the CFTC’s
regulatory oversight authority of virtual currencies and ways to avoid fraud in the virtual
currency space.
Current resources available on www.cftc.gov/bitcoin :
 “CFTC Backgrounder on Oversight of and Approach to Virtual Currency Futures
Markets”
 LabCFTC’s Virtual Currency Primer
 CFTC Talks Virtual Currency Podcast, “Roundtable with CFTC leaders on Bitcoin”;
 Self-Certification Fact Sheet
 Customer Advisories on “Understand the Risks of Virtual Currency Trading” and
“Beware ‘IRS Approved’ Virtual Currency IRAs”
Forthcoming resources to be featured on www.cftc.gov/bitcoin:
 Customer Advisories (under development; issuance expected in February 2018)
o Bitcoin pump-and-dump schemes
o Avoiding fraud in Bitcoin-to-gold trades
 Brochures (available digitally and printed in mid-February 2018):
o “Virtual Currency”
 6-paneled brochure on the definition of virtual currencies, the risks
associated with them, and ways to avoid fraud
o “Bitcoin Basics”
 2-sided Bitcoin brochure that speaks about the currency’s distinct traits,
that fact that it is a commodity, and recommendations for spotting fraud
Virtual Currency Outreach Activities by Audience
 Reaching retail investors and industry professionals via in-person presentations at
industry events, conferences and trade shows
 Targeting seniors, vulnerable populations and those who serve them:
o Connecting national non-profits who serve seniors and vulnerable populations to
relevant CFTC virtual currency materials to use for their constituent outreach and
communications
o Distribution of both digital and print virtual currency materials to state regulators
for their fraud prevention outreach
o Participation in trainings for intermediaries, such as library staff, to educate them
on the CFTC’s fraud prevention resources to protect and assist their
constituencies

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



Outreach to key virtual currency demographics, such as Millennials, through digital
communications designed to engage these demographics through channels and in forums
they are predisposed to engage
Engaging the general public through institutional partnerships and direct communication:
o Working with other federal financial regulators and self-regulatory organizations
to hold joint outreach activities, such as webinars, educational campaigns and
community-level outreach, to build public awareness of the CFTC’s virtual
currency resources
o Utilizing print and radio features to reach the public through media placements

19