Colin D. Lloyd

Firm/Organization: Cleary Gottlieb Steen & Hamilton LLP

Blogs: Cleary Cybersecurity and Privacy Watch

Latest Articles

SEC Expands on Its Digital Asset Guidance: At Inception, (Nearly) Every New Token Is a Security

By Colin D. Lloyd, Pamela L. Marcogliese, Michael H. Krimminger, Giovanni P. Prezioso, Zachary Baum & Jim Wintering on April 5, 2019

On April 3, 2019, staff of the Securities and Exchange Commission released (1) a framework providing principles for analyzing whether a digital asset constitutes an investment contract, and thus a security, as defined in SEC v. W.J. Howey Co. and (2) a no-action letter permitting TurnKey Jet, Inc., without satisfying registration requirements under the Securities Act of 1933 and the Securities Exchange Act of 1934, to offer and sell “tokenized” cards that are recorded on a permissioned…

Cleary Cybersecurity and Privacy Watch

FINRA 2019 Examination Priorities Letter Includes Focus on FinTech and Cybersecurity

By Katherine Mooney Carroll, Colin D. Lloyd & Jim Wintering on February 12, 2019

On January 22, the Financial Industry Regulatory Authority (“FINRA”)[1] released its 2019 Risk Monitoring and Examination Priorities Letter (the “Letter”). The Letter highlights material new priorities for FINRA examinations in the coming year, as well as priorities in areas of ongoing concern. The topics highlighted in this year’s Letter reflect FINRA’s increasing focus on its members’ interaction with, and adoption of, innovative financial technologies, as well as its implicit acknowledgement of the ability for…

Cleary Cybersecurity and Privacy Watch

NFA Amends Interpretive Notice Regarding Cybersecurity Programs

By Katherine Mooney Carroll, Colin D. Lloyd, Alexis Collins, Brian J. Morris & Jacob P. Richards on January 15, 2019

On January 7, 2019 the National Futures Association (“NFA”) provided additional guidance on the required cybersecurity practices of certain NFA members by amending its Interpretive Notice entitled NFA Compliance Rules 2-9, 2-36 and 2-49: Information Systems Security Programs (the “Interpretive Notice”). The Interpretive Notice currently requires each NFA member futures commission merchant (“FCM”), commodity trading advisor, commodity pool operator, introducing broker (“IB”), retail foreign exchange dealer, swap dealer (“SD”) and major swap participant to implement…

Cleary Cybersecurity and Privacy Watch

The CFTC Releases Primer on Smart Contract Use in Financial Markets

By Colin D. Lloyd & Jim Wintering on December 11, 2018

Continuing its efforts to engage with FinTech innovators and market participants in the adoption of new technologies, the Commodity Futures Trading Commission (“CFTC”) and its LabCFTC[1] released a Primer on Smart Contracts (the “Primer”) on November 27. The Commission focused its Primer on (1) detailing the technical aspects of smart contract technology; (2) examining potential benefits and risks connected to their widespread adoption; and (3) the CFTC’s role in regulating the adoption of the…

Cleary Cybersecurity and Privacy Watch

SEC Divisions’ Issue Public Statement on Digital Assets and ICOs, Echoing Recent Enforcement Actions

By Michael H. Krimminger, Pamela L. Marcogliese, Colin D. Lloyd, Alexis Collins & Adam Motiwala on November 20, 2018

On November 16, 2018, the U.S. Securities and Exchange Commission (“SEC”) Division of Corporation Finance (“Corp. Fin.”), Division of Investment Management, and Division of Trading and Markets issued a joint public statement on “Digital Asset Securities Issuance and Trading.” The public statement is the latest in the Divisions’—and the Commission’s—steady efforts to publicly outline and develop its analysis on the application of the federal securities laws to initial coin offerings (“ICOs”) and certain digital tokens. …

Cleary Cybersecurity and Privacy Watch

The CFTC and SEC Bring Charges Against International Securities Dealer for Bitcoin-Funded Swaps Activity

By Colin D. Lloyd, Alexis Collins & Georgia V. Kostopoulos on October 3, 2018

On September 27, 2018, the Commodity Futures Trading Commission (CFTC) and Securities and Exchange Commission (SEC) filed parallel actions in federal court against an internet dealer that sold “contracts for difference” (CFD) based on securities and commodities margined with bitcoin. The actions, which were assisted by the Federal Bureau of Investigation and the Department of Justice, signal continued coordination among federal agencies to police market activity involving financial transactions in cryptocurrencies.…

Cleary Cybersecurity and Privacy Watch

Second District Court Determines Virtual Currencies Are Commodities

By Colin D. Lloyd, Alexis Collins & Kimberly Black on October 2, 2018

On September 26, 2018, a federal court in the District of Massachusetts found that virtual currencies are a commodity under the Commodity Exchange Act, 7 U.S.C. § 1 et seq, (“CEA”). This marks the second time that a court has accepted the Commodity Futures Trading Commission’s (“CFTC”) position and upheld the agency’s authority to regulate unleveraged and unmargined spot transactions in virtual currency under the agency’s anti-fraud and manipulation enforcement authority. Most notably, however, the…

Cleary Cybersecurity and Privacy Watch

U.S. Regulators Continue Scrutiny of Virtual Currencies and ICOs

By Michael H. Krimminger & Colin D. Lloyd on March 16, 2018

This past week, we received further evidence that U.S. federal regulators will continue to scrutinize potential compliance issues in virtual currency trading and initial coin offerings (“ICOs”) under existing law. However, the key takeaway is that the U.S. regulators, so far, are doing so under established interpretations of their existing authority. In our view, none of these events should be construed either as establishing a new regulatory framework or as a significant expansion of prior…

Cleary Cybersecurity and Privacy Watch

Bitcoin’s Future: CME and Other Exchanges Self-Certify Bitcoin Futures and Options with the CFTC

By Colin D. Lloyd & James Michael Blakemore on December 8, 2017

Last Friday, December 1, 2017, the U.S. Commodity Futures Trading Commission (CFTC) announced that three futures exchanges—the Chicago Mercantile Exchange Inc. (CME), the CBOE Futures Exchange (CBOE) and the Cantor Exchange (Cantor)—self-certified that they will be listing futures contracts (CME and CBOE) and options (Cantor) referencing bitcoin. Trading in bitcoin futures will commence at the CBOE on December 10 and on CME on December 18, with Cantor’s options trading to follow. Listing these contracts will…

Colin D. Lloyd

SEC Expands on Its Digital Asset Guidance: At Inception, (Nearly) Every New Token Is a Security

FINRA 2019 Examination Priorities Letter Includes Focus on FinTech and Cybersecurity

NFA Amends Interpretive Notice Regarding Cybersecurity Programs

The CFTC Releases Primer on Smart Contract Use in Financial Markets

SEC Divisions’ Issue Public Statement on Digital Assets and ICOs, Echoing Recent Enforcement Actions

The CFTC and SEC Bring Charges Against International Securities Dealer for Bitcoin-Funded Swaps Activity

Second District Court Determines Virtual Currencies Are Commodities

U.S. Regulators Continue Scrutiny of Virtual Currencies and ICOs

Bitcoin’s Future: CME and Other Exchanges Self-Certify Bitcoin Futures and Options with the CFTC

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