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May

16

2013

Feds Bite Largest Bitcoin Exchange: Lessons for Virtual Currency Entrepreneurs

By Jonathan D. Joseph

When the US Treasury’s Financial Crimes Enforcement Network, a/k/a FinCEN, published an interpretative ruling on March 18, 2013 discussing how its regulations applied to users, exchangers and administrators of virtual currencies, Mt. Gox, the world’s largest exchange for Bitcoin transactions, should have taken note.   Mt. Gox and other early pioneers in the virtual currency space have anarchist roots and generally eschew governmental regulation; however, it is now clear that the survivors in the Bitcoin and cryptocurrency ecosystem will be those that successfully navigate the complex web of federal and state money transmission laws and regulations.

Earlier this week, Homeland Security Investigations (“HSI”) obtained a warrant, issued by the U.S. District Court of Maryland, authorizing U.S. government seizure of assets of Mt. Gox held at Iowa based payment processing start-up Dwolla and Wells Fargo Bank.   HSI acted after it discovered that Mt. Gox, based in Tokyo, Japan, was operating as an unlicensed money transmission service through its American affiliate, Mutum Sigillum LLC, and it may have lied to Wells Fargo when it opened its initial US bank account.

FinCEN is the bureau of the Treasury Department that seeks to prevent money laundering and terrorism financing through its regulation of Money Service Businesses (“MSBs”).  Its March 2013 guidance states that those dealing in or administering virtual currencies such as exchanges like Mt. Gox, but not users or “miners”, need to register as MSBs and comply with anti-money laundering regulations. While Bitcoin is the best-known cryptocurrency or digital currency, others have sprung up recently, including Opencoin, Litecoin, Terracoin, Feathercoin and Novacoin, among others.   While concepts underlying virtual or cryptocurrencies can be mind- numbingly complex, the FinCEN guidance is reasonably clear as to who is regulated:

“A person that creates units of this convertible virtual currency and uses it to purchase real or virtual goods and services is a user of the convertible virtual currency and not subject to regulation as a money transmitter. By contrast, a person that creates units of convertible virtual currency and sells those units to another person for real currency or its equivalent is engaged in transmission to another location and is a money transmitter.  In addition, a person is an exchanger and a money transmitter if the person accepts such de-centralized convertible virtual currency from one person and transmits it to another person as part of the acceptance and transfer of currency, funds, or other value that substitutes for currency.”  FIN-2013-G001, March 18, 2013.

FinCEN categorizes participants in the virtual currency market into three generic categories: “user,” “exchanger,” and “administrator.” A user is a person that obtains virtual currency to purchase goods and services. An exchanger is a person engaged as a business in the exchange of virtual currency for real currency, funds or other virtual currency.   An administrator is a person engaged as a business in issuing (circulating) a virtual currency and who has the authority to redeem or withdraw from circulation that virtual currency.

A person may engage in “obtaining” a virtual currency in a number of different manners such as “earning,” “mining,” “harvesting,” “manufacturing,” “creating,” and “purchasing,” depending on the details of the specific virtual currency model involved.   FinCEN concluded that how a person obtains a virtual currency is immaterial to the legal characterization under the Bank Secrecy Act of the process or of the person engaging in the process.   This means that a user who obtains convertible virtual currency and uses it to purchase real or virtual goods or services is not a Money Service Business under FinCEN’s regulations.   Users must still be cautious, as an activity which is exempt from FinCEN’s rules, may still violate other federal or state statutes, rules and regulations.  Additionally, almost all states have money transmission laws that may apply even if FinCEN rules do not.

An administrator or exchanger that (1) accepts and transmits a convertible currency or (2) buys or sells convertible virtual currency for any reason is a money transmitter under FinCEN’s regulations, unless a limitation or exemption from the definition applies to the person.  As one illustration, a federally-insured commercial bank is exempt from the definition.  However, in most cases, whether a person is a money transmitter is a matter of facts and circumstances.  Under FinCEN’s interpretations and the law of many states there is no differentiation between real currencies and convertible virtual currencies.  Accepting and transmitting anything of value that substitutes for currency makes a person a money transmitter under BSA regulations.  31 CFR section 1010.100(ff)(5)(i)(A).

An exchange’s activities most often involve acting as a seller of Bitcoins or other virtual currency where it accepts real currency or its equivalent from a user/purchaser and transmits the value of the real currency to fund the purchaser’s virtual currency account held by an administrator.  In the Dwolla/Mt. Gox case described above, users were transferring U.S. Dollars to Mt. Gox’s American affiliate via Dwolla.  Prior to the HSI seizure, the American affiliate had been transferring U.S Dollars received from Dwolla to Mt. Gox in Japan and Mt. Gox allegedly used the Wells Fargo account to route funds from Japan to and from accounts at Dwolla at the direction of users. Dwolla, headquartered in Des Moines, offered an easier way for people to buy or sell Bitcoins through Mt. Gox, rather than attempting international wires to and from the company’s Japanese bank.

Under FinCEN regulations, sending “value that substitutes for currency” to another person or to another location constitutes money transmission, unless a limitation to or exemption from the definition applies.  Consequently, based on the HSI warrant, Mt. Gox was transmitting funds to another location, namely from the user’s real currency account at a bank to the user’s virtual currency account with the administrator.   The government alleges this is illegal since the only services being provided are unlicensed money transmission services.

Once a person or entity is engaging in the business of money transmission (both real or virtual currencies), doing so without registering with FinCEN as a Money Service Business and obtaining licenses under State money transmitter laws is mandatory unless certain enumerated exemptions apply. Most States including California, New York, Florida, Texas and Illinois and the District of Columbia require money transmitting businesses to obtain a license and comply with the other regulatory requirements (unless certain exemptions apply).  Failure to be registered and licensed can constitute a felony.

The fervor of the cyrptocurrency movement is starting to resemble the California Gold Rush after gold was discovered in 1849.  Millions of dollars are being invested in starts-up companies mainly in the Silicon Valley as Bitcoin entrepreneurs and venture capitalists race after what some believe could ultimately be worth billions.  In fact, Opencoin recently announced it had completed an angel round which included Silicon Valley heavy hitters Andreessen Horowitz, Lightspeed Venture Partners and Barry Silbert’s Bitcoin Opportunity Fund.

Importantly, it doesn’t appear that Homeland Security or FinCEN is cracking down on Bitcoin itself, just on how it’s being exchanged by Mt. Gox. This is good news for Mt. Gox’s US-based competitors, such as Seattle-based CoinLab and San Francisco-based Coinbase, Bitcoin exchanges that have registered with the Treasury Department as money transmitters.

An important lesson for entrepreneurs and VCs entering the virtual currency space is that virtual currency business models must be analyzed by lawyers with corporate and venture capital expertise, as well as deep familiarity with state and federal currency and money transmission laws.  For those that would turn a blind-eye to the necessity of robust legal compliance at an early stage based on libertarian or anarchist beliefs, naivety or an extraterritorial structure, failure is almost certainly guaranteed.

Smart entrepreneurs understand this.  Success stories include PayPal, Square and presently Google Payment Corp., and Facebook Payments are muscling into the space.  Staying lean until proof of concept has been achieved is important,  but when it comes to federal and state money transmitter regulation,  early angel and VC investment rounds must include funds for legal compliance.  Joseph & Cohen has the expertise and experience to successfully establish and plan innovative legal compliance programs for VCs, virtual currency and Bitcoin start-ups.

Jonathan Joseph is the Managing Partner of Joseph & Cohen, Professional Corporation, a Financial Services and Litigation Boutique headquartered in San Francisco that emphasizes complex banking, corporate and venture capital transactions, regulatory and money transmission activities, securities, M & A, bankruptcy and insolvency, employment law and commercial and executive employment litigation services.

For additional information about Joseph & Cohen, Professional Corporation, please visit our website at www.josephandcohen.com or contact Jonathan Joseph at 415-817-9250 or jon@josephandcohen.com.

Joseph & Cohen Elevates Ken Sayre-Peterson to Partner

SAN FRANCISCO, CA – May 1, 2013. Joseph & Cohen, a Professional Corporation headquartered in San Francisco, announced today that Kenneth Sayre-Peterson has been elected a partner following his successful stint as Of Counsel with the firm that began in February 2012.

Managing Partner, Jonathan Joseph stated, “Joseph & Cohen’s clients have benefited from Ken Sayre-Peterson’s enormous expertise in bank regulation, credit union matters, financial services, corporate transactions, money transmitter compliance and bank enforcement work.  He has helped to secure the firm’s position as one of the leading bank and depository institution regulatory practices in California. Elevating Ken to partner was an incredibly easy decision.”

Sayre-Peterson adds, “It is a delight to work with this team of distinguished attorneys in a collegial boutique setting. I am honored to be invited in as a partner, and look forward to continuing to deliver superlative regulatory and transactional legal services to our valued clients.”

Prior to joining Joseph & Cohen, Ken Sayre-Peterson held increasingly senior positions as an attorney with the California Department of Financial Institutions. During his distinguished twenty-two year career, he practiced general financial institutions law and garnered an intimate knowledge of the banking, credit union, money transmitters, securities, and trust laws of California, as well as the pertinent and corresponding federal laws.

Joseph & Cohen, Professional Corporation, is a Financial Services and Litigation Boutique headquartered in San Francisco that emphasizes complex banking, corporate and transactional matters, regulatory and bank enforcement defense, securities, M & A, bankruptcy and insolvency, employment and commercial and executive employment litigation services.  Joseph & Cohen is known for sophisticated expertise, extraordinary commitment to clients, relationship-based services, and a range of specialized skills typically found only in the largest American law firms.

For additional information about the Joseph & Cohen, Professional Corporation, please visit our website at www.josephandcohen.com or Facebook at www.facebook.com/josephandcohen.

Press Contact:  Jonathan Joseph at Joseph & Cohen, 415-817-9200, ext. 9 or jon@josephandcohen.com.

California’s New Money Transmission Law Sweeps Up

By Marie Hogan*

Effective as of January 1, 2011, California’s sweeping new Money Transmission Act (the “MTAct”) became applicable to the money transmission business. The MTAct expanded the state’s regulation and license requirements for money transmitters by covering domestic money transmitters, including stored value device issuers and other businesses that offer new types of alternative payment and mobile applications.  The new law assigns regulation and licensing authority to the California Department of Financial Institutions

Background

The regulation of money transmission varies from state to state, but most states regulate domestic money transmission involving their residents. The MTAct now covers domestic money transmission by adding similar requirements and consolidates the regulatory and licensing mandates previously found in other California statutes. California’s regulation of money transmission had previously been of persons who help consumers transmit money overseas through the Transmission of Money Abroad Law, the issuance of traveler’s checks through the Travelers Checks Act and the issuance of payment instruments through the Payment Instruments Law.

Under the MTAct, it is a crime for a person to engage in the business of money transmission without a license or for a person to intentionally make a false statement, misrepresentation or false certification in a record filed or required to be maintained under the MTAct.  Consequently, it is important that individuals and businesses planning to engage in money transmission activities comply with the MTAct and its licensing requirements.  Due to rapid technological advances, many emerging, alternative or stored value payment businesses and their applications could be covered for the first time in California.

What is money transmission?

Money transmission is selling or issuing in California, or to or from persons located in California, payment instruments, stored value devices or receiving money or monetary value for transmission by electronic or other means.

“Payment instrument” means an instrument for the transmission or payment of money or monetary value, whether or not negotiable, such as, for example, a check, draft or money order.  Excluded are issuers who also redeem the instrument for goods or services provided by the issuer or its affiliate, for example, a “rain check”.

“Stored value” involves monetary value representing a claim against the issuer that is stored on a digital or electronic medium and accepted as a means of redemption for money or as payment for goods or services.  For example, Visa® gift cards.  Excluded are cards issued by businesses that also redeem the card for goods or services provided by the issuer or an affiliate (“closed loop”), for example, cards issued by leading coffee chains.

“Receiving money for transmission” includes any transaction where money or monetary value is received for transmission within or outside the United States by electronic or other means.  Thus, certain new mobile payment applications or emerging payment platforms not offered by banks or other regulated depository institutions could  be within this category and subject to regulation and licensing.

Who can be a licensed money transmitter?

Only a corporation or limited liability company may be a California licensed money transmitter.  Under limited circumstances, a licensee may have agents who are not licensed money transmitters.  An example of a permissible non-licensed agent could include a local convenience grocery or liquor store that sells money orders as the agent for a bank.

Who cares?

  1. Anyone who sells a stored value instrument or creates stored value via a digital or electronic medium.
  2. Anyone who receives money for transmission, including by electronic means.
  3. Anyone who issues a payment instrument, for example, money orders.

Only licensed money transmitters or their permissible agents may issue or sell stored value instruments or payment instruments.

What does this law do?

The law does four things:

  1. Combines three existing licensing regimes into one.  The three prior licenses were travelers check issuers, money order sellers and foreign money transmitters.
  2. Newly subjects domestic money transmission to licensing.
  3. Licenses certain stored value (i.e., open loop) issuers.
  4. Makes it a crime to engage in the money transmission business in California without a license.

What activities require a license?

Similar to most California licensing requirements, anyone who engages in, solicits, advertises or performs specified “money transmission” services in California or for California residents must be licensed.

License Transition

Travelers check issuers, money order sellers and foreign money transmitters licensed in California prior to January 1, 2011, continue to be validly licensed. Any newly covered entity or business must file an application for a license by July 1, 2011.

Who is exempt from licensing?

All FDIC insured depository institutions are exempt, as are trust companies, credit unions, licensed broker dealers and payment systems serving exempt entities, such as an automated clearing house.  Affiliates of a FDIC insured entity are not exempt, nor is any other entity holding another license from the California Department of Financial Institutions or the California Department of Corporations.

Due to rapid technological advances involving alternative payment platforms, mobile applications, smart phones and other communication devices, businesses planning to offer any type of service involving the electronic receipt and transmission of money (or other medium of exchange) or stored value devices or applications should carefully consider whether licensing is required in California pursuant to the MTAct.

For additional information related to the California Money Transmission Act or other financial services matters, please contact Marie Hogan or Jonathan Joseph at Joseph & Cohen, Professional Corporation.

___________________________

*Marie Hogan is Of Counsel to Joseph & Cohen, Professional Corporation, San Francisco, CA.

© Joseph & Cohen, Professional Corporation. 2011. All Rights Reserved.

Kenneth Sayre-Peterson

Kenneth Sayre-Peterson is a Partner of Joseph & Cohen with a focus on banking regulation, credit unions, money transmitters, securities, trust and bank enforcement matters. He joined Joseph & Cohen in 2012 following his retirement from the California Department of Financial Institutions (DFI), where he served in various legal capacities during a twenty-two year career.

Mr. Sayre-Peterson acted as the General Counsel for the California Department of Financial Institutions from June 2007 until his retirement in November 2011. He was responsible for assisting the DFI’s Legislative Section and spearheaded a four year project culminating in the restatement of California’s Banking Law which was codified as part of the California Financial Code in January 2012. As part of this project, he drafted substantially all of relevant the enabling legislation.

Throughout his DFI career, Mr. Sayre-Peterson practiced general financial institutions law which resulted in an intimate knowledge of state and federal banking law, credit unions, regulatory and enforcement issues, money transmitter matters, securities and trust laws, as well as the corresponding federal laws. In this capacity, He played a significant role in many troubled bank resolutions and worked closely with senior regulatory staff at the Federal Deposit Insurance Corporation and the Federal Reserve Bank. While serving as the DFI’s General Counsel, he influenced the Department’s policy making process including the direction and scope of its examination and enforcement programs.

Mr. Sayre-Peterson is a member of the Consumer Financial Services Committee of the State Bar of California’s Business Law Section. He has been a featured speaker and panelist at numerous legal and banking seminars throughout his career including the Western Independent Bankers Association, the Bankers Compliance Group, the California Bankers Association, the Conference of State Bank Supervisors and the California Credit Union League. As the lead DFI attorney, he was an advisory member of the Financial Institutions Committee of the State Bar of California’s Business Law Section. Prior to joining the DFI in 1988, he worked as staff tax counsel for four years with the California State Board of Equalization. Before entering state service, he specialized in appellate work and lobbying while in private practice in Sacramento.

Mr. Sayre Peterson has been a member of the State Bar of California since 1983 following graduation, with distinction, from McGeorge School of Law, Sacramento. He earned a Bachelor of Arts degree in History from California Polytechnic State University, San Luis Obispo, 1977.

Jonathan D. Joseph

Jonathan Joseph is the firm’s Managing Partner and an AV® peer review rated attorney with over thirty-four years of experience representing banks and other depository institutions with their most complex business and legal imperatives such as mergers and acquisitions, regulatory and enforcement matters, corporate governance, board, audit and compensation matters, raising capital, investigations, strategic  planning and       D & O insurance coverage and indemnification.   He is well known in the financial services industry for his creativity, skill and judgment and relentless determination to achieve the objectives of his clients.

Mr. Joseph also represents other financial services clients with a focus on credit unions, e-commerce, investment bankers, money transmitters, private equity firms, public companies and venture capital firms. He often acts as lead or special counsel for bankers, fund managers and other financial services clients in connection with bank acquisitions and divestitures, equity investments in early stage and mezzanine companies, cross-border transactions, public offerings, securities and disclosure issues, as well as federal and state bank regulatory and enforcement matters involving the federal banking agencies and California Department of Financial Institutions.

A core specialty involves advising directors and officers of troubled and failed banks and defending litigation and enforcement claims brought by federal banking agencies.  Some of the more prominent bank failure cases in which Mr. Joseph has been involved include:

  • Settling negligence and breach of fiduciary duty claims brought by the Federal Deposit Insurance Corporation against the five most senior officers of County Bank in FDIC as Receiver for County Bank vs. Hawker, et al., (E.D. CA 2012);
  • Representing the outside directors of a failed state chartered bank headquartered in California;
  • Defending an officer of the failed United Commercial Bank (San Francisco) in connection with a criminal investigation by the United States Department of Justice and a lifetime banking industry ban instituted by the FDIC;
  • Favorably resolving a proposed civil money penalty enforcement action proposed against an executive officer by the FDIC as receiver for a failed state chartered  bank;
  • Favorably resolving potential civil claims prior to institution of civil damage or enforcement actions by the Officer of Thrift Supervision and its successor, the Comptroller of the Currency;
  • Representing a group of outside directors of a failed state chartered bank in a mediation before a retired Judge prior to the institution of a civil damage action by the FDIC; and
  • Favorably settling bankruptcy and indemnification claims in the Chapter 11 reorganization case of In re: Capital Corp of the West, (U.S Bk. Ct., E.D.CA. – Fresno Division, 2012).

Mr. Joseph is a member of the Financial Institutions Committee of the State Bar of California’s Business Law Section (2009 – present) and currently serves as its Co-Vice Chair. He is the Chairman-elect beginning in October 2013 and previously served on the Financial Institutions Committee from 1988 to 1991.  He is a member of the State Bar of California, the District of Columbia Bar, State Bar of New York and the American Bar Association.

Mr. Joseph’s past law firm experience includes:

  • Partner at K & L Gates LLP (previously known as Kirkpatrick & Lockhart Nicholson Graham LLP) in the Corporate and Investment Management Group in San Francisco (2003-2006).
  • Partner at Pillsbury Winthrop Shaw Pittman LLP (previously known as Pillsbury Madison & Sutro LLP) in the Corporate Securities and Financial Institutions Group in San Francisco (1990-2003).
  • Associate and then Partner at Rosen Wachtell & Gilbert, P.C. in Los Angeles and San Francisco (1979-1990).

Mr. Joseph earned his Juris Doctor degree from the Washington University School of Law in St. Louis, Missouri in 1979, where he interned for F. Hodge O’Neal, the George Alexander Madill Professor of Corporate Law, and was a contributing writer of the 1979 Supplement to Professor O’Neal’s seminal work: “Squeeze-Outs” of Minority Shareholders: Expulsion or Oppression of Business Associates, Chicago: Callaghan, c1975.

Mr. Joseph has been a frequent lecturer and writer on subjects relating to banking and financial institutions, money transmission, corporate law, Dodd-Frank Act, mergers and acquisitions and venture capital.  His professional interests also extend into the arts, serving as an art dealer in San Francisco for five years specializing in postmodern art and photography. He was a trustee of the American Conservatory Theater Foundation (A.C.T.) for six years and also served on its executive committee.