Keyword: BitLicense

Wyoming, the “Equality State,” Seeks to Level the Playing Field for Digital Assets Businesses

In its continued effort to establish itself as the go-to jurisdiction for digital asset businesses, Wyoming, through its Department of Audit, Division of Banking, recently published a digital asset custody regime for its newly created, special purpose depository institutions (SPDIs). SPDIs are banking institutions authorized to take custody of digital assets. If they function as intended, SPDIs may prove to be a solution to, among other things, digital asset companies’ money transmitter licensing woes.

One major impediment to entering the U.S. market for digital asset companies is the requirement to obtain money transmitter licenses from individual states. Applying for these licenses state by state can be expensive and burdensome, and some states have created additional hurdles for digital asset companies. New York, for example, requires digital asset companies to obtain a “BitLicense,” which is notoriously difficult to obtain, to operate in the state. California may soon follow suit, imposing substantial licensing requirements under Assembly Bill 1489, which has been introduced in the legislature.

Wyoming is trying a different approach. In establishing SPDIs, Wyoming is helping blockchain companies avoid the costs of these burdensome licensing regimes while still protecting customers by taking advantage of a regulatory benefit enjoyed by banking institutions like SPDIs. Per the Bank Secrecy Act, banks are exempt, as a general matter, from needing money transmitter licenses.

Further, advocates argue that the SPDIs will provide a solution for startups seeking to operate in New York without a BitLicense. Federal law, through the Riegle-Neal Amendments Act, protects the parity of national banks and the state-chartered banks of other states. Accordingly, if a state exempts a national bank from a regulation, then other state-chartered banks must be exempt from that regulation as well. Because New York exempts national banks from the requirement to obtain a BitLicense to operate, so the argument goes, Wyoming’s SPDIs – which are state-chartered banks – should be exempted from that requirement as well. This theory remains untested, and New York has not taken a position on whether it will exempt SPDIs from needing a BitLicense to operate there. Perhaps Wyoming’s status as “The Equality State” will prompt New York to provide its state-chartered banks with “equal” treatment.

While the first new SPDIs could become operational by early 2020, which might provide a work-around for the current money transmitter licensing barriers facing digital asset companies, there remain a few obstacles for a company desiring to take advantage of the law, albeit surmountable ones.

First, SPDIs are required to maintain a minimum capital requirement of $5 million – making it prohibitive for most startups to charter their own SPDI. However, multiple companies may partner with one unaffiliated SPDI to pool assets. Assuming cooperation among market players, startups should be able to find enough capital among other SPDIs to satisfy the capital requirement. Second, SPDIs are required to maintain the principal operating headquarters and the primary office of its CEO in Wyoming, but – as we know – the excellent skiing, beautiful vistas and abundant wildlife in Wyoming provide ample justification for setting up shop there.

Wyoming’s creation of SPDIs comes on the heels of other pro-blockchain moves by the state, including authorizing corporations to issue securities via “certificate tokens in lieu of stock certificates,” creating a FinTech sandbox that enables startups to receive waivers from laws or regulations that may unnecessarily burden their ability to test new products and services, and classifying digital assets as property.

Wyoming’s small population and limited infrastructure may make it difficult to attract personnel and capital to create a competitive SPDI market. But with sufficient incentives, and the opportunity to engage in a potentially lucrative and groundbreaking industry, Wyoming is making a bid to become the crypto capital of the U.S.

NYDFS to Virtual Currency Exchange: Don’t Let the Door Hit You on Your Way Out

The New York Department of Financial Services virtual currency license is back in the spotlight after NYDFS announced that it had rejected the application of Bittrex Inc., a virtual currency exchange, to conduct virtual currency business in the Empire State. The NYDFS virtual currency license, or BitLicense, is notoriously difficult to obtain, having been granted to only 19 companies since it was implemented in July 2014. Although all BitLicense application denials are technically publicly available (but not published), the announcement of Bittrex’s application denial in such a public way is a first for the regulator. The rejection letter states that “Bittrex has failed to demonstrate responsibility, financial and business experience, or the character and fitness to warrant the belief that its business will be conducted honestly, fairly, equitably and carefully. . . .” The denial, coupled with the requirement that Bittrex immediately close up shop in New York, marks a very public rebuke of the exchange, which Bittrex met with a prompt and strongly worded response of its own.

Bittrex submitted its BitLicense application on August 10, 2015. On April 10, 2019, NYDFS publicly announced the rejection of Bittrex’s application. New York allowed Bittrex to operate in the state during the three and a half year application process under the terms of a safe harbor. According to NYDFS’s public rejection letter, the prolonged application process culminated in a four-week on-site review of Bittrex’s operations by NYDFS in February 2019. As a result of the on-site review, NYDFS rejected Bittrex’s BitLicense application based primarily on “deficiencies in Bittrex’s Bank Secrecy Act (BSA), Anti-Money Laundering (AML) and Office of Foreign Assets Control (OFAC) compliance program; a deficiency in meeting the Department’s capital requirement; and deficient due diligence and control over Bittrex’s token and product launches.” This long list of deficiencies, after such a long and laborious application process, appears at odds with the Department’s statement that “throughout Bittrex’s application process, the Department worked steadily with Bittrex” to address deficiencies in some of the very same areas found to be deficient during the February 2019 review.

According to the rejection letter, Bittrex has approximately 35,000 New York-based users who must now find a new exchange on which to trade. This is not going to be an easy task because Bittrex is a market leader listing 212 digital assets on its exchange. By way of comparison, Coinbase, which received its BitLicense in January 2017, lists six digital assets on its exchange (not including the digital assets listed on Coinbase Pro).

Within hours Bittrex responded to the public rejection with its own statement asserting that the rejection “harms rather than protects New York customers,” and stating that “Bittrex fully disputes the findings of the NYDFS” in its rejection letter. According to Bittrex, the NYDFS rejection letter contains “several factual inaccuracies” which Bittrex addresses in its response letter.

Given the public nature of this confrontation and the status of New York as a major financial hub, it is unlikely that we have heard the last of this from the parties involved. In the interim, industry participants should review the NYDFS rejection letter and Bittrex’s response, both of which provide helpful insight into the BitLicense application process and the requirements that digital asset companies have to meet if they seek to offer services in New York.