A Few Simple Rules Could Have Prevented the Demise of FTX

by | Dec 24, 2022 | Market Analysis, Market News | 0 comments

The unstable cryptocurrency market was shaken by the demise of FTX; it lost billions in value and fell below $1 trillion.

The fallout from FTX’s abrupt slide and collapse will probably affect cryptocurrencies for a very long time to come and hurt other markets as well. Sam Bankman-Fried is accused in a class-action lawsuit filed on November 16 in a federal court in Florida of developing a fraudulent cryptocurrency scheme intended to take advantage of uneducated investors from all over the nation. Steph Curry, Shaquille O’Neal, Shohei Ohtani, Naomi Osaka, Larry David, and Kevin O’Leary are among the other famous people included in the case as people who allegedly assisted Bankman-Fried in carrying out the scheme.

The FTX bankruptcy has an effect on Genesis Global Capital, the Gemini cryptocurrency exchange, and BlockFi, a platform for crypto financing with substantial exposure to FTX. Due to FTX’s bankruptcy on November 16, the lending division of cryptocurrency investment bank Genesis halted redemptions and new loans. Following the information, Genesis, a lending partner in Gemini, the cryptocurrency exchange founded by the Winklevoss twins, announced delays in withdrawals from its Earn product. BlockFi, a cryptocurrency lending company with substantial exposure to FTX, stopped allowing withdrawals and declared bankruptcy on November 28.

On November 18, the Bahamas Securities Commission assumed authority of the bitcoin holdings of the defunct exchange FTX. The U.S. House Financial Services Committee announced that it will hold a hearing on the FTX collapse in December 2022.

As part of the most recent development in the FTX affair, Reuters reported on December 6 that Bankman-Fried had retained white-collar defense lawyer Mark S. Cohen. In the sex trafficking trial that resulted in Ghislaine Maxwell’s conviction on many counts, Cohen, a former assistant US attorney for the Eastern District of New York, represented her on behalf of Cohen & Gresser. Additionally, Caroline Ellison, who oversaw the trading company Alameda Research, has retained the legal services of Washington-based Wilmer Cutler Pickering Hale and Dorr.

Few rules that could avoid FTX’s demise

The FTX failure has made it clear that a sizable portion of the digital asset market thrives in regulatory grey areas and jurisdictional gaps, which makes the need for new rules and regulations even more pressing. Nevertheless, a lot of experts concur that despite being mainly outside of US jurisdiction due to its offshore location, FTX might have avoided failure if only certain tried-and-true guidelines had been followed. According to Carla Reyes, an associate professor of law at the SMU Dedman School of Law, FTX is a centralized corporation like any other corporate business. It wasn’t a case of the regulations not being in place. It was an instance where they disobeyed them. Five topics have come to light as being essential for Congress and regulators to concentrate on in interviews with securities professionals and remarks from politicians and regulators.

1. Commingling of Assets

The inability to secure consumer assets lies at the heart of a series of crypto mishaps. The most severe example may be FTX, which used client cash to lend to its sister business, the hedge fund Alameda Research, to support dangerous investments.

In order to guarantee that customer assets are walled off in the event that a brokerage business collapses, the US Securities and Exchange Commission already has a consumer protection provision. The business has resisted filing with the government, arguing that tokens are not securities subject to the agency’s regulations, therefore crypto client accounts are not protected.

Gary Gensler, the hated chairman of the SEC, disagrees with crypto fans. The same was true of Jay Clayton, his predecessor during the Trump administration. Both would use a criterion from a 1946 ruling by the US Supreme Court, which said that an asset falls under the SEC’s purview when investors contribute funds to a business with the goal of benefitting from the leadership of the organization. Almost all tokens are now considered securities by the SEC.

According to James Cox, a professor specializing in business and securities law at Duke University School of Law, establishing that the majority of cryptocurrencies are securities is arguably the most significant action Congress could take.

Additionally, mixing client money is prohibited by the Commodity Futures Trading Commission, which currently regulates some crypto derivatives. But rather than commodities, its regulations apply to swaps and futures. Despite the fact that the majority of experts believe that Bitcoin is a commodity and not a security, no federal regulator currently controls crypto commodities, necessitating a congressional remedy to safeguard investors.

2. Separate Business Lines

To the disadvantage of their clients, several cryptocurrency businesses have provided a wide range of products and services that obscure the distinctions. The most notable example is cryptocurrency exchanges. The platforms carry out a wide range of tasks, including market-making, trading, custody, and securities lending. The arrangement, according to critics like Gensler, is fraught with problems. Contrarily, conventional financial institutions that offer many services normally register each of their distinct business lines with the relevant regulators. That also has to be done for crypto, according to experts.

3. More Disclosure

The foundation of financial regulation in US markets is risk disclosure. In crypto, however, disclosures are practically nonexistent. There are hardly any details available on the dozens of FTX offices outside the US. The American division, FTX US, is more understood, but there are still a lot of unknowns because it was a closely held private firm.

Existing SEC regulations for investment advisors and securities issuers would lessen the opaqueness of cryptocurrency, but Congress may need to strengthen them. In order to determine if programmers may, for example, influence token pricing, SMU’s Reyes adds, “I’d like to know more about the code that produced the tokens.”

Congress has been urged by a few state securities authorities to tighten disclosure rules for businesses valued at $700 million or more. While not crypto-focused, such a measure could have given investors a peek inside the crypto giants. Another option would be to treat crypto platforms like stock exchanges, which have their own registration and reporting requirements.

4. Advertising Standards

Although unrelated to cryptocurrencies, such a policy may have allowed investors to see inside the industry’s titans. The treatment of cryptocurrency platforms similar to stock exchanges, which are subject to different registration and reporting requirements, is one alternative.

Crypto companies like FTX have prospered by luring throngs of commoners through glitzy advertisements, frequently including well-known celebrities like Tampa Bay Buccaneers quarterback Tom Brady and actor Matt Damon. Over 112 million people watched the Super Bowl in February when FTX and other cryptocurrency businesses broadcast advertisements.

Individuals cannot promote stocks without revealing payment information thanks to SEC regulations. The organization has utilized its power to punish celebrities for promoting cryptocurrency, including Kim Kardashian.

However, whether or not the token is regarded as security will affect these activities. The Federal Trade Commission, which regulates false or deceptive advertising, might also take enforcement action.

5. Corporate Governance

One of FTX’s most startling flaws was the complete absence of corporate governance. The person in charge of FTX at the moment, John Ray III, gave the Delaware court in charge of the firm’s bankruptcy proceedings the advice not to believe any of its financial statements. He said that most FTX organizations never conducted board meetings.

Last month, Erica Williams, the head of the US accounting watchdog, issued a warning that the US cannot inspect the audits of privately held crypto firms like FTX. Williams is essentially telling investors to exercise caution and ask more questions of crypto vendors. And they should be on high alert if they don’t receive satisfactory responses.