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The Vault
Jan. 7, 2025
The SEC May Have a Problem—Crypto Enforcement in the Age of the Major Questions Doctrine
International FinTech Review
Beaumont Capital Markets
Richard B. Levin, Daniel Newman, and Bobby Wenner of the Nelson Mullins FinTech and Regulation Practice recently published an article in the 2024/25 edition of the International Fintech Review. The article discusses the use of the major questions doctrine by defendants in enforcement actions by the U.S. Securities and Exchange Commission (SEC) involving crypto currencies and digital asset space.
In the article, the authors compare the SEC to the crew of Apollo 13 that did not have a problem at liftoff, only to later to face major problem that put the mission at risk. The article notes the SEC could have a problem as courts consider the major questions doctrine in the agency’s enforcement battles with the FinTech industry. The authors conclude the SEC’s unwillingness to propose rules that are subject to comment by the public, the FinTech industry, academia, and members of the legal community, could be viewed as unwillingness to comply with the requirements of the Administrative Procedure Act.
Levin is chair of the firm’s FinTech and Regulation Practice and one of the first lawyers to focus on the regulation of blockchain and digital assets. He is considered a thought leader in the FinTech space. Levin brings his experience as a senior legal and compliance officer on Wall Street and in London to bear in advising clients on FinTech, securities, and regulatory issues. He is routinely quoted by leading publications including Bloomberg, the New York Times, Reuters, and the Wall Street Journal and is a frequent speaker at conferences around the world on the regulation of FinTech, blockchain, and digital assets.
Newman began his career with the United States Securities and Exchange Commission’s Division of Enforcement where he was responsible for investigating and prosecuting violations of the federal securities laws. He litigates complex commercial and securities matters in federal and state courts and before various arbitration forums. He also regularly represents individuals and entities in Securities and Exchange Commission, Department of Justice, Commodities Futures Trading Commission, FINRA and state securities regulator investigations and litigation arising from such investigations. Other representative business and securities-related litigation includes commercial torts, contracts, non-compete agreements, shareholder derivative actions, class actions, and common law and statutory securities fraud actions. Newman has been recognized by Chambers USA in Band 1 America's Leading Lawyers for Business, Litigation: Securities – Florida (2022–2024). He is a frequent speaker on securities litigation and regulatory issues. He will be serving as an Adjunct Professor starting Spring 2025 at the University of Miami teaching a course on SEC investigations and has served as an Adjunct Professor teaching litigation skills at Nova Southeastern University Shepard Broad College of Law.
Wenner is of counsel in the FinTech and Regulation practice. He counsels financial services and technology firms on financial services regulatory and corporate matters. He focuses on the representation of financial technology companies working with blockchain, tokenization, digital assets, and cryptocurrencies, including broker-dealers, alternative trading systems (ATS), digital asset and currency trading platforms, digital asset issuers and custodians, securities exchanges, and derivatives trading platforms including swap execution facilities.
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