With the flurry of subpoenas and investigations into companies in the blockchain space that has erupted in the first eight months of this year, 2018 is on track to be "the year of the crypto investigation."

In case the intrepid and hardy souls bravely blazing entrepreneurial paths in the New World of virtual currencies do not have enough regulatory hazards to navigate, one few seem to have considered to date is the possible application of the Model State Commodity Code (“Model Code”). Depending on how its thirty-three year old provisions are interpreted, the Model Code’s prohibition on the sale of commodities for speculative or investments may possibly be applied to some virtual currency businesses.

The CFTC’s proposed minimum capital requirements for SDs and MSPs have met with criticism from industry on a variety of points. These include the use of initial margin, reliance on notional amounts, effect on smaller SDs, inconsistency with the SEC’s proposed capital rule, duplicative reviews for internal capital models, and reporting requirements.

Concerned that virtual currencies and related products “may be attracting customers that do not fully understand their nature, the substantial risk of loss that could arise from trading them and the limitations of NFA’s oversight role,” the National Futures Association (“NFA”) is implementing new disclosure requirements for NFA Members engaging in virtual currency activities with customers.

The CFTC's Division of Market Oversight and Division of Clearing and Risk recently issued an advisory providing guidance to exchanges and clearinghouses regarding virtual currency derivatives to be listed or cleared.  Entities already listing or clearing virtual currency derivatives, as well as those considering doing so, should be aware of the compliance and enforcement implications stemming from the advisory.

On November 22, 2017, the Division of Enforcement (“Division”) of the Commodity Futures Trading Commission (“CFTC”) released its annual enforcement results, announcing that it had filed 49 enforcement actions for Fiscal Year 2017.  Despite the unexpected decrease to the CFTC’s budget, the agency’s enforcement program is on pace to markedly improve upon the number of filings made during Fiscal Year 2017. Since announcing the results, the Division has filed 29 actions thus far in Fiscal Year 2018.