CFTC Officially Classifies Crypto Assets as Commodities

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The Commodity Futures Trading Commission (CFTC) has recently initiated a civil enforcement action against Rashawn Russell, an ex-investment banker at Deutsche Bank. The lawsuit was filed in the US District Court for the Eastern District of New York and claims that Russell deceptively persuaded retail investors to invest in a digital asset trading fund, defrauding them nearly $1 million. Consequently, the CFTC has charged Russell with one count of wire fraud.

Fraudulent Solicitation of Investments in Digital Asset Trading Fund

Between November 2020 and July 2022, Russell allegedly requested retail investors to provide Bitcoin, Ether, and fiat currency for investment in his purported proprietary digital assets trading fund. In addition, he falsely assured them that they would not incur any losses and, in certain instances, even promised a minimum 25% return on investment.

The charges against Russell include deliberately or recklessly making misleading statements about the fund’s structure, size, and performance. Additionally, he is accused of falsely promising to fulfill withdrawal requests and compensate investors in USDC.

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The lawsuit alleges Russell used the collected funds to cover personal expenses, finance entities linked to gambling activities, and make Ponzi-like payments to existing investors.

The CFTC has sought restitution, disgorgement, civil monetary penalties, and permanent trading and registration bans in response to these accusations. Moreover, the regulator is pursuing a permanent injunction against further Commodity Exchange Act (CEA) violations and CFTC regulations.

Ian McGinley, CFTC’s Director of Enforcement, emphasized the regulator’s commitment to protecting retail investors from fraud in the digital asset space, stating, “As today’s action demonstrates, the CFTC is unrelenting in holding bad actors accountable.”

CFTC and SEC Diverge on Crypto Asset Classification

While the United States Securities and Exchange Commission (SEC) insists that certain crypto assets should be considered securities, the CFTC has reaffirmed its stance that Bitcoin and Ether are commodities in this recent lawsuit. The CFTC cites Section 1a(9) of the Act, 7 U.S.C. §1a(9), and Regulation 180.1, 17 C.F.R. § 180.1 (2022) to support its position.

This development comes just one month after CFTC Chair Rostin Behnam stated that Ether and stablecoins should be treated as commodities, contrasting with SEC Chair Gary Gensler’s assertion that all crypto assets, excluding Bitcoin, are likely securities subject to his agency’s oversight.

The ongoing discrepancy between the CFTC and SEC’s views on crypto asset classification highlights the persistent lack of consensus among regulatory agencies. 

This uncertainty raises questions about how other regulators, such as the Federal Reserve, the Office of the Comptroller of the Currency, and the Federal Deposit Insurance Corporation, perceive the asset class.

As the digital asset landscape evolves, regulatory clarity becomes increasingly crucial in ensuring investor protection and fostering responsible growth in the crypto space.

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