How Crypto Industry Can Fight Regulatory Overreach In Court (Law360)

The digital asset industry is quickly becoming a mainstay of the global financial system. And as digital assets have become more popular, federal regulators have begun to pay attention. Almost every day, different federal officials make public statements about the need to get digital assets under control.

Intelligent regulation sometimes creates useful clarity, but a D.C. dogpile creates only confusion. Right now, at least seven regulatory entities—the SEC, CFTC, Financial Crimes Enforcement Network, Office of Foreign Assets Control, Office of the Comptroller of the Currency, U.S. Department of Justice, and the IRS—claim some authority to regulate digital assets. And rather than focus on drawing clear lines that industry can follow, many of these regulators are rushing to fill statutory gaps and claim their own predominance in the digital-asset regulatory hierarchy. This is a recipe for conflicting mandates, compliance chaos—and potentially litigation against the government.

Writing for Law360, Jones Day's James Burnham, a partner in the Firm's Issues & Appeals Practice and a former senior Justice Department official, describes how participants in the digital asset industry could potentially use affirmative litigation to push back on regulatory overreach and obtain a clearer regulatory landscape. When regulatory zeal trumps regulatory common sense, the courts are sometimes the best option.

Reprinted with permission from the December 6, 2021 issue of Law360. © 2003-2021, Portfolio Media, Inc. Further duplication without permission is prohibited. All rights reserved.

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