Participants in digital assets markets may view these enforcement actions as evidencing governmental hostility to digital assets, but they are better viewed as routine enforcement actions against persons acting clearly in violation of U.S. law. As to Tether, notwithstanding its self-description as an issuer of "stablecoin," the company effectively operated as an investment company that was likely subject to SEC registration under the Investment Company Act. Of course, it would not have been…

The Biden Administration had made clear that it intended to reverse the prior administration's positions with respect to the consideration of ESG factors in investment decisions, as well as imposing additional pressure on ERISA fiduciaries to exercise proxies. See, e.g., . The action on proxy voting is consistent with a recent SEC proposal that would require many investment advisers to make additional disclosures as to their proxy voting records, with considerable emphasis on ESG voting…

A significant concern raised when Regulation Best Interest was first proposed was that the Regulation, if adopted, would kill full service brokerage as to retail investors. (See Cadwalader Memorandum .) It appears likely that this is the direction toward which the markets are now heading - full steam - away from full service brokerage and toward discount firms that provide information through automation and do not purport to provide guidance.

Mr. Fleming appears to address the part of…

Commissioner Crenshaw asserts that the idea of a total exemption from the securities laws for digital assets that are nothing more than equity or debt interests makes no sense. This is unquestionably true. There is no magic to the representation of an equity or debt interest in digital asset form, rather than in electronic or paper form, that should provide an automatic exemption from the securities laws.

However, the fact that some digital assets are securities does not mean that all…