Expert Analysis

• Sripetch May Prove To Be An Empty Victory For The SEC

  

  The U.S. Supreme Court's recent decision in Sripetch v. U.S. Securities and Exchange Commission held that the SEC need not prove pecuniary harm for disgorgement, but if the commission must still identify victims and distribute funds in a compensatory way, it faces the same economic problem as before the ruling, says Erin Smith at Compass Lexecon.

• Mapping 5 Fronts Of The Prediction Markets Regulatory Battle

  

  The legal framework governing prediction markets is under simultaneous challenge in five independent areas, and the outcomes will determine not just who can operate prediction markets, but the compliance obligations of every participant in the ecosystem, says Ivor Wolk at Manatt.

• UCC Digital Asset Update Is Altering Lender, Obligor Diligence

  

  The rollout of the Uniform Commercial Code's Article 12 is transforming digital asset secured lending, forcing lenders and obligors to rethink diligence, control, custody, monitoring and contract terms, as well as collateral practices and financing structures, as jurisdictions continue to adopt the amendments, say attorneys at Lowenstein Sandler.

• SEC Disgorged Fund Distribution Is Next Query After Sripetch

  

  Following the Supreme Court's Sripetch v. U.S. Securities and Exchange Commission decision, investor harm isn't required for the SEC to obtain a disgorgement award, but future cases must resolve whether the commission will be freed from a requirement to distribute disgorged funds to the victims of alleged misconduct, says Daniel Walfish at Katsky Korins.

• Direct Fed Payment Access Finally In Sight For Fintechs

  

  A recent executive order and a Federal Reserve proposal could finally allow direct payment system access for fintechs and other nonbanks, potentially reducing reliance on sponsor banks and reshaping competition, as well as prompting organizations to reassess partnership strategies as litigation and rulemaking unfold, say attorneys at Freshfields.

• How FCA, FCPA Risks Are Shifting As Feds Pull Back

  

  As the federal government continues its retreat from white collar enforcement, companies should expect False Claims Act risk to grow through private whistleblower suits and Foreign Corrupt Practices Act scrutiny to shift toward foreign prosecutors, requiring more adaptability as accountability becomes less centralized, says Temidayo Aganga-Williams at Selendy Gay.

• Series

  Cow Horse Makes Me A Better Lawyer

  

  Moving an unwilling 800-pound cow while riding a horse at high speed is exhilarating, a little unhinged and, at least for me, a surprisingly effective training ground for litigation — both demand focus, preparation over rigid planning and the willingness to act despite fear, says Ashley Zitrin at Glenn Agre.

• O Brother, Where Art DAO? Jurisdiction Issues Abound

  

  While there is a dearth of decisions examining a decentralized autonomous organization's citizenship for diversity jurisdiction purposes, Second Circuit case law has defined citizenship for other unincorporated entities, which may guide how courts evaluate an increasing number of cases involving DAOs, says Michael Mix at Morrison Cohen.

• NY's UCC Updates Spell Change In Digital Asset Lending

  

  Given the state’s role as a preferred jurisdiction for financing transactions, New York’s recent enactment of Uniform Commercial Code amendments, which establish control as a central concept for determining who has rights to a digital asset, will encourage nationwide growth toward a more technology-neutral approach to secured transactions, say attorneys at Manatt.

• Opinion

  Agentic AI And Securities Law: Steps Congress Should Take

  

  Agentic artificial intelligence technology doesn't fit comfortably into the existing securities regulatory landscape, so Congress should avoid repeating the mistakes that led to the legal uncertainty crypto companies and investors have faced over the past decade-plus by providing a legislative framework before AI fully matures, says Joseph A. Hall at Davis Polk.

• Operational AI Washing: The Next Frontier Of Fiduciary Risk

  

  While there are still no final Delaware decisions applying Caremark specifically to artificial intelligence governance failures, previous case law provides a blueprint, so the question for boards is whether their governance architectures will satisfy Caremark when the first cases are decided, say attorneys at Akerman.

• 3 Disgorgement Questions Linger After Justices' SEC Ruling

  

  While the U.S. Supreme Court’s recent decision in Sripetch v. U.S. Securities and Exchange Commission avoided placing new limits on the SEC’s disgorgement powers, it passed over several questions, including whether the commission can seek disgorgement when returning the money to investors isn't possible, says David Slovick at Kopecky Schumacher.

• How Crypto Firms Can Prep As Clarity Act Inches Toward Law

  

  Though the Digital Asset Market Clarity Act’s road to enactment remains uncertain, the statutory framework for regulating digital commodities recently advanced by the Senate Banking Committee is now sufficiently developed that market participants can begin preparing in several areas where the complicated legislation would affect them, say attorneys at Cahill Gordon.

• Checking For AI Errors Is Now A Two-Way Street

  

  A handful of recent federal and state cases demonstrate the importance of checking for errors generated by artificial intelligence not only in your own court submissions, but also your opponent's, as well as when catching opposing counsel's AI mistakes could result in an award for attorney fees, says Tamara Barago at Hollingsworth.

• Easing Of UK Stablecoin Rules Will Encourage Crypto Growth

  

  The Bank of England’s recent decision to relax parts of its proposed framework for sterling-backed stablecoins balances innovation with financial stability, and will help the U.K. remain competitive with crypto markets across the globe, says Thomas Cattee at Gherson.