International law firm Cohen & Gresser today announced that leading litigator and trial lawyer Douglas J Pepe will join the firm as a partner in its New York office.

Doug brings over 20 years of experience representing corporations, financial services clients (including hedge funds and private equity funds), law firms, and other clients in complex commercial litigation. His practice focuses on high-stakes securities litigation, legal malpractice cases, insurance disputes, mass torts, class action defense, and legal issues in the blockchain and digital currency space.

“I’ve co-counseled with Cohen & Gresser in the past and am thrilled to be joining a talented team with exceptional trial capabilities, high-quality work, and excellent judgment,” said Doug. “I look forward to building my practice here and to working with my new colleagues around the world on complex commercial disputes, professional liability defense, and blockchain advisory work.”

Doug has successfully litigated tens of billions of dollars in claims involving a wide variety of complex issues, including playing a leading role on the Court-appointed Executive Committee charged with directing the subrogation and property damage claims arising out of the 9/11 terrorist attack.

“I’m delighted to welcome Doug to the firm,” said Lawrence T Gresser, co-founder and global managing partner of Cohen & Gresser. “We know him well and like and respect him very much. He is a first-rate litigator and will be integral in providing elite client service and guidance in areas that are important to our clients, including growing our commercial and securities litigation practices, our professional liability practice, and our blockchain and digital currency group.”

Prior to joining Cohen & Gresser, Doug was a partner at Joseph Hage Aaronson LLC, a preeminent litigation boutique. Doug is a member of the American Law Institute and a fellow of the Litigation Counsel of America. He also serves as a Professorial Lecturer in Law at The George Washington University School of Law, where he teaches blockchain law and technology.

A four-count indictment was recently brought by the DOJ and SEC against three individuals, including a former employee of Coinbase, for alleged insider trading of crypto assets. While the DOJ brought the criminal case under the wire fraud and conspiracy statutes, the SEC asserted its claims under the securities laws – marking the first time the SEC has alleged insider trading in violation of securities laws in the crypto context.

• The SEC action directly raises the question whether the tokens at issue qualify as unregistered securities, with significant implications for whether the platforms that facilitate trading in those tokens are potentially exposed to legal liability as unregistered securities exchanges.
• While Coinbase is not named in the SEC's complaint as an unregistered securities exchange, the nine tokens mentioned in the complaint were all traded on Coinbase, leaving it unclear what, if any, consequences will result from the SEC’s enforcement action for Coinbase.
• These are also the first cases to allege “tippee” liability for insider trading in the crypto sphere -- a "tippee" being a person who receives and trades on information obtained by someone else (the "tipper") in violation of the tipper's duty to a third party.

In this client alert, Douglas Pepe, Christian Everdell, and Jesse Greenwald discuss the myriad of issues this case presents for the crypto sphere and analyze the potential implications on crypto exchange if the SEC’s action is successful.

In this bylined article for The Blockchain Law Alliance, Doug Pepe discusses a recent four-count indictment brought by the DOJ and related SEC enforcement action against three individuals, including a former employee of Coinbase, for alleged insider trading of crypto assets. These are the first cases to allege “tippee” liability for insider trading in the crypto context.

In addition, while the DOJ brought the criminal case under the wire fraud and conspiracy statutes, the SEC asserted its claims under the securities laws – marking the first time the SEC has alleged insider trading in violation of securities laws in the crypto context. The SEC action directly raises the question whether the tokens at issue qualify as unregistered securities, with significant implications for whether the platforms that facilitate trading in those tokens are potentially exposed to legal liability as unregistered securities exchanges.

Underwood v. Coinbase Global, Inc., et al., a closely-followed putative class action in the Southern District of New York, alleges that Coinbase, a secure online platform for buying, selling, transferring, and storing cryptocurrency, is in violation of the securities laws for selling 79 securities on its platform despite not being registered as an exchange or broker-dealer.

• Coinbase recently filed a Motion to Dismiss that has significant potential implications for the statutory seller defense in the crypto context.
• In its motion, the company argues that it is not a statutory seller and therefore lacks privity with its customers, absolving it of all liability under the Securities Act and Exchange Act.
• The basis for Coinbase’s motion is contained in its user agreement, which specifically states that when users buy or sell assets on the Coinbase site, they are not buying or selling them "from Coinbase."
• The case presents an interesting question in the context of suits against crypto exchanges: can statutory seller liability be extinguished by a user agreement saying that customers are not transacting with the exchange, even though the exchange maintains the keys and controls the crypto at all times until it is transferred to the customer?

In this client alert, Doug Pepe analyzes the arguments in Coinbase’s recent Motion to Dismiss in Underwood v. Coinbase Global, Inc., et al., explores the key questions they raise, and offers insight into the potential implications for the statutory seller defense in the crypto context.

 

In this C&G client alert, Doug Pepe and Marvin Lowenthal examine the impact of the New York Assembly's bill and highlight the key factors that the responsible departments will use to assess the environmental impact of the mining industry in New York.

On April 4, 2021, SEC Chairman Gary Gensler gave a new speech on crypto-related issues at the University of Pennsylvania Law School. The speech focused on three main topics: (1) crypto exchanges and other trading and lending platforms, (2) stablecoins, and (3) "Tokens."

• Chairman Gensler's speech provides new insight into the approach the SEC will be taking in each of these three key areas.
• We can expect inbound regulatory efforts in each of the three areas he addressed, with potential SEC-CFTC coordination on exchange registration requirements, and some form of regulation or increased enforcement efforts with respect to stablecoins and tokens.
• The SEC clearly intends to step up regulation and enforcement in these areas and, in particular, seems to be set on mandating registration for crypto trading platforms.

In this C&G client alert, Douglas J Pepe outlines the key takeaways from SEC Chairman Gary Gensler’s speech on crypto-related issues and provides insight on what to expect regarding future regulation.

The UK’s HM Treasury published its response to last year’s consultation on the UK regulatory approach to cryptoassets, stablecoins, and distributed ledger technology (“DLT”) in financial markets on the 4th of April 2022.

• The Response Document highlights the government’s post-Brexit push to drive transformational growth in the UK’s FinTech space through cryptoassets and DLT and confirms its plans to enact legislation to recognise stablecoins as a valid means of payment by bringing them into the existing regulatory perimeter.
• The Treasury’s move to make stablecoins a valid means of payment is the first in an array of measures set to be implemented to secure the UK’s status as “the world’s preeminent financial centre” and “a global hub for cryptoasset technology and investment.”
• The proposed changes should be seen as an effort by the UK to remain relevant in the FinTech space following its exit from the European Union and the damage to its reputation as an attractive business environment that accompanied it.

In this client alert, C&G’s crypto team provides key takeaways from the UK’s HM Treasury response document and offers insight regarding the government’s strategy to support the development of a “world-best crypto ecosystem.”

On March 9, 2022, President Biden issued an executive order on the “responsible development of digital assets.” He directed a “whole government” review of cryptocurrency assets, including directing the Secretary of the Treasury to convene the Financial Stability Oversight Council (“FSOC”).

• In conjunction with other agencies, the FSOC will study the risks and impact of digital assets and explore the possibility of creating a Central Bank Digital Currency in the United States.
• The order directs the executive agencies to explore creating a digital version of the U.S. dollar that could be used to facilitate digital transactions while still being controlled by the U.S. Department of the Treasury.
• President Biden expressed concern about the impact of cryptocurrencies on the integrity of the financial system.

In this C&G client alert, Douglas J Pepe and Alexandra K Theobald review the details of President Biden’s executive order on the “responsible development of digital assets” and offer insight into what we can expect from the government in terms of future guidance and enforcement efforts.

Doug Pepe joined Stephan Unger, Professor at Saint Anslem College, for a conversation on the history, possibilities, and implications of living in a new era – the age of the decentralized ledger.