Digital Assets and Blockchain Technology

Holland & Knight's Digital Assets and Blockchain Tech Team advises clients regarding the intersection of blockchain technology and the law and the emergence of related public policy issues.

Our attorneys wrote one of the first books on blockchain technology and the law. Holland & Knight Partners Josias N. Dewey, Jeffrey R. Seul and Shawn S. Amuial are co-authors of The Blockchain: A Guide for Legal and Business Professionals, a Thomson Reuters book. Our attorneys understand digital assets and blockchain technology at the deepest level – including employing our own blockchain solutions to address clients' needs in several engagements.

Our team includes former U.S. Securities and Exchange Commission (SEC) enforcement supervisors who were involved in the earliest enforcement actions involving bitcoin, dark web marketplaces and other digital assets. In 2022, Holland & Knight attorneys pioneered service by non-fungible token (NFT) – the first legal team in the world to serve a defendant legal notice by airdropping an NFT to the defendant's blockchain address.

Our blockchain lawyers draw on diverse backgrounds inside and outside of the legal profession and a hands-on knowledge of distributed ledger technology (DLT) – some are even active coders – to meet the needs of clients throughout a business' life cycle.

Corporate Structuring, Venture Capital and Private Equity

Holland & Knight's mergers and acquisitions (M&A) and private equity attorneys help innovators and investors in the raising or deployment of equity capital in the digital asset space throughout the full investment life cycle. As longtime trusted advisors to funds, portfolio companies, family offices, independent sponsors and other investors, Holland & Knight attorneys advise clients in all aspects of equity investment strategies from early- through late-stage investments. We also work with founders and portfolio company management teams to support the creation and growth of their business by assisting with company formation, corporate governance, tax, executive compensation and other general corporate counseling. In the digital asset space, our corporate attorneys work hand-in-hand with regulatory, intellectual property and other professionals from related practices to customize solutions based on the specific business of the client.

Regulatory Compliance

Our lawyers have extensive experience advising clients on the application of federal and state securities and commodities laws to digital assets, including transactions involving tokenized assets, investment vehicles and decentralized finance (DeFi) products. Our clients include issuers of digital assets, digital asset managers, exchanges, custodians and other virtual asset service providers, digital asset promoters and employees of digital asset companies. In addition, our Data Strategy, Security & Privacy Team offers a full range of solutions to clients regarding the complex and evolving regulations surrounding data privacy and cybersecurity.  

Financial Services

We routinely advise financial services companies, ranging from startups to publicly traded banks, on matters relating to digital assets, including DeFi strategies. Our lawyers have extensive experience representing lenders who lend against digital asset collateral, including facilities utilizing securities intermediaries to hold digital assets as financial assets. We have negotiated custody agreements with a number of the largest providers of custody services to the digital asset space. We also represent banking institutions in connection with the issuance of stablecoins, including issues around banking regulatory matters raised by these activities, such as custody of assets backing stablecoins.

Intellectual Property

Our lawyers have filed several patent applications covering blockchain technology. We have also advised clients on intellectual property matters pertaining to NFTs, including copyright matters pertaining to artwork.

Public Policy and Regulation

Holland & Knight's Public Policy & Regulation Group is a strong bipartisan team working closely with members of Congress and their senior staff on policies and legislation impacting the digital asset community. Our relationships with committees of jurisdiction including the House Financial Services Committee, Senate Banking Committee and both the House and Senate Agriculture Committees – as well as House and Senate leadership – allow us to help influence the direction of U.S. policies on digital assets, cryptocurrencies and blockchain technologies, and keep our clients updated on all of the action on Capitol Hill and in the administration.

Litigation and Dispute Resolution

We have a deep bench of litigators with experience handling disputes arising from digital assets. Our clients include exchanges, virtual asset service providers, national brands and victims of digital asset fraud.

Enforcement Defense

Holland & Knight's Securities Enforcement Defense Team has substantial experience in the digital asset industry representing public and privately held companies, broker-dealers, investment banks, accounting firms and other web3 market participants – along with their officers, directors and managers – in the full range of civil and criminal enforcement investigations. This includes advising clients in civil enforcement investigations by the SEC, Commodity Futures Trading Commission (CFTC) and state securities regulators, in self-regulatory proceedings by the Public Company Accounting Oversight Board (PCAOB) and the Financial Industry Regulatory Authority (FINRA), as well as in criminal investigations by the U.S. Department of Justice (DOJ).

Restructuring

Our team represents creditors, debtors and liquidators in connection with some of the largest bankruptcies left in the wake of the crypto winter. Our attorneys are experienced in asset tracing, investigations, crypto discovery and cross-border insolvency issues.

Digital Asset Recovery

We have extensive experience in matters involving the recovery of digital assets. Our attorneys have served in the capacity of a receiver, independent intermediary and Fair Fund distribution agent in cases involving digital assets. The firm has the organic capacity to trace digital assets across multiple blockchains and lead recovery efforts of assets wherever they are located.

Taxation and Private Wealth Management

Our tax lawyers advise clients on the proper tax treatment of digital asset investments and other transactions.

Holland & Knight's advice includes the tax implications of having crypto-related business abroad and NFT offers in different markets. We also provide cryptocurrency advice as it relates to the U.S. income, estate and gift tax treatment of crypto, including the characterization of crypto for U.S. tax purposes, source of income, withholding tax and reporting obligations. In addition, we advise individuals who are not U.S. residents on income, estate and gift tax consequences, as well as consequences under bilateral income, estate and gift tax treaties.

Our experience includes jurisdictions in the United States, Mexico, Colombia, the United Kingdom and more.

Holland & Knight's tax lawyers also represent clients before the U.S. Department of the Treasury, Internal Revenue Service (IRS) and Organization for Economic Cooperation and Development (OECD) to advocate for improvement in tax policies that may apply to digital assets.

Latin America

Our team provides premier legal services to clients across Latin America, advising clients on regulatory compliance, financial services, and public policy and regulation related to digital assets. We understand the intricacies of DLTs, enabling our clients to unlock the full potential of their businesses and navigate the evolving regulatory landscape. We have a wealth of experience in advising companies offering crypto-asset services, particularly stablecoins, and assisting prominent crypto exchanges in the region. Our team actively participates in regulatory discussions on proposed rules applicable in Colombia, allowing us to stay at the forefront of legislative developments and provide informed guidance to our clients.

Our team members have a proven track record in innovative projects, such as the issuance of corporate debt bonds utilizing blockchain technology. By combining a deep understanding of technology with a practical business perspective, we empower our clients to capitalize on the benefits of DLTs and navigate the legal complexities that accompany them. We are committed to delivering comprehensive, innovative and strategic legal services, enabling our clients to thrive in the ever-evolving world of digital assets.

Representative Engagements

Corporate Structuring, Venture Capital and Private Equity

• Counsel to smart contract audit firm that developed the most commonly used ERC-20 token contract in the Ethereum community in connection with Regulation D, Rule 506(c) offering; the scope of our engagement included U.S. securities laws, Know Your Customer (KYC)/anti-money laundering (AML) and cross-border tax matters (Protocol: Ethereum)
• Counsel to alternative payment systems network in token issue intended to promote and foster growth within a larger ecosystem; the scope of our engagement included U.S. securities laws, KYC/AML, bank licensing requirements and cross-border structuring (Protocol: Hyperledger Fabric)
• Counsel to California-based public benefits corporation on dual-token structure, including one for Regulation D, exempt offering and the other as a vehicle to tokenize payment streams from class of otherwise illiquid interests in real estate interests; the scope of our engagement included U.S. securities laws, Investment Advisers Act, Investment Company Act, corporate tax structuring and KYC/AML, and representation also included considerations around the need to restrict tradability of tokens to only accredited investors (Protocol: Stellar)
• Represented mining operator's development and launch of large-scale mining data, including preparation of the form of development license agreements and cross-border tax analysis

Regulatory Compliance

• Counsel to offshore virtual currency exchange in evaluation of token generation for infrastructure costs; the scope of our engagement included U.S. securities laws, Commodity Futures Trading Commission (CFTC) regulatory matters, KYC/AML and money transmitter licensing requirements (Protocol: Bitcoin/Ethereum)
• Counsel to several crypto-investment fund managers and investors, advising on securities, Investment Company Act and Investment Advisers Act requirements, and KYC/AML requirements
• Counsel to company tokenizing real estate investment vehicles; the scope of our engagement included considerations around U.S. securities laws, Foreign Account Tax Compliance Act (FATCA) and Foreign Investment in Real Property Tax Act (FIRPTA) reporting and withholding requirements, and KYC/AML (Protocol: Ethereum)
• Counsel to marketing analytics platform in Regulation D, Rule 506(c) offering of utility tokens intended to promote and foster growth of AdTech platform; the scope of our engagement included U.S. securities laws and KYC/AML (Protocol: Ethereum)
• Counsel to U.S.-based company that developed software development kits (SDKs) with application programming interfaces (APIs) allowing integration of multiple blockchain payment solutions within a single wallet in connection with token generation event (TGE) of the company's tokens on Ethereum public network; the tokens were marketed and sold as utility tokens intended to promote and foster growth of the platform, and the scope of our engagement included U.S. securities laws and CFTC (Protocol: Ethereum)
• Counsel to U.S.-based startup that provides developers with utilities and services around open source code; the scope of our engagement included KYC/AML and state money transmission laws (Protocol: Undecided)
• Counsel to initial coin offering (ICO) advisors on U.S. securities, Commodity Exchange Act issues and broker-dealer regulations, including potential Section 17(b) violations
• Counsel to Fortune 500 company for the European Union's General Data Protection Regulation (GDPR), privacy and other matters relating to the development and adoption of blockchain and distributed ledger technology

Financial Services and Institutions

• Counsel to state-chartered bank in connection with all aspects of involvement in a proprietary payment network using stablecoins, including role as coin issuer and custodian of reserve backing coin
• Counsel to financial institutions engaged in lending transactions secured by digital assets, including credit facilities in excess of $100 million
• Counsel to several crypto-investment banks, including advising on all aspects of dealer activities, broker-dealer licensing requirements, security token issues and Financial Crimes Enforcement Network (FinCEN) regulation of activities
• Represented large capital markets trade association with analysis and report on feasibility of using blockchain and DLT for corporate debt markets, which included extensive analysis of issues around consortium governance and antitrust considerations
• Selected by large Wall Street consortium to participate with several Wall Street banks (including three of 10 largest U.S. banks) and European financial institutions to develop and architect a distributed ledger-based platform for new financial products; scope of work includes analysis of legal impediments and regulatory assessment
• Engaged by Loan Syndications and Trading Association (LSTA) to prepare three-part white paper on blockchain technology, including smart contracts, and its impact on syndicated corporate debt

Litigation, Dispute Resolution and Digital Asset Recovery

• Defend one of the largest centralized exchanges in the world against consumer claims
• Defend a national brand against claims it was liable for a pump-and-dump ICO scheme orchestrated by independent third parties
• Represent international cryptocurrency exchange in recovery of stolen digital assets

Restructuring

• Represent foreign liquidators of one of the largest digital asset hedge funds in Chapter 15 proceedings; engagement includes identifying and tracing debtor's digital assets and asset recovery and analyzing laws regarding perfection of security interests in digital assets
• Represent foreign liquidators of one of the largest centralized exchanges in the world in Chapter 15 proceedings; scope of engagement included identifying debtor's digital assets
• Represent bank as creditor in Chapter 11 bankruptcy proceedings involving a virtual asset provider and digital assets

Enforcement Actions

• Represent individuals in connection with parallel DOJ, SEC and CFTC investigations and enforcement actions, including actions involving court-appointed fiduciaries
• Represent token issuer in connection with SEC investigation of potential registration and antifraud allegations
• Represented token generator in SEC investigation of potential securities violations, including direct dealings with the head of the SEC's ICO Task Force; matter concluded with favorable outcome for the client
• Represented individual in connection with SEC investigation of alleged token and NFT touting; matter concluded favorably for client

Crypto Receivership and Fair Fund Engagements Arising from ICOs

• Represented a court-appointed receiver – Holland & Knight Partner Josias Dewey – overseeing the identifying, tracing, marshalling and distribution of digital assets to victims of an ICO fraud; our team created a proprietary process employing a purpose-built ERC-20 token to verify claimants' control of Ethereum blockchain addresses to weed out potentially fraudulent claims; subsequently assets were distributed to victims – the world's first multimillion distribution of digital assets – resulting in claimants being returned 91 percent of their initial investment
• Engaged as an SEC fair fund distribution agent, responsible for creating a claims and distribution process for victims of an ICO fraud; working under the SEC's supervision, our attorneys employed our firm's proprietary blockchain-based process to verify claimants and created a loss algorithm to equitably distribute assets to victims – resulting in claimants being returned their entire initial investment and a reasonable amount of interest

Taxation

• Counsel to one of the two largest daily fantasy sports platforms in 1) acquisition of bitcoin, 2) development of contest terms and conditions, and 3) tax implications
• Counsel to smart contract software developer seeking to shift operations to Mexico; the scope of engagement included corporate governance and cross-border tax implications arising from digital assets