How We Can Help You
At Buchanan, our dedicated professionals in the Blockchain and Digital Asset Practice Group are prepared to assist clients with a variety of opportunities and challenges associated with navigating decentralized technology and digital assets. We provide innovative strategies that support maximizing returns while mitigating the challenges of this dynamic industry. Driven by the needs of our clients, Buchanan has assembled a team of attorneys and government relations professionals that can leverage experience from throughout our full-service firm. We are focused on helping clients seize opportunities, reduce risk, and protect their past, current, and future efforts and assets in an ever-changing industry.
Rapidly evolving regulations and potentially overlapping jurisdictions challenge every company to keep compliance practices up to date. Remaining ahead of the curve and informed of new activities that touch on blockchain and digital assets is one of the important focuses of our Blockchain and Digital Asset team.
Areas of Focus
US Securities Law
The regulation of the use of blockchain in the financial services sector varies based on the financial service provided using blockchain. For example, the Securities and Exchange Commission (SEC) has authority over exchanges on which digital assets that are considered securities are traded, while the Commodity Futures Trading Commission (CFTC) has authority over exchanges on which derivative contracts for certain digital assets are traded. In some cases, a service may be subject to regulation by the SEC, the CFTC, and other domestic or international bodies. Buchanan’s Securities Law team can help businesses navigate the complex, overlapping, and uncertain regulatory landscape for digital asset securities.
Examples include:
- Developed a technical briefing for SEC FinHub team and other SEC staff on how blockchain and ICOs work, their pitfalls, regulations, cyber, and other areas of concern.
- Analyzed a token's compliance as it pertained to U.S. securities laws.
- Assisted with corporate governance and security filings for a cryptocurrency company.
Tax
Our experienced Buchanan tax lawyers can assist clients to decipher the myriad of federal and state tax rules as they apply to an underlying transaction; for example, understanding the treatment of capital gains or losses, as well as a host of tax issues relating to digital wallets mining, DeFi protocols and other matters. At the moment, most digital assets are considered property, which means nearly every digital asset transaction has tax implications. While the IRS has provided basic guidelines as to how taxpayers should treat digital asset transactions for U.S. federal tax purposes, much is still open for interpretation, including matters pertaining to domestic and international information reporting. Buchanan’s tax professionals are well-poised to provide advice during times of volatility and nascent technology developments.
Examples include:
- Assistance before the IRS in case of audits, tax litigation, and regulatory compliance.
- Assistance with the classification and treatment of digital assets to determine federal and state tax consequences.
- Analysis of required reporting of capital gains from the sale or transfer of digital assets (including the use of digital assets for goods and services).
- Assistance with information reporting, domestic and international.
- Treatment of NFTs for U.S. tax laws.
- Treatment of DeFi transactions and related reporting under U.S. and international tax laws.
White Collar, Criminal Defense & Government Enforcement
Our White-Collar team is made up of former state and federal prosecutors as well as former law enforcement professionals. We have experience in handling congressional legislative actions and regulatory rulemaking at the relevant agencies, including the SEC, the CFTC, the IRS, and the Department of Treasury as well as initiatives by the Department of Justice to ensure that consumers are protected from harm.
We guide both entities and individuals through the complexities of federal and state criminal investigations and prosecutions. Some of the cases we routinely manage for our clients involve the following:
- Pre- and post-indictment and arrest representation in state and federal courts across the United States, as well as matters pending before state and federal regulatory agencies performing government enforcement functions.
- Responding to subpoenas and civil investigative demands (CIDs) from various state and federal regulatory agencies.
- Designing, implementing and administering comprehensive compliance programs to prevent, detect and remediate corporate misconduct, including implementing corporate training programs and conducting audits to minimize the risk of noncompliance.
- Conducting internal investigations to address allegations of corporate noncompliance and inappropriate behavior. Working with specialized e-discovery professionals, our team has the technical ability to conduct large scale investigations and complex regulatory reviews in a cost-effective manner.
- In the event of noncompliance, assisting clients when interfacing with state and federal regulatory agencies, including through voluntary self-disclosures, negotiations and settlement.
With the expectation that there may be more companies under legal scrutiny as enforcement action continues to increase, we have experience in handling large-scale fraud cases, including direct experience working with the Bernie Madoff Ponzi Scheme. As such, we know what to expect to come next and how to handle the ever-changing landscape.
Intellectual Property
Buchanan’s professionals in the Intellectual Property Practice Group are at the frontier of assessing and understanding the challenges that arise with the use of blockchain technology, including the following types of matters:
- Preparation of a clean room agreement between health care providers each having electronic access to transacted confidential information records in a peer-to-peer network reviewed by a third-party health care consultant.
- Preparation and prosecution of U.S. patent applications directed to using blockchain in voting systems, payment systems, and smart contracts, among others.
- Management of worldwide IP portfolio directed to blockchain technology for leading U.S. financial services company.
Litigation
Our litigators handle matters across a broad range of industries and business components, from digital assets to financial services, from energy to business finance, and many more. With more than 150 litigators, we handle the highest-profile, most-complex litigation matters in forums ranging from U.S. courthouses across the United States to federal regulatory agencies.
Examples of our litigation experience across the decentralized finance and digital assets industry include:
- Advising on the proper categorization of digital assets based on evolving legal and regulatory guidance.
- Responding to and advising on subpoenas and wells notices from various federal regulators.
- Cyber fraud litigation based on hacking and cyber post-event crisis management.
- Statutory and regulatory compliance litigation.
- Disputes between founders of companies and intellectual property rights.
Compliance and Finance
The Compliance and Finance groups provide advice regarding global regulatory and compliance matters that touch on blockchain and digital assets. Already, certain digital asset products have been the target of sanctions and other compliance-heavy regulations.
Examples include:
- Designed, implemented, and monitored compliance programs for international companies and organizations related to sanctions implemented and enforced by the Department of Treasury, Office of Foreign Assets Control (OFAC) and the Foreign Corrupt Practices Act (FCPA).
- Conducted numerous internal investigations related to potential violations of international sanctions and compliance regimes, including the FCPA, the U.K. Bribery Act, and Bank Secrecy Act.
- Developed policies and procedures for financial institutions related to Anti-Money Laundering (AML) and Know-Your-Customer (KYC) statutes and regulations.
- Represented multinational companies and organizations before various federal and state agencies and regulators, including the Department of Justice, the Securities and Exchange Commission, OFAC, and the Federal Trade Commission.
Corporate Governance
New initiatives regarding blockchain and digital assets, while challenging, provide unique opportunities to companies of every size. However, understanding and reducing risk is the most important first step any entity can take, along with having an experienced team at the ready should regulatory investigations or enforcement actions occur.
Blockchain’s disruption of previously established business models challenges companies to navigate risks while taking full advantage of new opportunities. While digital assets and blockchain technology in the financial services industry have been the subjects of significant debate and attention, blockchain is revolutionizing a wide range of industries.
At Buchanan, we support clients with a customized team carefully selected for their experience in those areas of regulatory law most relevant to the client’s business and industry. Our team will assist in the designing and implementing of comprehensive compliance programs to prevent, detect, and rectify corporate misconduct.
Labor and Employment
Our Labor and Employment lawyers understand and can help clients navigate the rights and responsibilities of parties with respect to their transactions involving digital assets, including the following types of matters:
- Litigation regarding scope of work or contract disputes regarding a network’s intended functionality.
- Litigation relating to lost business opportunities or reputational harm.
- Litigation involving rogue individuals looking to steal confidential information for gain or start competing companies based on information obtained illegally.
- Partnership disputes relating to ownership and books and records rights.
- Private arbitration and mediation proceedings.
- Counsel international companies on employment issues triggered by cross-border transactions such as spinoffs, carve-outs, private equity transactions, mergers and acquisitions, and IPOs involving digital assets.
- Draft employment, severance, separation, non-compete, non-disclosure, and settlement agreements in contract agreements involving digital assets.
Formation and Development
Our professionals strive to assist your company to market while also protecting you from the risks of business that may include among others: contract review and negotiation, regulatory oversight at various agencies, employment, financing, intellectual property, securities law compliance, tax, and issues pertaining to cybersecurity threats.
Bankruptcy and Restructuring
Buchanan is a recognized leader in the areas of bankruptcy, insolvency and creditors’ rights making it a natural fit for the fast-paced and ever-changing world of digital assets. Built to be a disruptor of centralized information and assets, the decentralized technology and digital assets industry is experiencing, and expected to continue experiencing, disruptions that could cause the need for creditors and companies to consider:
- Reorganizations including Chapter 11
- Debt restructuring
- Protection and counseling of creditor’s rights including how reorganization proceedings will impact a creditor/lender.
- Federal and state receiverships
- Investor and/or seller representation to acquire or sell troubled companies, assets, or distressed debts.
- Unique bankruptcy considerations for decentralized entities.
- Novel bankruptcy rights afforded by smart contracts.
Government Relations
We also work closely with regulators through our highly rated Government Relations practice to gain key insight as to what is taking place on Capitol Hill. Because of our experience and relationships, we can assist our clients in crafting custom strategies for engagement, anticipating novel issues when they arise, and shaping the policy agenda.
As cyberattacks threaten companies of the private, public, and non-profit sectors, Congressional members, as well as members of President Biden’s Administration, are working to expand the role of the federal government to enact regulation, set compliance policies, and enforce penalties relating to advancements pertaining to blockchain technology and digital assets.
As the landscape rapidly changes, it is vital that organizations can have their voice heard, track policy changes, and understand the rising and developing impact on their business of these changes. Our Federal Government Relations Group provides clients these insights through our years of collaborating with lawmakers on Capitol Hill including a standing role on the Cyber Leadership Council of the U.S. Chamber of Commerce.
Additionally, Buchanan attorneys have a deep understanding of helping companies who are losing market share and decreased profits due to unfairly priced imports. Through experience related to foreign policy and national security matters such as U.S. economic sanctions, our Sanctions professionals provide comprehensive guidance and corporate compliance programs to clients that provide services that may be regulated due to national security reasons.
Buchanan’s specialized state-level teams (such as in Florida) can also help entities navigate increasingly inconsistent state-level blockchain regulations.
Strategic Consultation and Connections
Buchanan prides itself on supporting the goals of our clients in multiple ways. As an advisor to our clients, providing access to strategic relationships is a value-add used to help clients navigate the complex business and political environment through strategic advice and consultation.