Navigating Custody and Other Regulatory Issues Associated With Digital Assets

Various investors now consider virtual currencies and other digital assets to be a unique asset class. Fund managers seeking exposure to digital assets face a host of potentially thorny regulatory issues, one of the greatest being compliance with the custody rule under the Investment Advisers Act of 1940. A panel at Sidley Austin’s Private Funds 2022 event took a close look at the legal and practical issues associated with custody of digital assets. The panelists also addressed other important regulatory issues concerning digital assets, including the regulatory consequences of characterization of a digital asset as a security, a commodity or money; sanctions regimes; market making; and lending laws. The program featured Sidley partners Jay G. Baris, Lilya Tessler and David E. Teitelbaum, as well as Rachel Anderika, chief risk officer at Anchorage Digital Bank. This article distills their insights. Digital assets are clearly on the SEC’s radar. See “Private Funds Top the SEC’s 2022 Exam Priorities” (Jun. 9, 2022); “SEC Regional Heads Discuss SEC Structure and Priorities” (Sep. 23, 2021); and “Digital Assets Remain Top of Mind for SEC Division of Examinations” (Apr. 8, 2021).

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