USA Law and Practice Contributed by: Gregory Strong, Sarah W. Chen, Brian Farber and Amil Sumaiya Malik, Cahill Gordon & Reindel LLP
transaction or scheme does not fall plainly within one of the other enumerated types of securities in the defi- nitions of the term “security”, it may still be treated as a security if it is deemed to constitute an investment contract. The test for whether a particular scheme is an invest- ment contract was established in the Supreme Court’s Howey decision. The test looks to “whether the scheme involves an investment of money in a com- mon enterprise with profits to come solely from the efforts of others”. Whether a particular transaction involves an investment contract is facts and circum- stances dependent, grounded in the economic reali- ties of the transaction. The SEC has provided recent guidance on disclosure obligations in crypto-asset markets. In a 10 April 2025 statement, the Division of Corporation Finance out- lined how existing registration and disclosure require- ments under the Securities Act and Exchange Act apply to offerings involving crypto-assets and related businesses. The guidance emphasises that issuers must provide tailored, material disclosures regarding their business, the role of any associated network or application, and the rights and characteristics of any token or crypto-asset. It also highlights the need for clear risk factor disclosure addressing technological, operational and regulatory risks, reflecting the SEC’s continued application of traditional disclosure princi- ples to digital asset markets. Most recently, on 17 March 2026, the SEC and CFTC issued a joint interpretation creating a “token taxono- my” that aims to draw clear lines between the SEC’s and CFTC’s jurisdiction over crypto-assets. Though the guidance leaves questions unanswered, it does confirm the position that most crypto-assets are not themselves securities (though they may still be mar- keted or sold as part of an investment contract). The Commodity Futures Trading Commission (CFTC) The CFTC has broad regulatory authority over deriva- tive markets for commodities, and general anti-fraud and anti-manipulation authority over the spot mar- kets for commodities pursuant to the Commodity Exchange Act (CEA). Derivatives transactions subject
to CFTC jurisdiction include futures, options, swaps and leveraged retail commodities transactions under the CEA. In recent years, the CFTC has asserted – and courts have affirmed – that certain digital assets qualify as “commodities” under the CEA. The agency has explicitly stated that bitcoin and ether are com- modities subject to its jurisdiction, a conclusion that is widely accepted. In 2025, the CFTC signalled a shift in its regulatory approach to digital asset derivatives towards inte- grating these products into its existing regulatory framework, rather than treating them as a distinct or heightened risk category. On 27–28 March 2025, the CFTC rescinded Advisories 18-14 and 23-07, which had imposed heightened expectations for virtual cur- rency derivative listings and clearing reviews, citing increased market maturity and a desire to treat digital asset products consistently with others. On 21 April 2025, CFTC staff issued a request for infor- mation (RFI) seeking public comment on the poten- tial uses, benefits and risks associated with perpetual futures contracts – derivatives that track the price of an underlying asset without an expiry date, which are widely used in crypto markets but raise novel ques- tions regarding leverage, liquidity and risk transmis- sion. The CFTC has also sought input on broader market developments, including the implications of near-continuous (24/7) trading. Most recently, on 11 March 2026, the CFTC and SEC entered into an MOU, as referenced in 1.1.1 Evolution of Uses of Blockchain , to enhance co-ordination and information sharing in overseeing digital asset mar- kets, reflecting ongoing efforts to address jurisdic- tional overlap and promote a more unified regulatory approach. The Treasury Department and the Financial Crimes Enforcement Network (FinCEN) FinCEN is the arm of the US Treasury Department that is responsible, in the first instance, for enforcing the US federal laws and regulations relating to crimes involv- ing the transmission of money, frequently working in conjunction with other federal agencies and bureaus, including the Federal Bureau of Investigation and the National Security Agency. This includes enforcing the
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