USA – NEW YORK Trends and Developments Contributed by: Dario de Martino and Susan Gault-Brown, A&O Shearman
ily under state regimes deemed “substantially simi- lar” to the federal standard. In April 2026, Treasury issued a Notice of Proposed Rulemaking setting out the broad-based principles for making those substan- tially similar determinations. New York’s regime is the obvious benchmark. The SEC-CFTC joint interpretation of 17 March 2026 (Release 33-11412) laid down a five-part taxonomy – digital commodities, digital collectibles, digital tools, stablecoins and digital securities – and applied the Howey analysis to transactions rather than to assets in the abstract. The practical effect appears to be a meaningful narrowing of the circumstances in which many non-security digital assets are treated as securi- ties, and the backbone of what Chairman Atkins has branded “Project Crypto”. The CLARITY Act, having passed the House in July 2025 and cleared the Sen- ate Banking Committee on 14 May 2026, awaits floor action. Taken together, this is a sharp adjustment of the SEC’s enforcement perimeter and a rebalancing of regulatory weight towards the states for everything outside the digital-security bucket. This is not the fed- eral pre-emption many feared; the BitLicense is not simply a state regime, but has become, in effect, part of the federal stablecoin compliance stack. The UCC Catches Up On 5 December 2025, New York enacted the 2022 UCC amendments, including a new Article 12 gov- erning Controllable Electronic Records (CERs) and conforming changes to Article 9. The amendments took effect on 3 June 2026 and supply long-missing plumbing for tokenised finance – workable rules for ownership, transfer, control, perfection and priority – that commentators expect will reach cryptocur- rencies, NFTs, tokenised electronic notes and similar digital instruments. Paired with the BitLicense and the GENIUS Act, New York now offers the most complete operating environment for a regulated digital-asset business in the United States. Strategic Implications and the Competitive Landscape These developments reshape product strategy. A firm with well-developed coin-evaluation processes moves faster than competitors still drafting theirs. Strong gov- ernance around crypto attracts institutional investors
who value strong oversight. Documentation, as bur- densome as it seems, builds institutional memory, ena - bles pattern recognition across decisions, and provides crucial evidence if those decisions are later questioned. Convergence is the story of 2026. The EU’s MiCA framework completes its transitional period on 1 July 2026, after which any crypto-asset service provider providing crypto-asset services to clients in the EU/ EEA without a MiCA authorisation is in breach of EU law. The UK’s final rules are expected this year. Sin- gapore, Japan and Hong Kong continue to tighten. Firms that mastered New York’s requirements are developing the capabilities that have become table stakes globally. The BitLicense that once seemed like regulatory overreach now looks like early preparation For most of the past decade, the issue hanging over crypto was whether federal action would eventually arrive and what would happen to state regimes when it did. The answer now lies in front of us, and it is not a displacement of state authority – it is a promotion of it. The GENIUS Act’s “substantially similar” state pathway, the narrower securities perimeter of the SEC-CFTC interpretation, the UCC’s belated catch- up: all push more regulatory weight, not less, onto the NYDFS. for inevitable industry maturation. Embracing Regulatory Leadership New York’s evolving framework presents the same essential choice it always has. View it as an obsta- cle to overcome, or as an opportunity to build better businesses. Those choosing the latter path continue to find that robust compliance infrastructure builds trust with customers, attracts institutional capital, and creates resilient organisations capable of weathering crypto’s inevitable storms. The message from the NYDFS is ultimately optimistic: cryptocurrency can become a mature, trusted part of the financial system, but only if industry participants accept the responsibilities that come with handling other people’s money. For legal leaders willing to accept that challenge, New York offers not just a mar- ket to serve but a model establishing lasting crypto businesses – one that has aged considerably better than its earliest critics ever imagined.
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