Unchained - The Legal and Regulatory Fallout From Terra's Collapse: Who Will Pay? - Ep. 363

Starting point is 00:00:00 Hi, everyone. Welcome to Unchained, your no-hype resource for all things Crypto. I'm your host, Laura Shin, author of The Cryptopians. I started covering crypto seven years ago, and as a senior editor at Forbes was the first main tree media reporter to cover cryptocurrency full-time. This is the June 14th, 2022 episode of Unchained. This episode of Unchained is brought to you by Beefy Finance, the multi-chain yield optimizer. Beefy is the easiest way to earn more from your crypto. Deposit funds into Beefy's secure vault to auto-compound yield across 12 blockchains. Got crypto? Choose Beefy. With the crypto.com app, you can buy, earn, and spend crypto in one place. Download and get $25 with the code Laura. Link in the description.

Starting point is 00:00:51 Today's topic is the legal and regulatory fallout of the Terra-USD collapse. Here to discuss our Ulta and Doni, Deputy Jones, General Counsel at Ava Labs, and Ari Redboard, head of legal and government affairs at TRM Labs. Welcome, Ulta and to Ari. Hey, thank you so much for having us. Super excited for this conversation. Same here. Thank you so much, Laura, for having us. Last month, the algorithmic stable coin, TaraUSD, and its sister coin, Luna, blew up, decimating about $50 billion worth of value overnight.

Starting point is 00:01:25 The co-founder, Doe Kwan, was known for a cocky attitude on Twitter, and often dismissed critics who warned about the potential for algorithmic stable coins to enter so-called death spirals, which forced the coins towards zero. Many retail investors lost a lot of money in the collapse. Terraform Labs' legal team all quit. Let's just start with each of you describing what it is that you think the main legal and regulatory fallout of the Terra collapse will be. Who would like to go first?

Starting point is 00:01:57 I can go first. And first of all, I have to give a quick disclaimer that the views that I'm going to express on this show are definitely mine and not those of Avalabs or Avalanche Foundation. And again, thank you so much for having me here. I think, Laura, this was one of those catalyst events that, and I think the death spiral was quite spectacular. As you mentioned, definitely this event has, in cited a lot of more strong reactions from the industry. But something interesting is that those reactions are coming from both from the cryptosceptics. And I think like right now we're sort of beating the trolls with this event and those voices are getting louder and louder. But I think we have also the lawmakers and regulators who are renewing those calls for having these new rules after the Tira event. I think that the Tira event did impact our industry because it did indeed put the investors and the markets more broadly at risk. But, I mean, something interesting that we still are seeing in the space is that you are having, we are having this sort of narrative from the catastrophes, as I would like to call them. And they're concentrating only on the worst case scenarios.

Starting point is 00:03:20 and they think that the technology is pretty much not suitable for this large-scale economic activity, etc. I think, of course, the instability that happened with Terra threatened the usefulness of stable coins, but at the same time, I do not think that everything so far is being gloom and doom. I mean, you still have projects that are building and still projects that are trying to deliver, I mean, on their platform, also referring here to our avalanche protocol. I think we're at the very early stages of this evolution in the space. I hope that this event is not going to put all stable coins in one bucket. We have seen a lot of more reaction.

Starting point is 00:04:04 We have seen some reaction from our U.S. Treasury Secretary Yellen, and she's been pushing for regulation. I think she mentioned this during her annual testimony in front of the U.S. at banking. You also have the Bank of England that proposed earlier this month, if I'm correct here with the date, that I think they should have the ability to intervene and to oversee the stable coin issuers in case, I mean, the regulators feel that stable coin could impact. I do think that this is one of those events that are going to trigger a lot of more regulation, but I hope that that is one of those regulations that is going to be very constructive for the space and for

Starting point is 00:04:48 the industry. And that remains to be seen. Yeah, I think those are all great points. And I'd add a couple things. First, I'd say, again, thank you for having me. And particularly with Alta, who is one of the legal minds in the space that I most admire. So I'm particularly honored, honored with that. Look, I think there's been tremendous. There's sort of been a tremendous effect sort of in the crypto space, both sort of the markets, obviously, which is the obvious effect. but then also sort of amongst regulators. And we can get to sort of each of those in a moment, Alta mentioned the UK that came out with a proposal to essentially provide administrators from the Bank of England to deal with the fallout of failed stable coin projects, really the first and only

Starting point is 00:05:27 sort of proposal of that kind in the space. We've seen, you know, this as part of the recent bill in Congress, which we'll talk, I'm sure, about in a moment. But I think one thing that's really important in terms of level setting is if this was a year ago or a year and a half ago, I think regulators would be scrambling globally to address this issue. But really, we've seen since 2019 a regulatory conversation about how to deal with this space. And actually, it's the only space I would submit within sort of the overall crypto ecosystem where there's a lot of agreement, agreements amongst regulators, even a lot of agreement agreement in the industry in terms of sort of what a backed stable coin project should essentially look like. But I would say,

Starting point is 00:06:08 you know, look, in 2019, I was at the U.S. Treasury Department when Libra launched. And I can tell you it was an absolute watershed because it was really the first time, I think, regulators realized that you're going to have potentially 200 billion Facebook users with access to a stable asset pegged to a basket of global currencies and supported by like the most important companies in the world. Okay. And that was the first, I, you know, that was the first time when regulators, regulators had talked a little about crypto. But that was the first time they started talking about stable coins. I got on a plane with the Undersecretary for Terrorism and Financial Intelligence.

Starting point is 00:06:45 At the Treasury Department, we flew to Switzerland to meet with FINMA. I think people oftentimes forget that it was Libra that was really the first time a regulator delved into stable coins because FINMA at that point had to evaluate the license request from Libra. I think that what we've seen build off of that over the last several years up into this sort of crescendo over the last few weeks, are regulators at least starting to think about this issue? And again, I know today we'll delve a lot more into this. But, you know, it's it's not like they have to scramble, right? You have the president's working group come out with a pretty significant paper several months ago, I guess late last year, and really kind of delve into this. We've seen it in the executive order where financial

Starting point is 00:07:28 regulators are responding to. So I think that like, you know, it's definitely a pretty extraordinary wake-up call for sort of the crypto community, but I think that sort of regulators had already been down the road enough where we may see some progress in the space over the course of the next several months. Okay, so I have to add a little bit more to ARI's point because I agree with you. Ari, sorry, I feel like I did not pronounce that correctly. I think that the questions that we are asking right now or the questions that we are addressing the space after the territory.

Starting point is 00:08:05 collapse are not the same. I mean, let's remember that Libra was not a successful project, right? I mean, pretty much Libra is just put on the side right now. I have no idea what's going to happen next. But even after this terror event, I think that we're concentrating not of the right questions. I mean, the question, how do we regulate stable coins and what we do as an industry after this USC lunar collapse, I think, in my opinion, they're completely distinct and super different from each other. I think that if we're referring to the USC and LUNAC collapse, probably we have to address, or majority of the questions should be how can we stop this sort of large-scale financial fraud that is happening in the space. But I think that

Starting point is 00:08:52 summarizing the two probably is not going to be fair for our industry. Right. I think his point was more just that if it hadn't been for Libra, then this might have really come out of left field for regulators, whereas because of the Libra history, they actually had some background in stable coins. But actually, this is the perfect segue to my next question, because I did want to ask, you know, even before we kind of get to this implosion of Terra, let's just kind of lay the groundwork for people so they have an understanding of what the attitude of U.S. regulators has been towards stablecoins up until, you know, before the collapse of Terra. What are the main ways they tend to seem to think they should be regulated? And in particular,

Starting point is 00:09:42 what have they indicated in terms of how they think algorithmic stable coins like UST should be regulated? You know, it's interesting. I'll kick it off in Ulta. I know I'm sure you have some thoughts on this. Look, I think that one thing that regulators have done for the most part, and it's actually just interesting, a quick aside, you know, you talk about Libra. Libra completely influenced the mica legislation that's currently moving through the European Union. I mean, if you look at that, legislation. It is a comprehensive framework, but it focuses almost exclusively on stable coins and how to regulate them. That is part of that sort of Libra hangover, you know, to be sure. And in mind, people, what does that legislation or proposed legislation say?

Starting point is 00:10:22 Yeah. So Micah is, again, it's proposed, is sort of working through the EU Parliament, but it really tries to take a stab at a comprehensive legal framework for cryptocurrency. most interestingly is what it advocates for is a passportable license. So in other words, you can get a licensed in France and it would be you would be able to use that license in Spain or across, you know, the entire European Union. So that's sort of the biggest piece, which hopefully takes some of the friction out of a crypto business, become being able to do business in Europe. But then again, it hits all of these other topics in terms of, you know, stable coins.

Starting point is 00:10:58 And actually, you know, the first thing we really have like this is the legislation that came out this week from Senators Lummis and Gillibrand in terms of a proposed, you know, larger sort of framework. And I'm sure we'll talk about that. But what's so different is we have legislation pending or out there in the world or bills proposed on stable coins or on ransomware or on anti-money laundering, or on securities or commodities or who's to regulate. But we really don't have sort of that comprehensive framework. This new legislation that's proposed in the Senate is that for us. Micah is essentially that for the European Union. No, I agree with Ari.

Starting point is 00:11:33 I think like the biggest question right now, and we have seen like many steps, even previously from the regulators, but I think that stable coins have not been so much in the crosshair of regulators, in my opinion. So right now, like the biggest questions, the biggest question is who are going to be these regulators? Like are the banking regulators who oversee stable coins

Starting point is 00:11:56 and can they oversee actually all stable points at the same time? like where do we concentrate? I mean, if I were to do like an analysis of the structure of stable coins and maybe the meant and redemption process is definitely needs a little bit more transparency from stable coins. And I mean, it would be interesting how the regulators are going to address this. The other issue that I have, I mean, with a kind of question of which one is the regulator. I think like for now, in my opinion, we have so many cooks in the kitchen. And I think having So many cooks in the kitchen probably is not going to be the best, especially when it comes regulating digital assets and stable coins.

Starting point is 00:12:39 So I think probably needs some more guidance from the Congress who is going to be that regulator that probably is going to be a little bit more forward in establishing and also sort of considering the stable coin frameworks and the protection of investors. All I want to say is I realized very quickly after I stopped talking is that I got sidetracked on Europe. And the question was, how are they dealing with sort of stable coins and algorithmic stable coins in particular? And I think one thing I have to say, and I get the sort of subject matter expertise coming out of the U.S. government. You know, however, they really are, I think essentially most regulation or proposed regulation out there today is treating all stable coins the same. And I think we all know that there are, you know, significant differences between stablecoins

Starting point is 00:13:27 themselves, whether you're talking about a U.S. dollar backed stable coin or another asset back stable coin or whether you're talking about an algorithmic stable coin that uses essentially software to keep the peg. Regulators have essentially talked about stable coins, you know, writ large. And I'd say probably the most significant example of that is the president's working group paper that came out the end of last year that I talked a little bit about and really what it says, and I think this has been consistent across regulators, is that stable coin issuers should be treated like banks. And what does that mean? It means they should hold enough reserve assets to support that stable, the stable coin itself. And that is, you know, if you sort of try to

Starting point is 00:14:09 break through all of the noise around this, I think at the end of the day, that's sort of the most important thing that regulators are talking about is we need to create a situation where a stable coin is actually stable because it is supported by the reserve asset that it is that is tied to. And there's all kinds of other things around stable coins, whether it's anti-money laundering, you know, whether it's consumer protection. But really at the heart of it is this idea that if you are buying a stable coin, you know that it's backed by the stable asset that is pegged to. So I think that's a great point. I just wanted to add that I think also for regulators, it's just so important to understand the differences.

Starting point is 00:14:50 this type of assets, right? You have to understand the risks. You have to understand the use cases. You have to understand how each of this one functions or probably does not function. I think that, again, definitely the regulation coming after Terra, Luna, event, we have to concentrate a little bit maybe even on other jurisdiction. Like you have Japan that they were sort of very proactive and very careful. And they do have a sort of narrow definition, as I would like to call, in regards to stable points.

Starting point is 00:15:25 But if those things are unlawfully in those jurisdictions, I think that that is going to be a problem and sort of short-sighted as well. So I think we maybe need to refer to what is out there, especially from the outside jurisdictions and how they're approaching this stable coin regulation. And I'm sure later on we're going to touch up on the new DFS guidance as well, and I have more glad to that. Yeah, let's first talk about the Lemmis Gillibrand bill, because that actually proposes exactly the model that you were both talking about saying that stable coins should have reserves. And I wondered if your interpretation of that bill was that effectively then the U.S. government, if this bill were to be adopted, that effectively then the U.S. government would ban. U.S. denominated algorithmic stable coins, or does that simply mean that they might still exist, but they would be regulated in a different way and maybe called a different name? What was your take on that? I'm happy to kind of kick it off. And my quick interpretation is that there's not yet a

Starting point is 00:16:31 take on that. And I think that sort of, you know, this is a really, this is really an important first step, this legislation. And I think one thing that's really important is it may frame the conversation, right? Like now these are going to be the issues that we're going to be talking about. We're constantly going to be referring back to RIFA over the next, you know, a few years as we sort of negotiate this. But I think it's a really interesting question. And I hate to sort of, you know, not have a great answer. But I will say this. Look. And just for people, you were referring to the bill, which is Responsible Financial Innovation Act. Absolutely. And so sorry. Yes. It would literally propose this week. So, I mean, this has got to be one of the sort of the earliest conversations

Starting point is 00:17:08 about sort of what's in there and what to expect. But I think it really is a jumping off point to a conversation. And ultimately, that conversation is going to be, well, is the U.S. government only going to approve stablecoin projects that are backed by the U.S. dollar? Or is it going, are there going to be other sort of pieces to all of this? And algorithmic stablecoins are an interesting issue. It's not necessarily that they're going to be banned, right? There aren't, there are potentially other possibilities. Like, they have to have U.S. dollars in, you know, in reserved to support that algorithm. Or will it be required to have, you know, Bitcoin or another asset to reserves? So is the question going to be like, are these only going to be U.S. dollar peg projects or are they,

Starting point is 00:17:47 are the reserves going to be okay? But I do think that no one is getting past this question of reserves. They're going to have to be reserves because I think there was enough lost here in the Terra situation. And I think that the systemic risks are too potentially great for governments just to sort of allow, you know, allow this to potentially happen. I would say just one sort of last caveat on this, if we're ever going to see some sort of FDIC style insurance for these types of projects or. for cryptocurrency exchanges, I think that's really where the importance of regulation kicks in. Because, you know, the one hand, you know, I don't think the government is ever going to agree to sort of back something that it doesn't have some pretty substantial regulation around,

Starting point is 00:18:24 particularly on this reserve issue. And actually, just a question when you were talking about their reserves. Are you saying that they would only accept certain types of reserves and they should be, you know, either literal dollars or dollar-like instruments, meaning that something, for instance, more like a crypto collateral-backed stable coin, even if it was over-collateralized, you think that that is just a separate conversation and it's not even addressed here? I think that this is, again, like this is a jumping off point to the conversation that we're having right now. And I think it could result in ultimately, you know, hey, maybe there are

Starting point is 00:18:59 other categories of stable coins that U.S. regulators would allow to essentially be regulated by them. And maybe that's what it is. Maybe those are examples. But I do think this is this initial you know, any U.S. dollar-backed project must have adequate reserves. I also think, remember, this is a U.S. bill. And, you know, ultimately, all that they can legislate around is what the U.S. has jurisdiction on. And I think this is a very clear comment that the U.S. clearly has jurisdiction on any stable coin project that is backed by U.S. dollars. And I think that's sort of a, that's an opening salvo into the conversation about what they can and cannot regulate. So I think that's a big part of it, right? The U.S. Treasury is going to be involved in any project,

Starting point is 00:19:40 that is backed and essentially supported by the U.S. dollar. So I think part of that, the reason that they focus on the U.S. dollar in particular is a jurisdictional issue as well, right? I don't know that Congress believes that they could necessarily legislate outside of, outside of the U.S. dollar. And I think that's where that's a jumping off point from Lemus and Jillabrand's perspective. Yeah, which makes it sound as if, for instance, something like Maker Dow with Die, which is crypto collateral backed.

Starting point is 00:20:11 And, well, no, but well, hmm, I was, because, of course, it's also backed by USTC. So actually, so for then for that scenario, would you say that then it would still fall outside U.S. regulation or what's your take on something like that? It's a great question. You know, look, I think there's a lot of jurisdictional hooks for U.S. regulators. And another would be, are you interacting with U.S. persons or U.S. entities? And so many of these projects are. So I think there's like, yes, the U.S. dollar is one hook for regulators or U.S. law enforcement ultimately to get involved. Another would be, are you touching U.S. persons or U.S. entities? So I think that probably that covers any most examples.

Starting point is 00:20:50 Now, if you don't touch U.S. persons or U.S. entities and you're not involved with the U.S. dollar, you're not doing correspondent banking of any kind, then, hey, you may live and breathe and move outside the U.S. financial system, in which case, you know, that would be something that would be difficult for U.S. regulators or ultimately law enforcement. enforcement if there's an investigation to get involved in. I mean, I agree with everything that Ari said, but I would like to add that, first of all, I'm very optimistic at least that we're seeing this bipartisan bill. I think that bill has a long way to go. I mean, there are a lot of definitions that we have to start working on. I mean, I love the sort of perspective in what they're predicting for stable coins, or I think definitely is going to move the needle.

Starting point is 00:21:36 as we like to say, for asset-backed stable coins as the legal standard along with also many other disclosure requirements. But I think that... And what was your take on the stable coin portion? Did you feel that effectively the bill, if it were adopted, would kind of ban algorithmic stable coins or simply? Definitely. I think that the... Yes, yes. And that's why, again, I wish that there is a little bit more experimentation in the space and but seems like this bill definitely is going to bend algorithm stable points and when we talk about algorithm stable coins I think that we have to consider that maybe there are other structures or maybe there are other designs about algorithm stable points

Starting point is 00:22:23 that we have to consider like whether or not the stable points can be backed by I don't know like not only Fiat or not, I mean, I think the understanding of Fiat's stable points is a little bit mixed right now. So that's why I feel that we are not on the same page, at least myself, with the latest bill from Gillibrand and Loomis. Yeah. And just just one thing real quick on that, you know, look, I think that I'm not entirely sure this bill addresses it at all. And I think that there will be conversations around that, to be sure. But I also think the technology is going to get better. And, you know, I think what is what is, what is missing? in some of this conversation because it is awful. And what happened in $50 billion in value,

Starting point is 00:23:04 right, is a real thing. But I think there is a winnowing out right now going on in the overall sort of crypto ecosystem where, you know, there are projects are failing. And I don't necessarily think it is a bad thing today. But is it overall, you know, as we go forward, this is what happened in the early days of the internet with projects. And I think we're seeing some of that fallout happen right now. But what I will say is I think that some of the technology, the idea of an algorithmic stablecoin, right, is part of the promise potentially of cryptocurrency itself. It is this idea where you don't need fiat currencies to back or support or to prop up the economy. You don't necessarily need intermediaries. I can't believe I'm the one on this,

Starting point is 00:23:43 on this podcast making this argument, Alta, but. No, I mean, I still believe my point is that at least give a chance to experimentation. And you could even commissioner, her peers, she mentioned this, I don't know, recently. Like, I do not think that we're giving a chance to algorithm stable points. Of course, this Terra Luna event happened, but as I said, maybe you have stable points, I mean, algorithm stable points that, I mean, you can pack them maybe to a physical commodity. Maybe you can pack them to central fiat, central bank fiat currency. My point is that at least we give a little bit more experimentation to the space.

Starting point is 00:24:25 just kind of putting everything under the Terra event and kind of banning algorithm stable points, I don't think that is going to be not only protecting innovation, but at the same time it's going to put a big stop due to how much potential stable points, even algorithm stable coins bring to the industry. So both of you, which it makes sense to me since you're both working in the industry, that you would still want to see that there's a possibility for innovation, for entrepreneurs to at least attempt to create an algorithmic stable coin that would work and not enter a death spiral. But is your sense so far that, you know, obviously this Terra collapse was enormous and the impact on retail investors was huge and we're going to probably see lawsuits and other regulatory enforcement

Starting point is 00:25:13 actions. But do you think that right now is the temperature that you're reading basically that this means the end of algorithmic stable coins and that regulators will not tolerate? this kind of experimentation anymore, or do you think that the kind of consequences will be limited to Terra and Terraform labs, but that they'll still allow this type of experimentation? It's a tough question. I will say, you know, like, you know, we're both in the industry. I am definitely in the industry today, but I was at the Department of Justice for 11 years and Treasury for two. So I, you know, I definitely am always thinking with sort of that regulatory

Starting point is 00:25:49 prosecutor hat. And I will say, look, I mean, I think there's serious concern. And if there wasn't concerned before this having played out exactly the type of systemic risk that was mentioned in the president's working group that Janet Yellen has talked about in every speech is not good in terms of sort of how regulators are going to look at this. But I will say that maybe there are places in which you can play around with the technology and get it right where you don't necessarily create the type of situation. I mean, one thing to Janet Yellen's credit, and Alta sort of mentioned this early on, is that she came out recently and said, you know, in response to Terra and said, look, this is not a systemic risk, this, you know, to the entire economy. And why?

Starting point is 00:26:27 Because this is not, you know, it's a relatively, this is a relatively small project. And I think that's probably true today of the entire stable coin ecosystem. But we will be at a place where that's not necessarily true. And if we're going to experiment, I think what, I think what reasonable regulators would say globally is that if we're going to experiment, we should do it in places where we're not creating significant risk to consumers or significant sort of risk to markets or systemic risks. And that's maybe sandboxes and other sorts of ways to do this. I think that the hope is that the technology will get where it needs to go because I think there's tremendous promise. But I think you're now and you talk about, you know, you open up the show by talking about sort of

Starting point is 00:27:06 what is the real hangover going to be. It's that regulators are going to be very, very skittish about algorithmic stable coins in particular in light of what happened here. I think that to put this a little bit on a better perspective, maybe, I think that reading New York DFS guidance recently, I think that that's a little bit more optimistic, even though they're addressing stable-point specific regulation and definitely they're more considering or going after regulations, especially when it comes to the alga-stables, I think that they're concentrating right now mostly on Tether. I mean, that to me shows that hopefully we're still have a chance or we're still going to have a chance about algorithm stable coins. So it seems that this guidance is mostly

Starting point is 00:27:54 concentrating on USB back stable coins like they might be fully backed by the asset reserve, etc. I mean, hopefully again, this guidance is not going to put all the stable coins in one bucket and for allowing some more experimentation in in in this space yeah old old is absolutely right when it comes to the new york dFS guidance which is really extraordinary and i will say before i say anything else about that guidance and that is absolute kudos to dFS for being as concise as they were and clear in explaining what they were trying to get across i mean laura you're a great writer uh you fewer words sometimes you know tell the story and they used very few words sometimes you know tell the story and they used very few words to really sort of make their point. They said this is exactly what you have to

Starting point is 00:28:42 have in terms of reserves. This is what redeemability should look like. You should have an assessation process. So I think really what we have now is a blueprint, a real playbook for what we're going to be seeing regulators globally look to and do. And to Alta's point, it's not quite as clear cut as it has to be a U.S. dollar reserve, right? There are other options within that guidance. And I think that it's probably a great jumping off point. You're going to see other regulators globally look to it, which is amazing for a U.S. state, you know, regulator to come out, which I think could be like some of the most important guidance that we see globally in the space. I did want to spell out for listeners. The New York State Department of Financial Services proposal is that stable coins

Starting point is 00:29:23 traded in New York should be fully backed by certain assets. Those assets should be segregated from the issuers operational funds, and there should be regular attestations by an auditor, which is, Ari sort of mentioned it, but I just wanted to smell it out. No, and I'm so sorry. I usually do such a better job of explaining it myself, so I'm so sorry. That was awesome, Laura. That's amazing. No, I agree with you.

Starting point is 00:29:49 I think that this is actually the very first guidance or almost complete guidance that I have seen about stable points in the space, because I think they address a lot in this guidance. They address the potential risks, including here of cybersecurity, including here information technology, network design and maintenance and related technology, and also from an operational standpoint. My point is that at least here in this guidance, we see a little bit of more a better approach about the bank secrecy act, money laundering, and the sanctions compliance that they're trying to concentrate in this guidance and also consumer protection.

Starting point is 00:30:32 I think it's a very good first step in the space, and hopefully, We're going to see more of this from other regulators as well. In a moment, we'll talk about what kinds of regulatory and legal action we'll see specifically against Terraform Labs in Doquan. But first, a quick word from the sponsors who make this show possible. Join over 10 million people using crypto.com, the easiest place to buy, earn, and spend over 150 cryptocurrencies. Spend your crypto anywhere using the crypto.com visa card. Get up to 8% cash back instantly, plus 100% rebates for your Netflix, Spotify, and Amazon Prime subscriptions. Download the crypto.com app now and get $25 with the code Laura.

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Starting point is 00:32:55 Conditions apply. Back to my conversation with Alta and Erie. On Thursday, Terraform Labs lost its appeal against the SEC, which means now that the SEC has jurisdiction over Terraform Labs. Listeners may recall that last fall, Doe Kwan was served subpoenas on his way to speak on a panel at Missouri's Mainnet conference. And at that time, I talked with a crypto lawyer who tends to be more skeptical of the

Starting point is 00:33:23 industry. And he actually said that he felt that SEC was in the wrong and that TerraFORN. Labs was right in saying that the SEC had not followed its own rules. So I was actually surprised by this ruling. And I was curious to hear your opinion about this ruling and also to hear, you know, even though these subpoenas were about the mirror protocol, which is synthetic assets that were on the, in the Terra ecosystem. Now that Terra has collapsed, what do you think the establishment of this jurisdiction means for any legal or regulatory action that has to do with Terra rather than mirror?

Starting point is 00:33:59 Sure, absolutely. Look, I think that you nailed it in terms of the question, Laura, and that is sort of what is the jurisdictional question now sort of mean for what was just announced in terms of an investigation into Terra and Doquan on this, on this, on the collapse of Terra essentially. And really what it means is that the U.S. has jurisdiction over the person and potentially over the project and over the project as well. one thing just sort of like, I guess beyond just the mirror investigation, now just yesterday, I believe it was reported that there is a current investigation on the collapse, which I think is potentially, you know, even more interesting. And but the issue is going to be a slightly different issue. It's not necessarily going to just be whether or not mirror was engaged in sort of unlicensed securities, but it's going to be about whether there was something.

Starting point is 00:34:56 sort of fraud involved, investor fraud, involved in Terra, and ultimately was that fraud, you know, are they liable for that fraud in terms of, in terms of an enforcement action? And I think that's, that's what we're currently going to see now. And that's going to be sort of the really interesting case. And when you talk about fraud, the way that it was phrased in the Bloomberg article was that the issue was around their marketing of Tara. So is that what you're... Correct. That's exactly. That's exactly. You know, yes, did they, And did they deceive investors, essentially, by making certain promises that turned out to be violations? That's going to be the interesting investigation from the SEC.

Starting point is 00:35:36 There's going to be plenty of other investigations and civil lawsuits. And we can talk more about sort of what the criminal liability potentially could be in a moment. But this, that is going to, to me, the interesting piece of the SEC is they're going to go after, you know, to O'Quon and potentially others involved in the project for this type of deceptive marketing, which obviously falls under the SEC jurisdiction as well. But can you actually flesh that out right now? Like what are the consequences for, like, I don't know what types of charges those would be or what types of sentences those would be. Sure, absolutely. Let's sort of pull these apart a little bit. So what essentially what you could have is you can have an SEC investigation, which could result in an enforcement action of some kind, which would be monetary, okay? You could then potentially also, on the other hand, have a criminal

Starting point is 00:36:21 case against Doe Kwan or other individuals or even the company itself. And, And it's been recently reported that South Korean authorities, in fact, have open an investigation of that kind. And the standard there is very different. The standard there would be, you know, can law enforcement authorities or law enforcement prosecutors prove beyond a reasonable doubt that he engaged in essentially, you know, deceitful conduct, willful fraudulent conduct that resulted in, you know, people, it resulted in some sort of episode here losing, you know, $50 billion. worth of people's funds. So in the criminal context, the consumers, the holders of Terra aren't the ones who are going to be made whole necessarily, although there could be certainly a fine involved in that. But the focus on there would be criminal liability. And right now it looks like there's a South Korean investigation, but just given sort of the global reach of Terra,

Starting point is 00:37:19 it's very possible that other law enforcement entities would potentially be involved. Then again, going back to the SEC, that's regulatory action, which would not result in a sentence or someone going to jail, but would rather result in fines, in potentially shutting down the project, even sort of what's left of it, or sort of this new iteration of it, or sort of other activity, always monetary. I've heard people say things like, oh, if that person just never sets foot again in the U.S., then they can avoid, you know, whatever legal or regulatory thing they're trying to avoid. Would that be the case here or is that not something that Doe Kwan could do? That's not the case here.

Starting point is 00:38:00 You know, like again, putting the SEC case aside a little bit sort of from a regulatory perspective, there was in fact a criminal case in the U.S. or even in South Korea or anywhere else. There's all kinds of mutual legal assistance treaties. There's extradition treaties where one jurisdiction would ultimately, could ultimately potentially, you know, make an arrest. Again, we're probably a long time from an investigation that would result in some sort of charge or indictment. But just the way that works, I was, you know, I did exactly this job.

Starting point is 00:38:27 I was a federal prosecutor for about 11 years. And we would indict people in other jurisdictions and potentially they would travel to the United States or they would travel to a friendly country that we had an extradition treaty with. The way you don't ever get your hands on somebody is if they are in a country where they don't, you know, respect U.S. jurisdiction like Russia or North Korea or Iran. But otherwise, you know, if this individual is in South Korea, I imagine then the South Korean authorities would prosecute him. But if he had a pending indictment in the U.S. and he traveled somewhere that there's a world in which U.S. law enforcement

Starting point is 00:39:02 to get their hands on him. But this is sort of more of a broader conversation around sort of federal criminal jurisdiction. And I agree with you, Ari, but that person, he was already in United States, don't you think that instead of a warrant at that time, probably a TRO probably would have been the best approach for Duquan? You mean when he was in the United States, when he was served with those papers? Yeah, unfortunately, I just don't know sort of what the SEC investigation actually looked like at that time. I don't think anybody does still. Obviously, it's sort of a pending investigation, so much harder to say.

Starting point is 00:39:34 But yeah, no, he served with papers. Obviously, it was just regulatory. There's no sort of criminal piece to it. So, you know, you're free to go home and continue the sort of legal process. I think, of course, this is going to be a very interesting investigation. I'm not very surprised by this investigation, of course. But at the same time, I think that the biggest question is that whether or not SEC versus CFTC has the rights of sort of jurisdiction. I still think that SEC has the right jurisdiction here because we're dealing whether or not Luna seems to be a security and in my opinion is a security.

Starting point is 00:40:11 But at the same time, since we already had jurisdiction under Duquan and considering the ties that he had with many, U.S. users as well and how much of his activity was concentrating on U.S. users, I think that probably would have been a better idea to proceed with, as I said, with the TRO at the same time as it was a warrant. But, I mean, of course, Ari has more expertise than myself when it comes to this sort of actions. But as I said, probably that would have been much more beneficial and also protecting investors as well at that time. Yeah, I think that. I read that essentially because they had staff here, including legal counsel in the U.S., that those were some of the reasons.

Starting point is 00:40:58 Yeah, the judge cited for why the U.S. would have jurisdiction here. Absolutely. If you're engaging with U.S. users, if you're engaging with U.S. entities, I mean, they have a clear presence in the United States. But look, I think what we're getting to is some of the challenges sort of in the cryptocurrency space generally in terms of regulation, right? no one regulator can solve any of this alone. I was speaking this morning with MAS from Singapore, who made the exact point that whatever we ultimately regulate and however our regulations are

Starting point is 00:41:27 written, they don't mean anything necessarily unless they are consistent with the U.S. and the U.K. and the EU, right, and others who are sort of regulating in the space. So that's the nature of crypto, sort of, right, this decentralized, permissionless, cross-border value transfer. You have to have consistent regulation across jurisdiction, or you're going to have jurisdictional arbitrage, which is essentially where actors, you know, good or bad, decide to do business any certain jurisdiction because there's less regulation there. And it's going to ultimately take, you know, I'm not naive enough to think that the world is going to come together and come put forward crypto regulation, right, or legislation or legal frameworks. But I do believe there has to be

Starting point is 00:42:08 some consistency. And we'll see how ultimately that plays out. But that is, you know, we are very early days there. I just want to say that I do expect like a private or more confidential settlement here. I mean, I'm not sure how far away from that we can go, but that's only my opinion. Do you think that, Ari, or is it like? I don't know. I've never, that, you know, the SEC is the one major regulator I have not worked for. But I mean, yeah, I will say that I don't know if that's necessarily consistent with sort of what we've been reading about in terms of them wanting. to go to trial with cases, wanting to sort of push them forward. But quite frankly, yeah, no, I wouldn't speculate sort of. I mean, if we're dealing only, especially if he has more like civil

Starting point is 00:42:53 lawsuits, I mean, probably we're going to see a lot of more civil lawsuits. And if we have more civil lawsuits, in my opinion, probably we're going to see like this private and confidential settlement. Well, you know, that's another important point. We're going to see a massive, we're going to see a massive number of civil suits. And we've started to see those already, which are, again, completely separate from what we've already talked about, which is criminal rape, criminal action, potentially civil action, I'm sorry, regulatory action, and then we'll see civil lawsuits from people who believe that there was gross negligence or even sort of beyond, right, some type of willful act that was fraudulent or deceitful that resulted in, you know,

Starting point is 00:43:30 people investing and losing their money. I think that we'll have a hard time to establish the willful act. Yeah. And actually, you know, speaking of civil lawsuits. Do you think that it's likely we'll see a class action lawsuit against Terraform Labs in the U.S.? I think it's highly likely. I mean, we've already seen a number of different lawsuits or sort of the threat of lawsuits, and we're likely to see an attempt.

Starting point is 00:43:56 My lawyer friends won't like this or my other lawyer friends won't like this, but, you know, whenever there's an opportunity for a class action, you're going to see lawyers involved. And this is a tremendous opportunity, right? And, you know, Alta sort of said that, like, maybe the evidence isn't there. but I can tell you, you know, like I did not spend a ton of time as a civil lawyer. I spent most of my careers as a criminal lawyer, but they will be digging through emails and there will be massive discovery and who knows what's in those documents. So I think it'll be sort of an interesting.

Starting point is 00:44:22 There'll just be, look, I mean, that's the legal process. There's going to be a ton of discovery. They're going to learn a lot more and ultimately see how it all plays out. But I do think that we are likely to see a lot of activity. I actually have a very specific question about that. Before we get to that, though, I do also want to. ask, there were a number of big investors and VCs who were extremely vocal in their support of UST. And on a recent episode of the chopping block, Tarun Chitra, co-founder of Gauntlet, so that he felt

Starting point is 00:44:53 investors should also be held accountable. What do you think of that? And if so, if you agree, then kind of under what regulation would, would that happen? I can't comment because we were one of those people. I don't have a strong comment either. are to say that it's, you know, I mean, it's difficult to hold those who are also victims potentially, you know, accountable. But no, I don't know that I have a good one for that. So I know you're both not trained lawyers in South Korean law, but I did want to also talk about reports that the sole metropolitan police are investigating allegations that Terraform Labs embezzled some of the bitcoins that were meant to defend UST's dollar peg.

Starting point is 00:45:40 If that turns out to be true, what could be the legal and regulatory consequences? And in general, how do you see Korean regulators responding to this whole terror debacle? Yeah, no, I look, as you sort of said at the outset, I am certainly not an expert on Korean law. When I was a prosecutor, I did have a number of cases where I work with the Korean National Police. But I will say this, what we're hearing, what that means is that if there's a pending criminal investigation, right? So put all the regulatory stuff aside, what you have there is Korean. law enforcement, Korean prosecutors are looking into sort of the criminal aspects of this. You know, and that requires in the U.S., in most jurisdictions, that requires sort of knowing,

Starting point is 00:46:19 willful, intentional conduct. And what we could potentially be looking at then is a combination of different things. One, you know, did the leadership of Tara, Doquan, and others, you know, were they intentionally deceitful or intentionally fraudulent in in statements that they made that resulted in the collapse? or insulted, at least in people investing and losing money. And then that second piece is, you know, the sort of embezzling piece, you know, look, was there wire fraud? Again, like this is as a U.S. prosecutor, you know, was there wire fraud?

Starting point is 00:46:52 Was there money laundering? Were there other sort of criminal acts involved in all of this, whether it's this alleged embezzlement of Bitcoins or whether it's just the, you know, the other aspects of the project itself? But those are the things you're going to be looking for. Did people make fraudulent claims? And if so, you know, in the U.S., you know, that's likely. wire fraud these days because you're using a cell phone, you're using a computer to do that.

Starting point is 00:47:14 And that involves interstate communication. And I imagine that those will be the same things that Korean prosecutors will be looking at here. So I agree with Ari. I think that the main cause of action or claims here definitely are going to be about fraud and embezzlement of money. And I think that for people who are on Twitter, I don't think that that is, of course, the only evidence out there. But it seems that even for the staff of Tara and the acts that they perform prior to the collapse of Terra, they might fall under this fraud claims and potentially embezzlement of money.

Starting point is 00:47:52 It would be interesting how the Korean government and how the Korean prosecutors are going to pursue this. But definitely I do expect a lot of more civil lawsuits there. and especially, I mean, based on that evidentiary sort of footing that they're going to consider. So one other thing that I really had to ask about was after the failure of UST, Doquan made a new proposal for reviving the chain without the stable coin. And very quickly thereafter, Terra 2.0 was launched with an air drop of 700 million Luna to Terra stakeholders. Could the air drop also land Terraform labs in hot water? with regulators?

Starting point is 00:48:33 I definitely think so. And actually the moment that I learned more about theirdrop 2.0, I think that definitely that would come into SEC kind of supervision. And I'm sure they're very much aware of what happened. So to me, this definitely was one of those efforts that came out of the project, right? So it was pretty centralized, again, from Tara. and the way how they did and performed or implemented that that air drop probably is going again to go under SEC jurisdiction. I mean, I'm not trying to be super negative here, but to me that did represent a lot of more regulatory issues.

Starting point is 00:49:19 I don't know that I had much to add to that. I think that was a good answer. there's been some movement toward or from regulators trying to kind of segregate the world of unhosted or self-hosted wallets from custodial wallets. There's things like the travel rule, which requires transacting entities to obtain personally identifying information with their transaction partners for transactions above a certain threshold. And in general, it sort of seems that regulators prefer to kind of impose a system where, intermediaries are maintained as part of the functioning of defy, whereas obviously many defy operators aspire at least to make it truly decentralized without intermediaries and really

Starting point is 00:50:06 make it a system of smart contracts. So what effect do you think this collapse of Tara will have on this kind of tussle we're seeing in terms of how regulators want to regulate defy and how the defy entrepreneurs would hope to be regulated? regulated. Yeah, no, I'll take a crack of that. I don't, I don't know if it's going to have a major effect. And don't get me wrong, I wouldn't want to sort of belittle the effect that this has had on regulators and on the market. But I think regulators have already started thinking. And again, this is earlier days. Like, this is earlier days than where we are on stable coins today about sort of how to regulate in the defy space. And you made a great point. Look, all of the

Starting point is 00:50:44 regulatory frameworks today revolve around intermediaries. You know, like you made the sort of travel rule money laundering, you know, example, right? All cryptocurrency businesses that touch U.S. persons or in the United States are regulated as money service businesses. They're required to have compliance programs. They have to have trained professionals. They have to have transaction monitoring like TRM and other types of tools to ensure that, you know, money laundering is not taking place. Defi is different, right? It might not have, you know, compliance officers and teams and all that. I think what regulators would say today, and not a lot have spoken to this yet, and I think it's interesting and it's a great question and we'll have another show, you know, down the road

Starting point is 00:51:23 because we're going to see, I think, in the defy space, what we've seen now in stable coins. And that is a bunch of regulators come out and start to sort of propose frameworks. The Abu Dhabi Global Market Center, ADGM, came out maybe a month ago with what I think is really significant guidance that maybe frame sort of the question. Fattif, the Financial Action Task Force, talked about this in its latest guidance. And what Fadavt said and what ADGM says sort of to some extent is that, look, just because you call yourself defy or decentralized doesn't mean you are. And if you are a defy project, right, that has a central hub that engages with users, that sets,

Starting point is 00:52:06 you know, that sets sort of controls that makes a profit, then you are probably a VASP or a virtual asset service provider or sort of and should be regulated as. such. But they also say, and I think this is consistent across regulators, that if you are really what you just described, Laura, you are a smart contract that is, you know, you have a software that is sent out to live and breathe on blockchains and do its thing, then I think that's sort of not a regulated entity. That's not going to be a regulated entity. But honestly, like, I think the reality is that most defy projects today are working to become decentralized. And I think regulators would say, well, then you're probably just like an exchange. But like, I think

Starting point is 00:52:49 this is, this is, it's a great point because this may just very well be the next frontier in terms of sort of how regulators are engaging in our space. I agree with Ari, but at the same time, I think that right now we are, and especially the regulators, are kind of grappling with this autonomous functioning code. And this is something that regulations, I think, think they are regulators they still have to catch up. I think that we still go back to the question of where to find this intermediary. And I think that this is the important one from a regulatory standpoint or perspective, but this question can be answered in many different ways as long as we consider the possibility that there can be some sort of situation where there is not going

Starting point is 00:53:41 to be an intermediary. And that's exactly what is really taking place in this peer-to-peer trading and technology that is, of course, facilitated mostly by autonomous functioning code. So I think that probably in this space, we do need a lot of more education, and we do need a lot, I mean, especially for the regulators. And just because some people are kind of scared, there is no reason to to regulate it sort of out of existence. After Terra 2.0 revived, some Terra Community Watchers discovered that there had been a $90 million exploit on Mirror Protocol several months ago. The Mirror Protocol team has not said anything about whether or not they knew about this exploit, but they had actually fixed it in recent months.

Starting point is 00:54:35 So it's not clear whether they fixed it because they knew that the money had been stolen or not. But let's say hypothetically that they had known and they had not disclosed it. Would that kind of situation, you know, developers not disclosing a major hack, would that kind of thing ever trigger regulatory action? Based on your sort of pure hypothetical. And again, I think I would want to caveat by saying I don't know ultimately sort of the facts of what happened there in terms of did people know, did they not know. But I think what a regulator typically does and certainly law enforcement does in this instance, is look at what sort of the evidence is. I think that if there was knowledge and a company essentially held back that knowledge and did not share it with investors, shareholders,

Starting point is 00:55:16 call them what you want, you know, intentionally in order to sort of have the project not lose value, that I certainly think that there's potential regulatory action. It's the tame type of potentially fraudulent activity that we spoke about earlier in that SEC context, this current investigation. So I think there's certainly that, there's certainly that possibility. You know, look, I think that we've seen, it's not just Terra here, we've seen a proliferation of hacks on cryptocurrency businesses over the last several months. And, you know, some of, it's, some have been days later that they, that they ultimately noticed it or allegedly ultimately noticed it. We look at the Ronan hack. It was four or five days after the hack that it was ultimately,

Starting point is 00:55:56 you know, reported. So I think that, you know, it's hard to say, but I think it would be a very fact-specific determination. But I would say, but I would say, say that like, you know, look, yeah, if they had knowledge that tens of millions of dollars was potentially lost of investor funds or shareholder funds or however you want to customer funds and did not share that because they did not want to see the value decrease or some other sort of business decision, I think that I think there's could potentially be that that would potentially be something investigated. No, I fully agree with Ari and especially I think, I mean, maybe I would like to be a little bit more straightforward there.

Starting point is 00:56:34 because I think that the knowledge was there. So for these developers to be, I mean, to have not only the knowledge of what was going on, but I think that the element of fraud and what they were trying to hide with the information that was knowledgeable to them prior to everyone else, I think there are many other claims that probably are going to have several repercussions, potentially.

Starting point is 00:56:59 Okay, but you're just guessing that they knew. I'm just guessing, yes. But I mean, considering everything that we've been reading so far, I assume that they did have knowledge. So at the moment, we're still hearing new reports every day of new legal and regulatory consequences. Like I fully expect there may be more between now when we're recording, which is Friday, June 10th and the day that this episode is published. So going forward, what are you going to be on the lookout for? What other shoes do you think will probably drop? Yeah, look, from my perspective, I think that this is, in fact, a watershed.

Starting point is 00:57:38 I think thankfully, and Janet Yellen's comments, it did not present a systemic risk because it was a relatively small event in the overall ecosystem. But I will say that I think we are going to see more and more attention from regulators. And I actually was thinking this before the Terra collapse. So I think it's more true today, though. And that is the one area of all of this that I think probably the industry, governments, regulators agree on. on is sort of some regulation around stable coins, treating them as banks requiring reserves, those sort of things. So I think if we're going to see any action, and I don't know that we'll see any action

Starting point is 00:58:16 in the U.S. Congress over the next few months, but I would say if we're going to see action on anything, it is very possible that it's stable coins. And I do think that this event pushed that forward. Again, I don't think we saw the scrambling that we would have seen a year ago, a year and a half ago from regulators based on sort of all that had already been done. But I do think that if we're going to see legislative action on anything over the next couple of years, quite frankly, in the crypto space, it is going to be stable coins. And this event will have had an impact on that. I think we'll look back on when you write your book, Laura, on sort of the regulatory history, the history of crypto regulation, right? I do think that things like Libra, but then an event like Terra will have had a significant impact on sort of the way regulators are thinking about sort of the space. In regards to this event, stable coins, they still represent a vital innovation, in my opinion. So hopefully this is not going to be those events, as I previously mentioned, that it's going to stop experimentation.

Starting point is 00:59:17 Because at the same time, it's terrible to see this sort of fallout that truly affected so many people. But I think in this space, we should continue building systems. We should continue focusing more on not only being, having building reliable projects, but also for them to scale as projects. I do not think that we are at this point right now that we do not want for this capital markets or for the trading of this assets to move offshore because we have already seen the aftermath of many so other projects moving offshore. So again, I think that we have to give a.

Starting point is 00:59:58 chance to stable coins and even algorithm stable coins we want for all the developers I think for all the engineers for all this innovators in the space to keep doing and building and and certainly give i mean hopefully we're going to have a little bit more clarity as we always say from the regulators and from our legislators and and probably we're going to have a little bit more growth in the space i mean we're we are in a bare market. I completely understand the sentiment that is out there right now. But look that we are still here. I mean, Ari and myself and many other attorneys, we still are here.

Starting point is 01:00:39 We're still working with projects. And as I said, there are so many amazing projects out there continue growing and building the space. So hopefully this data event is not going to impact the whole industry. All right. Well, we will have to see what happens. where can people learn more about each of you and your work? So I am on LinkedIn. I am on Twitter and I would love for people to learn more about Avalanche and Avalabs.

Starting point is 01:01:07 I mean, we are the fastest blockchain network out there. Definitely there is a lot of building on our blockchain. And I would love to have more people to reach out. We do have a lot of more use cases that we have implemented with Avalanche, especially disaster recovery payments. and insurance performance, et cetera. But if people like to learn more about my company, please feel free to reach out to me on Twitter and LinkedIn.

Starting point is 01:01:35 Terrific, yes. And we love what Alta is doing. And yeah, no, I'm at TRM Labs. Check out TRM Labs.com. We have a terrific blog that I write a lot for. I also host a at least once a month webcast called TRM Talks, where I sit down with policymakers in the cryptocurrency space to start to talk about these types of issues.

Starting point is 01:01:55 and yeah, prolific on LinkedIn and follow me on Twitter as well. Perfect. Well, it's been such a pleasure having you both on Unchained. It was an honor. Thank you so much. It was an honor. Thank you. Thanks so much for joining us today to learn more about Alta, Erie, and the legal and

Starting point is 01:02:13 regulatory consequences of terrorist collapse. Check out the show notes for this episode. Synthetics founder Kane Warwick is launching his next mentor program and I'm excited to select one of the projects from my community. If you're a female founder working on L. two's who'd love to be supported by a defy pioneer, send an email to hello at unchained podcast.com with the subject line, Kane mentorship. Mentees will get one-on-one time with Kane plus group sessions to talk you through topics like capital raising, token design, and more. Unchained is produced

Starting point is 01:02:42 by me, Laura Shin, without from Anthony Youen, Matt Pilchard, Mark Murdoch, Pam Majumdar, Shishonk, and SailK transcription. Thanks for listening.

Unchained - The Legal and Regulatory Fallout From Terra's Collapse: Who Will Pay? - Ep. 363

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