The NYDFS proposal is a bold and positive step. As a starting matter, the New York regulators are proposing to recognize that there are a number of virtual currencies (not just Bitcoin and Ether) that are in fact currencies, and not securities. While the fact that the NYDFS treats these coins as not being securities is not binding on the SEC, nor on other regulators. As a practical matter, though, the NYDFS determination would have considerable weight.

The proposal to allow private…

The New York State Supreme Court found that the NY AG's case was unsupported. Among other findings, the Court said that the NY AG did not produce any investor who could claim that he or she was misled. Unsupported claims against companies that do business in, and create jobs in New York State, waste the resources of the Office, detract from the ability to go after persons who actually violate the law, and discourage businesses from operating within the state.

Chair Tarbert provides a helpful discussion of two different regulatory approaches. Mr. Tarbert's conceptual framework is useful in explaining why one approach or the other may be preferable in a particular situation.

One "advantage" or "disadvantage," depending on one's perspective, of the principles-based approach is that it may give regulators very wide latitude to determine that specific conduct was impermissible. This broad latitude is particularly problematic where the…

That seems a big fine for an inadvertent technology violation that did not benefit the firm.