The Innovation Cycle of the Blockchain – Kevin Kim

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In 2017, initial coin offerings (“ICO”) became very popular because it created a direct method of fundraising for an idea without a completed product. An idea was all that anyone needed to start a coin offering campaign and find the means to fund a start-up using blockchain technology. Many people successfully launched ICOs which resulted in over $6 billion in funding in 2017.[1] This positive trajectory carried forward into 2018 with approximately $6.2 billion funded from ICOs in the first half of 2018.[2] As the regulatory landscape shifted globally to classifying these tokens as securities, ICOs lost its momentum with only $1.6 billion in funding in the latter half of the year.[3]

Different from a traditional initial public offering of stocks, token sales in an ICO usually do not offer any equity stake in the company.[4] Instead, the tokens are purportedly sold to access the service the company is launching.[5] Therefore, the tokens that are “distributed” through an ICO are more like a fee for a service. However, there are many times that the company that is promising a service does not actually have a viable product at the time of sale, and the token itself is usually not even developed. Because of securities regulations, companies have used the SAFT, Simple Agreement for Future Tokens, to avoid the token from being considered a security.[6]

The SAFT framework created two tokens.[7] First, because the issuer is in development stage, it would issue a token for the company for the purposes of raising money — this would be unambiguously a security and the issuer would either have to register it with the SEC or sell it pursuant to an exemption — presumably Rule 506.[8] When the company’s product is functional, it would issue a second utility token that would be a right to consumption and replace the first token that the buyer purchased.[9] The SAFT token sale framework was initially thought of to make the tokens compliant with securities regulations.[10] The SAFT itself was a security, but the resulting tokens were not supposed to be deemed securities because the tokens were functional by the time they were distributed to the public. Through a SAFT, the company was able to market a certain idea, and receive the funding to develop the product it had been marketing. After using the funds to develop the idea, the company would distribute the tokens.

This SAFT-sale method was widely used during the last year, but quickly drew regulatory attention.[11] Many of the ICOs that were performed using SAFTs misappropriated their funds and turned out to be fraudulent. To counteract this loophole, the SEC said that “if a SAFT investor automatically receives tokens in the future when and if the tokens are registered, without any other investor involvement, then the tokens need to be registered as of the date the SAFT is sold.” It also became clear that the SAFT did not prevent a token from being deemed a security. Consequently, the SAFT sales became much less useful.

Although the Bitcoin and the blockchain technology were created to reduce reliance on traditional financial institutions, the most lucrative uses for cryptocurrencies and blockchain’s distributed ledger technology might be by financial institutions. A report by Accenture and McLagan stated, “blockchain technology could reduce infrastructure costs for eight of the world’s 10 largest investment banks by an average of 30 percent, translating to $8 to $12 billion in annual cost savings.”[12] Further, institutions have been showing growing interest in creating vehicles for their clients to invest in bitcoin and other cryptocurrencies.

In 2013, Grayscale, a digital currency investing firm, created a Bitcoin Investment Trust “(GBTC”) to enable investors to gain exposure to the bitcoin market through a traditional investment vehicle.[13] However, Grayscale Bitcoin Investment Trust is offered as a private placement and as of May 8, 2019, the private placement is currently closed.[14] However, freely tradeable shares are publicly available under ticker “GBTC” through various brokerage firms.[15] GBTC functions similarly to gold ETFs.[16] Where the management fee among the largest gold ETFs typically range from .17 percent to 1.35 percent. GBTC has an annual management fee of two percent and typically trades at a premium compared to the actual price of bitcoin.[17] Despite the price premium and relatively high management fee compared to gold ETFs people invest in GBTC because it provides: (1) Title, auditable ownership through a traditional investment vehicle, (2) eligibility for tax-advantaged accounts such as IRA, Roth IRA, and other brokerage and investor accounts, (3) public quotes on the OTCQX, (4) Support by a network of trusted service providers with Davis Polk & Wardwell LLP serving as legal counsel to the Sponsor of GBTC and financial statements audited by Friedman LLP, and (5) robust security and storage.[18]

There are also two different bitcoin derivative products that are listed on the Chicago Mercantile Exchange (“CME”) and the Chicago Board Options Exchange (“CBOE”). There are differences between the bitcoin futures contracts on each exchange. The CME contracts are based on the Bitcoin Reference Rate index, an aggregate of trading activity across four bitcoin exchanges between 3pm and 4pm GMT.[19] Whereas the CBOE prices only look to one exchange at 4pm on the final settlement date.[20] Each CME contract also consists of five bitcoins while the CBOE contract only has one bitcoin.[21] Additionally, the price limits and tick sizes vary for the contracts on each of the exchanges with CME contracts triggering at 7%, 13% and 20% and tick value at $5, and CBOE contracts triggering at 10% (for two minutes) and 20% (for five minutes) of daily price limits and a $10 minimum tick.[22] Lastly, the margin rates are 35 percent for the CME contracts and 40 percent for the CBOE contracts.[23]

When CBOE introduced bitcoin futures in December 2017, the price of one bitcoin was at nearly $17,000.[24] CME launched its bitcoin futures a week later when the bitcoin price was at its peak of $20,000.[25] However, the price of bitcoin has gone down significantly since it hit its peak and CBOE announced that “it does not currently intend to list additional XBT futures contracts for trading.”[26] CBOE’s bitcoin futures trading volumes were much lower than that of the CME. On the last trading day before CBOE’s announcement, CME had close to $90 million of bitcoin future trades, whereas, the CBOE only recorded about $8 million worth of futures contracts.[27]

The Intercontinental Exchange Inc. (“ICE”), NASDAQ’s parent company has formed a new company called Bakkt to make cryptocurrency more accessible to both institutions and consumers.[28] The company is working with[29] Microsoft, Starbucks[30] and Boston Consulting Group to enable consumers to trade, store and spend cryptocurrencies.[31] Bakkt is expected to include federally regulated markets and warehousing along with merchant and consumer applications.[32] Through these measures, Bakkt wants to boost institutional, merchant and consumer participation in digital assets.

Bakkt initially wanted to create bitcoin futures that payed out in bitcoin for physical delivery rather than cash-settled bitcoin futures contracts that the CME currently uses. Bakkt wanted to create a cash settled future because it maintains price integrity, reducing the risk of one party, manipulating the price.[33] However, this has led to regulatory issues which have delayed Bakkt’s bitcoin futures contracts. Initially targeted for November 2018, Bakkt Bitcoin futures with physical delivery have been delayed for the past few months.[34] Most recently, Bakkt has said in a blog post that it has filed with the New York Department of Financial Services for approval to become a trust company.[35]

ErisX is another company that is trying to accomplish the same thing as Bakkt. ErisX plans to trade cryptocurrencies and related derivatives.[36] Similar to Bakkt, ErisX is backed by many investors[37] including DRW Venture Capital, Valor Equity Partners, and TD Ameritrade.[38] ErisX also has similar goals as Bakkt, seeking to launch physically delivered futures. However, ErisX also wants to allow investors to trade Ether, Bitcoin Cash, and Litecoin, three other cryptocurrencies that Bakkt has yet to release any plans to support.[39] ErisX also wants to use its own clearinghouse that is also still pending approval from the CFTC.[40]

Because both Bakkt and ErisX involve physically delivered bitcoin futures contracts, the regulations are different from those that regulate the CME and CBOE’s cash-settled futures contracts. ICE and the CFTC have been working to determine how Bakkt should be regulated.[41] Since Bakkt is trying to create a daily, physically deliverable contract, an investor would be able to settle gains or losses by accepting bitcoins or delivering them to Bakkt’s warehouse.”[42] However, there is an issue of not having a qualified custodian hold the customers’ funds.

The Investment Advisers Act of 1940(d)(6) states that a qualified custodian means:

(i) A bank as defined in section 202(a)(2) of the Advisers Act or a savings association as defined in section 3(b)(1) of the Federal Deposit Insurance Act that has deposits insured by the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act;

(ii) A broker-dealer registered under section 15(b)(1) of the Securities Exchange Act of 1934, holding the client assets in customer accounts;

(iii) A futures commission merchant registered under section 4f(a) of the Commodity Exchange Act, holding the client assets in customer accounts, but only with respect to clients’ funds and security futures, or other securities incidental to transactions in contracts for the purchase or sale of a commodity for future delivery and options thereon; and

(iv) A foreign financial institution that customarily holds financial assets for its customers, provided that the foreign financial institution keeps the advisory clients’ assets in customer accounts segregated from its proprietary assets.[43]

Although ICE would appear to be considered “a futures commission merchant,” the rules do not apply because the SEC does not list bitcoin to be one of the assets that a futures commission merchant can maintain custody for its customers.[44]

There have been other companies that have received regulatory approval as trust companies for custodianship of bitcoin, but it was big news in the cryptocurrency industry when Fidelity Investments announced that it is launching a crypto trading and storage platform under Fidelity Digital Asset Services, LLC.[45] In October 2018, Fidelity announced that it is planning to provide crypto custody and trading services for enterprise clients, and has become the first globally-recognized traditional financial institution to provide custody for cryptocurrencies.[46] Fidelity’s Bitcoin custody service has begun testing with a select set of eligible clients.[47]

Prior to Fidelity’s announcements, BitGo, Itbit, Coinbase and Gemini Trust Company have been working as trust companies licensed by the New York State Department of Financial Services to qualify as a custodian. These companies are all cryptocurrency exchanges that received approval to operate as a trust company. However, Kingdom Trust was a traditional qualified custodian that began to custody digital assets. Kingdom Trust was a qualified custodian regulated by the South Dakota Division of Banking with about 100,000 clients and handled approximately $13 billion in assets.[48] Kingdom Trust began to custody digital assets after meeting with the founder of BitGo. The two companies went so far as to try to merge, but the merger fell through during the final negotiations.[49]

In May 2018, Nomura Holding Inc. formed a custody consortium with Ledger and Global Advisors under the name Komainu.[50] Further, Bank of New York Mellon Corp. and Northern Trust Corp. are said to be working on or at least exploring crypto-custody services, but none have officially announced any crypto-custody solutions to date.[51]

Despite not launching its own cryptocurrency custody solution, Square, a mobile payment and point of sale company has opened a cryptocurrency exchange.[52] This launch started with a limited number of users and is now available in all 50 states after Square received its Bitlicense from the New York Department of Financial Services.[53][54]

Commission-free trading platform Robinhood also launched a crypto trading platform for its users.[55] Robinhood currently has over four million users and over $100 billion in transaction volume on its brokerage platform.[56] Because the regulations for cryptocurrency exchanges vary by state, Robinhood started its platform for customers residing in California, Massachusetts, Missouri, Montana, and New Hampshire.[57] On January 24, 2019, Robinhood obtained its New York Bitlicense allowing it to operate its cryptocurrency trading platform in New York and is scheduled to launch in the near future.[58] As of May 9, 2019, Robinhood Crypto is available in 37 states and Washington D.C.[59]

Banks have also found other applications of the blockchain technology other than creating cryptocurrency trading platforms. In 2018, American Express and Santander Bank have teamed up with Ripple for cross border payments using blockchain.[60] For more than 40 years, the majority of B2B cross-border payments handled by banks used to be processed using SWIFT.[61] More than 11,000 financial institutions in over 200 countries and territories use SWIFT.[62] However, because this technology is so old, it was slow, often taking a few days to complete.[63] Additionally, it was hard to track the progress and determine whether the money has been received.[64] It often required manual intervention by banks and the costs were relatively high and hard to predict because banks along the payment chain often made “arbitrary and often material deductions.”[65] This forced American Express and Santander to look for alternate methods and they partnered with Ripple because the transactions were faster, settling in seconds.[66] Furthermore, the blockchain enabled all parties involved to keep track of a transaction’s status and costs.[67] Although scalability of the platform is still questionable, Ripple has been able to disrupt the payments industry by setting new standards in payments.

In 2017, SWIFT GPI launched to update its money transfer service.[68] The goal of this product is to eliminate inherent faults in correspondent banking and the inefficiencies in the traditional SWIFT system.[69] SWIFT GPI is currently used by 165 member banks. SWIFT GPI enables a tracker to provide visibility of receipts and inwards, increasing transparency in the transactions from the older SWIFT system, but even this new standard relies on old infrastructure and is not as transparent as Ripple’s Ripplenet.[70] Furthermore, SWIFT GPI enables payments that are much faster than the old system, promising payments within 30 minutes or within a 24-hour time frame.[71]

J.P. Morgan launched its own JPM coin to enable instantaneous transfer of payments between institutional accounts.[72] J.P. Morgan has been working on its own blockchain for over two years and JPM coin was the first solution they launched since J.P. Morgan announced its blockchain project, Quorum.[73] Although the product is still in its prototype stage, this type of product provides investors trust because J.P. Morgan Chase is a nationally chartered bank and is mandated to comply with banking laws and regulation. Therefore, the company would be working with regulators to ensure that its blockchain product would be in compliance and have any necessary approvals.[74] However, there is still limited information about J.P. Morgan’s complete plan for its JPM coin.

Shortly after the news of J.P. Morgan’s new blockchain implementation, news spread that Facebook was recruiting financial firms and online merchants to help launch a cryptocurrency-based payments system.[75] Although Facebook is not a traditional financial institution, Facebook is a multi-billion dollar company that is trying to use its massive userbase to gain a footing in electronic commerce. One-third of the world’s people log on to Facebook at least once a month, and more than 1.5 billion daily users and this is a great advantage in trying to create consumer adoption of cryptocurrencies, which have typically failed to attract mainstream adoption.[76] Facebook has been working on a digital coin that its users could send to each other and use for purchasing on not just Facebook, but across the internet.[77] Facebook stated that it “is exploring many different applications” of this payment system.[78] It is believed that the coin would be a variation of a stable coin to prevent volatile price swings.[79] Additionally, Facebook is also looking into rewarding users with fractions of a coin when they view ads, interact with other content or shop on its platform.[80] Nevertheless, it is difficult to determine which features this coin would actually implement and which it would not because Facebook is still considering various options.

Although most of the traditional financial institutions are trading cryptos for their clients, there are a few investment companies that have been more active in its crypto-investment initiative. Pantera capital was the first United States bitcoin investment firm and hedge fund and started investing in 2013.[81] In July 2018, Pantera Capital revealed that its Bitcoin Fund had generated returns (net of fees and expenses) of 10,136.15 percent and currently has an AUM of over $700 million over two venture funds and four crypto funds.[82]

In early 2018, Mike Novogratz, former Chief Information Officer of Fortress Investment Group, opened Galaxy Digital, a merchant bank to trade and manage cryptocurrency assets, as well as consult blockchain startups.[83] Galaxy Digital is now a public traded company on the Toronto TSX Venture Exchange, and is currently the only crypto-focused company to be traded on the stock market. However, people in the United States are not able to invest in the company because it does not have a U.S. listing. Galaxy Digital partnered with Bloomberg to operate the Bloomberg Galaxy Crypto Index (“BGCI”)[84], which measures the performance of the largest cryptocurrencies traded in the U.S. Dollar.[85]

Proprietary trading firms have also began trading cryptocurrencies and its derivatives. A few of the companies that trade cryptocurrencies more aggressively are Derivee Capital, which created a crypto trading company under the name XBTO Group, and DRW, which operates Cumberland as its crypto-trading entity. It is difficult to determine what these companies are doing at this time because they do not publicize their investments. However, from examining DRW’s careers page, it seems that Cumberland is hiring many engineers and blockchain data analysts for its crypto assets team, most likely indicating that it has been working on algorithms to trade cryptocurrencies.[86]

There are also many institutions that are looking to implement the blockchain, but have not yet launched a product. Bank of America was awarded a blockchain-related patent associated with a secure storage system for cryptocurrencies.[87] This was announced by the U.S. Patent and Trademark Office on November 13, 2018, and the patent outlines how enterprise-level institutions may want to store cryptocurrencies for its customers. The patent explains “enterprises may handle a large number of financial transactions on a daily basis…For some enterprises, it may be desirable to aggregate cryptocurrency deposited by customers in an enterprise account.”[88] It is still unknown when the custodian services will be available for onboarding.

Icon made by Pixel Buddha from Flaticon

The blockchain and cryptocurrency market is shifting. Although Bitcoin and the blockchain were originally created to form a decentralized system after the financial crisis in ‘07-’08, it is becoming a tool that the financial institutions have been making the most use. With the adoption of this technology by major institutions, we will be able to see greater potential of the blockchain, which would then lead to improved implementations of the blockchain in future projects.



[3] Id.

[4] Juan Batiz-Benet & Jesse Clayburgh & Marco Santori. The SAFT Project: Toward a Compliant Token Sale Framework. 2017.

[5] Id.

[6] Id.

[7] Id.

[8] See Exemption for limited offers and sales without regard to dollar amount of offering, 17 CFR § 230.506 (2013)

[9] Id.

[10] Id.

[11] Jean Eaglesham & Paul Vigna. Cryptocurrency Firms Targeted in SEC Probe. 2018.

[12] Banking on Blockchain: A Value Analysis for Investment Banks (Jan. 17, 2017),


[14] Id.

[15] Id.

[16] An ETF is the abbreviation for equity-traded fund which is a security that tracks a stock index, a commodity, bonds, or a basket of assets. As of February 28, 2019, each share of GBTC represents .00099576 bitcoin. See Grayscale, (last visited March 11, 2019).

[17] Id.

[18] Id.



[21] Rakesh Sharma, Bitcoin Futures on CBOE vs. CME: What’s the Difference?, Investopedia, (Dec. 12, 2017),

[22] Id.

[23] Id.

[24] Alexander Osipovich, Cboe Abandons Bitcoin Futures, The Wall Street Journal, (Mar. 18, 2019, 9:00AM),

[25] See Evelyn Cheng, Cboe Announces Bitcoin Futures to Start Trading Sunday, CNBC, (Dec. 4, 2017, 8:33AM),

See also Omkar Godbole, A Year Ago Today Bitcoin’s Price Hit a Record $20k, Coindesk, (Dec. 17, 2018, 11:20AM),

[26] Osipovich, supra note 37.

[27] Id.


[29] The full list of investors are Boston Consulting Group, CMT Digital, Eagle Seven, Galaxy Digital, Goldfinch Partners, Alan Howard, Horizons Ventures, Intercontinental Exchange, Microsoft’s venture arm, M12, Pantera Capital, PayU, the fintech arm of Naspers, and Protocol Ventures.


[31] Kelly Loefler, Introducing Bakkt, (Aug. 3, 2018)

[32] Id.

[33] Id.

[34] Alexander Osipovich and Gabriel T. Rubin, Bitcoin Futures Launch Hits Regulatory Snag, The Wall Street Journal, (Mar. 21, 2019, 5:33PM).

[35] Adam White, Custody at Our Core, Medium, (Apr. 29, 2019),

[36] Telis Demos and Alexander Osipovich, TD Ameritrade and high-Speed Traders Back New Crypto Exchange, The Wall Street Journal, (Oct. 3, 2018, 10:08AM),

[37] The full list of investors include DRW Venture Capital, Valor Equity Partners, TD Ameritrade, Virtu Financial Services, NEX Opportunities, Cboe Global Markets, CTC Group Investments, Digital Currency Group, Nico Trading, Pantera Capital, Third Stone Partners, CMT Digital, Susquehanna International Group, XR Trading, C2 Capital Management and ED&F Man Capital Markets Inc.

[38] Jessica Darmoni, ErisX Announces New Exchange for Digital Asset Investors and Traders, Business Wire,

[39] Matthew Leising and Alastair Marsh, Eris Exchange to Create Crypto Market Backed by DRW, Virtu, Bloomberg, (Oct. 3, 2018, 8:31AM),

[40] Id.

[41] Id.

[42] Id.

[43] Custody of funds or securities of clients by investment advisers, 17 C.F.R. § 275.206(4)-2 (2010).

[44] Custody of investment company assets with Futures Commission Merchants and Commodity Clearing Organizations, 17 C.F.R. § 270.17f-6 (1996).

[45] Nikhilesh De, Fidelity is Launchaing a Crypto Trading Platform, Coindesk, (Oct. 15, 2018, 4:52 PM),

[46] Id.

[47] Matthew Leising and Alastair Marsh, Fidelity is Said to Plan March Launch of Bitcoin Custody Service, Bloomberg, (Jan. 29, 2019, 2:19PM),

[48] Erin Griffith, Why a Tiny Kentucky Firm Rules a Corner of the Crypto Market, Wired, (Feb. 27, 2018, 7:00AM),

[49] Erin Griffith, A Merger That Would Have Made Crypto Investing Easier Fails, Wired, (Jun. 18, 2018, 7:00AM),


[51] Sonali Basak & Olga Kharif, Regulated Crypto Custody is (Almost) Here. It’s a Game Changer, Bloomberg, (Jun. 18, 2018, 5:00AM),

[52] Peter Rudegeair, Jack Dorsey’s Square Cozies Up to Bitcoin, The Wall Street Journal, (Nov. 15, 2017, 1:47PM),

[53] Anna Irrera, Square Obtains NY State Cryptocurrency License, Reuters, (Jun. 18, 2018, 11:04AM),

[54] Yogita Khatri, Square Brought in Over $166 Million Through Bitcoin Sales Last Year, Coindesk, (Feb. 28, 2019, 9:25AM),

[55] Robinhood Crypto Trading is Here, Robinhood, (Feb. 22, 2018),

[56] Id.

[57] Id.

[58] Robinhood Crypto is Coming to New York, Robinhood, (Jan. 24, 2019),


[60] Ryan Browne, American Express, Santander Team Up with Ripple for Cross-Border Payments via Blockchain, CNBC, (Nov. 16, 2017, 8:01AM),

[61] Mike Faden, The Future of Cross-Border Payments: Ripple Versus SWIFT, American Express,

[62] Id.

[63] Id.

[64] Id.

[65] Id.

[66] Id.

[67] Browne, supra note 83.

[68] SWIFT GPI vs. Ripple Payments, Finextra, (Oct. 17, 2018),

[69] Id.

[70] Id.

[71] SWIFT GPI Reduces Cross-Border Payment Times to Minutes, Even Seconds, Swift, (Feb. 28, 2018),

[72] J.P. Morgan Creates Digital Coin for Payments, (Feb. 14, 2019),

[73] Telis Demos, J.P. Morgan Has a New Twist on Blockchain, The Wall Street Journal, (Oct. 3, 2016, 8:51PM),

[74] Supra note 64.

[75] AnnaMaria Andriotis & Liz Hoffman & Peter Rudegeair & Jeff Horwitz, The Wall Street Journal, (May 2, 2019, 7:36 PM),

[76] Id.

[77] Id.

[78] Id.

[79] Id.

[80] Id.


[82] Nikhilesh De, 10,000%: Pantera Reports Massive 5-Year Crypto Investment Return, Coindesk, (Jul. 27, 2018, 8:36PM),



[85] Bloomberg and Galaxy Digital Capital Management Launch Cryptocurrency Benchmark Index, Bloomberg, (May 9, 2018),


[87] Nathan Reiff, Bank of America Applies for a Blockchain-Based Crypto Storage Patent, Investopedia, (Sep. 10, 2018),

[88] See Bank of America’s Cryptocurrency Aggregation System Patent,,127,552.PN.&OS=pn/10,127,552&RS=PN/10,127,552

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