There has been movement forward on the Clarity Act, and the SEC and CFTC have anticipated its passage by pre-emptively completing a “memorandum of understanding” that would be required by the Act, and by beginning the “rulemaking” process with a joint interpretive release distinguishing between “investment contract assets” regulated by the SEC and “digital commodities” regulated by the CFTC. The legislation will also require that both agencies write rules, but they cannot publish proposals until the Act actually becomes law. 

The Clarity Act is expected to become law this year, but of course there is no absolute assurance (see our prior post discussing the proposed SEC–CFTC regulatory split and recent legislative…