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On August 10, 2021, the U.S. Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN) announced the assessment of a civil monetary penalty against several BitMEX entities for violations of the Bank Secrecy Act (BSA) and its implementing regulations.

FinCEN found that BitMEX willfully failed to comply with its obligations under the BSA, including the requirements to adopt and implement an AML compliance program, implement and maintain a customer identification program (CIP), and report suspicious activity.

Of note, FinCEN asserted jurisdiction over BitMEX, an offshore exchange, because BitMEX was a “financial institution” under the BSA since it operated as a futures commission merchant (FCM) required to register with the Commodity Futures Trading Commission (CFTC) and because BitMEX engaged in significant business activities within the U.S. and solicited and accepted orders from U.S. customers. Additionally, FinCEN found that BitMEX provided money transmission services within the U.S., transmitting funds for U.S. customers, thereby providing another hook for jurisdiction.

The CFTC separately announced that it had entered into a consent order with BitMEX in the U.S. District Court for the Southern District of New York. The CFTC’s order found that BitMEX violated the Commodity Exchange Act (CEA) by operating as an FCM without CFTC registration, and that BitMEX violated the CEA by operating a facility to trade or process swaps without being approved as a designated contract market or a swap execution facility. The CFTC order further found that BitMEX violated CFTC regulations regarding CIP and know your customer (KYC) procedures and failed to implement an adequate AML program.

In total, BitMEX paid a $100m penalty to FinCEN, with $50m credited for payment to the CFTC, and $10m suspended pending BitMEX’s compliance with a SAR transaction lookback, and $10m suspended pending BitMEX’s compliance with a comprehensive review of its internal controls. The CFTC’s litigation against BitMEX’s founders continues, as do the criminal cases.


FinCEN and the CFTC’s actions against BitMEX further demonstrate the long arm of the U.S. government’s enforcement jurisdiction with respect to offshore exchanges. The short answer is that if you are doing business in the U.S. and accessing U.S. customers, then there is a good chance that you may be subject to U.S. laws, particularly as it relates to AML. That is not unexpected and BitMEX now has to deal with the consequences of its business decisions. But what U.S. customers of BitMEX’s may not have expected is that, as part of the consent order, BitMEX certified that all users identified as U.S. Persons by BitMEX’s user-verification procedures, or unverified users, have been blocked from trading on the platform or making withdrawals. These customers may have had their trading restricted at an inopportune time and could have limited access to their capital going forward. Will U.S. customers be able to hold BitMEX liable for any loses? That remains to be seen, particularly with respect to any U.S. customers that used a VPN to open accounts in violation of BitMEX’s terms of use.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm or its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.


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Andrew Jacobson | Associate

A former enforcement attorney at the New York State Department of Financial Services (DFS), Andrew Jacobson represents individual and institutional clients at Seward & Kissel in connection with complex governmental investigations, regulatory probes, and related civil matters. While at the DFS, Andrew was involved in early cryptocurrency issues and brought some of the most significant enforcement actions for violations of U.S. economic sanctions and anti-money laundering laws.

Andrew has extensive experience advising on matters relating to U.S. economic sanctions, including those administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC), and anti-money laundering laws. Andrew serves as Chair of the Export Controls, Sanctions, and Anti-Corruption Subcommittee of the International Bar Association, co-chair of the Virtual Commodity Association’s BSA/AML Committee, and is a member of the Digital Chamber of Commerce’s AML Task Force.

As a member of Seward & Kissel’s Blockchain and Cryptocurrency Group, Andrew regularly advises clients on all aspects of financial crimes compliance and licensing in the virtual asset industry, including:

  • OFAC and FinCEN regulatory requirements, including asset blocking and reporting obligations;

  • Unhosted wallets and risks to software providers and VASPs;

  • Privacy coins, mixers, and other external privacy mechanisms;

  • Technology and open-source user platforms;

  • Ransomware and other cyberattack-related ransom payments;

  • BitLicense and state licensing requirements; and

  • Counterparty due diligence and screening.


“This is certainly a lesson to senior management to take compliance seriously and that there are consequences for individuals who don’t follow the regulatory regime.”

Andrew’s thoughts on BitMEX indictment, as published in Law360 article “BitMEX Case Seen as Blessing in Disguise for Crypto Sector”


Daniel Bresler | Counsel

Daniel Bresler is counsel in the Investment Management Group.

Dan primarily represents U.S. and non-U.S. investment managers, commodity pool operators, commodity trading advisors and private funds, including hedge funds, private equity funds and commodity pools. He advises clients on a variety of securities, commodities and corporate law matters, including fund structuring and formation, derivatives regulation and Securities Exchange Act filings. In addition, Dan assists clients in developing and implementing SEC, CFTC and NFA compliance policies and procedures and guides clients through regulatory examinations. He also represents clients in joint ventures, spinouts and other business transactions.

Dan received a B.S. from SUNY Albany, summa cum laude, and a J.D. from Albany Law School, summa cum laude, where he was the Executive Editor for Symposia on the Albany Law Review.