Florida Virtual Currency “Fibonacci” Lawsuit

As reported on Coindesk, we have filed suit on behalf of two defrauded purchasers against the “Fibonacci” manufacturing and mining organization (see Coindesk.com, “Florida Group Faces Fraud Charges for Alleged Altcoin Pump and Dump,” December 17, 2014).  Bitcoin-btcbible

You can read their excellent coverage here.

A copy of the lawsuit is here.

This is the second suit we have brought against defendants involved in alleged virtual currency mining fraud (see Coindesk’s coverage of our Lab Rats suit, here).

Legal Ethics – Check Your iOS 8 Privacy Settings

Lawyers (and other professionals) have ethical obligations to reasonably know about the technology they use — and ensure that communications are confidential and protected.iOS-8-logo-mockup-001

This article from the December 2014 Palm Beach Bar Journal explains a dozen privacy settings for your iPhone or iPad which should increase your security.

How Jurors and Lawyers Use Social Media and Technology

 

Lawyers are ethically required to stay competent with emerging technology that impacts their practice.  You need confidential communications.  You need to know how to research.fb

This article, How Jurors and Lawyers Use Social Media and Technology, discusses how the average juror is using the internet AND explains what your co-workers and colleagues are doing.

For example, did you know that Microsoft Vista is the most frequently used Windows platform for Florida lawyers?

Or that the average viewer spends 9 minutes on a pornography website?

Check out the article, from the November 2014 Palm Beach Bar Bulletin, here.

Florida Lawyer’s Guide to Marijuana Laws

Floridians will vote this November on Amendment 2, relating to Use of Marijuana for Certain Medical Conditions.  floridamed

Just this past June, Governor Scott signed the Compassionate Medical Cannabis Act into law.

How does the interplay between state and federal drug laws work?

This article (here) from the October 2014 Palm Beach Bar Bulletin will explain the Florida Supreme Court advisory opinion, Florida drug paraphernalia laws, cannabis laws, Controlled Substance Act, Cole Memos, FinCEN guidance, and outside counsel’s letter to the University of Florida regarding marijuana research.

FTC v. Butterfly Labs: Complaint and Response

The Federal Trade Commission (FTC) filed suit against bitcoin-mining hardware manufacturer, BF Labs, Inc. d/b/a Butterfly Labs, on September 15, 2014 alleging misrepresentations and deceptive omissions regarding the marketing and manufacturing of the BitForce and Monarch mining machines.  Among other relief, the suit seeks temporary and permanent injunctions as well as disgorgement of money.

A copy of the suit is here.  BUTTERFLY-ORANGE-969x1024

The Complaint alleges that “as of September 2013, [Butterfly] had failed to ship mining machines to more than 20,000 customers who had paid for the equipment in full.”  Butterfly allegedly posted online that it had shipped all orders for BitForce machines by November 2013 however the FTC claimed that consumers “continued to file complaints about not receiving their prepaid BitForce mining machine.”

As for Monarch machines, the Complaint alleged, ‘[a]s of August 2014, [Butterfly] had yet to ship a single Monarch machine.”

In this type of ex parte action, a temporary order was issued and a local lawyer was appointed as receiver for Butterly.

Butterfly filed its Response arguing that the temporary restraining order was “unwarranted” and that the FTC was harming consumers by its actions.  While admitting that Butterly had “unquestionably experienced growing pains,” they argue that, among other reasons, it was the competitive mining market and slow PC component delays which contributed to the situation — noting that “almost every other equipment manufacturer has been attacked: HashFast… Cointerra… and KnC Miner…”

Butterfly’s Response reveals that it was sued in a putative class action (which is in the discovery phase) and that, separately, Butterfly was investigated by the local district attorney.

Butterfly claims that it handed over more than $11 million dollars in bitcoin to its receiver and is cooperating.  It claims that it has a “clear and conspicuous” “two months or longer” warning.  As for refunds, Butterfly avers that it has refunded money for all pre-Monarch machines; shipped or refunded every Monarch order between August – November 2013; and is processing returns for more recent purchases.

The Response is here.

A hearing is set for September 24.

US v. Faiella and Shrem – Ruling on Bitcoin as “Money” or “Funds”

It has been widely reported that bitcoin entrepreneur Charlie Shrem is going to agree to a plea deal.  Bitcoin-btcbible

There has been less coverage, however, regarding the Judge’s August 18, 2014 Order.

This Order is important to the US v. Faiella and Shrem case because the defendants lost their argument that bitcoin did not fit money laundering (AML) and bank security laws (BSA).  Likely, at that point, the defendants chose to strike a deal.

This Order is perhaps more important since it is really the first serious judicial opinion on bitcoin.  In other words, this may be the first true legal precedent regarding bitcoin regulation.  That said, it is going to be generally viewed persuasive legal authority since this is a district court order and not yet a circuit appellate opinion.  Moreover, factual situations differing from the Silk Road website may lead to differing outcomes.

As we’ve addressed before, the SEC v. Voorhees matter was really not a bitcoin case.

Likewise, while the SEC v Shavers case gets bandied about as the first bitcoin case, the order in that matter was only intended to superficially touch upon bitcoin.  It is not really legal precedent given the nature of the order (discussed here).

In the Faiella case, District Judge Rakoff held that bitcoin was “money” or “funds” and that operating a bitcoin exchange such as Silk Road was money transmitting.

First, the Court held that bitcoin fit the statutory definition of “money” or “funds” because of its ordinary use (Judge Rakoff eschewed the technical Black’s Law for the ordinary Merriam-Webster dictionary).  According to the Court, it fit the definition because “bitcoin can be easily purchased in exchange for ordinary currency, acts as a denomination of value, and is used to conduct financial transactions.”  Admittedly, the Court cites to the Shavers order but, again, that case wins the prize for being first-on-the-scene but that order remains weak precedent.  Even if there were some question as to definitions, Judge Rakoff assessed that the legislative history was supportive of his conclusion and that the statute was designed with flexibility in mind to “keep pace with such evolving threats.”

Second, the Court held that Silk Road was “transmitting money” despite the defense that the site was not selling transmitting services for profit.  The Court held that there was a transfer because the customers sent cash to Faiella, he exchanged them for bitcoin, and then he put the virtual currency in the customers’ Silk Road account, which was in third party hands (“for Silk Road customers did not have full control over the bitcoins transferred into their accounts”).  In conclusion, “the Court finds that, in sending his customers’ funds to Silk Road, Faiella ‘transferred’ them to others for a profit.”  The Order is short (6 pages) and does not provide a lot of the facts of the case; to that end, a website which is set up differently than Silk Road may have better factual arguments (both as to “transfer” and “for profit” elements).

Faiella was determined to be a “money transmitter” under the statute based upon FinCEN’s prior guidance that an administrator or exchanger of virtual currency is a money service business (MSB) and that the statutory exemptions did not apply.

Again, the Order is here.  The docket, at least as of August 28, 2014, is here.

 

Can a Florida Lawyer Advise a Client About Medical Marijuana?

 

This November, Florida voters will consider whether to legalize medical marijuana.  If so, Florida would join several states which have allowed recreational and/or medical cannabis cultivation, distribution, and use.floridamed

But it remains illegal under federal law.  Can lawyers advise their clients about a marijuana business which is legal under state law but barred by federal law?

The article, “Can a Florida Lawyer Advise a Client About Medical Marijuana?,” may provide the answer.  Published by the Palm Beach County Bar Association in its September 2014 Bar Bulletin.

For general information on Florida marijuana laws and the upcoming vote, see this post here.

For a recent (July 31, 2014) summary of the draft rules to implement the Compassionate Medical Cannabis Act, see here.

Akerman LLP has a Regulated Substances Task Force which you can find here.

Technology and iOS Apps for Mediators

Thanks to the Florida Dispute Resolution Center for inviting me to speak at the 22nd Annual Conference this year in Orlando.N

The materials from the presentation are here.

The Adobe Voice presentation about mediation is here.

One Year After Snowden: How Safe Are Your Calls and Emails?

Back in April 2014, I spoke to the Palm Beach Chamber of Commerce about the security of emails and phone communications in the business world (materials are here).large_woman_tin_foil_hat

This article, “One Year After Snowden: How Safe Are Your Calls and Emails?,” summarizes the key Snowden disclosures over the last year and provides some “best practices” for lawyers and business people.

Originally published in the July/August Palm Beach County Bar Association’s Bulletin.

Getting to Know Florida Medical Marijuana / Cannabis Laws

A Google Trend report shows that “Florida Medical Marijuana” has generated massive attention since 2013.  floridamed

I attended a recent Florida Cannabis Coalition meeting and, while the speakers were good, the attendees seemed uneducated (case in point, people literally got up and left when they heard about the $150,000 application fee and $5 millon bond).

As a baseline, to become educated on these developing legal issues in Florida, be aware of:

1.  Florida Senate Bill 1030 “Charlotte’s Web” (signed by Gov. Scott): here

2.  Florida Senate Bill 1700 Marijuana Indentity Protection Act (signed by Gov. Scott): here

3.  Amendment 2: here

4.  Cole Memo (August 2013): here

5.  Cole Memo 2 (Feb 2014): here

6.  Channel 5 WPTV-WPB: “Hundreds of entrepreneuers gather in Boca Raton tolearn how to make money from medical marijuana”: here.  (I’m there around 1:01 m into the video)

Deleting versus Deactiving Facebook

With the revelation that Facebook is tracking users across the web, even if you log off, I have deleted my Facebook account.  facebook1

Yes, deleted.  Not just deactivated.

You can “deactivate” your Facebook account and it disappears from sight but it is still there in the Facebook vault, ready for you to re-activate.

So if you want to test your separation from Facebook, this is the step (instructions).

For something hopefully more permanent, you can delete your account.

Mashable ran a good step-by-step to download your data, disconnect your apps, and locate the delete-account-page (“How to Completely Delete Facebook From Your Life”).

Mashable’s article is here.  And the elusive delete-your-Facebook-account page is here.

In Re Erik T. Voorhees (settlement): Not Really a Bitcoin Case

The hot bitcoin-related story involves the settlement between the Securities and Exchange Commission (SEC) and bitcoin-advocate, Erik T. Voorhees.

This case involves bitcoin but is not about bitcoin.  Stated differently, this case is not an attack on bitcoin.  It simply involves charges of a crime unrelated to the virtual currency itself.

Specifically, Voorhees was charged with offering securities (stock) in two different companies which were not registered with the SEC.  There were other associated alleged violations (e.g., not filing a prospectus).

Bitcoin is involved, but is not the focus of this case, only because Voorhees is a bitcoin-advocate, the stocks were sold in bitcoin, and the two businesses used bitcoin.

There is nothing in the order/settlement which criticizes or criminalizes bitcoin.

The settlement means that Voorhees disgorges $15,000 (plus interest) and pays a $35,000 civil penalty.  Stories (such as this one) that he is paying a $50,000 “fine” are not defining the terms correctly.

The settlement / order instituting cease and desist proceedings is here.

The SEC’s press release is here.  Their prior May 7, 2014 “Investor Alert: Bitcoin and other Virtual Currency-Related Investments” is here.

Voorhees’ post on Reddit about the settlement is here.

What is Bitcoin: Currency, Property or Tulips?

A strange title to an article, I know.  But it will make sense at the end:Bitcoin

Governments around the world are struggling to define, and therefore regulate or ban, virtual currency such as bitcoin.  Here in the U.S., various federal agencies have differing conclusions.  So do various states.

Meanwhile, in the press, bitcoin is incorrectly labeled as an anonymous way to transmit money (it isn’t — law enforcement appears to have no problem tracking bitcoin funds) and it is unfairly associated with alleged criminal activity.  Thus, even the judicial system is making efforts to define bitcoin under various statutes.

This article, What is Bitcoin: Currency, Property or… Tulips?, from the Palm Beach Bar Association, discusses how various federal and states agencies and courts have defined bitcoin.  The reference to tulips comes from the Netherlands — there, in an attempt to define bitcoin, they compared it to their well-known consumer export, tulips!

Of note, the “verdict” comments are my conclusions, often, and not necessarily the final word from the government agencies or courts unless indicated.  Expect changes as we go forward.

Florida Supreme Court Cautions Against “Commercially Available” Pre-Printed Legal Forms

A boring probate opinion may shed light on the problem of errors with pre-printed legal forms.Mad-Libs

The unfortunate lesson: “there’s an app for that” is not a replacement for hiring a lawyer.

You have certainly seen these kind of pre-made forms — pushed on tv ads, the internet, and by office supply stores.  These quickie forms are attractive since (a) they run anywhere from $10 – $100 and involve filling in the blanks and (b) most people don’t know a lawyer who might be able to advise at a reasonable rate.  In this age of online forms and computer programs which help with finances and taxes, it is not surprising that consumers turn to pre-printed legal forms.  But it can be a bad idea.

The March 27, 2014 opinion in James Michael Aldrich v. Laurie Basile may not garner a lot of broad public attention (here’s the one story).  The 19-page opinion from the Florida Supreme Court spills pages of ink outlining statutory analysis going back to the 1800′s — something only a law student or probate lawyer would love.  But let’s see if we can give this lesson a little more attention:

In that case, Ms. Aldrich died with a will she created using an “E-Z Legal Form.”  She left everything to her brother.  After she created the will, she inherited more property.  But the will did not include a “residuary clause” which is a typical “catch-all” which essentially says, “any other property I haven’t mentioned or may get in the future goes to [person].”  Thus, when she died, all the property which she listed in the will went to her brother.  Fine.  But there’s a catch.  The “new” property passed as if she never had a will because the E-Z Legal Form was silent about any residual / new property.  So someone else got it.  In short, people spent a ton of money litigating to the Florida Supreme Court and Ms. Aldrich’s “true intent” may not have been followed because “it was not her stated intent in the will.”

The “kicker” is in Justice Pariente’s concurrence:

“This unfortunate result stems not from this Court’s interpretation of Florida’s probate law but from the fact that Ms. Aldrich wrote her will using a commercially available form, an E-Z Legal Form, which did not adequately address her specific needs — apparently without obtaining any legal assistance.  This form, which is in the record, did not have space to include a residuary clause or pre-printed language that would allow a testator to elect to use such a clause.”

Bottom line: contracts, terms of service, and your estate planning documents are not one-size fits all.  I’m sure this sounds like lawyers trying to garner business.  More likely, it is simply a little frustrating to lawyers since it is an easy / inexpensive problem to avoid.  Life is in the details.  The law lives in the details — which sometimes change.  Make sure you get your details right.  And make sure, every once in a while, your documents are still up to date.  Turn to the Florida Bar, Avvo, or some resource to find a local lawyer in your area who can at least double check your personal or business forms.

If This Then That (IFTTT) For Lawyers

An app called “If This, Then That” or IFTTT exists to bring together your smartphones alarms, notices, social media, and other internet tools so that you can, as their tag line says, “take control of the internet.”photo

This article, “If This Then That (IFTTT” For Lawyers” explains how to combine your various internet resources into one app to bring the internet to you.

The link for the iPhone and Android versions of IFTTT are here.