Crypto Insolvency and Fiduciary Practice

We recognize that entities like token issuers, funds, or intermediaries servicing the crypto industry that raised capital may face creditor claims, devaluation of treasury assets, regulatory hurdles, unanticipated technical difficulties, or an unexpectedly high burn rate. Sometimes businesses simply fail. Many companies face the hard reality that the environment may not facilitate economic development. Those businesses may elect to discontinue operations and wind-down, a decision that, if executed without the advice of counsel, may result in unnecessary adverse consequences and liabilities for business owners and creditors. The officers and directors of such businesses should be cognizant of, and obtain advice regarding, fiduciary duties that may be owed to various parties through a wind-down or dissolution process. Those who hold rights to crypto assets, including SAFTs, cryptocurrencies, or tokenized assets representing real assets, or other digital asset securities, may have unique issues as to custody, valuation, liquidation, and executory or unexecuted smart contracts when winding down. Our team has the experience and skills to assist in these and other crypto-related matters.

Some entities wind-down or reorganize through a judicial process, which may include the appointment of a fiduciary, such as a receiver or trustee, to assist with the orderly disposition of creditor claims. These fiduciaries often marshal assets, report the status of the entity’s affairs to the court, and, in some cases, act to recover assets transferred to third parties. These fiduciaries also may distribute assets to claimants or creditors under court supervision. Cryptocurrencies, smart contracts, and DeFi system use create unique challenges for fiduciaries. The legal status of a given crypto asset, smart contract, or DeFi arrangement may be unclear. Concepts of ownership and control of crypto assets are legally unsettled, and valuation methodologies for these assets remain fluid. Certain debtors or receivership entities may be subject to regulatory investigations or restrictions by administrative agencies, which may complicate their efforts to wind-down or limit their payment of claims. Our team can advise on how to control, take custody of, and trace these assets, report their value to the court, identify transfers including preferences and fraudulent transfers, and facilitate asset recovery and disposition

• Land Development
• Vertical and Horizontal Mixed-Use Development
• Hotel and Resort Development
• Retail Development
• Office Development, Industrial Parks, Self-Storage Facilities, and Fulfillment Centers
• Condominium, Residential, and Resort Development
• Senior Housing and Assisted Living Development
• Other Specialty Development

When investors seek to exit their investments, it often impacts other investors and the continuing viability of the investment entity. Our team can assist in these matters by, among other things, modifying operating documents to permit investor exits, helping to unwind a fund, or enforcing fund or investment documents, including through litigation if necessary. Among other representations, our lawyers have defended issuers whose investors sought to rescind purchases of instruments or to substitute equity or debt for tokens in litigated actions, and have helped clients to achieve negotiated resolutions of these claims against issuers and funds.

Investors and companies alike understand the opportunities for growth by strategic acquisitions and divestment during challenging economic circumstances. We have experience with strategic mergers and acquisitions and can assist parties with distressed opportunistic acquisition or financing transactions, including those involving cryptocurrencies and blockchain-related assets, such as refinancing a distressed cryptocurrency mining operation or purchasing rights to a token issuer’s foundation or operating entity.

Assignment for the benefit of creditors is an alternative procedure available in some states to wind-down a business entity through which the entity employs an assignee to liquidate the company’s assets for the benefit of its creditors. Assignees may facilitate the sale of the entity as a going concern, and an assignment for the benefit of creditors may be attractive to crypto-related companies as an alternative to bankruptcy or entity wind-down.