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October 20th, 2022
SEC vs BAYC? Here’s What Legal Experts Say It Means for NFTs
Blockchain Technology Co-Chair Jeremy S. Goldman is quoted in the article, “SEC vs BAYC? Here’s What Legal Experts Say It Means for NFTs" published by Decrypt. The article discusses the SEC’s investigation of Bored Ape Yacht Club creator Yuga Labs for securities violations and the impact on the NFT industry. Jeremy says, “Stepping into regulating the NFT space by starting with the biggest NFT brand of them all would seem to go against the SEC’s modus operandi. It seems much more likely that if the SEC is going to go after someone, they're going to go after projects that much more easily fit the framework of what the SEC believes is a security.”
Jeremy believes that there are other NFT projects besides Bored Ape Yacht Club that much more obviously check the boxes of appearing like securities. He is confident the SEC would almost certainly go after those projects first—if it were to go after any. He says, “The SEC usually starts by going after lower hanging fruit. Think of a project where the marketing said, ‘This is going to be a great investment,’ ‘We’re going to 10x what you’ve put in and take you to the moon,’ That is really easy for them to prove falls within their purview as a security. And I just don’t see BAYC in that category.” He thinks it’s highly unlikely the SEC will ever actually sue Yuga Labs for securities violations. He believes Yuga has only been implicated here to assist the SEC in a publicity-oriented battle for sovereignty over regulating the crypto space.
Jeremy suggested that the leak may have been planted by the SEC itself, explaining, “To me, it's a little suspect. Suddenly an anonymous source says, ‘Oh, yeah, Yuga’s on the list,’ and then it makes headlines. I just do wonder whether this is part of government in-fighting for control. They're putting it out there, ‘We're already investigating this,’ and they want to put out a big name so it gets the attention of the public.”
If the SEC went ahead with a case again Yuga Labs and won Jeremy says, “It would be an issue for the entire industry. Launching an NFT would become like going public with a stock. It would require a tremendous amount of legal work and accounting work and disclosures and registration […] that is just not feasible or practical for the vast majority of startups.”
Read the full article here.
Other Quoted
Copyright Guide or Policy Change? Project Divides IP Attys
Law360 quoted Jacqueline Charlesworth on the controversy surrounding the American Law Institute’s copyright restatement project. Ms. Charlesworth criticized the initiative as advancing a “revisionist theory” that could weaken copyright protections. She was among nearly two dozen advisers who resigned from the project, signaling deep concerns about its direction.
The article highlights a broader debate within the IP community: whether the restatement simply clarifies existing law or attempts to reshape policy in favor of users. Ms. Charlesworth’s perspective emphasizes the stakes for rights holders as courts and practitioners consider how much influence the restatement may carry. Read the Law360 article about the copyright restatement project here.
November 19 2025
Reports of ‘Click-to-Cancel’s Death May Be Premature
A Competition Policy International article quoted Holly A. Melton on the continuing impact of the Federal Trade Commission’s “click-to-cancel” rule , despite a recent Eighth Circuit Court of Appeals decision. Melton was quoted for her analysis of the FTC’s $2.5 billion settlement with Amazon over Prime subscription practices. In a blog post, Melton pointed to a clause in the agreement that anticipates future rulemaking around negative option features. “That’s not boilerplate,” she wrote. “It reads like a deliberate placeholder—future-proofing the settlement for the reappearance of Click to Cancel.” Melton interprets this as a strategic move by the FTC to potentially revive the rule through a new proceeding.
Melton’s outlook reflects a broader shift in the FTC’s enforcement priorities toward consumer-facing issues like subscription transparency and cancellation ease. She referenced Commissioner Mark Meador’s remarks about focusing on “everyday economic concerns affecting ordinary households” and noted that, even without immediate rulemaking, the agency’s litigation stance signals that subscription practices will remain a top-tier priority for the Bureau of Consumer Protection. Her guidance to advertisers and subscription services: “prioritize transparency, obtain affirmative consent, and make cancellation as effortless as sign-up. The ‘Click to Cancel’ may be down, but it’s not out,” Melton concluded, underscoring the FTC’s intent to keep its options open. Read the Competition Policy International post here.
November 11 2025
States Turn to Outside Firms to Generate Big Privacy Settlements
Holly A. Melton is quoted in the Bloomberg Law article on the growing practice of state attorneys general hiring outside counsel for litigation in data privacy and online safety cases. The article noted this shift boosts companies’ risk profiles, with smaller states taking on more complex cases. “‘One, don’t ignore the states that don’t necessarily have privacy laws because you’re not safe’ said Holly Melton, partner at Frankfurt Kurnit Klein & Selz. ‘And two, the sort of posture has already kind of ratcheted up when they come in with outside counsel who’s sort of running the show.’”
Bloomberg Law stated this strategy is getting mixed results. Some states point out that they could not bring certain cases without the staffing, resources and expertise of the private firms. But critics question outside counsels’ driving state priorities—selecting enforcement for big payouts or settlements, more akin to civil plaintiff litigation instead of traditional AG litigation that prioritizes companies changing their behavior. View Article.
October 9 2025
