Last week we reported on a flurry of enforcement activity by the Commodities Futures Trading Commission’s “Virtual Currency Task Force” with respect to virtual currency fraud schemes. On Thursday, January 18, the CFTC filed two lawsuits in federal court in New York seeking to shut down two such schemes and to recover funds for victimized investors. The first suit charged a New York resident and his New York-based company with fraud and misappropriation in connection with purchases and trading of Bitcoin and Litecoin. The second suit charged a Colorado resident and his United Kingdom-registered company with a Ponzi-style scheme involving the solicitation of Bitcoin from investors to be pooled and invested in products including binary options. The following day, the Directors of Enforcement for both the CFTC and the Securities and Exchange Commission issued a joint statement reaffirming their agencies’ commitment to address violations and to bring actions to stop and prevent fraud in the offer and sale of digital instruments.

Continuing its crackdown on virtual currency fraud, the CFTC today announced the filing of another enforcement action charging commodity fraud and misappropriation related to the ongoing solicitation of customers for a virtual currency known as My Big Coin (MBC). The CFTC Complaint charges Randall Crater of East Hampton, New York, Mark Gillespie of Hartland, Michigan, and My Big Coin Pay, Inc., a corporation based in Las Vegas, Nevada, with misappropriating over $6 million from customers by, among other things, transferring customer funds into personal bank accounts, and using those funds for personal expenses and the purchase of luxury goods.

The suit was filed on January 16, 2018, under seal, in federal court in Massachusetts. On that same day, the Court issued a temporary restraining order, also under seal, freezing the defendants’ assets. The restraining order also freezes the assets of multiple relief defendants for allegedly receiving customer funds without providing any legitimate services to clients and without any interest or entitlement to such customer funds. The Court’s restraining order also prohibits the defendants and relief defendants from destroying or altering books and records.

The CFTC’s complaint alleges that from at least January 2014 through January 2018, the defendants fraudulently solicited potential and existing MBC customers throughout the United States by making false and misleading claims and omissions about MBC’s value, usage, and trade status, and that MBC was backed by gold. The defendants are also alleged to have fraudulently solicited numerous customers in Massachusetts, receiving in excess of $5 million from those customers.

As alleged in the complaint, the MBC website, maintained and operated by the defendants, conveyed to customers numerous solicitation materials, MBC trade data, and other materials (1) misrepresenting that MBC was actively being traded on several currency exchanges, including the MBC Exchange website, when in fact it was not; (2) misrepresenting in reports the daily trading price, when in fact no price existed because MBC was not trading; (3) misrepresenting that MBC was backed by gold, when in fact it was not; and (4) misrepresenting that MBC had partnered with MasterCard, with the promise that MBC could be used anywhere MasterCard was accepted, when in fact no such partnership existed and MBC could not be used anywhere MasterCard was accepted. In reality, as alleged, the supposed trading results were illusory, and any payouts to customers were derived from funds fraudulently obtained from other customers in the manner of a Ponzi scheme.

As customers began to raise questions about their MBC accounts, the complaint alleges that the defendants attempted to conceal their fraud by issuing additional coins to customers and falsely representing that they had secured a deal with another exchange to trade MBC. The defendants allegedly encouraged customers to refrain from redeeming their MBC holdings until MBC was active on this “new” exchange.

The CFTC alleges that the defendants misappropriated virtually all of the approximately $6 million they solicited from customers, using these funds to purchase a home, antiques, fine art, jewelry, luxury goods, furniture, interior decorating and other home improvement services, travel, and entertainment.

In the litigation, the CFTC seeks civil monetary penalties, restitution, rescission, disgorgement of ill-gotten gains, trading and registration bans, and permanent injunctions against further violations of the federal commodities laws, as charged.

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