Why this paper
Counsel cannot wait for a market-structure statute that may not pass. This paper organizes the live U.S. workstreams — SEC offerings and custody, CFTC trading, and the points where they still overlap — as of autumn 2026.
It is a planning document. Citations are to public proposals and statements. It is not legal advice for a particular product.
Offerings
The SEC’s Regulation Crypto Assets proposal would tailor registration and disclosure for certain investment contracts involving crypto assets. Issuers should read it as an offering accommodation with conditions, not as a new asset class outside the securities laws.
The Commission’s earlier interpretive taxonomy is useful for internal classification memos. It does not bind a court, and it does not stop a private plaintiff. Facts — marketing, efforts of others, and the state of the network — still decide cases.
Trading and intermediaries
The CFTC is taking comment on how its authority over certain retail commodity transactions applies to crypto assets and to the venues that list them. Firms that match buyers and sellers, or that offer leveraged exposure, should assume they will be asked to explain their status under today’s statute.
Broker, dealer, exchange, and ATS questions at the SEC did not vanish because a bill stalled. If your matching engine and your custody stack sit in the same entity, be prepared to justify that choice in writing.
Custody
Proposed custody amendments for advisers and funds are the sleeper issue for asset managers. Self-custody, state trust companies, and traditional banks are not interchangeable in the proposal, and they are not interchangeable in an exam.
We recommend that managers map every place a private key can be used, including “temporary” vendor arrangements, before they write a comment letter or a Form ADV disclosure.
What to do this quarter
Pick the regime you are building toward and the regime you are complying with now. If they differ, the gap belongs in a board note, not in a footnote discovered during diligence.
Comment where you have data. Stay quiet where you have a slogan. And keep the public description of the product aligned with the private description. Divergence is what enforcement staff and plaintiffs both know how to find.
© 2026 Aether Digital Counsel. You may share this paper with attribution. It is not legal advice. Disclaimer.