Resilient LLP (formerly DeMarco Allan LLP)
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DT Vollmer

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SEC Charges Coinbase For Operating as an Unregistered Securities Exchange

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The U.S. Securities and Exchange Commission (SEC) today charged Coinbase, Inc., the largest crypto asset trading platform in the U.S., with operating a crypto asset trading platform as an unregistered national securities exchange, broker, and clearing agency as well was failing to register the offer and sale of its crypto asset staking-as-a-service program (the Complaint). Regulators across the world are increasing their oversight of new and emerging securities and crypto carbon offerings should heed the recent actions of the SEC and carefully examine whether their offerings constitute unregulated securities. This bulletin briefly summarizes key details of the Complaint. The SEC’s Complaint alleges that Coinbase intertwines the traditional services of an exchange, broker, and clearing agency without having registered any of those functions with the SEC as required by law. The Complaint alleges that since 2019, Coinbase has: provided a marketplace and brought together the orders for securities of multiple buyers and sellers using established, non-discretionary methods under which such orders interact; engaged in the business of effecting securities transactions for the accounts of Coinbase customers; provided facilities for comparison of data respecting the terms of settlement of crypto asset securities transactions, served as an intermediary in settling transactions in crypto asset securities by Coinbase customers, and acted as a securities depository; and engaged in an unregistered securities offering through its staking-as-a-service program, allowing customers to earn profits from the “proof of stake” mechanisms of certain blockchains and Coinbase’s efforts. The SEC stated that Coinbase’s actions “deprive[d] investors of critical protections, including rulebooks that prevent fraud and manipulation, proper disclosure, safeguards against conflicts of interest, and routine inspection by the SEC” and that its failure to register its staking-as-service program “depriv[ed] investors of critical disclosure and other protections.” The Complaint follows yesterday’s similar charges, including several alleged securities law violations, against…

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UK High Court Dismisses Shareholder Climate Lawsuit Against Shell’s Board of Directors

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The UK’s High Court (the Court) has denied the world’s first climate-related derivative action against a board of directors to hold them personally accountable over their alleged failure to properly prepare for the energy transition.   Background. On February 9, 2023, environmental law organization ClientEarth filed a derivative action, brought by shareholders on behalf of the company, seeking permission to bring a claim against Shell’s board of directors (the Board), alleging breaches of legal duties under the UK’s Companies Act 2006 (the Act). ClientEarth alleged that the Board was mismanaging material and foreseeable climate risks in breach of the Act and had failed to adopt and implement an energy transition strategy that aligns with the Paris Agreement. Specifically, ClientEarth alleged that the Board breached its duties under: s. 172 of the Act, which requires directors to act in a way that they consider will best promote the success of the company for the benefit of its members as a whole; and s. 174 of the Act, which requires directors to exercise reasonable care, skill and diligence in the discharge of their duties. ClientEarth had requested that the Board be required to adopt a strategy to manage climate risk in line with its duties under the Act, and in compliance with the 2021 Dutch Court judgment requiring Shell to reduce CO2 emissions of the Shell group by net 45% in 2030, compared to 2019 levels, through the Shell group’s corporate policy (see our earlier bulletin here).   Judgment. Mr Justice Trower of the UK High Court denied permission to ClientEarth to bring its climate-related derivative action against the Board in the UK. In dismissing the lawsuit, the judge determined that ClientEarth’s action sought to “impose specific obligations on the directors as to how the management of Shell’s business and affairs should be conducted, notwithstanding the well-established principle that it is for directors…

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Voluntary Carbon Markets Integrity Initiative Appoints Expert Advisory Group

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The Voluntary Carbon Markets Integrity Initiative (VCMI) yesterday announced that it is has appointed an Expert Advisory Group (EAG), which will provide advice to the VCMI Secretariat and Steering Committee ahead of the launch of its Claims Code of Practice later this year. VCMI launched its Provisional Claims Code of Practice in the middle of last year. Earlier this week, VCMI announced a partnership with Winrock International to produce an operable VCMI Claims Code of Practice for voluntary use of carbon credits. The purpose of the Claims Code of Practice is to provide clear guidance to companies and other non-state actors on when and how they can credibly make voluntary use of carbon credits as part of their net-zero commitments and climate mitigation strategies, and the claims they can make about that use.  VCMI said that EAG participants were invited to join the group due to the range of expertise they bring from across key sectors and geographies. Members include carbon market experts, environmental and sustainability professionals, Indigenous community leaders, and legal and accounting practitioners. Resilient LLP Senior Partner and CEO Lisa DeMarco is among those appointed to the EAG. The full list of EAG members is available on the VCMI website.   For further information or to discuss the contents of this bulletin, please contact Lisa DeMarco at lisa@resilientllp.com.

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European Parliament Adopts ‘Fit for 55’ Legislative Package

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The European Parliament today approved the deals reached with EU member countries in late 2022 on several key pieces of legislation that are part of the “Fit for 55 in 2030 package”, the EU’s plan to reduce greenhouse gas (GHG) emissions by at least 55% by 2030 compared to 1990 levels in line with the European Climate Law. The 27 EU countries are collectively the third largest emitter of GHGs globally. The legislation now requires final approval from EU member countries over the course of the next few weeks. This bulletin summarizes key highlights from the legislation adopted today: EU ETS strengthened. Members of the European Parliament (MEPs) voted to reform the EU Emissions Trading System (ETS), which will now require GHG emissions in covered sectors to be reduced by 62% by 2030 compared to 2005 levels. The reforms also phase out free allowances starting in 2026 and place a price on GHG emissions from road transport and buildings starting in 2027 or 2028 (termed ETS II).  Moreover, the ETS will be expanded to cover GHG emissions from the maritime sector, and revised for aviation, phasing out free allowances for the sector by 2026 and promoting the use of sustainable aviation fuels (SAF).  CBAM rules adopted. MEPs adopted the rules for the new EU Carbon Border Adjustment Mechanism (CBAM), which aims to incentivize non-EU countries to increase their climate ambition while ensuring that EU and global climate efforts are not undermined by carbon leakage (production being relocated from the EU to countries with less ambitious policies). The goods covered by CBAM are iron, steel, cement, aluminium, fertilizers, electricity, hydrogen, and indirect emissions under certain conditions. Importers of these goods would have to pay any price difference between the carbon price paid in the country of production and the price of carbon allowances in the EU…

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US EPA Releases Ambitious Proposed Rules for Federal Vehicle Emissions Standards

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The U.S. Environmental Protection Agency (EPA) yesterday announced new proposed federal vehicle emissions standards that are intended to accelerate the ongoing transition to cleaner vehicles and reduce emissions. The proposals would avoid nearly 10 billion tons of CO2 emissions through 2055, equivalent to more than twice the total U.S. CO2 emissions in 2022. The proposed regulations are designed to ensure that electric vehicles (EVs) make up as much as 67 per cent of new passenger vehicles sold in the U.S. by 2032. If implemented, we anticipate that the proposed regulations will have a significant impact on Canada’s economy given the high level of integration of automotive sectors and Canada’s rich supply of critical minerals essential to the production of EVs and EV batteries. This bulletin briefly summarizes the proposed rules: Light- and Medium-Duty Vehicles. The first set of proposed standards, the “Multi-Pollutant Emissions Standards for Model Years 2027 and Later Light-Duty and Medium Duty Vehicles”, builds on the EPA’s existing emissions standards for passenger cars and light trucks for model years (MYs) 2023 through 2026. The EPA projects that, with the new standards, EVs could account for 67% of new light-duty vehicle sales and 46% of new medium-duty vehicle sales in MY 2032. The proposed MY 2032 light-duty standards are projected to result in a 56% reduction in projected fleet average greenhouse gas emissions target levels compared to the existing MY 2026 standards. The proposed MY 2032 medium-duty vehicle standards would result in a 44% reduction compared to MY 2026 standards. Heavy-Duty Vehicles. The second set of proposed standards, the “Greenhouse Gas Standards for Heavy-Duty Vehicles – Phase 3”, would apply to heavy-duty vocational vehicles (such as delivery trucks, refuse haulers or dump trucks, public utility trucks, transit, shuttle, school buses) and trucks typically used to haul freight. These standards would complement the criteria pollutant standards…

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