Resilient LLP (formerly DeMarco Allan LLP)
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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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Shareholders Vote to Support Climate Action at ExxonMobil and Chevron

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Shareholders and investors at two of the largest oil companies in the U.S. have voted to support increased climate action during recent shareholder meetings.   Led by activist investors and hedge funds, shareholders at ExxonMobil’s annual shareholder meeting voted to replace at least two board members with individuals perceived to be supportive of firmer action on climate change and CO2 emissions reductions. Similarly, shareholders at Chevron voted 61% in support of a resolution to “substantially reduce” Scope 3 emissions from Chevron’s energy products, which account for over 90% of its carbon emissions. Management at both Exxon and Chevron unsuccessfully came out against the respective votes.    Hedge fund Engine No.1 was behind the vote to replace board members at Exxon with individuals more aligned with taking increased climate action. Engine No.1 was able to gain the backing of institutional investors (including BlackRock) that want firmer commitments to act on reducing emissions and taking climate change into account as part of a broader investment and carbon transition strategy.   These developments follow last month’s vote at ConocoPhillips, advanced by activist shareholder group Follow This, in favour of setting Scope 1, 2, and 3 emissions reduction targets, which 58% of shareholder supported. Please contact Lisa DeMarco at lisa@resilientllp.com should you wish to discuss the contents of this bulletin.

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Ontario Capital Markets Taskforce Recommends Climate Disclosure; OSFI Climate Risk Consultations

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The Government of Ontario’s Capital Markets Modernization Taskforce (the Taskforce), launched in February 2020, today released its list of 74 recommendations to modernize Ontario’s capital markets regulation. The Taskforce recommends expanding the mandate of the Ontario Securities Commission (OSC) to include fostering capital formation and competition in the markets and changing the name of the OSC to the Ontario Capital Markets Authority.

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