President Biden’s New Executive Order on Cryptocurrency is Good for Law Firms

On March 9, President Joe Biden signed a new Executive Order (the “Executive Order”) calling for a renewed focus on the quickly evolving world of cryptocurrency. The Executive Order sets priorities for the U.S. Government, including creating a digital currency authorized by the U.S. Government.  

While many bitcoin purists might argue that government involvement has no place in the world of cryptocurrency, this Executive Order may signal a major turning point in the degree of federal government involvement in the regulation of cryptocurrency. As detailed below, the Executive Order addresses issues that could be a boon for certain kinds of law firms.  

1. Protecting consumers 

The primary purpose of the Executive Order is to protect consumers from “significant financial risks.” In an industry with such little control over digital assets, the Executive Order will seek to provide a safeguard as investors continue to take part in the growing crypto market. The Executive Order describes the current situation as follows: “In the absence of sufficient oversight and standards, firms providing digital asset services may provide inadequate protections for sensitive financial data, custodial and other arrangements relating to customer assets and funds, or disclosures of risks associated with investment.” With over a trillion dollars in assets, cryptocurrencies are no exception to this need for safe investing. Yet, they pose some of the greatest risks.  

Being decentralized and disconnected from any financial institution, cryptocurrencies are, by nature, uninsured and any accidental loss is permanent. These loses can come from a variety of places including hackers, scams, or by simply inputting the wrong wallet address. According to the Executive Order, “Cybersecurity and market failures at major digital asset exchanges and trading platforms have resulted in billions of dollars in losses.” With the number of users growing every day, the need to protect large investments that can disappear in an instant has become concerning for the federal government.  

The focus on consumer protection will likely lead to the adoption of detailed regulations. This will create opportunities for law firms with lobbying, consumer finance, regulatory compliance, and litigation capabilities.  

2. Protecting the U.S. and global financial systems

A second and arguably more important aspect of the Executive Order is the need to protect the U.S. from potential financial instability created by cryptocurrencies. With the market value of cryptocurrencies skyrocketing over the last decade, the Executive Order argues that cryptocurrencies “may create additional economic and financial risks requiring an evolution to a regulatory approach that adequately addresses those risks.”  

The Executive Order opens the door for new regulatory compliance advisory work. Digital asset providers will need to “be subject to and in compliance with regulatory and supervisory standards that govern traditional market infrastructures and financial firms.” Law firms will be necessary for crypto-tech businesses to make sure they are handling their digital assets appropriately in accordance with these new laws that will take place.  

Mitigation security will also play an important role. The Executive Order acknowledges a risk of unknown dangers created by cryptocurrencies and it will be necessary to have measures in place for law firms to reduce the severity of these issues when the need arises. This will likely create more opportunities for lawyers with data privacy and related expertise. 

3. Criminalizing certain activities relating to cryptocurrencies 

The Executive Order’s third objective gives detail into how criminal activity will be approached. Criminals have used cryptocurrencies over the past decade to commit a myriad of crimes “including money laundering, cybercrime and ransomware, narcotics and human trafficking, and terrorism and proliferation financing.” While crime can be carried out with any currency, one of the earliest use cases for bitcoin was when cybercriminals began using the cryptocurrency to buy and sell illegal drugs on websites such as the Silk Road, which was shut down in 2013. With a public ledger that can be viewed by anyone (and fully downloaded), this type of illicit activity is already being monitored and has led to the creation of coins such as Monero which hides transaction history on its blockchain.  

Without doubt, this will be one of the most important aspects of the Executive Order which aims to “ensure appropriate controls and accountability for current and future digital assets systems to promote high standards for transparency, privacy, and security — including through regulatory, governance, and technological measures — that counter illicit activities and preserve or enhance the efficacy of our national security tools.” It is not hard to see how this aspect of the Executive Order will be a boon to firms with white collar criminal defense practices.  

4. Promoting U.S. leadership in tech 

To remain the global economic leader, the Executive Order will encourage “the responsible development of payment innovations and digital assets” within the United States. With tech industry giants such as Google and Meta already under scrutiny, companies in the crypto industry will need to follow strict guidelines “particularly in setting standards that promote: democratic values; the rule of law; privacy; the protection of consumers, investors, and businesses; and interoperability with digital platforms, legacy architecture, and international payment systems.” This aspect of the Executive Order will be of special interest to cyber law and intellectual property attorneys.  

Cryptocurrencies are highly susceptible and are often the target of hackers and spam. OpenSea, one of the largest NFT marketplaces online, was hacked just a month before the signing of the Executive Order. With more and more businesses operating under the risk of major hacks, tech companies will need to create new features to protect them. This should create increased demand for law firms with data security and privacy expertise.  

5. Promoting access to safe financial services 

The fifth objective of the Executive Order is to increase access to banking. The order indicates that, “many Americans are underbanked.” According to the FDIC, about 5.4 percent of American households didn’t have a checking or savings bank account of any kind and are “underserved by the traditional banking system.” Due to this fact, cryptocurrencies have become popular because of their minimal requirements to create a wallet.  

Unfortunately, with the known risks of using cryptocurrencies, underbanked citizens are at risk of losing what little assets they may already possess. Firms specializing in data security will see many opportunities to offer their services as cryptocurrencies become more commonplace among lower class Americans that struggle to open a bank account. Intellectual property services will also be necessary for blockchain companies that develop new methods to keep crypto assets secure and require patents.   

6. Supporting tech advances and responsible development 

The final objective of the Executive Order is for the U.S. to begin supporting businesses with the technological advances necessary to make cryptocurrency investing safer for Americans. The Executive Order states that the federal government will focus on key aspects of new technology being developed for cryptocurrency that is “implemented in a responsible manner that includes privacy and security in their architecture, integrates features and controls that defend against illicit exploitation, and reduces negative climate impacts and environmental pollution.” It appears that the U.S. government will begin working with the various crypto-tech companies that are sprouting up across the country to establish a set of rules for tech companies to follow.  

While these rules won’t change the technical aspects of certain coins such as bitcoin, it will affect the exchanges where these cryptocurrencies are bought and sold. By creating this new set of standards for crypto companies to follow, law firms will be required to provide services for regulatory compliance.  

7. Exploring U.S. Central Bank Digital Currencies 

As a part of technological development in the sixth objective of the Executive Order, an entire section outlines the experimentation to create and decide whether United States Central Bank Digital Currencies (“CBDC”) would be “deemed to be in the national interest.” This development would be massive. Allowing the U.S. to develop its own cryptocurrency can have major impacts on businesses that seek international clients. The order states, “CBDC may have the potential to support efficient and low-cost transactions, particularly for crossborder funds transfers and payments, and to foster greater access to the financial system, with fewer of the risks posed by private sector-administered digital assets.” With the creation of a national cryptocurrency, law firms around the globe will find it easier to afford business development inside the U.S. as this new CBDC allows them to use the U.S. dollar outside American borders with less transaction fees.  

If the U.S. were ever to adopt a central digital currency, it would significantly impact a range of law firm practice areas, including corporate, securities, tax, real estate, customs, and international trade. The implication here is that American business would be able to extend their services to international clients who don’t have the ability to store fiat USD. By using an American cryptocurrency wallet, they then would be able to do deals with an American-backed currency which wouldn’t have been available beforehand, thus increasing the amount goods and services American companies can provide to the world.  

The creation of a CBDC would also require an extensive number of legal services for the new technology that would be created. Intellectual property and patents, technology services for both private and public use, cyber security, and data security would all see an uptick in demand. 


Within the legal services industry, the most obvious beneficiaries are likely to be Am Law 200 firms.  These are the firms that already employ lawyers across the practice areas identified above. Expect accounting firms, private equity backed consulting companies and others to get into the market of providing advice about how to comply with the Executive Order. This is also an opportunity for boutique firms to identify and launch cryptocurrency-related niche practices.   

The Executive Order provides a six-month window for the Secretary of the Treasury to take the next steps. “Within 180 days of the date of this order, the Secretary of the Treasury […] shall submit to the President a report on the future of money and payment systems.”  

Thus, this is the time for law firms to start identifying how they can serve and attract clients in the cryptocurrency space.

Is This the Time to Pursue Antitrust Litigation?

Even the biggest law geeks tend to have a MEGO (my eyes glaze over) moment when they hear about antitrust law. To be sure, antitrust law can be daunting. It has its own jargon, and litigating an antitrust case is at the intersection of complicated law and sometimes even more technical economic analysis. As a former antitrust lawyer who focused on securing governmental approval for large-scale mergers, it’s never been a mystery to me why more lawyers are interested in class action lawsuits than are looking to pursue antitrust cases.

This is the time to reconsider that position. The primary reason is that antitrust law is becoming an increasingly potent way to address one of the biggest trends in the U.S. economy: the growing consolidation of service providers in many sectors. How many cable companies serve your area? How many choices did you have in selecting a health insurance provider? The answer to either of these questions for most Americans is one or two. And, of course, tech giants like Google and Apple dominate their respective markets.

Increasing consolidation is not entirely accidental. One factor causing it has been the growing influence of the financial sector. Private equity companies and venture capitalists look to form monopolies or, at the very least, oligopolies (when a small number of service providers dominate a market). And the rise of technological platforms has caused industries that once had large numbers of competitors to become more concentrated (think Airbnb, Lyft, and Uber).

As discussed by Matt Stoller in this post from the BIG newsletter, the same thing is happening to one of the most competitive industries around: restaurants. Specifically, food delivery apps are forming connections directly with consumers and, in some cases, squeezing out the restaurants or placing a lot of pressure on those restaurants to join the apps in order to remain viable. In most cities, one or two food delivery apps control a lion’s share of the market. In New York City, for example, Grubhub makes up 4.5 times the share of the market represented by its closest competitor, 67% with Postmates on the bottom rung at only 4%.

Not surprisingly, large sources of capital are often subsidizing these apps, sometimes for many years before they show profits. Even before Covid-19, Airbnb, Lyft, and Uber struggled to make profits. And the pattern of subsidization continued, as detailed in Stoller’s post, when one of Uber’s former CEOs got tons of Saudi money to support his new venture in the food app business.

Historically, the federal government, in the form of the Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice, has played an important role in regulating mergers. The federal government still has the capacity to file antitrust lawsuits, but over the past few decades (under both Democratic and Republican administrations), such suits are less common. Antitrust policy hasn’t received a ton of publicity on the campaign trail, but, as mentioned in this blog post from Patterson Belknap, candidates are addressing their policies on antitrust law at least to some degree.

Joe Biden, for example, includes a statement on his campaign website which notes antitrust measures as a strategy to “protect small and medium-sized farmers and producers” in rural America, promising to strengthen enforcement of the “Sherman and Clayton Antitrust Acts and the Packers and Stockyards Act.” He broadly supports using antitrust to conduct investigations but has shied away from calls to break up huge tech companies like Google. So, we shouldn’t necessarily expect a significant change in federal enforcement actions to accompany a change in administration.

Some aspects of competition policy are therefore moving to the state level. And that makes a private antitrust lawsuit filed in federal court a more important tool.

It can seem daunting, and lawyers who step into this space will be suing companies often represented by Am Law 200 firms (the legal services industry itself has seen a lot of consolidation). But antitrust work can also present good opportunities for smaller firms to pool resources and spread the risk that would come with taking on cases individually. Given the financial potential that antitrust litigation presents, more mid-sized firms should consider getting into the action.