[1]Today the Commission dismissed its enforcement action against Coinbase, a crypto trading platform. This reverse-course midstream – coupled with recent high-profile stays of other litigations – is not only unprecedented, it ignores 80 years of well-established law. We say we are dismissing the action because of future recommendations that may be made by the “crypto task force dedicated to helping the Commission develop the regulatory framework for crypto assets.”[2] But, whatever the law may be tomorrow, market participants should not be able to avoid the law as it stands today.
The Commission has brought numerous actions to enforce the securities laws with respect to crypto assets since their advent, during both Republican and Democratic administrations.[3] And, court after court has upheld the Commission’s jurisdiction in this space.[4] In fact, in the Coinbase matter the Commission dismissed today, the court had found that the Commission adequately pleaded violations of the securities laws. The court explained that: “[t]he SEC has a long history of proceeding through [enforcement] actions to regulate emerging technologies and financial instruments within the ambit of its authority as defined by cases like Howey[.] Using enforcement actions to address crypto-assets is simply the latest chapter in the long history of giving meaning to the securities laws through iterative application to new situations.”[5] The court also held that “the challenged transactions fall comfortably within the framework that courts have used to identify securities for nearly eighty years.”[6] The Commission’s action today blithely tosses aside that body of precedent.
I have heard many say that the industry craves legal clarity. Today’s action results in less clarity. I have and will continue to work with participants who seek to operate within the securities laws. Or, should the Commission enact new regulations or Congress change the law, we can progress down a different path. But until that time, we have a framework in place and that framework should be applied and enforced equally as to all participants.
Far from clarity, today’s action creates more uncertainty. What exactly is the law as it applies to crypto assets? How can we pursue fraudulent conduct in this space while casting doubt on our regulatory jurisdiction? Are we eroding our ability to police fraudulent Ponzi[7] schemes? Are we poised to give special treatment to crypto assets over traditional assets, or even other emerging assets? What effects will this have on our traditional markets and financial instruments?
The newly created crypto task force may intend to make recommendations to answer some of these questions, but we do not have any legally enforceable answers yet. In fact, the most salient change to date has been this retreat from enforcement of the securities laws with respect to crypto.[8] Or, “regulation by non-enforcement.”
It may well be that “environments in which the law is unclear are havens for bad actors,”[9] but wholesale failure to enforce the law seems worse. There are well known risks in this industry – fraud and manipulation, money laundering, national security concerns, volatility, and retail investor losses – just to name a few.[10]
Lastly, today’s action undermines the credibility of our Division of Enforcement. It creates the specter that the agency will deploy its enforcement resources in conjunction with election cycles or in favor of those with means. This invites criticism that our agency is politicized and sows distrust in government. Our agency’s job is to do what is right for investors, issuers, and capital markets. This is not it.
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