CoinDesk asked top crypto lawyers to explain why SEC Chair Gary Gensler sued Binance and Coinbase, who is expected to win, and what this all means for the crypto industry. danielgkuhn annabaydakova report
Gensler’s is the type of federal enforcement action that could end up before the U.S. Supreme Court. The case against Coinbase, an exchange used by tens of thousands of U.S. citizens , could spur congressional action on crypto regulation. Further,
I think Coinbase is much better situated. It has been trying to comply with the SEC’s rules for quite some time and the SEC has refused to even engage with Coinbase’s good faith efforts at compliance. I don’t think that’s a good look, and I think at least some courts might object to it. The SEC has spent years saying it dislikes crypto assets of any kind, but it hasn’t explained why it dislikes them, it hasn’t explained why it thinks they’re a problem and it hasn’t even pretended to explain how it would regulate crypto assets in a way that it thinks would be more consistent with its regulatory mandate.That’s a problem. Agencies have to be credible and the SEC has a credibility problem. It’s flexing its muscles and can create a lot of pain for crypto companies in the short term.
That said, there are a handful of novel aspects to these complaints. With Coinbase, the SEC for the first time asserts that offering unhosted digital wallet software is broker-dealer activity because the wallet can be used to buy and sell alleged securities via third-party decentralized applications and the software developer takes a fee.
If you were/are a lawyer for one of the major tokens named as a security in either suit, how would you counsel that token’s foundation?Selig: It seems like while the courts or Congress could do random things, the hype machine of crypto has moved to AI, which – while it has a lot of hype associated with it – is a useful technology. So the only question for crypto boosters is, can they deliver an actual use case beyond money laundering and speculation?
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