In more blows to the cryptocurrency sector, two of its biggest players were sued this week by the Securities and Exchange Commission: On Monday, the agency filed charges against Binance, the world’s biggest exchange, and the next day it accused Coinbase, the only publicly listed exchange in the United States, of violating securities laws.
The S.E.C.’s chair, Gary Gensler, has long insisted that most crypto tokens are securities, and therefore fall under the agency’s jurisdiction. Many digital asset enthusiasts — including some regulators and lawmakers — say Mr. Gensler is overreaching.
There are notable similarities between this week’s cases. The S.E.C. accuses both Binance and Coinbase of operating securities exchanges and selling digital assets that it says should have been registered. But in its suit against Binance, the S.E.C. also accuses its chief executive, Changpeng Zhao, of civil fraud, while its case against Coinbase does not claim fraud or name the company’s chief executive, Brian Armstrong, as a defendant.
Here’s what we know so far about the S.E.C.’s crackdown on crypto activities.
The S.E.C. accuses Coinbase of operating as an unregistered broker.
The S.E.C. said Coinbase made billions of dollars facilitating the sale of crypto assets as an unregistered exchange and deprived investors of significant protections. The agency has argued that most crypto products are no different from stocks, bonds and other securities, and that companies offering them must register with the agency and make accompanying disclosures, like any traditional exchange or brokerage.
Coinbase and the S.E.C. have been in a long public battle over the agency’s stance on digital assets. Last year, Coinbase petitioned the S.E.C. for new rules, and in April it sued the agency for failing to act on that petition.
The company has been lobbying Congress and calling for legislation. Coinbase’s chief legal officer, Paul Grewal, testified before the House Agriculture Committee on Tuesday about a draft bill released last week that he said would make the rules “clear in practice, not just theory.” Mr. Grewal added, “The solution is legislation, not litigation.”
Binance is under fire for about a dozen securities charges.
Binance is accused of funneling billions of dollars of customer money to a company owned separately by Mr. Zhao. The S.E.C. charged Mr. Zhao as well as the company, and accused Binance of about a dozen other violations, including misleading investors about the adequacy of its systems to detect and control manipulative trading.
In addition to those charges Binance, like Coinbase, is accused of operating an unregulated exchange and issuing crypto currencies that the agency said should have been registered as securities. Among them was its own token, which trades as BNB, as well as about 10 other popular tokens. Binance denies the charges. On Tuesday, the S.E.C. asked a federal court for a temporary order freezing Binance’s U.S. assets.
The Commodity Futures Trading Commission also charged Binance with violating commodities laws in March.
What about FTX?
The accusations of customer fund mismanagement against Binance are somewhat reminiscent of charges leveled late last year against the FTX crypto exchange and its founder, Sam Bankman-Fried. But Mr. Bankman-Fried, unlike Mr. Zhao, faces criminal fraud and conspiracy charges, as well as campaign finance law violations.
Prosecutors said that Mr. Bankman-Fried had siphoned billions of dollars in FTX customer funds to his trading firm, Alameda Ventures, and that Alameda had used the misappropriated funds for risky, highly leveraged bets.
What happens next?
Binance said the S.E.C. was trying to “unilaterally define crypto market structure” with headline-grabbing enforcement actions and vowed to “defend our platform vigorously,” the company wrote in a post on its website on Monday.
Coinbase has similarly said that it intends to fight back and that it will continue to lobby Congress for new legislation. Companies hope crypto legislation will help eliminate the stain of recent scandals and legitimize the industry, which has a reputation for lawlessness.
But lawmakers don’t all share that sense of urgency, and regulation may be slow. The enforcement actions could play out before any bill is passed, leaving hotly debated questions to the federal courts.
From the industry’s perspective, that indirect path may end up working out. The Supreme Court has shown a willingness to limit agency power, and crypto lobbyists are very aware of the implications. In the next term, the justices will reconsider a doctrine that currently requires courts to defer to agency expertise, which may further curb administrative authority.
“We’re seeing the potential erosion of one of the major tenets of our jurisprudence and a possible change in the scope of authority of administrative agencies,” said Sheila Warren, chief executive of Crypto Council for Innovation, a Washington lobbying group that represents Coinbase and others. She added, “It’s going to be wild.”
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