Casey Wagner

Just hours after his employer was charged by the SEC for a variety of alleged securities law violations, Coinbase Chief Legal Officer Paul Grewal appeared before the House Agriculture Committee to face questions on crypto market regulation.&nbsp;



Committee members gathered Tuesday afternoon to question a five-witness panel made up of Grewal, other industry members and former regulators. Earlier in the day, <a href="https://blockworks.co/news/regulation-by-enforcement-unsustainable">lawmakers grilled</a> Commodity Futures Trading Commission Chair <a href="https://blockworks.co/tag/rostin-behnam">Rostin Behnam</a>.&nbsp;



“I do want to address one more elephant in the room,” Committee Chair Glenn Thompson, R-Penn., said during his prepared remarks, referring to the SEC’s complaint against <a href="https://blockworks.co/tag/coinbase">Coinbase</a>.&nbsp;



“While I will not and cannot speak to any of the specific allegations against [Coinbase], I do want to note that this kind of action is exactly why we are holding this hearing here today,” Thompson said. “Regulation by enforcement is not an appropriate way to govern a market, adequately protect customers or promote innovation.”&nbsp;



Grewal joined <a href="https://blockworks.co/tag/robinhood">Robinhood</a> chief legal compliance and corporate affairs officer Dan Gallagher on the hearing’s second panel. Second panel witnesses also include former CFTC Chair Christopher Giancarlo, former <a href="https://blockworks.co/tag/cftc">CFTC</a> Commissioner and former <a href="https://blockworks.co/tag/sec">SEC</a> General Counsel Dan Berkovitz, as well as Walt Lukken, former CFTC acting chair.



Lawmakers refrained from asking about the specific allegations made against Coinbase, but they did touch on topics addressed in the SEC’s complaint, such as token classification and exchange registration.&nbsp;



“Under the current circumstances at the SEC…the invitation has been extended repeatedly to ‘come in and register,’ yet, like Robinhood, when Coinbase has attempted to do just that, talk about how we could register…after months and months of discussion we were simply dismissed,” Grewal said when asked about how Coinbase has attempted to be compliant.&nbsp;



Coinbase went through an extensive vetting process with the SEC before it was allowed to go public via direct listing in 2021.&nbsp;



“I am still digesting the complaint that was served today,” Grewal said. “What I can speak to, in much greater detail, are the many, many interactions we’ve had with the SEC, going back not just months, but several years.”&nbsp;



Rep. John Rose, R-Tenn., mentioned the SEC’s decision to <a href="https://blockworks.co/news/sec-10-tokens-securities">list several additional tokens as securities</a> in the Binance and Coinbase complaints released this week. He asked Gallagher if Robinhood could simply list any of these assets on their SEC-registered broker-dealer platform.&nbsp;



“No,” Gallagher responded. “You would think with a major broker-dealer sitting on the other side of our house, our primary business, we could simply say ‘OK SEC, you’ve just said these are securities, I’m going to go trade them on my broker platform,’ [but] it’s impossible without major regulatory relief and changes in the securities markets.”&nbsp;



<h2 class="wp-block-heading">Cryptos SEC deems securities on Robinhood</h2>



Solana (<a href="https://blockworks.co/price/sol">SOL</a>), cardano (<a href="https://blockworks.co/price/ada">ADA</a>) and polygon (<a href="https://blockworks.co/price/matic">MATIC</a>), each of which is named in both the Coinbase and Binance lawsuits, are all currently available to buy and sell on Robinhood’s crypto platform.&nbsp;



Gallagher expressed similar frustrations to those raised by Grewal, saying Robinhood has spent more than a year trying to appeal to the SEC’s current regulatory structure.&nbsp;



“When Gensler said ‘come in and register,’ we did…We went through a 16-month process with the SEC staff trying to register as a special-purpose broker-dealer and then we were… told in March that that process was over and we would not see any fruits of that effort,” Gallagher said.&nbsp;&nbsp;



All panelists, and most lawmakers, agreed the path forward for crypto, to protect consumers and foster innovation, is for immediate congressional action to address current regulatory gaps.&nbsp;



Without swift action, “the spot market for digital asset commodities will continue to lack federal supervision,” Grewal said. “we will continue to see this innovation, this industry, invest more and more of its resources outside of the US.



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Coinbase Put in House Hot Seat Hours After SEC Lawsuit Released

Shalini Nagarajan

SEC chief Gary Gensler has again called out crypto firms in the media for not registering with the securities agency, like legacy finance intermediaries do.



In a Thursday opinion piece in The Hill, Gensler remained unconvinced by claims of lacking clarity on what constitutes a security in the digital asset context.



He said very few crypto companies are registered with the SEC and therefore lack compliance with federal securities laws.



“We’ve been clear that most crypto tokens that are backed by entrepreneurs, among other features, are likely to be securities,” Gensler <a href="https://thehill.com/opinion/congress-blog/3891970-getting-crypto-firms-to-do-their-work-within-the-bounds-of-the-law/" target="_blank" rel="noreferrer noopener">said</a>.&nbsp;“We’ve been clear how lending and staking platforms come under the securities laws.”



Read more: <a href="https://blockworks.co/news/sec-staking-enforcement-explained">Will The SEC Target Crypto Validators and Protocols Next?</a>



“We’ve been clear that platforms listing crypto securities must register with the SEC. Further, the securities laws are clear that these platforms are not to combine functions under a single umbrella that creates conflicts and risks for investors.”



<h2 class="wp-block-heading">Securities need corporations, crypto doesn&#8217;t</h2>



Gensler further opined that crypto firms aren&#8217;t eager to register with the SEC because, maybe, &#8220;it’s simply that their business models rely on being noncompliant.&#8221; 



&#8220;At times, it has felt like some have sought a stamp of approval for noncompliant activity, rather than changing a fundamentally non-compliant business model rife with conflicts.&#8221;



Dave Weisberger, CEO of algorithmic trading platform CoinRoutes, agreed crypto investors should receive all protections, just as they should in any securities market. But he labeled the op-ed as “grossly misleading.”



He said the SEC has been anything but clear when it comes to providing workable guidelines and rules for the industry.



SEC chief Gensler “ignores the simple fact that current rules are both unworkable and, in many cases useless, for cryptoassets and intermediaries,” Weisberger told Blockworks.



For example, most of the assets Gensler unilaterally deems securities have no corporate issuer and some do not even have a foundation as a sponsor, he pointed out.



Weisberger said: “Yet, the disclosures required by the SEC, most of which are published in EDGAR, require corporate issuers, financial statements and other artifacts which these assets do not have.”



“Moreover, those disclosures have no standard way of disclosing the token economics of the assets, which is often the most important information for investors.”



Crypto startups have even been incentivized to avoid engaging with the SEC based on a fear that the regulator will use the opportunity to enter “settlement” discussions, which could result in fines and bad publicity, he added.



SEC Commissioner Hester Peirce, who has long been dissatisfied with the agency’s treatment of the industry, recently <a href="https://www.coindesk.com/consensus-magazine/2023/02/07/crypto-mom-hester-peirce-sec-disappoints-when-it-comes-to-crypto/" target="_blank" rel="noreferrer noopener">said</a> the regulator “has not done a good job” and that it has “never handled innovation very well.”



<h2 class="wp-block-heading">&#8216;The paradigm has shifted&#8217;</h2>



Coinbase’s legal chief Paul Grewal <a href="https://blockworks.co/news/coinbase-grewal-congress-testimony">called for fresh legislation</a><a href="https://blockworks.co/news/coinbase-grewal-congress-testimony" target="_blank" rel="noreferrer noopener">,</a> in Congressional testimony the day of Gensler’s opinion piece.



Grewal argued there are no clear rules for the crypto space and laid out how the current framework does not account for the technological ways in which crypto markets operate.



SEC registration of a crypto company is “very complicated” and rules need to be modernized, he said.&nbsp;



“Just as regulatory and legislative developments were necessary to address the transition from a paper-based financial system to a computer-based system, new rules are necessary to address the novel features and benefits of blockchain technology.”



Grewal said there are real challenges in applying the existing registration frameworks. Many crypto projects which have issued tokens use differently than how traditional companies utilize securities like debt and equity, per Grewal.



But despite years of repeated calls from the crypto industry to evolve its rules, the SEC has not really softened its stance.&nbsp;



Aaron Kaplan, a securities lawyer and co-founder of upstart digital asset securities platform Prometheum, told Blockworks this would ultimately demand crypto exchanges obtain proper licenses and update operational procedures to comply with securities regulations.



He then shared a bleak outlook for crypto exchanges should regulators refuse to budge. “The paradigm has shifted and those who don&#8217;t evolve with the changing times will fall rapidly into obsolescence,&#8221; Kaplan said.



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SEC Has Given Crypto Enough Clarity on Securities Law: Gensler

Sebastian Sinclair

Coinbase&#8217;s Chief Legal Officer will testify before Congress on Thursday to advocate for the adoption of clearer rules in the US crypto market, including the ways in which policymakers should approach the industry’s age-old question of what constitutes digital asset securities.



In a <a href="https://docs.house.gov/meetings/BA/BA21/20230309/115389/HHRG-118-BA21-Wstate-GrewalP-20230309.pdf">written testimony</a>, published Wednesday ahead of his appearance in Washington, D.C., Coinbase’s Paul Grewal argues for fresh legislation, “necessary to address the novel features and benefits of blockchain technology.”



“The current rules never contemplated transactions that could move at the speed of the Internet,” Grewal writes. “Even today, ‘digital’ securities transactions settle in an analog world, typically two days later.”



Grewal said it’s because of these archaic rules that crypto firms now find themselves in regulatory hot water with the US Securities and Exchange Commission (SEC). The agency’s chair, Gary Gensler, contends otherwise, claiming that the “<a href="https://blockworks.co/news/sec-gensler-ai-better-than-crypto">path to compliance is clear</a>.”



The Coinbase executive is expected to tell Congress that applying the existing registration and disclosure frameworks for securities offerings to digital assets poses real challenges.



That’s because digital assets are often designed to be directly used in exchange for goods and services on a given protocol or network, unlike traditional securities.



Digital assets&#8217; utility makes them an integral part of the operation of the network which neither looks like a securities transaction nor should be treated as one, according to Grewal’s testimony.



Unlike a typical SEC reporting company, whose securities are tied to the viability of ongoing operations and control, a digital asset token can exist and flourish independently of its issuer.&nbsp;



<a href="https://blockworks.co/tag/ethereum">Ethereum</a> tokens, for example, are essential for executing smart contracts on the Ethereum network, unlike Apple stocks which are not necessary for operating an iPhone, Grewal notes.



While these digital assets play a crucial role in the network&#8217;s operation, they do not resemble securities transactions and should not be treated as such. As the tokens&#8217; value can only be fully realized when used for their intended purpose, investors can only profit if the tokens function as intended.



That also means that in order for digital assets to operate as designed, holding them outside the control of centralized entities such as securities dealers, banks or other custodians is crucial to their success, proponents argue.



Therefore, establishing a clear framework to resolve which tokens are securities and which are not, while recognizing that tokens issued through an investment contract may change over time is essential, Grewal contends.



<h2 class="wp-block-heading">Exchange registration for digital assets, a winding path</h2>



There currently exists no path for crypto firms looking to register as a National Securities Exchange (NSE) while the Exchange Act generally requires securities to be traded via an SEC-registered exchange, according to the Coinbase executive.



NSE’s are SEC-registered entities that meet regulatory standards, including having a minimum number of listed companies and meeting certain financial reporting requirements.&nbsp;



The Exchange Act, meanwhile, requires companies with securities listed on US stock exchanges to register with the SEC and disclose certain financial and business information to the public. It also regulates the activities of securities brokers, dealers and exchanges while putting the SEC in charge of policing the sector.



Digital asset trading platforms, including the likes of Coinbase, wanting to register as an NSE cannot satisfy the Exchange Act&#8217;s requirements and have no legal path to do so, Grewal said.



Importantly, the SEC has never determined that facilitating the trading of non-security digital assets, such as bitcoin, furthers the purposes of the Exchange Act.



“This creates a catch-22 for digital asset trading platforms,” Grewal said. 



Crypto firms are unable to satisfy the purpose of the Act, as interpreted by the SEC because they facilitate trades in assets not considered securities outside the scope of the regulator and the Act itself, according to Grewal.



“Because the SEC has rejected the registration of digital asset exchange-traded products, citing the lack of a significant regulated market, no such market can form,” he said.



Multiple companies have attempted to register various versions of a bitcoin exchange-traded fund over the years to no avail with the SEC often citing a lack of demand for such a product while raising concerns centered on market manipulation and thin liquidity.



Prominent crypto firms have taken the SEC to court over the issue for what they’ve deemed as an unfair interpretation of the law.&nbsp;



In 2018, the SEC rejected a proposal by Cameron and Typer Winklevoss, co-founders of the <a href="https://blockworks.co/tag/gemini">Gemini exchange</a>, citing a lack of investor protections. The Winklevoss twins argued the regulator&#8217;s decision was based on a bad reading of the law and was therefore treating bitcoin unfairly to that of other asset classes.



While the case was appealed, a US court eventually upheld the SEC’s decision.



In 2021, Valkyrie Digital Assets filed a lawsuit against the SEC after <a href="https://blockworks.co/news/sec-postpones-decision-on-valkyrie-bitcoin-etf-to-august">its application for a bitcoin ETF was delayed</a>. Valkyrie argued that the SEC had failed to provide a reason for the delay and that the delay was causing harm to its business.



More recently, Grayscale Investments has sued the agency for <a href="https://blockworks.co/news/grayscale-sec-saga-moves-forward">blocking its own attempts</a> to convert its flagship product into a bitcoin ETF.&nbsp;



<h2 class="wp-block-heading">Desired outcomes</h2>



As part of all future digital asset policymaking decisions, legislation should contain strong consumer and investor protection standards for intermediaries and service providers to safeguard customer assets at all times, Grewal noted.



There also must be a path for offerings involving tokens to list as securities on SEC-registered trading platforms and Congress needs to provide a way for builders to succeed, he said.



As such, Grewal wants Congress to direct the SEC to permit existing digital asset trading platforms to register as an Alternative Trading System, which is currently permitted for trading securities under existing rules.



“A key inhibitor to a functioning primary market for digital asset securities, including investment contracts, is the lack of a workable set of registration and reporting requirements,” Grewal said. “Existing disclosure requirements are not tailored to digital assets or designed to protect investors in this distinct marketplace.”



Centralized trading platforms and custodians should also hold customer assets 1:1, proving their reserves through independent audits, he added. <a href="https://blockworks.co/tag/proof-of-reserves">Proof of Reserves</a>, as they’ve come to be known, refer to independent audits demonstrating asset held on centralized crypto exchanges.



Binance, Kraken, Crypto.com, and others have all <a href="https://blockworks.co/news/binance-shows-proof-it-has-all-your-bitcoin-critics-arent-sold">come under fire</a> from market participants over the way in which they report users’ holdings on their platforms — sparking a debate over the veracity of what’s reported.



They’ve been a vocal point of contention within the industry ever since the collapse of FTX in November. Until then, those audits had been an afterthought. Grewal wants policymakers to enshrine the practice into law.



The subcommittee on Digital Assets, Financial Technology And Inclusion is <a href="https://docs.house.gov/Committee/Calendar/ByEvent.aspx?EventID=115389">scheduled</a> to meet at 2:00 pm ET on Thursday.



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Coinbase Exec Says Its ‘Catch 22’ for Crypto Firms Seeking SEC Registration

Cryptocurrency exchange Coinbase is defending its staking services after the US Securities and Exchange Commission (SEC) took issue with Kraken’s staking-as-a-service program.



“Coinbase&#8217;s staking services are not securities. We will happily defend this in court if needed,” CEO Brian Armstrong said in a <a href="https://twitter.com/brian_armstrong/status/1624829368915890176" target="_blank" rel="noreferrer noopener">tweet</a> on Sunday, posting a <a href="https://www.coinbase.com/blog/coinbases-staking-services-are-not-securities-and-heres-why" target="_blank" rel="noreferrer noopener">blog</a> that explains his rationale.&nbsp;



In the blog, Coinbase’s chief legal officer Paul Grewal writes that staking is not a security under the Securities Act, nor under the Howey Test.



“Trying to superimpose securities law onto a process like staking doesn’t help consumers at all and instead imposes unnecessarily aggressive mandates that will prevent US consumers from accessing basic crypto services and push users to offshore, unregulated platforms,” he wrote.



<a href="https://blockworks.co/news/the-investors-guide-to-staking">Staking</a> is a process in which crypto holders participate in validating transactions on the blockchain. In return for this effort, the block’s proposer receives a reward paid in the blockchain’s native cryptoasset — for example, ether, in the case of Ethereum. 



Read more: <a href="https://blockworks.co/news/sec-staking-enforcement-explained">Will The SEC Staking Hammer Hit Validators and Protocols Next?</a>



Kraken <a href="https://blockworks.co/news/kraken-settles-sec-crypto-staking-program">reached a settlement with the SEC</a> last week, agreeing to pay $30 million for failing to register the offer and sale of its staking program, which was advertised as offering annual investment returns as high as 21%. Kraken didn’t admit to or deny the allegations.



Meanwhile, staking has <a href="https://blockworks.co/news/coinbase-diversified-revenue-with-staking-now-comes-the-sec">contributed significantly</a> to Coinbase’s revenue diversification efforts. According to Coinbase, staking does not constitute an investment of money and does not meet the Howey Test, which the SEC and US courts use to determine whether an asset is a security.&nbsp;



“When a customer asks us to stake some of their crypto, they aren’t giving up one thing to get something else — they own exactly the same thing they did before,” Grewal wrote.



“Staking customers retain full ownership of their assets at all times, as well as the right to &#8216;unstake’ those assets consistent with the underlying protocol,” he added.



Further, staking rewards are just payments for validation services to the blockchain, not a return on investment. They are determined by the blockchain protocol and would be the same whether the customer stakes on their own or through Coinbase, the blog states.



Last week, Armstrong <a href="https://twitter.com/brian_armstrong/status/1623459203150131201" target="_blank" rel="noreferrer noopener">said</a> Coinbase has heard that the SEC wants to get rid of crypto staking in the US for retail customers, adding that he thought this would be a “terrible path” for the country. Some legal experts appear to agree with him.



&#8220;Staking is an essential feature of today&#8217;s programmable blockchains, particularly Ethereum,&#8221; said Bill Hughes, senior counsel and director of global regulatory matters at ConsenSys. &#8220;These world computers do not function without it. It is how these protocols secure and update network data. It is a marvel of computer science that is changing the world.&#8221;



Regulators should be open to dialogue about their concerns so that the community can consider and take steps to address them, according to Hughes.



“There are policymakers in many corners of the world who approach these topics with an open mind and a transparent process. They remind us that inquiries into staking need not be shadowy, cynical, or results-oriented. Their engagement should be applauded,” he added.



Others argue more broadly that cryptoassets are not securities, full stop, notwithstanding the SEC’s view.



Aside from Bitcoin and Ethereum, Jai Massari, a co-founder and chief legal office of Lightspark <a href="https://corpgov.law.harvard.edu/2022/12/06/why-cryptoassets-are-not-securities/#11" target="_blank" rel="noreferrer noopener">wrote in December</a>, “it has been almost impossible to apply the SEC staff guidance in a way that provides agreed-on and repeatable answers.”



In a post to the ​Harvard Law School Forum on Corporate Governance, Massari, a visiting Lecturer at Berkeley Law, criticized the SEC’s approach.



“Market participants are expected to analyze a cryptoasset and its underlying project under many vague factors, some of which are based upon information not publicly available. The analysis is unwieldy at best and impossible at worst, particularly without guidance on which factors might outweigh others and with little clarification through rules or substantive litigation.”



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Coinbase Hits Back At SEC Over Staking as a Service

Ben Strack

<div id="highlights-block_6266f429ee1c4" class="highlights">
 <ul>
 <li>Attorneys cite SEC’s Teucrium bitcoin futures ETF approval in latest letter to regulator</li>
 <li>The bitcoin ETF landscape is “unfair and discriminatory” against GBTC shareholders, Grayscale chief legal officer says</li>
 </ul>
 
</div>



Lawyers representing crypto investor firm Grayscale Investments have updated their letter to the SEC a few weeks after the agency’s decision to approve a bitcoin futures ETF.



Attorneys for Davis Polk &amp; Wardwell LLP <a href="https://cms.blockworks.co/grayscale-attorneys-argue-sec-for-spot-bitcoin-etf-approval/" target="_blank" rel="noreferrer noopener">previously argued</a> to the SEC that the regulator’s decision to approve a futures-based fund and not a spot ETF is “arbitrary and capricious” — and therefore in violation of the Administrative Procedure Act (APA).



Grayscale is trying to convert its Bitcoin Trust (GBTC) to an ETF, and the SEC’s decision on that proposal is expected in July.&nbsp;



Following its approval of several bitcoin futures ETFs in October, the watchdog <a href="https://cms.blockworks.co/sec-approves-bitcoin-futures-etf-filed-under-the-33-act/" target="_blank" rel="noreferrer noopener">greenlighted another such fund</a> filed by fund group Teucrium. Unlike the others, which were filed under the Investment Company Act of 1940, the Teucrium vehicle was filed under the Securities Act of 1933 — the very regulation under which spot bitcoin ETFs are filed.



The Grayscale lawyers argued in their <a href="https://www.sec.gov/comments/sr-nysearca-2021-90/srnysearca202190-20123987-280130.pdf" target="_blank" rel="noreferrer noopener">latest letter</a> that the Teucrium decision confirms that 1940 Act registration is not a basis for the Commission to approve one product and reject another. 



“The commission’s prior disapprovals of spot bitcoin ETPs have not identified any distinct and significant additional risk of fraud and manipulation that is somehow specific to spot bitcoin ETPs, and none exists,” the attorneys wrote.



GBTC, which launched in 2013, has $25.3 billion in assets. The trust has consistently traded at a discount, and more than 3,000 letters <a href="https://www.sec.gov/comments/sr-nysearca-2021-90/srnysearca202190.htm" target="_blank" rel="noreferrer noopener">have been submitted</a> to the SEC advocating for its conversion.



“As it stands, the Bitcoin ETF landscape is unfair and discriminatory against GBTC shareholders and all of the other US investors looking for an accessible and efficient way to gain their Bitcoin exposure,” Grayscale Chief Legal Officer Craig Salm wrote in <a href="https://grayscale.com/unpacking-the-news-another-new-argument-for-a-bitcoin-etf/" target="_blank" rel="noreferrer noopener">a Monday blog post</a>. “We look forward to engaging further with the SEC on this matter.”



Cassandra Lentchner, president of institutional crypto platform BitGo, was among the latest to write the SEC in support of GBTC’s proposed conversion. Paul Grewal, Coinbase’s chief legal officer, made arguments in a December dispatch.



Lentchner called the regulator’s concerns around manipulation “misplaced,” noting bitcoin’s market capitalization of $750 billion and trading volumes of tens of billions daily.



“An ETF with redemption capacity would be able to more closely track current prices,” Lentchner wrote. “There is no basis to permit an investment in a future contract but not the asset itself.”



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