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Michael Hiltzik: The legal system is closing in on crypto, and things may only get worse

Michael Hiltzik, Los Angeles Times on

Published in Business News

That's not all. The day before Bankman-Fried's sentencing, federal Judge Katherine Polk Failla issued a ruling that may have a more far-reaching effect on the crypto business. Failla cleared the Securities and Exchange Commission to proceed with its lawsuit alleging that the giant crypto broker and exchange Coinbase has been dealing in securities without a license.

What's important about Failla's ruling is that she dismissed out of hand Coinbase's argument, which is that cryptocurrencies are novel assets that don't fall within the SEC's jurisdiction — in short, they're not "securities."

Crypto promoters have been making the same argument in court and the halls of Congress, where they're urging that the lawmakers craft an entirely new regulatory structure for crypto — preferably one less rigorous than the existing rules and regulations promulgated by the SEC and the Commodity Futures Trading Commission.

As it happens, Bankman-Fried made the same pitch in his appearances before congressional committees, back in the day when he was viewed as the last seemingly honest crypto promoter, before it was discovered that he had illegally appropriated his customers' holdings to fund his and FTX's own investment ventures.

Failla saw through that argument without breaking a sweat. "The 'crypto' nomenclature may be of recent vintage," she wrote, "but the challenged transactions fall comfortably within the framework that courts have used to identify securities for nearly eighty years."

Failla also took a swipe at the crypto gang's amour-propre, rejecting Coinbase's argument that the case should fall within the "major questions doctrine," an informal rule that requires regulatory initiatives to be explicitly authorized by Congress if they involve issues of "vast economic and political significance." Since Congress hasn't enacted regulations specifically aimed at crypto, Coinbase said, the SEC's lawsuit should be dismissed.

 

The judge's opinion of that argument was withering. "While certainly sizable and important," she wrote, "the cryptocurrency industry 'falls far short of being a "portion of the American economy" bearing vast economic and political significance.'"

Crypto simply "cannot compare with those other industries the Supreme Court has found to trigger the major questions doctrine." Those include the American energy industry and the conventional securities industry itself, she wrote.

Failla's ruling followed another in New York federal court in which a judge deemed crypto to be securities.

In that case, Judge Edgardo Ramos refused to dismiss SEC charges against Gemini Trust Co., a crypto trading outfit run by Cameron and Tyler Winkelvoss, and the crypto lender Genesis Global Capital.

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