16 December 2023
Coinbase is challenging the Securities and Exchange Commission’s refusal to provide new rules on trading digital assets, according to Bloomberg Law.
Coinbase filed a petition with the US Court of Appeals for the Third Circuit on Friday, requesting an order to compel the SEC to commence rulemaking, hours after the SEC denied its request. The petition, posted on X, argues that the SEC decision is an abuse of discretion that violates the US Administrative Procedure Act.
Coinbase initially raised the rulemaking request 17 months ago, issuing legal proceedings in April in an attempt to force the SEC into setting rules on cryptoassets.
According to Bloomberg Law: “The SEC under Chair Gary Gensler has viewed most digital assets as securities, and believes crypto exchanges should register with the agency. But the regulator has so far declined to formally identify which assets meet the definition. Coinbase says the legal framework is unworkable.”
🔹 The existing US legal standard for an "investment contract" is the Howey Test, from a 1946 Supreme Court ruling
🔹 Under the Howey Test, Courts must consider whether there was an “investment of money in a common enterprise with a reasonable expectation of profits to be derived from the efforts of others”
🔹 The SEC's statement said it considers existing US law, including the Howey Test, sufficiently flexible to include crypto securities markets
Two Republican SEC Commissioners, Hester Peirce and mark Uyeda, gave a dissenting statement on the decision to deny Coinbase’s petition for rulemaking, stating that “the Petition raises issues presented by new technologies and other innovations, and addressing these important issues is a core part of being a responsible regulator.”
With the UK Government announcing plans in October to bring cryptoassets and exchanges into the scope of its Financial Services and Markets Act, and the EU regulatory framework on Markets in Crypto-Assets (MiCA) being adopted in June, it seems global approaches to regulating the crypto space are diverging...