How are crypto firms responding to US regulators’ enforcement actions?

United States regulators including the Securities and Exchange Commission (SEC) have ongoing civil cases against major cryptocurrency firms including Binance, Coinbase, and Ripple, but not every company has been subject to the same treatment.

Gary Gensler, serving as SEC chair since 2021, has been widely criticized by many lawmakers and industry leaders for a “regulation by enforcement” approach to crypto companies and offerings. Some of the cases have ended up in federal courtrooms to determine what may qualify as a security in the United States, and not all judges’ decisions have necessarily been favorable to the regulator.

The commission filed a lawsuit against Ripple in December 2020 over XRP as an allegedly unregistered offering, but received a partial summary judgment in July that the token was largely not a security. Coinbase, which seemed to expect legal action ahead of the SEC’s lawsuit filed in June, targeted the regulator in response to its case, claiming the exchange tried to “come in and register” without success or proper feedback.

Prometheum, a crypto firm which gained a lot of media attention in June following co-CEO Aaron Kaplan testifying before the House Financial Services Committee on digital asset regulation, received approval from the Financial Industry Regulatory Authority as a special purpose broker-dealer (SPBD) for digital asset securities in May. Some of the firm’s subsidiaries, which also deal in digital assets, have successfully registered with the SEC.

“Prometheum was purpose-built to comply with federal securities laws and create the first digital asset security trading platform subject to those laws including investor protection rules,” Kaplan told Cointelegraph. 

Kaplan’s approach would seem to suggest that certain firms like Coinbase, Binance, and Ripple launched services in the U.S. with the intention of trying to change existing regulations. Major players have sometimes lobbied for legislation favorable to crypto firms: Coinbase CEO Brian Armstrong has been a regular presence in Washington DC and encouraged users to back political candidates in support of pro-crypto policies.

According to the Prometheum co-CEO, certain crypto companies “have been working to rewrite or amend existing laws in their favor and to the detriment of retail investors”, speculating that the current frameworks are incapable of dealing with digital assets. Many industry leaders and lawmakers have echoed similar concerns, claiming crypto firms in the U.S. have an uphill battle in recognizing what digital assets qualify as securities.

Kaplan hinted the fact that Prometheum was able to obtain a SPBD license was evidence that regulatory compliance was at least possible. However, the approval has led to calls to investigate the firm by advocacy groups including the Blockchain Association and crypto-minded members of Congress.

“We are concerned that the [SEC] granted Prometheum a ‘sweetheart’ deal in exchange for support of the Commission’s policy goals, or that Prometheum is leveraging personal connections with the Commission to gain an unfair advantage in the market,” said the Blockchain Association in July. “Most significantly, we are concerned that Chair Gensler is using Prometheum and the SPBD licensure process as a means to thwart congressional efforts toward legislation by continuing to spread the false narrative that the law is already clear with regard to digital asset securities.”

Kaplan added:

“From the moment Prometheum received its SPBD license, there was a seemingly concerted effort by various industry associations and lawmakers to discredit the more than 6 years of hard work we have put in to build our company.”

Related: Binance and CEO Changpeng Zhao ask court to dismiss SEC suit

It’s unclear if Prometheum’s approach will work for existing players in the space in an effort to sidestep enforcement actions, or for up-and-coming projects aware of the regulatory challenges in the United States. David Hirsch, head of the SEC’s crypto enforcement division, reportedly said at a Sept. 19 conference that though the commission was currently embroiled in several civil lawsuits, it would continue to bring actions against firms it saw as violating U.S. securities laws — including decentralized finance projects.

Gensler will be testifying before the U.S. House Financial Services Committee on Sept. 27 in a hearing on SEC oversight. According to a Sept. 22 memo, lawmakers will question the SEC chair on matters including policies on digital asset custodial activities and expansion of the commission’s authority over crypto firms.

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