Securities regulators oppose special treatment of crypto in Coinbase case

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Digital assets should not be seen as โ€œsomehow special,โ€ nor should action against Coinbase be seen as โ€œnovel or extraordinary,โ€ argues an association of North American securities regulators.

In an Oct. 10 filing in the United States District Court for the Southern District of New York supporting the U.S. Securities and Exchange Commission (SEC), the North American Securities Administrators Association (NASAA) argued that digital assets need not be given any special treatment when it comes to applying securities laws.

In June, the SEC sued Coinbase accusing the publicly traded crypto exchange of violating federal securities laws. Coinbase fired back arguing that digital assets and services it provided did not qualify as securities and that the agency was overreaching.

However, NASAA general counsel Vincente Martinez argued the SECโ€™s position is neither โ€œnovel or extraordinary.โ€

โ€œThe SECโ€™s theory in this case is consistent with the agencyโ€™s longstanding public position […] It is also well within the bounds of established law.โ€

The agency argued that itโ€™s unnecessary for the SEC to get explicit Congressional authorization before applying established law to digital assets.

Howey test sufficient

One of the cornerstones of the lawsuit is expected to come from the judgeโ€™s interpretation of the Howey test โ€” used to determine what qualifies as an investment contract. Coinbase has argued digital assets donโ€™t satisfy all prongs of the test.

Martinez argued the Howey test was designed to be flexible enough to encompass all manner of technological advancements in the securities markets, including securities sold and traded on blockchains โ€” similar to arguments previously made by the SEC.

โ€œThe Court should reject Coinbaseโ€™s attempt to narrow and misapply the established legal framework in order to avoid being subject to the same regulatory obligations as all other participants in the Nationโ€™s securities markets,โ€ said Martinez, adding:

โ€œThe Court should decline to treat digital assets as somehow special.โ€

Crypto impact overstated

Martinez also took a swipe at Coinbaseโ€™s argument invoking the โ€œmajor questions doctrineโ€ which claimed executive agencies like the SEC need Congressional approval when it comes to issues of major political or economic significance.

โ€œCoinbase dubiously casts the โ€˜digital asset industryโ€™ as โ€˜a significant portion of the American economy,โ€™โ€ said Martinez.

Related: SEC asks judge to reject Coinbaseโ€™s motion to dismiss lawsuit

However, Martinez said digital assets canโ€™t be reasonably considered a significant component of the American economy as there is no practical economic use case or wide adoption of the vast majority of digital assets other than for speculation.

โ€œWith very few exceptions, digital assets are not widely accepted to pay for goods or services, nor can they be used to satisfy obligations to the government such as fees or taxes,โ€ he wrote.

โ€œAs a class of assets, digital assets are not economically useful,โ€ he said, adding:

โ€œCoinbase overstates both the size and significance of this โ€˜industry,โ€™ particularly the portion that securities regulators oversee.โ€

NASAAโ€™s submission joined the SEC in asking the judge to deny Coinbaseโ€™s attempt to have the SEC lawsuit dismissed.

NASAA comprises 68 members inclusive of securities regulators from all 50 U.S. states along with securities regulators in Canada, Mexico and several U.S. territories.

โ€œNASAA and its members have a substantial interest in this case,โ€ said Martinez.

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