The SEC ' s findings of misconduct were far from enlightening . After describing ShapeShift ' s business , the commission concluded : " The crypto assets offered by ShapeShift included those that were offered and sold as investment contracts and , therefore , securities , under SEC v . W . J . Howey Co ." Howey , a 1946 U . S . Supreme Court case involving investments in Florida orange groves , supplies an analysis for determining whether transactions are investment contracts .
Since ShapeShift never registered as a securities dealer or operated under an exception to the Securities Exchange Act ' s registration requirements , the SEC reasoned , it was in violation of the Exchange Act .
The Dissent Strikes Back
In a striking dissent ,[ 2 ] two of the five SEC commissioners attacked the order , calling it a manifestation of the SEC ' s " poorly conceived crypto policy ." While playfully comparing the SEC ' s strategy to a soap opera — incorporating numerous puns and even a mock script — Commissioners Hester Peirce and Mark Uyeda could not mask their frustration with the commission ' s opaque , regulation-by-enforcement approach .
Given the lack of explicit customer harm , the dissenting commissioners questioned what ShapeShift did wrong when it opened shop a decade ago — a time when the SEC was virtually silent as to the expectations of crypto companies . Even now , the dissent noted , the SEC failed to identify in the order which of the 79 crypto-assets traded at ShapeShift constituted investment contracts under Howey . The commission , according to the dissent , ought to " show its work ."
According to Peirce and Uyeda ,
In sum , ShapeShift is in trouble because the Commission , nearly ten years after ShapeShift ' s platform started trading and more than three years after it changed its business model , now contends that some unidentified number of the 79 crypto-assets it traded between 2014 and 2021 were investment contracts without explaining why .
And that ambiguity , according to the dissenting commissioners , serves a purposeful agenda . They implied that the commission , while hiding behind formalities and a 78-year-old Supreme Court case , is intentionally seeking to foster ambiguity and intimidate crypto innovators .
By " expos [ ing ] well-meaning entrepreneurs to a regulatory sword of Damocles ," the dissent states , the SEC is seeking to sabotage the entire industry .
The Bigger Picture
In truth , it seems unlikely that the SEC ' s intention is to destroy the crypto industry . Indeed , the ShapeShift dissent overstates things a bit when it questions the SEC ' s transparency : The SEC has made no secret of the fact that it deems all cryptocurrencies aside from bitcoin to be securities .
Instead , the commission ' s purpose in seeking a relatively modest penalty from a now-shuttered crypto exchange aligns with its strategy of regulating crypto-assets through enforcement actions , rather than via formal rulemaking .
And that strategy now appears to be set in stone . The SEC spent years refusing to engage with crypto exchange Coinbase ' s petition that the commission promulgate crypto-specific rules .