In December , the SEC , compelled by the U . S . Court of Appeals for the Third Circuit , finally issued a short , two-page letter denying Coinbase ' s demand to engage in rulemaking . Coinbase is currently challenging that denial as being arbitrary and capricious — interestingly , in its latest brief , Coinbase , like the dissent in the ShapeShift case , demands that the SEC " show its work ."
The problem for the SEC is that its enforcement-first strategy has hit significant snags over the past year .
First , in July 2023 , U . S . District Judge Analisa Torres of the U . S . District Court for the Southern District of New York held that XRP — a token issued by Ripple Labs — is not a security in and of itself under Howey . Judge Torres concluded that , unlike traditional securities , XRP ' s utility and value stem from its independent functionality within the Ripple network , not from Ripple ' s actions or promises .
Then , the following month , the U . S . Court of Appeals for the District of Columbia Circuit held that the SEC ' s denial of Grayscale ' s application to list a spot bitcoin exchange-traded fund was arbitrary and capricious . The circuit ' s decision ultimately forced the SEC to approve applications from Grayscale and others to list bitcoin ETFs in January . Many in the industry believe it is only a matter of time before spot ETFs for other cryptocurrencies , such as ether , receive approval .
To be sure , the SEC has won its share of litigation , most notably in a case involving Terraform Labs . Less than three weeks after Judge Torres ' decision in the Ripple case , U . S . District Judge Jed Rakoff , also in the Southern District of New York , held on summary judgment that Terraform Labs ' LUNA and MIR tokens were unregistered securities under the Howey test .
But the true tests lie ahead , in the SEC ' s litigation against major players in the crypto ecosystem like Coinbase , Binance and Kraken . Eventually , the Supreme Court may be called upon to provide the definitive say over whether crypto-assets fall under securities laws .
That ' s where the ShapeShift case fits in . By targeting smaller players willing to consent to relatively minor penalties , the SEC is subtly strengthening its case that most crypto-assets should be classified as securities . With this and other bits of — admittedly , nonbinding — precedent , the SEC aims to demonstrate that the Howey test can adequately govern the question of which crypto-assets qualify as securities .
Is the SEC ' s Strategy Truly " Untenable "?
Whether the crypto industry can survive a regulatory environment where any crypto-asset may be deemed a security remains an open question .
For the SEC , the solution is straightforward : All crypto-asset dealers should register as securities dealers , make the appropriate disclosures and sell only the crypto-assets that have been registered by the issuer . And it ' s had a hand in orchestrating a proof-of-concept , issuing fawning praise for Prometheum , the first crypto company to be approved by the SEC and the Financial Industry Regulatory Authority to operate as a registered , special-purpose broker-dealer .
But despite the efforts of Prometheum and the SEC , there is reason to believe that the ShapeShift dissent is correct in labeling the commission ' s crypto strategy as " untenable ."
First , a registered alternative trading system authorized by the SEC and FINRA to trade in crypto-assets