The SEC believes some tokens listed on Coinbase are securities.
The SEC vs Coinbase case aims to settle key questions for major cryptocurrencies.

This ongoing U.S. Securities and Exchange Commission (SEC) case aims to settle key questions around whether certain major cryptocurrencies like Bitcoin and Ether should be classified as securities—a decision that could profoundly impact the future growth and direction of the crypto industry.

Background on the High-Profile Case

The SEC filed a lawsuit against Coinbase in June 2023 alleging that the exchange allowed trading of digital assets that should have been registered as securities. The regulator takes a "functional approach" in determining what meets the definition of a security—meaning they look at how an asset behaves, not just its formal claims or nomenclature.

Specifically, the SEC believes major assets like XRP, in addition to nine other tokens listed on Coinbase, display hallmarks of securities in that they represent investment contracts. Under the SEC's interpretation, these crypto tokens are:

  • Subject to a "common enterprise"
  • With the expectation of profit
  • Driven substantially by the efforts of 3rd parties

This basis for regulating certain crypto assets as securities originated from the landmark 1946 case SEC v Howey Co that established this framework.

Coinbase, however, strongly disputes claims that the crypto networks and communities centered around assets like Bitcoin or Ether constitute a common enterprise equivalent to traditional securities. The exchange argues it has been intentionally limiting token listings to assets like Bitcoin and Ether that operate distinctly from securities, rather than "potentially unusable altcoins."

As defendants, Coinbase filed a motion to dismiss the lawsuit on the grounds that the SEC is regulating crypto by enforcement while denying due process by refusing to provide clear guidance. This reflects a longstanding criticism that the regulator is struggling to adapt existing regulations to emerging digital asset classes, defaulting to ad hoc enforcement actions instead of transparent rulemaking.

Presiding Judge Katherine Polk Failla has yet to make a judgement on whether the case will proceed or if Coinbase's motion for dismissal will be granted. Her ruling on these preliminary decisions could prove pivotal for crypto regulation and the scope of the SEC's authority.

Wider Context Around the Crypto Sector

The ongoing court battle has emerged alongside other recent events that further highlight fluid situation around crypto:

  • In December 2022, asset manager VanEck announced plans to delist a Bitcoin futures ETF product less than two years after launch. After initially attracting over $1 billion in assets, declining cryptocurrency prices in 2022 alongside competition from other crypto ETFs have prompted the firm to withdraw this regulated fund. This points to ongoing volatility and maturation occurring in the crypto ETF space.
  • Following the hasty implementation of cryptocurrency tax reporting requirements in the 2021 infrastructure bill, the IRS agreed to temporarily hold off enforcement of transaction reporting above $10,000 until more formal guidance is released. The need for additional clarity around crypto accounting and taxes reflects the difficulty around fitting these digital assets into existing frameworks.

While not directly related to the definition of securities, these developments underscore the presence of shifting regulatory goalposts in the chronically underregulated cryptocurrency sector. The industry awaits more conclusive oversight, but concrete frameworks have been slow to emerge from relevant agencies like the SEC.

Diverging Perspectives on Classifying Digital Assets

At its core, the case hinges on differing views around whether all crypto assets constitute securities, or if Bitcoin, Ether and other tokens like them warrant distinct regulatory classifications due to their unique underlying technology.

Regulatory Classifications of Top Cryptocurrencies

 Crypto Asset  SEC Stance  Coinbase Stance
 Bitcoin  Security  Commodity
 Ethereum  Security  Commodity
 XRP  Security  Currency 
 Other altcoins  Security  Varies


The SEC maintains that alternative cryptocurrencies display the characteristics of a traditional security—representing speculative investment contracts only made possible by the ongoing managerial efforts of founders and networks.

Exchanges like Coinbase counter that in the absence of formal guidance, good faith can be assumed based on efforts to list only assets like Bitcoin and Ether which operate as commodities or currencies, not securities. They argue crypto is a sui generis asset class requiring tailored rules.

This disagreement over frameworks has left platforms struggling to comply amid SEC crackdowns, hindering innovation. Clearer differentiation between security and non-security crypto assets has yet to materialize from regulators.

“By refusing to provide clear rules proactively the SEC has limited responsible innovation in the crypto industry.”Paul Grewal, Chief Legal Officer, Coinbase

Crypto Regulation Remains at a Crossroads Bigger Than Just This Case

How Judge Polk Failla decides to rule on the Coinbase lawsuit could set influential precedents around the scope of SEC authority over cryptocurrencies. But the broader backdrop remains the lack of comprehensive legislation or rulemaking around digital assets at both the SEC and sister agencies like the CFTC.

  • A ruling against Coinbase would embolden the SEC to expand its oversight further across crypto, likely deeming more assets as securities and constraining platform listings and tradeable assets. However this could also prompt Congressional action.
  • Conversely, a ruling favoring Coinbase would inhibit the SEC's ability to monitor crypto platforms and order coin delistings. While limiting regulation in the short term, it risks enabling misconduct.
  • There is also the possibility the judge avoids definitive judgements siding with either party. This could still provide incremental clarity on crypto assets.
  • Regardless, both the judicial and legislative branches have pivotal roles to play in building crypto regulatory guardrails.

Without formal rulemaking, exchanges must shoulder the burden of interpreting existing frameworks. The extent to which securities law mirrors the realities of crypto innovation remains questionable. Targeted crypto-specific policies like Wyoming's special purpose depository institution regulations demonstrate alternative approaches.

Ultimately, the optimal path forward likely combines facets of tailored crypto rules alongside some integration into traditional regulations like securities law. Finding the right balance remains a work in progress. The ongoing legal battle between the SEC and Coinbase represents just one snapshot of this complex equation defining policy in flux.

How authorities choose to oversee this novel digital asset market will become monumental in shaping its future trajectory between the poles of overbearing regulation that stifles growth, versus unchecked volatility that invites investor harm.

For now, the crypto industry remains filled with ambiguity. But even absent outright verdicts, the deliberations between the SEC and Coinbase may indicate where the regulatory winds blow next for cryptocurrency.