In a recent legal hearing involving Binance, the U.S. Securities and Exchange Commission (SEC) faced criticism for its stance on cryptocurrencies. The SEC’s assertion that certain crypto assets embody investment contracts has sparked a debate in the cryptocurrency community, leading to accusations of inconsistency in the regulator’s legal argument.
Binance, SEC clash over cryptocurrency regulations
The dispute centers on a lawsuit filed by the SEC against Binance and Coinbase in June, alleging that these platforms operated unregistered securities exchanges and listed crypto assets that should be classified as investment contracts. During a court hearing on Monday, the SEC claimed that 12 specific cryptocurrencies, including FIL, BUSD, BNB, ADA, and AXS, are securities under the Howey Test, a standard used to determine what constitutes a security in the United States.
In response, Binance and Binance.US sought to dismiss the lawsuit, arguing against the SEC’s interpretation. U.S. District Judge Amy Berman Jackson is currently reviewing the motion for dismissal.
The heart of the controversy lies in what has been termed the SEC’s “embodiment theory.” This theory suggests that the crypto tokens are not merely digital assets but actual representations of investment contracts. This stance was first brought to light in the SEC’s response to a motion to intervene by attorney John Deaton on behalf of XRP holders in a case involving Ripple.
Deaton highlighted that the SEC has not provided any substantial case law to support its theory that a cryptocurrency, traded even in secondary markets, embodies an investment contract. This argument has been a contention, especially considering that two federal judges, Judge Analisa Torres in the Ripple lawsuit and Judge Jed Rakoff in the Terra case, have previously stated that a token is not a security.
Media and legal experts question the SEC’s consistency
Fox Business journalist Eleanor Terrett and attorney John Deaton have noted apparent inconsistencies in the SEC’s arguments across different cases. For instance, in the Ripple and LBRY cases, the SEC described the tokens as mere computer codes, contradicting its current stance in the Binance lawsuit. Additionally, Terrett noted instances in the Ripple case where the SEC’s arguments about Ripple’s distributions of XRP were called out by the judge for being inconsistent.
These contradictions have raised questions about the SEC’s approach to regulating cryptocurrencies. The discussion hinges on whether the nature of a crypto asset changes depending on its context and how it is being traded, which is central to the debate over its classification as securities.
The outcome of the Binance lawsuit, especially regarding the SEC’s embodiment theory, could have significant implications for the cryptocurrency industry. A decision affirming the SEC’s stance may result in stricter regulations for crypto exchanges and a reclassification of certain digital assets as securities. On the other hand, a rejection of the SEC’s argument could provide more clarity and potentially less stringent regulatory oversight for the crypto sector.