Cryptocurrency exchange Coinbase took action against the Securities and Exchange Commission (SEC) late Monday, asking a federal court to compel the agency to respond to its demand for clearer crypto regulations.
The exchange sent the SEC its so-called “petition for rulemaking” last July, and asked the regulator to propose and adopt rules for digital assets securities. It also sought answers to 50 specific questions that would provide “clarity and certainty regarding the regulatory treatment of digital asset securities.”
Some of the questions center on the SEC’s methodology for classifying certain tokens as securities, while others focus on topics like asset custody and trading crypto asset securities on SEC-regulated exchanges.
Under the law, the SEC is required to address Coinbase’s petition within a “reasonable” amount of time, a person familiar with the situation told Decrypt, alluding to the Administrative Procedure Act. They said that, from Coinbase’s point of view, a reasonable amount of time has passed after nine months with no response.
Responding to the questions and creating new rules related to digital asset securities would be beneficial for the health of U.S. capital markets, the petition argued.
“The U.S. does not currently have a functioning market in digital asset securities due to the lack of a clear and workable regulatory regime,” it stated. “New rules facilitating the use of digital asset securities would allow for a more efficient and effective allocation of capital in financial markets.”
Should it ultimately respond to the petition, the financial watchdog could say that it does not believe new rules are necessary, echoing comments made by SEC Chairman Gary Gensler. During a congressional hearing last month, Gensler said “regulations actually already exist” for crypto to be managed effectively under securities laws.
But if the SEC’s response to Coinbase’s petition is not to create new rules, then the company would have the opportunity to challenge the SEC in court, the source said. And, according to the source, until the company gets a response from the SEC, the exchange’s push for regulatory clarity is effectively on ice.
Coinbase Chief Legal Officer Paul Grewal clarified that Coinbase is not asking the court to tell the SEC how to respond. “We are simply requesting that the Court order the SEC to respond at all, which they are legally obligated to do,” he said.
“It’s important for the SEC and any other agency petitioned for rulemaking to respond to the petition once the agency has made up its mind, especially if the answer is no,” Grewal wrote in a blog post. “Otherwise, the public can never exercise its right to ask a court if the agency’s decision was proper.”
The petition was filed on the same day that the SEC claimed nine tokens available on Coinbase were unregistered securities, listed in an insider trading lawsuit brought against a former Coinbase product manager, Ishan Wahi, and two others.
The exchange’s challenge comes amid a regulatory crackdown in the U.S., where agencies like the SEC and the Commodity Futures Trading Commission (CFTC) have stepped up their scrutiny of digital assets firms so far this year.
The cryptocurrency exchange Kraken reached a settlement with the SEC in February over its staking-as-a-service program, which the agency alleged was offered to investors in violation of securities laws.
Kraken was hit with a $30 million fine and agreed to cease the service for clients in the U.S. as part of its settlement. But Kraken—which consists of Payward Ventures, Inc. and Payward Trading Ltd.—did not admit to or deny the SEC’s allegations.
Coinbase signaled its staking products could also come under regulatory pressure after the company disclosed it had received a Wells Notice last month. The notice claimed the company’s staking products are unregistered securities. It referenced aspects of the exchange and the firm’s Coinbase Wallet product as well.
Last year, the company lost $2.6 billion compared to a profit of $3.6 billion in 2021, as the exchange’s pandemic-era boom gave way to crypto winter. And Coinbase has explored avenues to diversify its revenue away from a reliance on trading fees, as retail traders wrestle with high inflation and the brunt of higher interest rates.
Analysts at JPMorgan have expressed bullish sentiments regarding the firm’s embrace of services, specifically staking. But the Wall Street titan’s tone wavered in the wake of Kraken’s settlement, warning that regulatory actions could put the feasibility of Coinbase’s shift at risk, in areas including staking and custody.
Coinbase is set to report earnings for its first fiscal quarter of this year on May 4. And as the only publicly-traded exchange in the U.S., analysts will likely use it as an opportunity to take the temperature of the digital assets industry, keen to know if an uptick in prices has coincided with retail traders returning to the platform—and to what extent.