With Coinbase (COIN) and Binance accused of running illegal exchanges by the U.S. Securities and Exchange Commission (SEC), the latest industry testimony in the U.S. House of Representatives this week revealed that companies had desperately sought the agency’s help to properly register but were turned away.
SEC Chair Gary Gensler has a go-to crypto invitation to the firms that are operating without the agency’s approval and oversight, which he’s repeated so often it’s become a messaging mantra: They just need to come in and register.
Robinhood Markets' chief compliance lawyer told lawmakers that the popular trading firm was trying to register as a special-purpose broker for digital assets. Dan Gallagher, a former SEC commissioner who has spent a career in securities and corporate law, couldn’t get the agency to guide Robinhood into crypto compliance, though he said the staff seemed to want to help.
“When Chair Gensler at the SEC in 2021 said, ‘Come in and register,’ we did,” Gallagher said in his testimony. “We went through a 16-month process with the SEC staff trying to register a special purpose broker dealer. And then we were pretty summarily told in March that that process was over and we would not see any fruits of that effort.”
His story echoes longstanding complaints from Coinbase, whose top lawyer was also present at the House Agriculture Committee on Tuesday and is now facing an SEC lawsuit alleging his company offered unregistered securities and didn’t get approval as an exchange.
“When Coinbase has attempted to do just that, to talk about how we could register as a broker-dealer or an [alternative trading system] or even as a [national securities exchange] after months and months of discussion, we’re simply dismissed with no response or any counter proposal or ideas coming back from the SEC,” said Paul Grewal, Coinbase’s chief legal officer.
Gallagher said one of the regulator’s final sticking points for Robinhood was the lack of registration and disclosures from issuers of tokens that trade on the platform, and Gallagher argued there’s no way for his company to insist that outside issuers meet SEC demands.
Sen. Cynthia Lummnis (R-Wyo.) jumped into the debate with a tweet this week promoting her crypto bill: “The SEC has failed to provide a path for digital asset exchanges to register.”
The possible counterweight to this argument is the series of approvals of digital-assets broker-dealers by the Financial Industry Regulatory Authority (FINRA), an industry-funded oversight arm created by the SEC. The brokerages, including Prometheum Ember Capital LLC, Bosonic Securities and OTC Markets Group, are officially approved to trade crypto securities, a category of assets whose borders aren’t yet well defined. Meanwhile, the companies trying to navigate a path as compliant crypto firms haven’t yet demonstrated a fully formed business model.
In comments after his agency’s enforcement actions, Gensler now seems to suggest the U.S. “doesn’t need more digital currency,” and that the industry must fix its compliance problems or he foresees a possibility of it “collapsing like a house of cards.”
However, this compliance dispute is no longer in the hands of the industry or the SEC but will be decided in the courts.
"We have to go to court and really see, otherwise this industry is just not going to exist in the United States," Coinbase CEO Brian Armstrong said in a CNBC interview on Wednesday.
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