Unchained - The SEC Ends Its Ethereum 2.0 Investigation, but Staking Isn't in the Clear - Ep. 665

Starting point is 00:00:00 I don't think we can take anything for granted, unfortunately, with this SEC, which is just emblematic of what a problematic situation we've all found ourselves in because an agency's role should be to facilitate business, to facilitate development, technology, innovation. But when an industry can't figure out at all what an agency thinks, what the principles are, what the policy behind its decisions are, everyone loses. Hi, everyone. Welcome to Unchained, your no-hype resource for all things Crypto. I'm your host, Laura Shin, author of The Cryptopians. I started coming crypto nine years ago, and as the senior editor of Forbes,

Starting point is 00:00:44 was the first Matronetre to cover cryptocurrency full-time. This is the June 25th, 2024 episode of Unchained. Pocodot is the original and leading layer zero blockchain with over 2,000-plus developers. And the Pocodot 2.0 upgrade will be a massive accelerator for the Echained. ecosystem, making it faster, more secure, and adaptable. Perfect for GameFi and Defi to build, grow, and scale. Join the community at pocadot.network slash ecosystem slash community. At MedCan, we know that life's greatest moments are built on a foundation of good health, from the big milestones to the quiet winds.

Starting point is 00:01:20 That's why our annual health assessment offers a physician-led, full-body checkup that provides a clear picture of your health today and may uncover early signs of conditions like heart disease and cancer. The healthier you means more moments to cherish. Take control of your well-being and book an assessment today. Medcan. Live well for life. Visit medcan.com slash moments to get started. When McDonald's partnered with Frank's Redhot,

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Starting point is 00:02:07 at participating Canadian restaurants for a limited time. Franks Redhot is a registered trademark of the French's food company LLC. Investing is all about the future. So what do you think's going to happen? Bitcoin is sort of inevitable at this point. I think it would come down to precious metals. I hope we don't go cashless. I would say land is a safe investment.

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Starting point is 00:02:54 and Sam Enzer, partner at Cahill, Gordon, and Rydell. Welcome, Sam and Laura. Hi, thanks for having me. Sorry, Sam, you were going to say. I said, hi, thanks for having us. Well, I just realized you're both named Laura. So we're going to have to go with, you know, Shannon Bucco. Yes, I know.

Starting point is 00:03:13 Honestly, it's kind of a welcome experience to have another Laura because Laura is a common name in the world generally. But I don't know if I've encountered another Laura in crypto until now. and I've been in crypto for a long time. So, you know, which is a commentary really on how few women there are. But anyway. That's a great point. Yes. Nice to have another Laura.

Starting point is 00:03:36 Yeah, likewise. You can never have too many Laura's. Exactly. So last week, consensus revealed that the SEC had sent your firm a letter saying that the investigation into Ethereum 2.0, which had just become public a few months prior, had concluded was their phrasing. So, Laura, why don't you give us the backstory of how the SEC came to send consensus this letter? Yeah, absolutely. So we, as you know, filed our lawsuit in late April against the SEC, and the lawsuit focused on three investigations. And one of them was this Ethereum 2.0 investigation. After that in May, late May, the East Spot ETF approvals had their sort of initial approval by the SEC. And that initial approval was premised on Ether being a commodity, not a security,

Starting point is 00:04:32 kind of based on a technicality of the forms that were filed. And as a result of that, we wrote the SEC a letter in early June and said, you know, with these rule change approvals and it being apparent that Ether is a commodity in the SEC's view as well, please let us know if the Ethereum 2.0 investigation will be closed. And in response to that, on June 18th, we received a letter back from the SEC confirming that the Ethereum 2.0 investigation was concluded, that there would be no enforcement action against consensus, but studiously avoiding agreeing with our characterization that the SEC had all but concluded that ether was a commodity and not a security. So we got a great victory with the closing of the investigation, but there are still, of course, lots of questions. Yeah, so why don't both of you maybe parse out what you think is actually being said? They're not agreeing with you, but they're not going to pursue enforcement action. So what do you think that means for the status of ether? Well, I think it means that we're not going to see any more investigations and we're not going to see any enforcement action premised on ether itself being a security. The SEC has been comfortable, waffling, flip-flopping its position in the past. But I think given all the public, the publicity around this, the Ethereum 2.0 investigation more recently with members of Congress weighing in. I think the closing of this investigation in particular has to be the SEC's final word

Starting point is 00:06:05 on ether. Now, that doesn't mean that they're not going to go after ether staking services, but I can't see any path for them at this point to turn around and say that ether itself is a security. Now, one wonders, though, why they aren't actually making that clear. So I suppose there is some outside chance. They'll do that. But it's really hard to see that as both a legal and a political matter at this point. So I agree with the general sentiment. First of all, I think this is a huge victory. It is not often that the SEC closes an investigation or certainly not often that they tell you that they've closed, that they give you a letter, a closing letter that is very rare. It's really amazing and congratulations to Laura and the consensus team for getting that.

Starting point is 00:06:59 I do think that this, in light of this and the reasons that caused the SEC to close in the first place, the problems with a theory that ETH is a security that caused them to do this closing letter, it would be very difficult for Gensler to change positions on that again. that said, it is not an ironclad guarantee that the SEC won't waffle if, for example, we get a new SEC chair next year who has a different view. Or, you know, there is some concern that there is pressure from the White House for Gensler to be less aggressive on the crypto community running into the election. And I do think there is some concern that, you know, we need to see what happens in the presidential election before we get a feel for what is the SEC actually going to do next year in a scenario where Gensler stays. But look, it's overall a very good development. I think it was crazy for the SEC to ever even suggest ETH could be a security after the position they took in 2018 and 2019.

Starting point is 00:08:18 where Director of Corporate Finance Bill Hinman said, ETH was no longer being traded as a security because it was decentralized. And Jay Clayton, the then chair, essentially backed him up in public statements. So I think it's sort of crazy that we even got to this place that the Gensler SEC was investigating, but I'm glad to see that they close the inquiry. That is the right thing to do. And I hope that they do the right thing in the future. Well, when you say it was crazy that they were investigating given the previous statements of the, you know, prior agency head and or that administration, I guess, you know, and I'm not advocating their argument, but I'm just probably trying to point out what their argument would be.

Starting point is 00:09:10 I'm surmising is that the switch to proof of state is what turned ether back into a security or something like that. But regardless, here we have this situation where they're saying, okay, now moving forward, we won't. But then Sam, you said that it could just be election concerns are making them do this. So I do agree just the way that Laura phrased it, that it doesn't seem like there's another path forward for them to do an investigation. So when you said that, potentially things might change post-election, like, what are you thinking? There's a few things you said there, so let me unpack them. So the first thing is, what would Gensler's justification have been for investigating? Let me talk about that first. So you're right that in 2018, 2019, when Hinman and Clayton were saying that ETH was not being sold or offered as a security, that was before the upgrade to a proof of staking validation mechanism, which happened in 2022. And we know that right after that, there were public. reports that Gensler thought the shift to proof of stake made ETH security. We know that in early 23, the SEC then opened a formal order of investigation into ETH 2.0, i.e. into whether ETH was

Starting point is 00:10:34 being offered or sold as a security in light of that upgrade. The thing is, when you really examine the Howie elements, which is the main test the SEC uses when it comes to whether a digital asset is being offered or sold as a security, it doesn't work to say that a decentralized protocol that allows people to stake in order to validate transactions is somehow a group of managers encouraging investment in a common enterprise to earn a profit from their efforts as opposed to others. There are so many problems with that theory, the lack of a common enterprise, the lack of any group as opposed to the computer code itself generating the rewards, the fact that you are doing your own effort when you validate rather than relying on the efforts of some group like the

Starting point is 00:11:30 East Foundation or a different group. The theory doesn't work. So it was nuts, in my humble opinion, to even think that that could be a security. And it was also kind of nuts to think that there wasn't a clean slate. You know, when you have the director of corp finance and the chair of the prior SEC saying to the market, this is not a security, and lots of people rely on that, it is nuts to then try to disturb the well-settled, reasonable expectations of the world, of the market, of industry players, of developers, of everyone who thought they could trust what the SEC was saying to the public, to then turn around and say, you know what, we might upset the apple card.

Starting point is 00:12:18 Okay. So that's nuts from a legal perspective, and it's nuts as a matter of policy in terms of how governments with power should exercise their power and their regulatory might. Now, in terms of what could happen in the future, you know, the closing letter, the SEC has discretion, right? Criminal prosecutors have prosecutorial discretion, regulatory enforcement agents, agencies have regulatory enforcement discretion. When they decline a case, it is not necessarily an indication that the conduct is lawful or legal. It could be that the SEC has decided they

Starting point is 00:12:54 don't have the resources this year, but that they have other fish to fry or whatever it is, right? And so you can't, it doesn't bind the agency to not investigate others who interact with Heath. It doesn't bind the agency not to investigate the Heath Foundation. And, it doesn't bind the SEC not to even reopen in this matter. I'm not saying they will, right? That would be, it's a lot of egg on the face for them. And I'm not sure they would want to do it. So I don't mean to undersell the value of the closing letter.

Starting point is 00:13:24 It is very, very significant. And you better believe that in anything where ETH comes up or in anything more importantly where staking comes up, this is going to be front and center in arguments about why the SEC has implicitly conceded that staking is now lawful, right? They've implicitly conceded it. That will be the argument. But they're not bound not to go back. And unfortunately, the SEC have flip-flops all the time.

Starting point is 00:13:55 I mean, I would add, Laura, you know, I appreciate that you're trying to find sort of a good faith basis for this Ethereum 2.0 investigation. And we should definitely, you know, extend the benefit of the doubt to the government where appropriate. But I think something that also casts doubt on that is, you know, they opened this Ethereum 2.0 investigation premised on the merge. I think it was in April 2023. But then in fall of 2023, they approved ETH futures ETFs. And Ether Futures, of course, were a product that was, that's overseen by the CFTC on the basis that Ether is a commodity. It was a commodity futures contract approved for trading.

Starting point is 00:14:40 So the fact that the SEC had opened an investigation into Ethereum 2.0 on the basis that ether may be a security. And then half a year later, you know, approved ETH futures ETFs for trading. It's just, I mean, it's just totally inconsistent. And it just shows that there's no principle-based approach that they're following. Or at least, I mean, a lot of smart people have been following. what they're doing and no one can figure out what the underlying principles are. And it's, it's just really frustrating. And so how do you interpret that? Was that just disorganization on their part? Or we have scratched our heads over that for a long time. I mean, you know, because we have

Starting point is 00:15:23 been dealing with this investigation and we saw that. And that's part of the reason I think, you know, I mean, we brought our lawsuit to get the relief that we were seeking in our complaint, but also to shine a light on investigation because it just, you know, there are these things happening. People have had this sense of security, to use a bad pun, when it came to Ether, but all the while we knew that they were investigating it. So I can't make sense of that, actually. It doesn't make sense to me. And it's just really irresponsible way for the agency to proceed. Yeah, and think about what is the difference between ETH and so many other token projects and protocols that the SEC is either investigating or alleging are offered in sold as securities either in direct cases or, you know,

Starting point is 00:16:13 in these third party allegations they make in their cases against exchanges. What's the difference? How are you supposed to tell the difference? If you're a market actor, what do you look at to figure it out? It's FACTA. It's very difficult to discern. It is extremely frustrating. It is a source of major anger. It's great for lawyers. This is a great time to be a crypto. a lawyer because the consequences of getting it wrong are high and the uncertainty is great. So people need counsel. But that's not how we should operate as a society. Right. So I feel like we've we've kind of unpacked because like people, I'm sure you guys saw on Twitter. There was a lot of back and forth people arguing about what the letter actually

Starting point is 00:16:57 means. But maybe the last thing that we could just point to is to explore it. Like how common is it for the SEC to send a letter like this? Very uncommon. And I think I can give you a short summary of what I think the letter means. It is a statement that the enforcement staff have convinced Gensler that they will lose and be embarrassed if they bring an enforcement action alleging that Eiff post the merge is offered or sold as a secure. I think that's what it really means. I mean, look, I'm specifically, But based on all the tea leaves, I think Gary Gensler believes in his heart that ETH is a security or is offered and sold as a security because of the staking mechanism for validation. He thinks that's a security, right? Because folks deposit something of value and they get a reward. In his mind, that makes it a security. Or he wants the authority to regulate it very badly. I think his staff is telling him, we're going to lose this case. We cannot do it. I think it took a little. I think it took a little. them a long time to convince him, but they ultimately did. And they knew they would be embarrassed if they litigated it. So they dropped it. But it doesn't change what's what he believes in his mind,

Starting point is 00:18:18 right? Well, I think that's, I mean, I have a high regard for enforcement staff, generally, having been in the enforcement division of the CFTC previously. But I have to say, Sam, I think that's giving a lot of authority to the enforcement division at the SEC that they probably don't have. I have to say, I think things are very top down there. That's just my impression. And I think, you know, you initially started with talking about the politics of it. And I think that has a big, a big role here, the election year. But I also wonder a bit if the, if the Ethereum 2.0 investigation itself was initiated for another reason you were pointing to earlier, Sam, which is that, you know, the SEC is bringing all these enforcement actions claiming that this and that token that are on a

Starting point is 00:19:12 proof of stake decentralized protocol are securities. But of course the biggest token in a proof of stake protocol out there is ether. I think it was, I think it was and will be very difficult for the SEC to argue that some of these other tokens are securities while ETH isn't. So I almost wonder if they were kind of forced a bit by their own positions elsewhere to initiate this investigation and to see if they could put an argument together. But then I think, you know, we made the investigation public and there was such a big outcry that they were sort of forced to back down. And so I'm going to be very interested to see how parties in these enforcement actions, you know, like the Coinbase case, Krakken, where the SEC is alleging, you know,

Starting point is 00:19:59 that a dozen, you know, tokens or securities, I'm going to be very interested to, to see how the parties use the closing of the Ethereum 2.0 investigation to make arguments about the tokens in those cases. Yeah, before we jump into that, because I definitely want to explore that, but later on, let's just focus in on this, why the SEC seems to have changed its mind on pursuing this. And, you know, you guys are talking about politics. And so let's kind of zoom out and talk about some of the other things. First of all, you know, as we've discussed, there is this, like to the public seemingly last minute approval of the spot ether ETFs. And the reason why I say to the public, because I still see arguments on Twitter saying they plan to do it all along.

Starting point is 00:20:47 A lot of people think otherwise. Who knows? But anyway, then there has been another theory floated recently that one of the commissioners, Jamie Lizaraga, who had been Nancy Pelosi's right-hand man for many years, that he was the one who changed his vote on the ether ETFs, which was what allowed the approval of those. And the theory is that the week before Nancy Pelosi had voted for Fit 21. She was one of the 71 Democrats that had done that. And that was kind of, I think it was the week after. Another top signal of Democrats potentially changing their stance was that Chuck Schumer, who is the House majority leader, voted to repeal SAB 121. Hopefully listeners have been following along because I know this is a lot of back and forth. If you want to know about

Starting point is 00:21:46 SAB 121, listen to my interview with Cynthia Lemis, Senator Cynthia LMS, you and I unpack that. But the point is that there were these signals of, you know, kind of top Democrats that were shifting more toward a pro-crypto stance. And I guess this theory was that because Jamie Lizarago and who is one of the SEC commissioners is tight with Nancy Pelosi, that that is what caused the switch, which then enabled there to be three commissioners for, to against. And then the last piece that I want to talk about, is just last week, which was four weeks after the initial Ether ETHATF approvals, David Hirsch, who is the chief of the crypto asset unit and the enforcement division of the SEC resigned.

Starting point is 00:22:32 And then we got this letter that the Ethereum 2.0 investigation was closed. So, like, I know I just connected all these things. In my head, they're connected. But do you think they're actually connected? Do you think this is why the SEC changed its stance? or maybe not. Let's see, yes, pretty much all of this is speculation. Well, I think they have to be connected. I mean, I think that's the simplest explanation and, you know, Occam's razor.

Starting point is 00:23:04 I think it would be too coincidental for all these things to be happening in isolation. So I do think that as more, hopefully as more Democrats learn about crypto and learn about the important work that's being done, they see that it's not, you know, just fraud and scams. And I do, it does seem to be kind of a watershed moment. We're moving hearts and minds in the Democratic Party. And I hope to see that trend continue. And just like you, Laura, Nancy Pelosi's vote on Fit 21 really stood out to me. And I really cheered it because, you know, she continues to be a leader in the Democratic Party. And yeah, I've got to think that that, that vote was,

Starting point is 00:23:47 is kind of hugely influential for the rest of the party and hopefully also for the administration and that will continue to see things moving. I've also heard about that same theory about Commissioner Lizaraga and, you know, it sounds very plausible to me. Yeah. And so then just to like draw out the theory regarding David Hirsch, it would be like if he had spearheaded that investigation, then the tides had turned against his stance. And so he decided to resign. I didn't kind of like draw out the theory, but it's something like that. Sam, what do you, what do you make of all this speculation? So I would put the Hearst thing to the side for a moment. So as to the other tea leaves that you're talking about or sort of signs of a political shift, I think we could

Starting point is 00:24:36 not talk about this in a vacuum without talking about the Donald and the Donald's influence on this. I think that, you know, as the president, election comes up, the Donald and his team have realized that there are many single issue voters in swing states who will vote based on what happens with crypto. And under the leadership of the Democrats, you know, under Biden, Gensler, Senator Elizabeth Warren, it's been a disaster. You know, the last four years have been an utter disaster in terms of how this country has approached the enforcement and the regulation of of cryptocurrency, of markets involving digital assets. And Donald picked up on that and has been public and very vocal that he's pro-crypto.

Starting point is 00:25:31 And I think that that has generated, I'm speculating, okay, but I think that that has generated real pressure on the Democratic side of the aisle. What are we doing here? I mean, there are very serious, legitimate uses of this technology. creates a lot of jobs. It's not like, you know, being, taking a regulation by enforcement approach is going to stop people from doing bad things. They'll just go offshore. What are we doing? What are we doing here? And so you're seeing all these pockets of change in that. One of the things I've heard is that Senate Majority Leader Chuck Schumer has taken over from

Starting point is 00:26:10 Sherrod Brown, the sort of the workhorse work of negotiating and drafting cryptocurrency, market legislation, you know, all a sign that the Democrats are waking up to, hey, this is a real issue. We got to take this seriously. We have to be fair and balanced on this issue. It's a little frustrating. It's a little late. But as long as it gets done, fine. David Hirsch, I'd be very surprised if that's connected to this. First of all, I'd be very surprised if he was the one behind investigating Eath as opposed to Gary Gensler making that direction. And I'd be very surprised if him leaving has sort of anything to do with this. I would expect it's more about him where he, you know, he's been there nine years, lots of options out there in the world, on to his next thing.

Starting point is 00:27:01 But who knows, I do not have any special or inside information about it. Oh, but that's so interesting because he was head of the crypto enforcement division. So you don't think that there's a connection between the Ethereum 2.0 investigation closing and him leaving? Because they happen one right after the other. No, because I would expect that the decision to open the investigation was Gary Gensler's and not Hersch. I would expect Gary said whether directly or through a deputy, right, open this. I want to look at this. I think this is, I think the proof of stake upgrade makes this problem.

Starting point is 00:27:42 And then he followed the directives, right? Now, is it possible that, you see, you can close an investigation without sending a closing letter, right? And most often, probably 97% of the cases that close, you know, you don't even, you're not, you're not told this, the regulator just sort of wisps away. And you don't hear from them anymore, which is why it's nerve-wracking when you don't hear anything because it could mean that they're busy with other things, they're going to come back or it could mean that they really are gone. So I guess is it possible, David pushed for the closing letter? And, you know, there was something, I don't know, that's in top, that's all speculation. I have no reason to think his leaving is connected to the closing of that investigation or any of this other stuff. But, you know, Laura would know, Laura Brookover would know

Starting point is 00:28:36 better than me. Well, I think I think the letter itself was prompted by our letter to the SEC. And the SEC enforcement manual, which is publicly available and outlines the procedures that the enforcement division is supposed to follow in, you know, various situations. There's a section entitled closing investigations. And within that section, actually, it says if, I'm paraphrasing, obviously from memory, but if a company that reasonably believed that it was facing an enforcement action or that the SEC was considering an enforcement action against it, if that company requests what's called a termination letter, the SEC enforcement division actually has to provide one. So I think that's sort of a little utilized procedure, but it was our asking for a letter,

Starting point is 00:29:31 noting the closure of the investigation that actually, I think, obligated them to provide that letter to us. So I guess that's a tip for for defensive enforcement attorneys out there. But I think the reason lawyers often wouldn't want to request a letter like that is you don't want to poke the bear. If you haven't heard from the SEC in a long time, you're sort of happy to let, you know, sleeping dogs lie. In our case, though, you know, we've had this, we've made our battle very public. and we're not, we weren't sort of afraid to take that step. Yeah. And what's so fascinating is you were prompted to do this by the approval of the

Starting point is 00:30:09 spot, ether ETFs. But as we had pointed out earlier, the approval of the ether futures ETFs would have also been sufficient. And yet we ended up in the upside down world anyway. So one other thing that I then just wanted to ask about all of this, like from that political angle is so when you kind of look at all these events that happen, do you think that the Biden administration is either changing its approach to regulating the crypto industry or is going to change? And if so, how? Or do you think all bets are off until we see like

Starting point is 00:30:45 what happens post-election? I mean, I can't pretend to any expertise. But I do have to think, you know, as we've been discussing, that these changes and especially the Democrats sort of waking up the issue of crypto, I think there's going to have to be some changes with the way the Biden administration approaches crypto. My personal suspicion is that a lot of Democrats just haven't been paying attention. Crypto doesn't mean anything to them. And so they sort of haven't been focused on what's been going on, whereas Senator Warren obviously has had an interest in crypto for years and sort of in the vacuum left by other Democrats has been stepping in and really dictating policy. I think that's changing. I think that's going to change. And I think the Biden administration,

Starting point is 00:31:32 now that it'll be hearing from more than just Senator Warren on the Democratic side, will take a more measured approach to crypto, or at least that's my sincere hope for the remainder of this year and then, you know, for whatever happens after the election. I'd only be speculating, but it's hard for me to get comfortable that the Democrats are serious about doing the right thing on crypto because even now, a lot of what's happening in the run-up to the election is stuff that is reversible, is stuff that they could easily go back on, right? Well, wait, would you include this conclusion of the investigation in that? I guess earlier you did say, or?

Starting point is 00:32:10 I'm not saying that, but like, what have they really done? Well, the ether ATFs, that's probably not because once those start trading, that, okay. Agreed. But why is Gensler still in? I mean, I don't know that there's been such a controversial chair of the SEC in my lifetime. We literally had an office of the SEC get shut down, the Salt Lake City office, and there's speculation that that was connected to the SEC making misrepresentations to a judge in the debt box case. Also, Congress asked him, asked Gensler under oath several times if he was investigating Heath, he was cagey about it. Congress is the body of our government that funds the SEC, aside from funding they get through

Starting point is 00:32:58 their own collection of fines. So I don't understand why he's, if the Democrats are serious about being pro-crypto, being pro-innovation, being pro-jo, being pro-jobs, and letting this new area flourish, why is Gensler still the chair of the SEC? I understand he has a term, but I I believe that under my understanding of how the constitutional structure and the appointments work for the SEC chair, I think that the Biden administration could ask him to leave if they wanted to and they have. So, yeah, we'll have to see how things play out. In a moment, we're going to talk about more specific impacts of the closure of this investigation

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Starting point is 00:36:03 CBC News. Back to my conversation with Sam and Laura. So we have been hinting at the potential other areas that could still be targeted despite the closure of this investigation. So it sort of seems like things involving the Ethereum Foundation, ether and proof of stake generally or like very specifically, I should say, are probably safe. But we did talk about liquid staking providers. I don't even know if restaking could be an issue, but talk about the areas that you think still could see some kind of either enforcement or investigation from the SEC. Well, our complaint does bring up liquid staking under the lens of metamask staking, which is a connection or a portal where metamask wallet users can connect their wallets to Lido and Rocket Pool liquid staking protocols. And so the SEC's investigation of those, of that activity actually was under the umbrella of a separate

Starting point is 00:37:08 investigation. So it wasn't the Ethereum 2.0 investigation. So the closing of the Ethereum 2.0 investigation really says absolutely nothing about the SEC's views about, you know, liquid staking, restaking, staking services, pooled staking. So there's tons of question marks there. And, you know, our lawsuit in Texas is designed to get some answers to those questions. And with your lawsuit, like, what specifically do you think you could at least, you know, bring into the clear? Would it be mostly around the liquid staking providers? Yes. So metamask staking, they're alleging that we're acting, consensus is acting as a broker dealer through metamask staking and also offering securities through metamask.

Starting point is 00:37:58 staking. So at least when it comes to pooled staking and liquid staking through Lido and Rocket Pool, if our Texas case is permitted to proceed, which we believe it should, we should get clarity on those issues. And Sam, what do you think are some areas that are still potentially at risk? I think Laura has summarized it really well. What I would say is that I think there's a very compelling argument that the closing letter from ETH 2.0 is a powerful piece of evidence that would be a defense for any of those protocols or the projects behind them if they find themselves in the crosshairs of the SEC, right? Because if you look at what happened in the SEC's ETH investigation, they didn't investigate or they determined or said publicly that before the upgrade to proof of staking,

Starting point is 00:38:55 It was not a security. The upgrade causes them to open an investigation. They closed the investigation. So you can infer from that, or arguably you can infer from that. That is an implicit acknowledgement that the SEC is conceding that a decentralized protocol that facilitates or allows the security and validation of transactions via staking is not an investment contract. scheme, right? Well, if that's true, if that's true with respect to how ETH works, then anything that's analogous, anything that's similar, should be the same, right? If we use a principled base approach

Starting point is 00:39:38 to how the law should work, this would seem, although it's not technically a precedent, it should have persuasive value if any judge is asked to consider or persuasive value with the staff, if you're in dialogue with them about whether they should proceed in a case. It should have persuasive value for anything that is analogous. Okay. And one other thing that I wanted to ask about was, so Igen layer is something new in this world. And so if we get clarity on the liquid-staking providers,

Starting point is 00:40:15 and let's say the clarity is that the activity there is okay, then do you think that things like Igen-Layer, restaking is in the clear, or does another step need to occur to, you know, make sure that that's kosher? I think it's impossible to answer that question because, well, I mean, as we've been talking, the SEC, again, they're not following a principles-based approach to anything. So, yeah, I think an agency functioning in an ordinary way, you'd expect that the closing of one investigation or a decision for one product would have precedential effect in their decision making for other products and offerings.

Starting point is 00:40:58 But, I mean, if you even just look at what happened in the Coinbase enforcement action, the SEC actually lost on Coinbase wallet. They lost their claim that Coinbase wallet was a broker dealer. But it was after that that they issued the Wells notices to consensus and to Uniswap for very similar functionality. So I don't think we can take anything for granted, unfortunately, with this SEC, which is just emblematic of what a problematic situation we've all found ourselves in because an agency's role should be to facilitate business, to facilitate development,

Starting point is 00:41:40 technology, innovation. But when an industry can't figure out at all what an agency thinks, what the principles are, what the policy behind its decisions are, everyone loses. So, yeah, I mean, unfortunately, I don't think we can say one way or the other. So the theory about why they still went after MetaMask wallet was because, I guess, they're doing it in a different jurisdiction. I saw something somewhere where they were saying basically the win that Coinbase wallet had was, you know, I forget what jurisdiction that was.

Starting point is 00:42:17 but I guess the case with metamask is in Texas. And so they're sort of like trying to get a different judgment in different jurisdiction. And then eventually they can both go up to a higher level and get decided between. Is that what you think they were doing there? Well, so we filed our lawsuit in Texas. I'm not sure where they will file their enforcement action against consensus or against uniswap. It could be that it'll be in, they'll make a, an effort to file both in New York, which is where they had the coin base loss.

Starting point is 00:42:53 So, you know, right. Even though there was a decision against them, essentially in New York, they would still file something that was the exact opposite of what had already been decided in New York? Yes. It's possible. And so then they would be making a play for, I mean, so Judge Fela is in the Southern District of New York. It's possible they'll file, you know, Eastern District of New York.

Starting point is 00:43:15 But they could be just making a play for getting a different judge. You know, you've had different judges and SD&Y come out differently. The problem here, and I think you're absolutely right that that's the strategy they would be pursuing, hoping to get a different outcome before a different judge. But Judge Fela's opinion, I mean, was absolutely the right result. The reasoning was on that specific charge, not on the other charges, but on Coinbase wallet, I mean, there's really no way she could have come out differently. And I think given the way she came out in favor of the SEC on the other charges, I think she would have come out for the SEC if she could have. So I think it's just really, really bad policy to be continuing to press this very novel theory, broker-dealer theory, that a software wallet, that code can be a broker-dealer. And it seems to be what they're doing, though. Yeah, I agree. This is, I think to, to, back up, Laura, I think to understand the SEC's motives, you need to think about the law a little bit. So basically, a district judge, which is a trial court judge, their decisions are not binding on anyone.

Starting point is 00:44:29 They're not binding on themselves. They're not binding on other district judges. They have persuasive authority. In other words, you know, if Judge Phala says one thing, Judge Kaplan, if he reads the decision and if it's well-reasoned, it will persuade him. and there's some moral force to, oh, my colleagues said this. I'm not going to do something different unless there's really good reason to. The circuit, the intermediate courts of appeal, their decisions are binding on lower courts, but only in that circuit. Southern District of New York is in the second circuit. And then the Supreme Court is above all the circuits, right? So as Laura points out, what's really happening is the SEC is judge shop. not necessarily forum shopping, judge shopping. This judge made a bad ruling, but maybe they'll get another judge. There's over 30 district judges in the Southern District of New York. It's one of the busiest districts in America, if not the busiest district. So if you file another case in the Southern

Starting point is 00:45:31 District of New York, chances are it's going to be wheeled out to a different judge and you might get a different outcome, an outcome you like. Okay. Interesting. All right. Well, so just to go back to the consensus lawsuit against the SEC. Well, no, I'm sorry. Consensus also received a Wells notice from, okay, so I guess they have to respond to your response to their Wells notice by July 1st. I don't know if you can speak about kind of the status of things there

Starting point is 00:46:06 or where you think that won't go. Well, so the July 1st deadline was actually, was their deadline for responding to our complaint in Texas. So it was separate from the so the Wells timeline. But we've, don't want to break news here, but we've received word from the SEC that they're going to be seeking an extension of that deadline. So we are, you know,

Starting point is 00:46:31 talking with our council about that right now about how to respond. So that'll be their response to our complaint. As far as the Wells process, all I can say with that is that it's proceeding. We certainly have not received any sort of letter like we did in Ethereum 2.0 saying, no, yep, we're going to back down now. We're going to walk away. So that is still pushing forward. And we don't know where they will file that lawsuit.

Starting point is 00:47:03 But my guess is it's not going to be in Texas. So we'll see. Okay. So now we have a whole bunch of other lawsuits that we need to talk about. Why don't we start with the coin-based one that's probably the biggest one for the industry. So what do you think the closure of this Ethereum 2.0 investigation means for that particular case? I think this is going to be powerful evidence in that case that, number one, secondary market trading in Ethereum was not regulated activity. It was not. security's activity. Coinbase was not acting as a broker dealer or as an exchange or as a clearing agent with respect to trades in ETH. And there's no difference, no material difference between that and all of the other coins that the SEC cites as the basis to say that Coinbase is acting as an unregistered broker, an unregistered exchange or an unregistered clearing agency.

Starting point is 00:48:04 So this is a, this is a powerful weapon for Coinbase to use at summary judgment. It's also, I think, going to be an interesting thing for them to explore in discovery, right? The case is in discovery, and I expect they will ask for every piece of paper about why the SEC opened the investigation into ETH and why they decided to close it. And if they can, you know, there are privileges and such that will come into play, delivered a process privilege, attorney client privilege, work product privilege. It's a complicated area. But I think that you'll see the Coinbase aggressively pushed to understand the arguments, the reasons that justified the closing, because those arguments can become a basis to say, if you apply that principle to the rest of the SEC's allegations, those allegations fail. Absolutely. And I want to underscore that what a powerful tool

Starting point is 00:48:59 discovery is in these other enforcement actions for probing what the SEC's reasons for the Ethereum investigation have been, theories and reasons for closing it, just as Sam says. You know, in our complaint, we talked about some of the materials that were made public about former director Hinman's speech and kind of the communications that were internal to the agency, where it was vetted at the highest level for him to say that Ether is not a security, that it's sufficiently decentralized. The reason, as far as I know, the reason those documents became public is actually because Ripple discovered them in its litigation.

Starting point is 00:49:43 So discovery is such a powerful tool in these cases to find out really what's going on within the agency on crypto policy. And yes, I expect Coinbase, Cracken, Binan. to really push through that discovery here. I will also say Laura, that Laura Shin, that the Freedom of Information Act is a powerful tool for getting discovery too, one used by many journalists to get information,

Starting point is 00:50:10 and, you know, would love to see unchained making some FOIA requests of the SEC. Okay, that's a good suggestion. So I don't know if it's worth going down this path, but Robin Hood is probably somewhat similar to Coinbase and they received a Wells notice. I don't know if he would sort of bucket everything that we just discussed as pertaining to that or if there's anything additional ad. And then the other one I wanted to bring up again, I'm not sure if there's anything new to add here,

Starting point is 00:50:42 but would be uniswap, which obviously is a decentralized exchange, had also received a Wells notice. I don't know if either of you think that the closure of this Ethereum 2.0, investigation leads to any new insights about what might happen in either of those cases. Well, I think the fact that the SEC is continuing to press on its existing enforcement actions, despite closing Ethereum 2.0 means that it's a pretty narrow development for them. You know, just this week there was the oral argument and the Krakken case on their, on Krakens motion to dismiss. And it does not seem as though the S.E.

Starting point is 00:51:23 is withdrawing its allegations in these various cases that, you know, Cardano, Salana, Maddoch, you know, other protocols and tokens are securities. So I don't think we're going to see big impacts and big changes in the enforcement program. I think it's really just narrow from the SEC's perspective to ether itself. Now, as we've been discussing, though, I think the industry is going to do its best to use that closure broadly. And it should because, as Sam noted earlier, there's really not a good reason to distinguish between ether and other tokens. So, yeah, I think that's what we're going to see. Without, you know, naming specific clients, I can tell you that I'm in, I'm defending a variety of players in the crypto ecosystem in ongoing SEC investigations.

Starting point is 00:52:15 And there's been no slowdown. There's been no change in their pace. Their pace has been aggressive, the SEC, and, you know, there does seem to be this pressure to get things done on their side before the election. Oh, interesting. That's interesting. Okay, so it's like they see the writing on the wall and they want to do more of what they've been doing, which then leads me to believe, like, if you, you know, if you kind of, of parse Bill Hinman's statements back in 2018. He said something like leaving aside the manner of the original sale, ether is now sufficiently decentralized to be a commodity or

Starting point is 00:53:07 whatever, to not be subject to security enforcement. So then essentially what that means is in this instance, they've decided yet again that ether is like sufficiently decentralized. but they're not saying being a proof of state coin is okay. So, okay, because that was another question I was going to ask you, is if you thought that the closure of this investigation meant that proof of state coins were generally in the clear, but it seems like the answer is no. Well, I mean, it's such a good question, Laura. We don't know the answer.

Starting point is 00:53:43 I mean, you're sort of trying to figure out what their justification was for closing the investigation and sort of drawing on Director Hinman's speech, we don't know if they still think that way. We don't know if it's because actually a proof of stake protocol doesn't give rise to securities issuance. We don't know if it's just political. It was just too hot to touch either. And that's really a shame because one thing we need more of

Starting point is 00:54:14 from the SEC is transparency. And with this letter and really not giving any, any reason as to why the investigation is closed, we still just have no idea what the reasons are behind it. Yeah, the SEC right now reminds me, you know, when I was a kid, my mom used to read Alice in Wonderland to me, and that you, you, and I remember the Mad Hatter. You know, that's the SEC. Trying to sort of discern a pattern or, you know, principled approach is like trying to say that you could predict how the mad hatter would act or be rational. It's the mad hatter. Okay. Okay. All right. Well, yeah. Yeah, because where I was going to go also is then, of course,

Starting point is 00:55:03 Saul is, you know, it's been named in some of these different cases as being a security. And that's probably the coin that, like, out of all the ones that have been named that most people care about. but so you don't feel like any of this means anything for what will happen with the Sall case, which there isn't even a Sall case, but it's just been named in this tangential way in these other cases. I mean, what I guess I could say is, and I think, you know, I was lucky enough to recruit Lewis Cohen and his team to Cahill recently. And so we've spent a lot of time talking about his theories about how the securities laws do or do not apply to transactions or to digital assets. And I think what he would tell you, I can hear him in my ear

Starting point is 00:55:50 saying, you know, tokens are not securities ever. Let me put it differently. The vast majority of tokens, as we know of them, including Salana, are not securities in and of themselves. And the cases that all of us, you know, pull our hair out over, like the Coinbase decision, Judge Phala's motion to dismiss decision, Judge Rakoff's decision in Terraform Labs. even the cases that folks pull their hair about say tokens are not securities. What are securities are certain transactions involving an underlying asset. If I sell a commodity to you in an investment contract transaction, the transaction is a security, not the asset conveyed in the transaction.

Starting point is 00:56:40 And so that's very important. Yeah, and that tracks even onto the original Howie case where the oranges or the orange groves themselves are not securities. Right. So Solana, not a security. Transactions involving Solana might be. And one thing that's playing out in the courts right now is how far does the investment contract theory that the SEC is using apply to the secondary market, right? The SEC's ecosystem argument, is if something is sold initially in a fundraising transaction, it continues to be a security as long as the original seller is making any statements promoting their company or the token. I don't think that's the law. I think that when a higher court or a different judge looks at this closely, they will come to a different conclusion. It is lawless. There is no appellate authority supporting it. Lewis, my partner,

Starting point is 00:57:48 he did an article, ineluctible modality. I encourage people to read it. He literally read every single Howie opinion since 1946, did an analysis of them, has an index, an appendix attached to it, where he talks about how they implicate his views. And he came to the conclusion that there is no appellate authority for this position by the SEC. The only appellate authority, the only appellate, case. So far in history in the United States, federal appellate case that deals with secondary market transactions in investment contracts is a Ninth Circuit opinion, Hawking v. Du Bois, and it concluded in an on-bank opinion, meaning the full court, it concluded that secondary market transactions, in that case it was in condo units. But those secondary market transactions,

Starting point is 00:58:37 there was insufficient proof that they were investment contract transactions connected to the alleged issuer. And by the way, in that case, in 1988, the SEC filed an amicus brief, taking the very position that the crypto industry takes today with respect to secondary market transactions in crypto assets. And Lewis obtained a copy of it through a Freedom of Information Act request. So I think the SEC's position in the Coinbase case, in the Binance case, in the Cracken case, is lawless, and I look forward to a higher court reversing the anyone who disagrees. I agree. And I think, unfortunately, what's happening is the district court judges are, I don't know if they're afraid to sort of take a stand against the SEC here. I mean, typically you see district courts defer to agencies over matters that are within the agency. jurisdiction. There's things, you know, there's formal doctrines. But there's also, you know, district court judges give a lot of leeway to agencies. And here you have the SEC saying, well, the securities laws mean this. And generally speaking, the SEC isn't an expert on what the

Starting point is 00:59:47 securities law laws mean. Here, though, I completely agree with Sam. There's no legal basis for what they're arguing. And, you know, I listened in on the crack-in oral argument where the SEC attorney said, well, secondary market sales of a token that was a security ad issuance are securities transactions because no one would argue that if you buy stock and then sell stock to someone else, it's not a security. But stock and investment contracts are completely different. They have completely different bodies of law behind them. They were added to the securities laws for different reasons. And it's a very simplistic and just wrong argument that SEC is making. And it's disappointing that district court judges aren't sort of examining that more closely and pushing back on that reasoning.

Starting point is 01:00:35 But, yeah, so I agree with Sam that I think, unfortunately, it's going to take an appellate court, which, you know, I think they feel a little bit more power to address novel applications of law in sort of more direct ways. But I think it's going to maybe take an appellate court to set the law right here. And what about this argument that the SEC keeps bringing up, which is their ecosystem argument? Can you describe what that is and why it is, for instance, you know, they say this doesn't apply to Bitcoin? This is like asking somebody who explained the Mad Hatter's reasoning. I mean, it doesn't make any sense. It's an argument they seem to have made in order to make this secondary sense. sale argument work because, you know, you don't have promises being made by every seller of a

Starting point is 01:01:34 digital asset. So they're trying to say that the promises somehow carry over to all these sales. And the way they do that, I think, is through this ecosystem concept. It doesn't make any sense to me. But particularly, I mean, I'm laughing about the Bitcoin example because, you know, the SEC enforcement division, I mean, they've been investigating digital assets for for so long, but do they, do they really still not understand them? I mean, if, you know, if Solana has an ecosystem, if Ethereum has an ecosystem, Bitcoin certainly has an ecosystem, because ecosystem has to mean, you know, there are developers working on it. There are companies building on it. There are people who hold it. There are people who trade it. You know, I mean, an ecosystem has to mean sort of the infrastructure,

Starting point is 01:02:24 and projects and people who have built up around a protocol. And I mean, you know, they haven't explained what they mean by ecosystem, but that's all I can figure. And Bitcoin, of course, has a huge ecosystem. So that really made me laugh. And I just, I didn't understand that argument by the SEC before Judge Fela. Laugh and cry. You know, oil, oil has an ecosystem.

Starting point is 01:02:53 And there's even even a group behind it that can control price, OPEC. Is oil a security? Baseball cards have an ecosystem. Are they securities? Nike sneakers has an ecosystem. It even has a company promoting it. Is that a security?

Starting point is 01:03:11 How do you draw the line? Where is the limiting principle? By the way, Judge Felaed during the oral argument in the motion to dismissing in Coinbase was asking those questions. It was like the opinion was written by a different person. Okay. Well, let's just round out with the other last two really big court cases. One involves Cracken, which we did mention briefly.

Starting point is 01:03:34 But I don't know if there's anything else you want to say about this Ethereum 2.0 investigation closing and how that might impact that particular case. I think Sam covered it. You know, I think the SEC didn't allege that Ether was one of the tokens. That's a predicate for their charges against Cracken. So I don't expect to see it come up on the SEC's side. I do expect that Cracken will try to get discovery into, you know, as we've discussed, into the Ethereum investigation, why it was closed and argue that if Ether is not a security, then none of the other tokens are securities either.

Starting point is 01:04:10 The only thing I would add, I mean, we haven't said this here. It's been in, it's been, I watched the argument. I think most people in crypto probably tuned in for it by Zoom. And unfortunately, Judge Oric made a comment, I think, at the beginning. that he's likely to, he's trending towards denying the motion to dismiss, right? We don't know if the argument persuaded him otherwise, but it's unlikely. And at the end of the argument, he set a schedule for discovery, which implies that he, you know, he wouldn't waste his time doing that unless he thought this case was moving forward.

Starting point is 01:04:42 So it looks likely that he will deny the motion to dismiss. I'm not saying that's, you know, a surprise or unexpected, but it's disappointing. All right. Then the last case would be the ripple case. I'm not sure if there's anything, you know, that this letter kind of brings to bear on that particular case. I don't know that it would change the math on, you know, summary judgment's been decided. That's where most of the outcome comes from. They're in the remedies phase now.

Starting point is 01:05:11 I'm sure that if the case goes up on appeal, that Ripple would try to use the closure, you know, it's tricky for them, right? because there are parts of the decision, Judge Torres's decision on summary judgment that they like. The ruling that programmatic sales in blind bid-ass transactions of XRP tokens are not securities is a favorable ruling. It's one of the only, you know, this EF letter and the Ripple summary judgment decision are like two glimmers of hope in a very, very depressing desert out there. Right. Okay. But you're saying if they risk, they could. risk the gains that they've gotten if they try to bring this up and get even more gains. That's what possible. And I'm not sure that the SEC wants to appeal because the SEC may be afraid that they'll get a

Starting point is 01:06:06 circuit ruling, which would be binding on district courts. They're doing well at the lower court level, right? So why involve a higher power that could change the equation? Okay. Okay. And it does seem like the facts and circumstances of the Ripple case are just different from the Ethereum case. So in that regard, like Ripple probably doesn't have as much of a leg to stand on even if they were to bring the Ethereum letter into it. Is that fair to say? I, you know, I don't know enough about the facts and circumstances of the Ripple case. I do think, though, that the letter is broadly helpful for all protocols and all tokens. because it sort of gives, well, if we infer from the letter that the SEC concluded that ether is not a security, it sort of gives a benchmark, a measuring post by which protocols can argue that their tokens are not securities. So I do think it's broadly helpful, but I'm with Sam that the procedural posture of the ripple case, I think, makes it tough at this point to inject that.

Starting point is 01:07:16 And, you know, on appeal, generally the factual record is, you know, it's set. You have to argue the law. And the closing letter itself has no precedential effect. It has no. It's not really a legal pronouncement. If anything, I think it's more of a factual development. So I think it's tricky for ripple at the posture their end to use the letter to their advantage. All right.

Starting point is 01:07:43 Well, as we've discussed, there, I mean, there's so many. moving parts generally in the SEC versus crypto landscape. And we have this election coming up. So given how a number of things just got jumbled, and then we have this sort of big event on the horizon, I don't know what you guys are kind of watching out for. Like what are the key events coming up that you're going to be, you know, closely looking to see how they turn out.

Starting point is 01:08:09 I mean, in rulings, there's the ruling in the finance case on the motion to dismiss. There's the ruling in the Cracken case. We have the pending request for an interlocutory appeal in the Coinbase to review the Coinbase decision. I'm involved in some litigations that could raise some important issues, particularly with respect to whether the U.S. securities laws apply extraterritorially under a Supreme Court decision called Morrison. So there's a bunch of stuff there. There's what's going to happen with consensus. Are they going to get sued? what will happen in that case.

Starting point is 01:08:47 You have a bunch of lawsuits pending in Texas against the SEC, aside from consensus's case. What happens with those? Does the SEC end of actually suing uniswap? I'm sure I think they likely will. But does that happen? What does that say? Same with consensus. Same with Robin Hood.

Starting point is 01:09:06 And then separate from that, you have the election, right? Is the Donald going to win? We have a presidential debate Thursday at 9 p.m. two geriatric dinosaurs are going to go at it on television at 9 p.m. If they were late, we'll see what happens, right? Wow, Sam just covered. Just hearing all that listed out, it's going to be quite the year when it comes to crypto developments and litigation.

Starting point is 01:09:34 And then with the election looming, there's a lot to pay attention to. I don't think I have anything to add to that very complete list. All right. It sounds like the geriatric dinosaurs might be the most entertaining part of this. Anyway, well, this has been a fantastic discussion. Where can people learn more about each of you and your work? Well, they can learn. Consensus has a very up-to-date website about our regulatory battles.

Starting point is 01:10:01 So they can visit Consensus' website and also follow Consensus and myself on Twitter to learn the latest. You can check me out on Cahill's website. just look me up, Sam Enzer. You can email me, S-E-N-Z-E-R-K-K-Hill.com, or you can go to my LinkedIn. Perfect. Well, it's been a pleasure

Starting point is 01:10:21 having you both on Unchained. Thank you for having us. Thank you for having us, Laura, and thank you for coming on, Laura. Did you know Unchained is much more than a podcast? Last year, we unveiled a completely redesigned website enriching your experience for the latest news, insightful analysis,

Starting point is 01:10:39 compelling op-eds and comprehensive learning articles and guides for beginners. Explore all this and more at Unchained Crypto.com. Thanks so much for joining us today to learn more about Sam, Laura, and Ethereum 2.0, potentially being in the clear. Check out the show notes for this episode. Unchained is introduced by me, Laura Shin, with all from Matt Pilcherid, Wanda Manovich, Megan Gavis, Pamich, and Market Korea. Thanks for listening.

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Unchained - The SEC Ends Its Ethereum 2.0 Investigation, but Staking Isn't in the Clear - Ep. 665

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