Looking at Kraken’s Motion to Dismiss an SEC Lawsuit

Crypto exchange Kraken filed a motion to dismiss the lawsuit it faces by the U.S. Securities and Exchange Commission.

You’re reading State of Crypto, a CoinDesk newsletter looking at the intersection of cryptocurrency and government. Click here to sign up for future editions.

The narrative

The U.S. Securities and Exchange Commission didn’t allege actual fraud or harms to Kraken’s consumers, the exchange argued in a motion to dismiss the lawsuit it faces.

Why it matters

This is one of several lawsuits the industry is tracking, including those against Coinbase and Binance.US, plus a new entrant hoping to secure a favorable ruling in a specific district. These suits all share one premise: How, exactly, might the SEC oversee the crypto industry and are its current actions appropriate?

Breaking it down

Some part of the Kraken motion to dismiss treads what at this point is very familiar ground: That the SEC hasn’t really made its case that any of the assets it named are securities, that it’s stretching the definition of an “investment contract, and that it’s overstepping its boundary.

Other parts are a little more unique: Kraken referenced the SEC’s arguments that the exchange actively marketed the digital assets it named, but didn’t delve too deeply into that. And the exchange said the SEC hadn’t alleged any direct consumer harm, but didn’t explicitly address the SEC’s commingling allegations.

Still, Kraken employed similar arguments to the ones made by Coinbase and Binance.US in their own motions to dismiss. We haven’t gotten many definitive rulings on this argument, and we won’t for a while. But one thing is clear: There’s a very good chance that the Supreme Court of the United States might end up involved at some point.

The Coinbase case is in the Southern District of New York, Binance.US is in the District of Washington and Kraken is in the Northern District of California. Another company, going by the name Legit.Exchange, just filed suit against the SEC in the Northern District of Texas. The chances of four different district judges in four different districts finding a consensus is a bit slim. Assuming the parties involved appeal whatever rulings come out, we’re also looking at a few appeals courts that will weigh in.

While it’s obviously way too early to try and predict where these cases…