Marisa Tashman Coppel
@MTCoppel
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An almost-balanced lawyer (tweets are not legal advice) ⚖️ Head of Legal @blockchainassn 📜 Author of
Washington, DC
Joined July 2010
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1/ Today,
@BlockchainAssn
and the Crypto Freedom Alliance of Texas sued the SEC over the recently finalized Dealer Rule. The rule is arbitrary and capricious, and presents significant risk for digital asset market participants in the U.S.
Today, BA and CFAT filed a suit against the SEC asking the court to strike down their arbitrarily applied and unclear Dealer Rule expansion. This rule stifles innovation, harms the burgeoning digital asset industry, and emboldens the SEC to lead by unwritten rules and guidance.
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1/ Today
@BlockchainAssn
FOIA'd the SEC seeking information (docs & comms) about Prometheum and the ATS.
In the midst of aggressive SEC enforcement, Prometheum gets approval for first-of-its-kind Special Purpose Broker-Dealer (SPBD) for digital asset securities.
Suspicious…
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1/ Today, the
@BlockchainAssn
submitted a letter to the SEC’s Inspector General calling for an investigation into the circumstances surrounding Prometheum.
Although there may not be anything nefarious, suspicious circumstances beg someone to look under the hood…
Key Qs 🧵👇
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1/ Today, the
@BlockchainAssn
filed an amicus brief in SEC v. Wahi, an enforcement action indicating a new pattern by the agency - regulation by enforcement against third parties, who have no meaningful opportunity to defend themselves.
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"To avoid contaminating the process, the law requires Chair Gensler to recuse himself from any decisions regarding the initiation or continuation of an enforcement action premised on the theory that a digital asset is a security."
🙏
@FortuneCrypto
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1/ Today,
@BlockchainAssn
filed a comment letter to the SEC’s proposal expanding the definition of “exchange” in Rule 3b-16.
Tl;dr:
- de facto ban on DeFi
- Exceeds statutory authority
- APA violation
- Deeply flawed cost-benefit analysis
🧵
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1/
@BlockchainAssn
's amicus brief provides the court with helpful context in
@Grayscale
's lawsuit against the SEC. By denying access to spot bitcoin ETPs, the SEC engages in an arbitrary and capricious practice of picking winners and losers among investment products. 🧵👇
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1/ American Banker op-ed concerning the SEC's approach to crypto regulation. The gist: the agency's failure to provide clarity thwarts its mission to protect investors, support efficient markets, and facilitate capital formation. 🧵
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1/ Today,
@BlockchainAssn
and
@fund_defi
filed an amicus brief in Van Loon v. Treasury – fighting OFAC’s unlawful sanctions of the Tornado Cash software. OFAC’s decision raises serious regulatory and constitutional questions inhibiting the rights of many Americans.
We argue:
🧵
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1/ On Friday evening,
@BlockchainAssn
filed an amicus brief, with several academics, in support of
@custodiabank
's case against the Federal Reserve. The case is about protecting the strength of America’s dual banking system.
🧵
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2/ The CEO somehow gets a seat in front of Congress and argues that Prometheum represents the compliant path for digital assets.
And they've paid $1.5+ million in sales commissions to a Chinese-affiliated entity with quite the regulatory track record.
Hmmm 🤔
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3/ As we saw during the hearing and during
@laurashin
interview, the founder greatly misstates the law.
Prometheum’s claims are nonsense and NOT evidence of a path to compliance.
Aptly laid out by Rep. Flood.
🙏
@AlexanderGrieve
for capturing the clip
For those that didn’t stick around until the end of the
@FinancialCmte
hearing today, this exchange between
@USRepMikeFlood
and
@PrometheumInc
CEO Aaron Kaplan is an absolute must-watch.
Flood explicitly lays out why Prometheum’s claims that their SPBD approval is evidence of a
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1/ Today,
@BlockchainAssn
filed a comment to Treasury’s proposed broker rule.
The Proposal exceeds Treasury’s statutory authority, is overbroad and vague, and violates the APA and the Constitution - including the 1st, 4th, and 5th Amendments. 🧵
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Yesterday, the SEC filed its response to
@coinbase
's letter indicating its intent to file a motion for judgment on the pleadings.
Instead of filing a motion to dismiss, Coinbase will seek dismissal because "the subject matter falls outside the SEC’s authority."
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1/ My takes on the recent order in SEC v. Coinbase 👇
#1
- HUGE win for DeFi. The court dismissed the SEC's claim alleging Coinbase Wallet functions as an unregistered broker. Drastic SEC overreach. This is great for devs and those working on peer-to-peer tech.
🧵
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1/
@BlockchainAssn
and
@crypto_council
filed a brief with
@ProgressChamber
and
@CTATech
supporting
@coinbase
against the SEC.
We explain why the major questions doctrine precludes
@SECGov
from enforcing their interpretation of "investment contract." 🧵
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4/ Prometheum’s ATS will not be able to trade any tokens – despite their claims to the contrary – unless projects first register with the SEC.
But as we all know, there is no clear path to registration under the current SEC regime.
@RSSH273
explains
Founder of Prometheum is testifying
@FinancialCmte
hearing on digital assets today
He will argue he represents the “compliant path for crypto” and those asking for updated regs are just scofflaws
However, he is wrong on the law and his approach cannot work as advertised
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1/ Yesterday, the SEC filed its opposition to
@coinbase
motion for judgment on the pleadings, addressing Howey, major questions doctrine, wallet as a broker argument, and staking arguments. Nothing particularly new or unexpected here. Let’s break it down🧵
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1/ On Friday,
@BlockchainAssn
filed a brief in support of
@coinbase
's motion to certify interlocutory appeal. We explain why adopting the SEC's "ecosystem" theory poses a question that merits the 2d Cir to weigh in on now. Not later. 🧵
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5/ If you’ve been on crypto twitter this week, you’ve seen everyone wearing their sleuth hat. 🕵️♀️
Including
@MattWalshInBos
This Prometheum storyline has got to be the strangest thing I have seen in awhile in this industry. Has anyone actually looked into this? Beyond bizarre…
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Over 25,000 comments have been received by the IRS regarding their broker rulemaking proposal. Over 12,000 posted to the docket on . Clearly a sign something is wrong with the proposal.
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9/ Although it may take time to receive documents, the law requires the SEC to respond to all FOIA requests. Fingers crossed they comply here. 🤞
[end]
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1/ Today,
@BlockchainAssn
filed an amicus brief in the 11th Cir. appeal of Coin Center v. Treasury.
This is the 2nd Tornado Cash case to be up on appeal - this time in front of the 11th Circuit. We argue why the District Court’s decision is wrong. 🧵
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1/ Today,
@BlockchainAssn
filed an amicus brief in the 5th Cir appeal of Van Loon v. OFAC.
Remember the case filed in TX re OFAC's sanctioning of Tornado Cash software? After a wrong district ct decision, the 5th Cir gets to weigh in.🧵
Read our brief:
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1/ Needless to say, A LOT has happened in crypto policy/law throughout the past couple of weeks. Though impossible to cover everything, I will try to encapsulate the biggest events in crypto litigation (but please let me know what I missed). 🧵
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This IS huge. First proactive lawsuit against the SEC by a crypto market participant. All plaintiffs ask for is clarity. It shouldn't be this hard.
So this is huge. Today,
@LEJILEX
and the Crypto Freedom Alliance of Texas (CFAT) sued the SEC seeking a declaration that “secondary-market sales of digital assets like the ones that LEJILEX intends to facilitate through the are not sales of securities.”
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1/ Today,
@BlockchainAssn
and
@fund_defi
filed an amicus brief in support of
@krakenfx
's fight against the SEC.
The case is yet another overreach of authority in the SEC’s long campaign to force most digital assets into its jurisdiction. 🧵
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6/ And
@adamscochran
1/23
Hoooooo baby this Prometheum story gets even better.
So they started in 2017 when they filled their Reg A+ and aimed to raise $50M.
But how did these random lawyers supposedly get approval from the SEC and FINRA?
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Ishan Wahi and his legal team at Jones Day filed a strong motion to dismiss in the SEC's enforcement action regarding alleged insider trading of 9 tokens.
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1/ Today,
@BlockchainAssn
filed a comment letter to the SEC’s proposed custody rule. With recommendations, we explain how the rule would drastically curtail investment in digital assets and why finalizing the rule in its current form would be unlawful.🧵
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8/ What is FOIA?
FOIA (Freedom of Information Act) allows members of the public to request documents from government agencies. A tool we have to ensure transparency and accountability.
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7/ And
@collins_belton
Wow, ok so this story has gone from strange to downright “what the actual hell is happening” with swiftness. The commission fees to the sketch BD with China ties is a big red flag and highly atypical to anyone familiar with venture in the US, especially in finreg. Great sleuthing
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1/ Today, my colleagues and I at
@BlockchainAssn
and our partners at
@fund_defi
filed an amicus brief in support of
@coincenter
's lawsuit against OFAC fighting against sanctions of the Tornado Cash software protocol.
🧵
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1/ Given lots of recent news, it’s a good time to give you all an update on the latest in crypto litigation.
SEC v.
@coinbase
Custodia Bank v. Federal Reserve
CFTC v. KuCoin
@BebaCollection
&
@fund_defi
v. SEC
@LEJILEX
v. SEC
SEC v. Debt Box
MFA v. SEC
ShapeShift
Genesis
🧵👇
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1/ There are still some updates in Cryptolitigationland, even in the midst of SBF’s apparent media tour where he continues to develop a record against him. His statements will certainly appear in many court briefs and perhaps we will even see video clips in future hearings. 🧵
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So now the SEC is in the business of regulating creatives and artists?
Creating opportunities for ownership in the creative process is one way crypto and web3 transforms how we interact online. The SEC shouldn't interrupt this process.
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1/ It’s been a minute since my last crypto litigation update. Sorry to keep y’all on the edge of your seats.
A lot on deck, but first want to note a positive trend: more fighting back, more proactive engagement. Seems like we aren’t solely playing defense.
🧵
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@amandatums
and I share why we think crypto plays a role in strengthening fundamental American rights:
Privacy.
Speech.
Equal treatment and due process.
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14/ We stand with
@coinbase
in their fight against the SEC and urge the court to reject the SEC’s attempt to seize such expansive authority without clear congressional authorization.
[end]
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Some of my favorite quotes from
@HesterPeirce
speech. 🙏
"people have looked to centralized intermediaries or government to solve [the trust] problem, but technology like cryptography, blockchain, and zero-knowledge proofs offer new solutions."
My latest thoughts on cypto: TLDR: We need to approach crypto regulation carefully in 2023, but people in crypto shouldn't wait for regulators to solve problems that manifested during 2022.
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HUGE in all caps.
One of the means by which the SEC has tried to unfairly strap crypto.
SAB 121 not only was illegally published as guidance, not subject to notice and comment, but it makes no sense and has seriously harmed market participants.
This is huge.
The GAO reviewed SAB 121, an illogical anti-crypto accounting bulletin issued by the SEC last March, and found that it's a "rule" under the CRA and APA.
The SEC didn't comply with either.
This is a clear statement from a federal agency that the SEC broke the law.
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3/ For the SEC to succeed, it must prove 9 tokens are securities. No court has ever found that these tokens are securities. Thus, the court will have to engage in 9 “mini-trials” to make that determination.
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It's a good morning when . . . ☀️
. . . a circuit court recognizes the SEC's arbitrary and capricious action.
👏👏👏
@Grayscale
@CraigSalm
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4/ But, unlike typical cases where those implicated can defend themselves, the 9 token creators here are not named in the lawsuit and are entirely precluded from defending themselves.
As
@jchervinsky
explains, this is a due process violation.
1/ The SEC filed a complaint yesterday accusing ten companies of violating the securities laws: nine digital asset issuers & one exchange.
None of them are defendants in the case. None of them will get their day in court.
If this isn't regulation by enforcement, nothing is 🧵
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Incredible job by
@iampaulgrewal
and his team today.
Judge Failla came prepared with thoughtful questions, had digested the amicus briefs, understands the tech, and gets the dynamics at play between the SEC and Congress.
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1/ Since we're in an era of regulation by enforcement, I'm hoping it would be valuable post high-level summaries of the recent happenings in Cryptolitigationland. Aiming for bi-monthly, but in an act of self-care, I don’t want to over-promise. 🤓
🧵
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I think these two SEC commissioners may have a future in screenwriting. Painting a painfully accurate picture of the experience of an entrepreneur in this space.
🙏 Commissioners Uyeda &
@HesterPeirce
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12/ The SEC is asserting power over a trillion-dollar industry, trying to short-circuit the legislative process. Not their job.
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2/ We argue: 🧵
but for a sneak peak, images of our introduction...
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8/ This is part of an SEC pattern to create a chilling effect on future projects. Now by making allegations that the SEC knows may not be contested squarely. This must stop. We ask the court to ensure any findings carry no ill effects against absent third parties.
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6/ Not only has this case harmed the named tokens (and users, creators, developers), the choice to implicate unnamed third parties was conscious and strategic. The SEC maximized its chances of alleging whatever it wants, with minimal risk of being held to account for it.
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👏
@coinbase
for seeking the court (3rd Cir.) to compel the SEC to answer "yes" or "no" Coinbase's pending rulemaking petition that asks the SEC to propose and adopt rules as to how the securities analysis applies to digital assets.
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7/ This strategy bypasses procedural due process protections and violates the APA. Rather than properly engaging with the public on rulemaking, the SEC carves out new rules via enforcement actions.
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So I guess the new Howey test is: If the SEC alleges an investment contract, it is an investment contract?
That and, of course, vibes.
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1/ Today,
@BlockchainAssn
submitted a letter in response to
@FinCENnews
's NPRM re: mixers. The Proposal is FinCEN’s 1st ever use of § 311 authority to designate a class of transactions as a primary money laundering concern. This is a big deal.
🧵
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9/ Digital assets allow users to purchase goods and services, participate in governance, efficiently send cross-border remittance payments, access financial services without fear of exclusion, and contribute to the security of the network.
They change the way we interact.
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1/ Massive win yesterday. Let’s dig into why the DC Circuit Court (!!!) ruled in favor of
@Grayscale
and against the
@SECGov
.
To sum it up - the Court found that the SEC failed to coherently explain why it treated like products unlike. 🧵
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1/ To nobody’s surprise, several events have occurred in the courts over the past couple of weeks. On deck: Nexo SEC settlement, Genesis's Ch. 11 filing, SEC v. Avi Eisenberg, Mango Labs v. Avi, the Fed’s denial of Custodia’s bank membership application, and DOJ v. Bitzlado. 🧵
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2/ In the midst of hostility toward the digital asset industry, the SEC affords Prometheum favorable regulatory status.
Why?
Especially when the alleged product does not comport with the SEC’s view laid out in recent enforcement actions.
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1/ Today,
@BlockchainAssn
filed our 2nd comment letter in response to the
@SECGov
's proposed safeguarding (custody) rule. We discuss why the proposal is unworkable and would ultimately harm investors. 🧵
Read our full letter here:
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11/ For instance, if the sale of beavers is coupled with a promise to raise them for profit, there is an investment contract. But without the promise and obligations, it’s just a beaver.
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9/ Thanks to
@ohaiom
and his team for the fantastic work. Our brief follows the recent motion to dismiss, which the SEC will respond to on April 6. We will closely watch how this case unfolds.
[end]
Ishan Wahi and his legal team at Jones Day filed a strong motion to dismiss in the SEC's enforcement action regarding alleged insider trading of 9 tokens.
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1/ In the midst of unlawful debanking of crypto companies, there has been some activity in the courts. Below are the key updates. 🧵
And a 🔥 thread by
@jchervinsky
regarding
@BlockchainAssn
's recent FOIA requests to the FDIC, OCC, and Fed.
1/ Today,
@BlockchainAssn
sent FOIA requests to the Fed, FDIC, and OCC, demanding information about the unlawful debanking of crypto companies.
We are also collecting evidence of debanking. Share your story with us:
debanked
@theblockchainassociation
.org
Here's the situation 🧵
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5/ The token creators must rely on the Wahi defendants - strangers to the projects - to make a case that the tokens are not securities. Putting aside the SEC’s improper characterization of Howey, this is a big issue.
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9/ Given the importance of this matter, we copied the
@FinancialCmte
Subcommittee on Oversight and Investigations and the following members:
cc:
@PatrickMcHenry
@RepMaxineWaters
@RepFrenchHill
@RepStephenLynch
@RepRitchie
@RepHuizenga
@RepAlGreen
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1/ A few thoughts on recent crypto litigation...
Ripple
Terraform Labs
Tornado Cash
Bottom line: It’s time for a circuit court to weigh in.
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The SEC’s arguments re
@coinbase
wallet and its staking service fail.
🙏 to
@amandatums
@fund_defi
for looking out for the devs and filing this incredibly important brief
We
@fund_defi
decided to take a different approach to our amicus in order to assist the court in understanding the nuances of the technology at issue.
This one is for the devs. 🧵
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1/
@BlockchainAssn
’s brief focuses on the DOJ’s unlicensed money transmitter charge. DOJ departs from established law as well as their own guidance – such departure would result in serious consequences. 🧵
1/ Today, BA filed an amicus brief in United States v. Storm, highlighting a critical flaw in the government's prosecution of Tornado Cash developers Roman Storm and Roman Semenov.
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5/ Is Chair Gensler using Prometheum as a means to thwart congressional efforts toward legislation?
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I said this a year ago and I’ll say it again: this year will be a year in the courts. And amicus briefs are an important component.
1/ The crypto industry is built different: our zeal and resolve are unlike anything you'll find elsewhere.
This shows up in many ways, including in litigation.
It's rare to see amicus briefs filed in district courts, but we file tons of them all over the place.
This matters 🧵
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First pod
@jchervinsky
and I recorded together. Likely will be many more, but happy to have a host like
@JacobRobinsonJD
for the first.
If you don’t already listen to Law of Code, highly recommend if you are at all interested in crypto’s novel legal and regulatory questions.
Operation Chokepoint. Wells Notices. Amicus Briefs.
The legal side of crypto has never been more important. Thankfully,
@BlockchainAssn
is part of the fight.
In this pod,
@jchervinsky
and
@MTCoppel
discuss de-banking and the state of crypto law👇
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FinCEN published a new proposed rulemaking today, which would expand reporting obligations of covered financial institutions to include crypto "mixer" transactions.
While still digesting, a few thoughts 🧵👇
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10/ We hope that the SEC IG takes our concerns seriously and opens an investigation.
[end]
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One takeaway from being in NYC for
#Mainnet
: surround myself with more builders.
DC is all policy and legal (which I love), but the builders remind me why I do what I do.
(Also another takeaway: DC needs coffee shops that make their own almond milk.)
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4/ Is Prometheum leveraging personal connections to gain an unfair advantage in the market?
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3/ Prometheum changed its stance regarding whether regulatory clarity exists.
Why?
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1/ Another big filing this week. Coin Center filed a lawsuit against US Treasury/OFAC re: Tornado Cash sanctions. Excellent complaint
@jerrybrito
@valkenburgh
and the team
@coincenter
What are the claims? 👇🧵
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It takes a lot to sue the government - clearly the lack of clarity and overly aggressive regulation by enforcement has gone too far. Thankful that
@fund_defi
and
@BebaCollection
took this on. 👏
The case focuses on airdrops. No investment of money = no investment contract.
Today, we
@fund_defi
sued the SEC. It has everything to do with airdrops + stopping the SEC’s regulation by enforcement crusade against our industry. 🧵
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Today’s approval demonstrates the huge impact litigation can have on policy. Huge congrats to the
@Grayscale
team and especially to
@CraigSalm
for driving forward Grayscale’s litigation against the SEC. 🎉💪
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1/ On an almost rainy morning (likely on both coasts), excited to be with my
@BlockchainAssn
colleagues this week, it's time for an update on the happenings in Cryptolitigationland...🧵
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Very pleased to see the court curb massive SEC overreach with regard to the Coinbase Wallet allegations.
Despite the denial on other claims, this marks the beginning of the fight...and rest assured, the brilliant team led by
@iampaulgrewal
will fight hard. 👏 💪
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Despite the circumstances, this week has been a perfect example of how the industry mobilizes. Brilliant minds collaborating and rallying together. Incredibly powerful.
Flame won't fizzle. Fired up. 🔥
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6/ Did the SEC place undue pressure on FINRA regarding the approval of Prometheum’s SPBD license?
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Thank you
@laurashin
for having me on the pod! As a listener of Unchained, it was extra special to be interviewed by you.
For anyone who hasn’t read Laura’s book, The Cryptopians, I highly recommend! Especially if you love some juicy interpersonal drama 🔥
On
@Unchained_pod
,
@mtash
analyzes the SEC’s decision to name 9 tokens as securities & investigate Coinbase.
Topics:
*why the SEC didn't directly charge token issuers
*the SEC’s actions as “regulation by enforcement”
*Coinbase’s listing process
+more
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8/ Our concerns implicate this exactly – for the SEC to achieve its own mission to protect investors; maintain fair, orderly, and efficient markets; and facilitate capital formation, it must act with integrity and high ethical standards.
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SAB 121 doesn’t protect investors. Example: if the entity holding digital assets for a customer went bankrupt, the customer’s assets would be trapped in bankruptcy proceedings as a “liability” of the entity. This is only the case for digital assets, which makes no sense.
.
@SECGov
Staff Accounting Bulletin (SAB) 121 provides that companies holding crypto assets for customers face unique risks and should therefore reflect those assets as liabilities on their balance sheets. This important guidance issued for the protection of investors and the
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7/ The SEC OIG is an independent office that conducts audits and investigations relating to SEC operations.
The point of this office is to “promote the integrity, efficiency, and effectiveness of the critical programs and operations” of the SEC.
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I am so excited for
@jchervinsky
to join
@variantfund
- no doubt will his impact on this space continue to grow exponentially. 👏🚀
Jake, you are a force and I’m beyond grateful for your friendship and guidance. Thrilled to keep working with you as a member of
@BlockchainAssn
.
1/ Exciting news: I’m joining
@variantfund
as Chief Legal Officer.
In addition to leading the firm's legal team, I'll work closely with portfolio founders to overcome the regulatory hurdles holding them back.
I'm thrilled to focus on helping entrepreneurs reshape the world 🧵
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Very excited to work alongside
@sarahamilby
to lead advocacy efforts in DC on behalf of the industry! We've got some exciting things underway and our work cut out for us, but I feel optimistic about the path forward for digital assets in the U.S.
1/ BA is thrilled to announce two major promotions from within our amazing team! Congratulations to
@sarahmilby
and
@MTCoppel
🚀
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12/ We’re proud to work alongside CFAT in ensuring SEC overreach cannot stifle innovation, disrupt market stability, or damage US economic competitiveness.
Thank you to our excellent counsel
@sullcrom
who are advocating on our behalf.
Stay tuned for next steps...
[end]
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Judge Orrick grants CFTC's motion for alternative service in the Ooki DAO enforcement action. Service by posting in the DAO's online forum and help chat box seems to raise due process concerns and could have wide-ranging impacts on how service may be effectuated more generally.
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2/ The SEC's invitation for companies to "come in and talk to us" leads only to SEC investigations, burdensome subpoenas, and litigation threats.
Example: Coinbase gets Wells notice after proactively engaging with SEC -
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My informal *very* initial thoughts on the SEC's recently finalized dealer rule 👇
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2/ Tornado Cash is — simply — a tool. As it would be unthinkable for OFAC to prohibit Americans from using tools like the Internet or a car, rather than punishing the bad actors themselves, OFAC’s sanctions of Tornado Cash are unprecedented.
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Thankfully, we’ve got the courts.
OPINION: It’s the lawsuits that may add much needed clarity for crypto
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The regulators at the hearing today were engaged and asked thoughtful questions that suggest they are taking seriously the concerns regarding decentralized tech, NFTs, and stablecoins. I’m cautiously optimistic. Very cautiously.
1/ Today,
@BlockchainAssn
filed a comment to Treasury’s proposed broker rule.
The Proposal exceeds Treasury’s statutory authority, is overbroad and vague, and violates the APA and the Constitution - including the 1st, 4th, and 5th Amendments. 🧵
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Yesterday, instead of filing a motion to dismiss, Treasury filed an Answer in response to plaintiffs' amended complaint in the Coinbase-funded lawsuit related to sanctioning Tornado Cash.
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