CFTC

CFTC Commissioner Caroline Pham took issue with the SEC labeling certain crypto assets as securities in an example of “regulation by enforcement."

Caroline Pham, one of five commissioners with the United States Commodity Futures Trading Commission, or CFTC, has expressed concerns about the possible implications of a case the Securities and Exchange Commission, or SEC, brought against a former product manager at Coinbase.

In a Thursday statement, Pham said the SEC complaint against former Coinbase product manager Ishan Wahi, his brother Nikhil Wahi and an associate Sameer Ramani “could have broad implications” beyond the case, given its labeling nine tokens as “crypto asset securities” falling under regulatory body’s purview. The complaint alleged the Wahis and Ramani engaged in insider trading by using confidential information Ishan obtained from Coinbase in regard to which tokens would be listed on the exchange to make purchases in advance.

Specifically, the SEC referred to Powerledger (POWR), Kromatika (KROM), DFX Finance (DFX), Amp (AMP), Rally (RLY), Rari Governance Token (RGT), DerivaDAO (DDX), LCX, and XYO — 9 of the 25 different cryptocurrencies the trio allegedly used to reap $1.1 million in gains — as securities. Pham said the SEC’s actions constituted an example of “regulation by enforcement” rather than addressing the question of certain crypto assets as securities “through a transparent process that engages the public to develop appropriate policy with expert input.”

“Regulatory clarity comes from being out in the open, not in the dark,” said Pham. “​​Given the overriding public interest and the open questions on the legal statuses of various digital assets, such as certain utility tokens and DAO-related tokens, the CFTC should use all means available to fulfill its statutory mandate to vigorously enforce the law and uphold the Commodity Exchange Act.”

Read my statement on #SEC v. Wahi, regulation by enforcement & #CFTC authority #crypto #digitalassets #DAO pic.twitter.com/xbHvyshx8l

— Caroline D. Pham (@CarolineDPham) July 21, 2022

A Thursday update to an April blog post from Coinbase in response to the case hinted at similar concerns by referring to the SEC charges as an “unfortunate distraction.” The U.S. Attorney’s Office for the Southern District of New York also filed an indictment in parallel with the SEC’s case, but did not label any of the tokens involved — including Tribe (TRIBE), Alchemix (ALCX), Gala (GALA), Ethereum Name Service (ENS), POWR, and XYO — as securities.

"The DOJ did not charge securities fraud,” said the company. “No assets listed on our platform are securities.”

SEC enforcement director Gurbir Grewal said its case against the Wahis and Ramani was based on the “economic realities of an offering,” alleging some of the crypto assets used were securities. The regulator said it sought permanent injunctive relief, disgorgement and civil penalties.

Related: CFTC labels 34 crypto and forex firms as unregistered foreign entities

The CFTC and SEC often claim overlapping jurisdictions when it comes to regulating digital assets in the United States, labeling them as either commodities or securities based on their respective agencies. In June, Senators Cynthia Lummis and Kirsten Gillibrand introduced a bill aimed at providing regulatory clarity fort the space, giving the CFTC “clear authority over applicable digital asset spot markets.” However, Lummis said in a Tuesday interview that the legislation was “more likely to be deferred until next year.”