Clarifying the Legal Status of Ethereum and Digital Assets

This chapter explores the legal classification of Ethereum and similar digital assets, arguing that they are not intrinsically securities. The discussion includes an analysis of the Howey test and potential regulatory conflicts between the SEC and CFTC regarding Ethereum's status.

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On March 20, Fortune reported that the SEC was investigating the Ethereum Foundation and was looking for legal ways to label ETH as a security.

Sam Enzer, partner at Cahill Gordon & Reindel, and Greg Strong, partner at DLx Law joined Laura to discuss everything about the investigation and its implications.

The guests speculate about the hidden motivations behind the SEC's investigation and discuss the likelihood of the approval of spot Ether ETFs. They also discuss the recent ruling in the SEC vs Coinbase case, where the judge dismissed claims that Coinbase's wallet was acting as an unregistered brokerage, but allowed the rest of the suit to proceed.

Lastly, they touch on the devastating impact on the crypto industry if the SEC were to win a case alleging ETH is a security and what they are looking out for in the next couple of weeks and months.

Show highlights:

Whether the investigation into the Ethereum Foundation is confirmed and why the SEC would do this
Why Sam Enzer believes that the SEC would be "utterly wrong and ridiculous" in alleging ETH is a security
Whether the number of people working on Ethereum could make the argument that it is decentralized
How would the SEC justify that ETH is a security and whether the Foundation is running Ethereum’s managerial efforts
Whether the SEC is looking for evidence to deny spot ether ETFs
Why SEC chair Gary Gensler has changed his mind on many of his previous stances regarding crypto assets and whether he's acting in good faith
The ongoing battle between the SEC and the CFTC and the need for Congress to regulate the industry
What the possible outcome of this investigation could be, and whether we'll have a court case soon
What the impact would be if ETH were classified a security
Whether Prometheum could launch its platform offering custody of ETH as a security before an SEC designation
Why Sam believes that the spot ETH ETFs will be denied on May 23rd
How the SEC has already made up its mind even before gathering the facts, according to Sam
Whether the recent judgment on Coinbase's case affects the potential case against the EF
Whether Ethereum transactions are security transactions, and the difference between primary and secondary sales
What to expect in terms of regulation and enforcement actions in the short term, given the number of cases at the moment

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Guests:

Sam Enzer, Partner at Cahill Gordon & Reindel
Previous appearances on Unchained:
How 'a Criminal Choice' Got Sam Bankman-Fried a 25-Year Prison Sentence
Why the SEC’s Case Against Coinbase Is So Significant for Crypto
Why SBF’s Testimony So Far Has Likely Already Doomed Him
Another Bad Week for Sam Bankman-Fried in His Criminal Trial
Why These Lawyers Say It’s Over for SBF-But His Only Hail Mary Is to Testify
SBF Trial: How Sam Bankman-Fried’s Lawyers Might Try and Win His Case
SBF’s Lawyers Could Be Annoying the Judge How Might That Impact the Trial?
Greg Strong, partner at DLx Law
Previous appearance on Unchained: Why These Lawyers Say It's Over for SBF-But His Only Hail Mary Is to Testify

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The Real Reason Why the SEC Might Be Going After Ethereum - Ep. 627

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Clarifying the Legal Status of Ethereum and Digital Assets

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