The U.S. Securities and Exchange Commission (SEC) has called 12 tokens securities in its enforcement action against crypto exchange Binance.
Bitcoin and ether are not mentioned in the federal filing against Binance, however the SEC said the list was not exhaustive.
SEC Chairman Gary Gensler told New York Magazine earlier this year that “everything other than bitcoin” is considered a security but then refused to comment on whether ether was a security in a hearing in April.
“From the time of each of their first offer or sale, each of these crypto asset securities was offered and sold as an investment contract and, therefore, was and is a security,” said the SEC in the Binance enforcement action.
The regulator filed 13 charges against Binance, Binance.US and its CEO Changpeng Zhao. Among the charges, it accuses the exchange of mishandling customer funds, lying to regulators and the sale of unregistered securities.
The Commodities Futures Trading Commission (CFTC) also filed its own enforcement action against Binance and Zhao in March.
Many of the tokens listed as securities in the filing have plummeted with some seeing double digit losses over the last 24 hours including The Sandbox’s token (SAND), which fell 14%. Decentraland’s token (MANA) and Binance’s token (BNB) dropped 10% and 8% respectively, according to data from Coingecko.
The SEC has charged Binance for the unregistered offers and sales of BNB, BUSD and crypto-lending products known as “Simple Earn” and “BNB Vault.”
“We respectfully disagree with the SEC’s allegations that Binance operated as an unregistered securities exchange or illegally offered and sold securities, including by offering BNB, or the BUSD fiat-backed stable coin,” said a Binance spokesperson in an email statement.
“We work diligently to comply with laws and regulations applicable to our business. BNB coin is not a security. Rather, BNB is a native token, designed to create an internal economy; thus, its value derives from its participants,” they added.
The SEC filing gives some clarity on the regulator’s thinking about commodities versus securities. Participants in the crypto market have long complained about the lack of clarity from U.S. regulators on what makes a digital asset a security or a commodity. Key House Republicans introduced a draft bill on June 2 that aims to tackle the thorny issue.
In the filing against Binance, the SEC uses its DAO report, dated July 25, 2017, to claim that Binance broke the law in regards to selling BNB as an unregistered security. However, Jeff Roberts, the crypto editor at Fortune, highlighted via Twitter that the SEC then contradicts this point stating that the BNB ICO sales took place between June 26 and July 3 in 2017.
Bitcoin (BTC) and ether (ETH) also haven’t been able to escape the bloodbath in crypto markets despite not being listed as securities. The networks’ tokens are down around 3% respectively within the last 24 hours, according to data from Coingecko.
In public markets, crypto exchange Coinbase’s stock (COIN) plummeted 9% as investors expected the enforcement action against Binance to bring further headwinds to the exchange, which has had several standoffs with the regulator lately. It received a Wells notice from the SEC in March informing the company of potential enforcement action related to the listing of unregistered securities.
Binance said it was “disappointed” in the SEC’s decision to take action against the exchange in a blog post. Its U.S. counterpart, Binance.US, said via Twitter that the charges were another example of regulation by enforcement under the current commission and that it intended to defend itself “vigorously” against “the baseless lawsuit.”
“Because Binance is not a U.S. exchange, the SEC’s actions are limited in reach,” said Binance in a blog post. “Still, we stand with digital asset market participants in the U.S. in opposition to the SEC’s latest overreach, and we are prepared to fight it to the full extent of the law.”