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The SEC has told us it wants to sue us over Lend. We don’t know why

blog.coinbase.com

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Re: The SEC has told us it wants to sue us over Lend. We don’t know why

#381

Earlier quoted context omitted.

No admission of wrongdoing, all money returned to investors, and IMO we didn't do anything wrong despite the SEC's opinion. I laugh to the bank because I've been in crypto for a decade!

>I laugh to the bank... Because it's money that counts above all else, right? Edit: It seems like your former company has still been operating in a shady manner since your departure [1], making it that much harder for me to take anything you say in good faith. [1] https://medium.com/@svenema/sec-powerless-against-crypto-rug...

I have not worked there for several years, and ownership is now Brazilian, no idea what they are doing now.

Re: The SEC has told us it wants to sue us over Lend. We don’t know why

#382
post #314
post #304

Earlier quoted context omitted.

Sure, they want to rewind to a time when your bank account was unsecured and banks themselves had 0 regulation. Because it's a heck of a lot easier to make money when you can take massive risks with other people's money while lying to them and claiming there's no risk at all.

Central banking is itself insecure. In 2008, the banks failed. They put a gun to the heads of everyone in America and said "bail us out or you lose everything". So the bankers kept all their profits and everyone else lost big. That is just one of many central bank failures. The only difference from the many small bank system that came before is that instead of a bank here or there failing and everyone else moving on,…

> So the bankers kept all their profits and everyone else lost big.

I believe the government actually made a profit on the bailouts (the TARP program), probably because they bought while prices were low. Not that there isn’t a lot to criticize about how things went down.

I wouldn’t put too rose-colored-glasses on the pre-central bank era either, we still had financial panics and bank failures and the fact that the world is more globalized/interconnected now is probably true regardless of if we have a central bank or not.

> The real answer is to do away with the fractional reserve lending

I saw an interesting thought experiment related to this a while back.

Say country A is careful about making loans, and B is less careful. Country B takes out 300% more loans, and runs into a huge bad debt problem, and has to write down 20% of the total of all lending. Say people lose 20% of their bank accounts (maybe because the currency depreciates after a bailout).

Which country was more responsible? Country A right?

But if you look at the results, after the write down, country B has 240% as much stuff (housing, infrastructure, etc). And the people there also have 240% as much savings in the bank, since that’s mostly bank credit backed by debt.

The author made the argument that country A resembled Russia and county B resembled China.

Examples like this make me feel that the most responsible way to handle debt (at least at the public policy level) is not really very clear, since even doing things that seem responsible can have huge costs in the end.

Re: The SEC has told us it wants to sue us over Lend. We don’t know why

#383

Earlier quoted context omitted.

> The Howey test applies to commercial paper, tradability is inherent. Howey itself did not concern commercial paper, so if the Howey test only applied to that, it would be nonbinding dicta .

Meant to say investment contracts.

Investment contracts aren't inherently tradeable. They may frequently be tradeable because of market preferences, but it is not inherent in the category.

«an "investment contract" exists when there is the investment of money in a common enterprise with a reasonable expectation of profits to be derived from the efforts of others.» [0]

[0] https://www.sec.gov/corpfin/framework-investment-contract-an...

Re: The SEC has told us it wants to sue us over Lend. We don’t know why

#384
post #237

Earlier quoted context omitted.

> Or you know the SEC is allowed to announce /why/ they are prosecuting. They are, but they don't have to since the law is spelled out. > And why they are prosecuting a particular alleged transgressor first as opposed to some other having not done so until now. Gotta start somewhere, and the fact someone else is breaking the law isn't a defense. If it was any two people doing the same crime couldn't ever be charged r…

Stealth edit on the grandparent of this comment. Why do that? It make me go from the assumption of good faith to the other thing.

Did I change something material? If so my bad, I usually only edit for clarity, and add an edit block if I add something. My bad if so!

Re: The SEC has told us it wants to sue us over Lend. We don’t know why

#385

Earlier quoted context omitted.

>I laugh to the bank... Because it's money that counts above all else, right? Edit: It seems like your former company has still been operating in a shady manner since your departure [1], making it that much harder for me to take anything you say in good faith. [1] https://medium.com/@svenema/sec-powerless-against-crypto-rug...

I have not worked there for several years, and ownership is now Brazilian, no idea what they are doing now.

Hence my use of the phrase, "former employer". I'm simply observing a pattern at your former employer, whose co-founder remained there through June of this year; a pattern which makes it hard for me to believe that it was acting in good faith during your time there.

Re: The SEC has told us it wants to sue us over Lend. We don’t know why

#386

Earlier quoted context omitted.

You seem to be confused about the relationship between FINRA and the SEC. FINRA is not the equal of the SEC, they are subordinate. FINRA is a self-regulatating, non-governmental organization to whom the SEC delegates some regulatory enforcement authority, however the SEC is the government, and the SEC is always the (first level) of appeal if you don't like what FINRA says. If the SEC says no, FINRA can't say yes, bec…

You're right that FINRA is authorized by the SEC, but that doesn't mean that regulatory powers that FINRA has been authorized to perform can be pulled back on a whim. There is a binding charter in place, and there is plenty of history of FINRA telling the SEC to fuck off when something is clearly within their wheelhouse.

I don't know the ins and outs of the relationship between FINRA and the SEC. I am rather more familiar with the similar relationship between FERC (Federal Government) and NERC (SRO), and in that case NERC really can't say "Fuck off." NERC will occasionally try and push back via public lobbying, using its position as the organization of power producers to speak for them when they- as a collective- don't like some new rules coming out, but if the rule does come out and get finalized, they don't get to say 'no, go away' because the Federal Government gets to make the regulations.

And just from first principles, I'm not sure that FINRA, an organization largely dominated by traditional broker-dealers would be willing to go to bat for a weirdo newcomer. If they aren't doing the basics of building relationships with the SEC, is Coinbase building relationships with the other companies necessary to get FINRA to go to bat for them? But again, not sure about this, just a bit skeptical.

Re: The SEC has told us it wants to sue us over Lend. We don’t know why

#387

Earlier quoted context omitted.

Meant to say investment contracts.

Investment contracts aren't inherently tradeable. They may frequently be tradeable because of market preferences, but it is not inherent in the category. «an "investment contract" exists when there is the investment of money in a common enterprise with a reasonable expectation of profits to be derived from the efforts of others.» [0] [0] https://www.sec.gov/corpfin/framework-investment-contract-an...

Could you give me an example of an investment contract that is not tradable? You have me straining at the imagination here.

Even if you are right that tradability is not a requirement of a security, and even if you are right that this meets all of the requirements of a security, I still don't see how the SEC has jurisdiction here. The Securities Exchange Act explicitly exempts bank notes with duration of less than 9 months from SEC regulation. Interest bearing bank accounts have the unique feature that they have no required investment term: you can deposit for a century, or you could deposit for a millisecond...the interest is paid for the duration of the deposit, and the duration is entirely determined by the depositor, and is not a term in the contract. The SEC admits that even short term CD's (undoubtedly an investment contract that passes the Howey Test for a security) do not meet its legal bar for jurisdiction, so why they would try to apply it to a unrestricted withdrawable account (regardless of the underlying asset class) is absurd to me.

Re: The SEC has told us it wants to sue us over Lend. We don’t know why

#388

Earlier quoted context omitted.

You're right that FINRA is authorized by the SEC, but that doesn't mean that regulatory powers that FINRA has been authorized to perform can be pulled back on a whim. There is a binding charter in place, and there is plenty of history of FINRA telling the SEC to fuck off when something is clearly within their wheelhouse.

I don't know the ins and outs of the relationship between FINRA and the SEC. I am rather more familiar with the similar relationship between FERC (Federal Government) and NERC (SRO), and in that case NERC really can't say "Fuck off." NERC will occasionally try and push back via public lobbying, using its position as the organization of power producers to speak for them when they- as a collective- don't like some new…

I think that's a really good question. Financial service companies almost unanimously would rather deal with FINRA than with the SEC because FINRA has a form of democratization of control.

Coinbase certainly started out with the rogue "Can't touch me, it's crypto" bullshittery, but over the past 6 years they have been one of two exchanges (the other being Gemini) which have actually taken regulatory approval and collaboration seriously. Maybe the SEC's fines and handslaps have made them fear the alternative, who knows. Whether that means that they can really have any influence over FINRA is yet to be seen.

Re: The SEC has told us it wants to sue us over Lend. We don’t know why

#389

Earlier quoted context omitted.

Investment contracts aren't inherently tradeable. They may frequently be tradeable because of market preferences, but it is not inherent in the category. «an "investment contract" exists when there is the investment of money in a common enterprise with a reasonable expectation of profits to be derived from the efforts of others.» [0] [0] https://www.sec.gov/corpfin/framework-investment-contract-an...

Could you give me an example of an investment contract that is not tradable? You have me straining at the imagination here. Even if you are right that tradability is not a requirement of a security, and even if you are right that this meets all of the requirements of a security, I still don't see how the SEC has jurisdiction here. The Securities Exchange Act explicitly exempts bank notes with duration of less than 9…

> The Securities Exchange Act explicitly exempts bank notes with duration of less than 9 months from SEC regulation.

No, it is broader than that; it is not limited to bank notes or durations less than 9 months, but to any bank-issued security; but since Coinbase is not a bank as defined in the Securities Exchange Act [0], the bank-issued securities exception is immaterial.

[0] to wit, per 15 USC § 77c(a)(2): «any national bank, or banking institution organized under the laws of any State, territory, or the District of Columbia, the business of which is substantially confined to banking and is supervised by the State or territorial banking commission or similar official; except that in the case of a common trust fund or similar fund, or a collective trust fund, the term “bank” has the same meaning as in the Investment Company Act of 1940 [15 U.S.C. 80a–1 et seq.]»

Re: The SEC has told us it wants to sue us over Lend. We don’t know why

#390

I actually initially wanted to be on Coinbase’s side here, but after a quick google of “Howey test” and reading even just the introduction on Wikipedia, I cannot imagine how they don’t see the SEC’s reasoning about Lend wrt Howey. If you want to argue that Howey does not apply or fight the decision/lawsuit, then fine. But feigning ignorance of something a (non-legal expert) programmer can connect the dots of instantl…

Okay, but in fairness, I don't think Coinbase is disputing that,

a) "You can make a plausible legal argument for why Lend is a security."

Their frustration, rather, is that:

b) "The SEC is not doing the same thing for near-identical offerings like Gemini Earn." and

c) "The SEC won't actually tell us what basis they're appealing to or how this relevantly differs from the others."

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