Today’s enforcement action against Poloniex, once a popular crypto trading platform in the United States, doubles down on the Commission’s enforcement-centric approach to crypto. Poloniex, the Commission contends, was not registered as a national securities exchange nor did it operate pursuant to an exemption from registration at any time, and its failure to do so was a violation of Section 5 of the Exchange Act. There is just one minor problem—during the period at issue here (mid 2017 through 2019), the Commission was moving very cautiously with respect to regulated entities’ engagement with crypto assets. Sure, Poloniex could have tried to register as a securities exchange or, more likely, as a broker-dealer to operate an alternative trading system (ATS), a type of regulated trading venue that might be better able to accommodate non-traditional securities. Had it done so, it likely would have waited . . . and waited . . . and waited some more.
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