SEC 对 ETF 2.0 的调查刚结束，律师们却吵起来了

作者：jk，Odaily星球日报6月18日，美国证券交易委员会（SEC）宣布结束对以太坊2.0的调查，并不会对Consensys采取强制措施。对于以太坊开发者、技术提供商以及以太坊生态系统来说，这无疑是一个阶段性胜利。对于这件事情的讨论已经过去了一周的时间，不少法律界相关人士都写出了关于这件事的详细法律意见。然而，关于这一决定的解读，各方观点不一。部分律师认为，这一调查的结束意味着今后所有与以太坊作为证券相关的话题（除了质押）都将不再受到调查，而另一些律师则认为，这仅仅是针对Consensys一家的暂时“休战”。本文将总结各方的反应，特别是法律界对此事件的不同看法。前情提要6月18日，美国证监会（SEC）对Consensys发布了一份结束调查的通知。这份调查的起因来源于之前Consensys将SEC告上法庭一事（如果想要了解更多细节，可以参考《ConsenSys反手起诉SEC，或将影响以太坊ETF获批结果》）这份通知尽管措辞有些不情愿，却仍然表达了会对于以太坊2.0相关内容结束调查。其中，SEC本身使用了一些模棱两可的语句：“尽管我们在此通知中，或在其他任何情况下，并不认同6月4日信函中陈述的事实或法律结论，但根据截至目前我们掌握的信息，我们不打算向委员会建议对你们的客户Consensys Software Inc.采取强制措施。”但是，“此通知不应被视为对该方的无罪或最终不会因工作人员的（终结）调查而采取任何行动的表示。”

Original text of the notice issued by the US SEC. Source: SEC
On the day this incident occurred, Consensys immediately issued an article, labeling this incident a major victory. The article mentioned, “On June 7, we sent a letter to the SEC asking it to confirm that the May approval of an Ethereum ETF (based on Ethereum being a commodity) meant that the agency would end its Ethereum 2.0 investigation. Today, the SEC Enforcement Division informed us that they are closing their investigation into Ethereum 2.0 and will not take enforcement action against Consensys.” Consensys also insisted that the SEC must abandon its unprincipled and opaque enforcement regulations and instead work for the industry. Provide much-needed regulatory clarity.
What did the lawyer say? Consensys’ lawyers are aligned with the company. Laura Brookover, senior counsel and head of litigation and investigations at Consensys, expressed her views on the Twitter platform. She posted that the entire investigation (not just against Consensys) was closed. The letter states that no charges will be filed against Consensys, but the conclusion of the investigation means no charges will be filed against anyone. It covers all of Ethereum, so anyone who contributed code or bought or sold ETH is under investigation. Now, the entire investigation is over, not just for Consensys, but for everyone.
She also cited the SEC’s enforcement manual, “An investigation that has resulted in enforcement actions can only be closed after all enforcement actions are completed.” Therefore, the end of this investigation means that no enforcement actions have been filed against anyone.
Secondly, a very important thing is that yesterday, Laura Brookover and Sam Enzer, partner of Cahill Gordon & Reindel, attended an interview with the podcast media Unchained. The two shared a lot of content that was not mentioned on the Twitter platform. . They believe the letter represents some degree of division of opinion within the SEC:
“It suggests that enforcement officials have convinced Gensler that if they file an enforcement action alleging that merged Ethereum (ETH) was offered or sold as a security, They're going to fail and be embarrassed. I think Gary Gensler believes in his heart that ETH is a security, or that ETH is being offered and sold as a security because people deposit money there, right? Something of value and get rewarded. In his mind, that makes it a security, or he would very much like to have the power to regulate it, but I think his staff told him we were going to lose the case."
But. This statement has also attracted a lot of doubts, especially when the ETF has not yet been settled, and other exchanges and crypto institutions are still involved in lawsuits because of Ethereum. Enumma founder David Barrera posted that no part of the SEC's letter said the investigation was "closed." This decision simply means that the SEC will not prosecute others who offer or sell Ethereum, but according to the SEC’s Enforcement Manual, just because staff have concluded an investigation and decided not to prosecute one party does not mean that the investigation is “over.” , nor does it mean that lawsuits will not be brought against other parties. In other words, Uniswap or other institutions may still be involved in legal cases due to Ethereum.
David went further and said that the phrase "we disagree with... your factual statements and legal conclusions" is not common or standard language in such letters indicating that an investigation will not continue. In other words, the SEC only mentioned this sentence in the case against Consensys, which does not necessarily mean that it will completely abandon the lawsuit in the future.
Sam on the podcast also opined,
“The SEC has discretion in closing an investigation letter, right? Criminal prosecutors have prosecutorial discretion and regulatory enforcement agencies have regulatory enforcement discretion. When they deny a case, that’s Doesn't necessarily indicate that the action was legal or compliant with the law. It could be that the SEC doesn't have the resources this year or they have other more important things to deal with... but they are not bound to turn back. Unfortunately, the SEC changes its position quite often. "
At the same time, Laura expressed a point that the SEC's closure of the investigation has nothing to do with liquid staking and re-staking, that is another completely different thing:
"The SEC's actual investigation into those activities The above belongs to another independent investigation scope and is not part of the Ethereum 2.0 investigation. Therefore, the end of the Ethereum 2.0 investigation does not actually indicate the SEC’s views on liquid staking, heavy staking services, and collective staking.”
In ETFs. Will it have an impact on final approval and other litigation issues? For now, it is unlikely that ETF approval will be affected. Coindesk reported that SEC Chairman Gary Gensler told senators at the budget hearing on the 13th that final approval of the Ethereum ETF will be completed this summer.
In a budget defense hearing before a subcommittee of the Senate Appropriations Committee, Gensler said the process was "working smoothly" following initial approval of a group of ETFs. The agency had previously approved the preliminary application, but he said the final registration requirements — namely the submission of Form S-1 — are now being handled at the “staff level.”
As for other lawsuits, due to the slow progress of most legal cases, there is no update yet. Odaily will also continue to follow the reports.

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