Bittrex charged by SEC amid U.S. departure efforts

The SEC on Monday announced charges against Seattle-based Bittrex and its co-founder and former Chief Executive William Shihara for operating an unregistered national securities exchange, broker, and clearing agency. The SEC also charged Liechtenstein-based subsidiary Bittrex Global for failing to register as a national securities exchange.

The case is the latest brought by the SEC against a crypto firm for the unregistered sale of securities. It comes three days after the agency announced the reopening of a comment period on amendments to its Exchange Act that would reiterate “the applicability of existing rules to platforms that trade crypto asset securities.”

The details: Since its launch in 2014, Bittrex has been operating as an unregistered broker by soliciting potential investors, handling customer funds and assets, and charging fees for its services and as an unregistered clearing agency by holding its customers’ assets in Bittrex-controlled wallets and settling their transactions by debiting and crediting relevant accounts, the SEC alleged in its complaint. Since 2019, Bittrex Global played part in the platform acting as an unregistered exchange by providing a marketplace for customers to buy and sell crypto, the agency continued.

“For years, Bittrex made calculated business decisions to make assets available on the Bittrex platform in order to increase its own revenues … while explicitly acknowledging that its conduct could invite regulatory scrutiny,” the SEC said. “Bittrex’s strategy has been to elevate increasing its profits over complying with the regulatory framework for securities markets.”

Shihara directed Bittrex’s operations and activities from 2014 until he stepped down as CEO in 2019. The SEC alleged Shihara oversaw efforts by the company to encourage crypto asset issuers on the platform to avoid investment-related terms that could invite scrutiny from the agency or other regulators.

“Today’s action, yet again, makes plain that the crypto markets suffer from a lack of regulatory compliance, not a lack of regulatory clarity,” said SEC Chair Gary Gensler in a press release.

Compliance considerations: The SEC’s soliciting new comments on changes to the Exchange Act that would modernize the definition of an exchange would clarify crypto trading platforms “have an existing duty to comply with the securities laws,” said Gensler. Republican SEC Commissioner Hester Peirce dissented from the proposal, saying it would “welcome extinction of new technology.”

“The commission does seem to anticipate that its interpretation will drive decentralized protocols toward centralization, extinction, or expatriation,” she said in a statement. “It blithely acknowledges at one point that those involved in these systems ‘may instead choose to operate outside the U.S. or exit the market.’”

Bittrex on March 31 validated Peirce’s viewpoint when it announced it would begin the process of winding down its U.S. operations.

“It’s just not economically viable for us to continue to operate in the current U.S. regulatory and economic environment,” said Richie Lai, co-founder and CEO of Bittrex, in a blog post. “Regulatory requirements are often unclear and enforced without appropriate discussion or input, resulting in an uneven competitive landscape.”

The announcement followed Bittrex’s receipt of a Wells Notice from the SEC regarding its planned enforcement action. Lai advised U.S. customers to withdraw their funds by April 30, when the company’s operations in the country will cease.

Company response: “We are disappointed with the SEC’s decision to bring an enforcement action against Bittrex as part of Chairman Gensler’s larger crusade to drive cryptocurrency out of the United States,” a Bittrex spokesperson said in an emailed statement. “… . For over five years, and despite multiple, specific requests to do so, the SEC would not provide notice of the specific conduct that it thought violated the federal securities laws.”

The spokesperson added the company “look(s) forward to vindicating our position in court.”

In a press release separate from its parent company, Bittrex Global stated it also plans to fight the SEC’s complaint, which it said it received without being given the chance to respond to the agency in writing.

“Bittrex Global was willing to work productively with the SEC—as we do with all regulators—to explain our position,” the subsidiary said. “It has become clear that the SEC is not interested in such discussions. As a result, Bittrex Global will instead make those explanations—which we anticipate will be compelling—to a court as we vigorously defend these allegations.”