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Home » CCI Files Amicus Brief Supporting Coinbase’s Writ of Mandamus

CCI Files Amicus Brief Supporting Coinbase’s Writ of Mandamus

byCCI
May 11, 2023
in CCI News
The Crypto Council filed an amicus brief in support of Coinbase’s mandamus petition that seeks to compel the SEC to respond.

Summary

  • The Crypto Council filed an amicus brief in support of Coinbase’s mandamus petition that seeks to compel the SEC to respond to the company’s pending July 2022 rulemaking petition
  • Regulation-by-enforcement thwarts meaningful participation in agency decision-making, deprives market participants of fair notice as to what is permissible, and chills innovation and investment in digital assets.
  • Companies need to be able to rely on clear, consistent guidance, so they can work within a regulatory framework that makes compliance possible. Otherwise, the digital asset industry will not achieve its full potential in the United States and will be pushed to other jurisdictions actively seeking to host the next wave of innovation. 
  • The SEC’s failure to respond to Coinbase’s petition for rulemaking is a part of a pattern that has stymied judicial review. The proper approach is for the SEC to initiate rulemaking procedures that will provide for fair notice, an opportunity to be heard, and will allow for judicial review in due course. 
  • Read the brief

The SEC’s failure to respond to Coinbase’s petition for rulemaking is causing tangible harm to a major American industry

Digital assets play an important role in the American economy, and their economic and political significance is growing. The market size of digital assets has expanded tremendously in recent years. In January 2020, aggregate market capitalization of all digital assets was just under $200 billion. It grew to nearly $2.9 trillion in November 2021, before falling to approximately $1.0 trillion in June 2022. Regulatory guidance is essential for the success of this growing industry.

The SEC’s enforcement-only approach to regulation leaves no viable path for good actors

The SEC’s limited guidance has been vague, inconsistent, and unworkable for the industry. The SEC’s suggestion that digital asset organizations can simply “come in and register” is not feasible for numerous reasons. 

First, there is no actionable guidance to delineate which assets the SEC thinks require registration. Second, the registration requirements that could apply are ill-fitting, inadequate, and often misleading. Third, even if some assets or market participants did register, securities laws preclude market participants from servicing a category of assets (like digital assets) that includes both securities and non-securities. Simply put, the SEC has provided no viable pathway for crypto firms to comply with existing regulations.

There is no discernible way to distinguish digital assets the current SEC will view as securities from those (like Bitcoin) it will treat as non-securities. Nor has the SEC issued guidance to provide the industry comfort that its position will not shift unexpectedly (as appears to have happened with Ether). The ambiguity does not end at seeking to determine whether or not an asset is a “security.” For example, the key registration form for domestic issuers, Form S-1, requires issuers to determine whether the securities are equity or debt securities for purposes of certain disclosures. Many digital assets, however, do not resemble debt or equity because they convey no legal relationship to any issuer and do not entitle the holder of a token to anything other than the token’s functionality. 

The SEC’s failure to provide a clear path for good actors to comply  undermines all three prongs of the SEC’s three-part mission to protect investors, maintain fair, orderly, and efficient markets, and facilitate capital formation. Far from protecting investors, it exposes them to increased risk by pushing responsible actors out of the market, creating a vacuum to be filled by those least concerned with compliance.

At the same time, the SEC’s aggressive stance towards those seeking to comply impairs investors’ ability to differentiate the good organizations from the bad as they are all painted with the same brush by the SEC.

The lack of guidance is causing good actors and innovation to flee the United States

The lack of regulatory clarity, combined with the SEC’s increased enforcement actions, creates an inhospitable environment for responsible actors. This lack of guidance also means that responsible organizations who operate in the United States may have no choice but to move to other jurisdictions with regulatory frameworks that offer more clarity.

Other countries are actively courting the next wave of technology leadership by providing regulatory frameworks that seek to foster innovation while protecting market participants. The European Union parliament, for example, recently passed the “Markets in Crypto Act,” which was introduced as part of a “package of measures to further enable and support the potential of digital finance in terms of innovation and competition while mitigating the risks . . . in line with the Commission[’s] priorities to make Europe fit for the digital age and to build a future ready economy that works for the people.” The United Kingdom is creating a framework in an effort to become a hub for innovation in the Industry.

The flight from the United States is reflected in the declining status of this country as a hub for blockchain developers . Since 2018, the share of global blockchain developers in the United States has dropped from 40% to 29%, losing two percent market share per year as the industry waits for clarity from the SEC and other regulators. 

Providing regulatory clarity could allow the U.S. to recapture its position, “encourage more innovation and foster growth,” and “become an attractive destination for both new and established developers.”

The SEC’s failure to respond to Coinbase’s petition for rulemaking is part of a pattern that has stymied judicial review

The SEC’s failure to act in connection to Coinbase’s petition for rulemaking is not isolated. The SEC has received five petitions for rulemaking in the last five years seeking clarity on the Securities and Exchange Act’s application to the cryptoeconomy; the SEC has neglected to act on all five.

The proper approach is for the SEC to initiate rulemaking procedures that will provide fair notice, an opportunity to be heard, and will allow for judicial review in due course. Instead, by withholding a

decision on Coinbase’s petition, the SEC is thwarting judicial review of the policies guiding its enforcement actions

What is an amicus brief?

An amicus brief is a written argument filed by a person or a group who is not a party to an action, but has an important interest in the matter. The objective of the brief is to help inform the court’s decision. They can be written by experts who have studied a topic extensively and are able to place the case and its potential impacts into a wider context. Cornell Law School has more details.

Where can I read the Crypto Council’s amicus brief

You can read the brief in full here. 

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Saskia Seidel

Policy Fellow

Saskia Seidel is the Policy Fellow at CCI, conducting legal and policy analysis on crypto regulations and legislative developments across key jurisdictions. She examines bills and regulatory proposals as well as case decisions, providing insights into the evolving landscape of digital assets policy.

Saskia holds a Master of Laws in International Business and Economic Law from Georgetown University Law Center. Originally from Germany, she earned a Bachelor's degree in Law and Economics and passed the First German State Exam in Law to qualify in the legal system.

Before joining CCI, Saskia worked at various law firms specializing in corporate and international tax law, where she developed a strong understanding of how businesses navigate legal and regulatory challenges in a cross-border context and advising on complex legal matters.

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Emily Ekshian

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Emily Ekshian is the Communications Lead at CCI, working closely with the communications team on branding, marketing and publicity efforts. She holds a Master of Science in Journalism from Columbia University’s Graduate School of Journalism, with concentrations in Finance, Technology, and Human Rights.

She also earned a Bachelor of Arts in Political Economy and Media Studies, with a Minor in Human Rights, from the University of California, Berkeley. Emily is passionate about the intersection of blockchain, digital assets, and global policy, focusing on how emerging technologies can support climate resilience, financial inclusion, and freedom of expression.

Through her work, she explores the transformative potential of Web3 in addressing global challenges and advancing positive social impact.

Renee Barton

Director, Impact Research

Renée leads Impact Research at CCI, documenting real world Web3 use cases to create shared understandings of how Web3 technologies are shaping the future for people and communities. She has ten years of experience examining the policy, economic, and community development implications of technology deployments.

She previously led primary ethnographic research at the Crypto Research and Design Lab (CRADL), where her research helped policymakers and business leaders understand why people are turning to crypto through evidenced-based insights.

Prior to her work at CRADL, Renée advised public, private, non-profit, and philanthropic clients at the intersection of technology, economic development and community-building.

Giles Swan

European Public Police Advisor

Giles has been a regulator, policymaker, the policy lead of a major digital asset service provider and the global policy director of a leading investment fund trade association. Giles advises trade associations, investment funds and asset managers, and web3 and crypto firms, on public policy, licensing, regulation and advocacy. During his time as a policymaker,

Giles was a national expert on the Investment Management Standing Committee of the European Securities and Markets Authority’s (ESMA), a national representative on the Standing Committee on Investment Management of the International Organization of Securities Commissions (IOSCO) and a member of the European Union’s Council of Ministers Financial Services Working Party.

Giles holds a BA in Banking and Finance, first class, from London Guildhall University, an MSc in Finance and Investment from CASS Business School and professional certificates in teaching and learning, and blockchain strategy.

Peter Herzog

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Peter Herzog is a dedicated government affairs professional, specializing in issues impacting emerging financial technologies. As the Associate Director of State and Local Government Affairs at the Crypto Council for Innovation, Peter oversees initiatives to advance responsible regulation for the digital asset industry across state and local governments.

He has developed a pragmatic approach to building relationships with key decision makers and navigating nuanced policy issues. Before joining CCI, Peter served on the government relations team at the digital mortgage startup Better.com, where he led the organization’s state government relations strategy. He began his career at the Health and Medicine Counsel, a boutique healthcare lobbying firm on Capitol Hill,

where he was one of the youngest registered lobbyists in Washington, DC. His former clients include patient advocacy organizations, trade societies, and pharmaceutical companies. Peter holds a Bachelor’s Degree in Government and International Politics from George Mason University.

Ryan Eagan

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With nearly 10 years of experience working for Senate Majority Leader Charles E. Schumer, Ryan advised the Leader on a wide array of banking policies and housing priorities. He worked with members in the House and Senate and the relevant Committees to advance legislative priorities.

This includes federal responses to COVID such as the American Rescue Plan,statutory changes to securities law, ESG rulemaking, cryptocurrency policy, and certain appropriations topics.

He graduated Williams College with a BA in both Political Science and History.

Rashan Colbert

Director, U.S. Policy

Rashan A. Colbert is the US Policy Director for the Crypto Council for Innovation. A seasoned policy leader with extensive experience in government, politics, and the crypto industry, he has served as a senior legislative advisor in the U.S. Senate, led policy efforts for a cutting-edge DeFi protocol, and has amassed a high-powered network across the public and private sectors. As Head of Policy at dYdX Trading, Rashan took the firm’s advocacy strategy and effort from zero to one.

His work involved educating policymakers, advising company leadership on policy risks, and ensuring DeFi’s importance to the future of the United States was well understood in Washington. Before transitioning to the private sector, he spent seven years in Senator Cory Booker’s office, where he led on technology, telecommunications, and commerce issues, with work focused on AI, big tech, social media regulation, and digital assets.

As Booker’s lead staffer on crypto policy for the Senate Agriculture Committee, he developed a deep understanding of fi nancial regulation and the legislative vehicles that will be used to shape it.

Patrick Kirby

Policy Counsel

Patrick is joining CCI as Policy Counsel, and brings considerable experience engaging with policymakers on emerging technology and financial services issues. Before joining CCI, he worked as an attorney in the US Policy & Government Relations group at the law firms Dentons and Squire Patton Boggs.

In those roles, he advised domestic and international clients on a variety of legal, policy, and regulatory issues related to technology, financial services, and digital assets. He assisted clients in developing and executing government relations strategies to further their legislative and regulatory interests before Congress and the Executive Branch.

In prior roles, he served as a legal intern at the Financial Crimes Enforcement Network (FinCEN) and the Office of the Comptroller of the Currency (OCC).

Yele Bademosi

Africa Advisor

Yele Bademosi is the co-creator of Onboard, a community-first onchain neobank designed for creators and builders. Onboard's goal is to expand the onchain economy, making it accessible to anyone, anywhere, and empowering people to live radically better lives.

Throughout his career, Yele has invested in close to 100 startups globally, primarily in the financial services and onchain sectors. His purpose extends beyond geographical borders, aiming to leverage innovation, capital, and policy to create sustainable economic opportunities worldwide.

Sean Lee

Senior APAC Advisor

Sean is an advisor and entrepreneur in Web3 and FinTech, and has been frequently quoted in Reuters, Forbes, Bloomberg, CoinDesk, among others. Sean was previously the CEO of the Algorand Foundation, an MIT incubated Layer-1 blockchain protocol that reached top-10 by network valuation during his tenure.

He is currently leading the efforts at VSFG, a global financial services platform and the first licensed virtual asset manager in Hong Kong, to develop the regulated HKD stablecoin for programmable payment and cross border use cases across Asia and beyond. Before entering into crypto and blockchain, Sean spent 10 years and held global leadership positions in cloud computing and open source software development companies.

Sean also advises crypto startups and engages in mentorship and advocacy programs including the MIT Entrepreneurship & FinTech Innovation Node, the Chinese University of Hong Kong Business School, and the Hong Kong FinTech Association.

Matt Homer

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Matthew Homer is the Founder & General Partner of The Venture Dept. Previously, he was an investor at Nyca Partners, a $1B+ AUM fintech VC firm, where he remains involved as an Operating Partner in an advisory capacity.

Before venture investing, he was Executive Deputy Superintendent at the New York State Department of Financial Services (NYDFS), where he oversaw the licensing and supervision of major digital asset firms, including some of the largest exchanges, custodians, and stablecoin issuers in the U.S.

Earlier in his career, he worked as a federal regulator at the FDIC, focusing on policy development and new technologies. Matt has also held operating roles in fintech startups, starting at Quovo and continuing at Plaid after its acquisition.

Laura Navaratnam

UK Policy Lead

Laura is a digital assets policy expert, and serves as the UK Policy Lead for CCI. Laura is a fintech policy expert, specializing in digital assets. Laura has worked in financial services policy for over 15 years. She worked at the UK Financial Conduct Authority for 7 years where she ultimately served as the Head of the FCA’s Innovate function,

which included all aspects of cryptoasset policy and fintech (sandbox, firm support, international engagement and strategy). She is also a Director at bespoke fintech consultancy Gattaca Horizons, supporting a broad range of US and UK based fintech clients and leveraging her experience to provide policy, regulatory and strategy advice.

She is also a Non-Executive Director for Zero Hash UK, a leading crypto-as-a-service provider.

Cameron Jones

Director, Strategic Initiatives

Cameron has over 30 years of experience in technology, philanthropy, and civil society sectors. She worked in the nonprofit and private sectors in the U.S., Europe, and Asia.

She developed and scaled strategic social good programs for leading tech companies, including Amazon, Microsoft, Adobe, Intuit, and VMware, leading the development of program delivery and marketing strategies.

At CCI she leads strategic initiatives, manages new partnerships and current members.

Amanda Russo

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She led C-suite media relations and content for IHS Markit research divisions across Europe, the Middle East and Africa. As a strategic communications advisor to CEOs, heads of state, and policymakers, Amanda worked on the World Economic Forum’s Public Engagement leadership team as Head of Media Content. Amanda started her career as a terrorism and intelligence analyst.

Yaya J. Fanusie

Director, Policy, AML & Cyber Risk

He spent seven years as an economic and counterterrorism analyst in the CIA, briefing federal law enforcement, military personnel, White House-level policy makers and the President. After government service, he joined the think tank world and as Director of Analysis at the Foundation for Defense of Democracies’ Center on Sanctions and Illicit Finance led research on sanctions evasion and terrorist financing threats.

In 2016 he began tracking the illicit use of crypto and wrote some of the first public analysis on a terrorist crypto crowdfunding campaign. He later published a major study on efforts by Russia, Iran, Venezuela, and China to build national blockchain infrastructure. Yaya is currently an Adjunct Senior Fellow at the Center for a New American Security (CNAS) and Visiting Fellow at Georgetown's Psaros Center for Financial Markets and Policy.

He is a frequent media commentator and has testified before Congress multiple times on illicit financing issues. He is considered a leading expert on China’s CBDC.

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Ji Kim

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Ji Kim is the President and Acting Chief Executive Officer of the Crypto Council for Innovation - the premier global alliance for advancing the promise of this new technology through research, education and advocacy. Prior to this role, he served as the Chief Legal & Policy Officer for CCI. Before joining CCI, he was General Counsel and Head of Policy & Regulatory Affairs at Gemini, a global digital asset exchange and custodian.

In his role, Ji led the legal, policy, and regulatory affairs teams and also set and implemented Gemini’s global strategy for engaging with regulators, policymakers, and the government. Prior to that, he was a senior attorney at Kraken, another global digital asset exchange. In prior roles, he was an attorney at Willkie Farr & Gallagher LLP and served as Federal Judicial Law Clerk to the Honorable Robert D. Drain of the Southern District of New York, U.S. Bankruptcy Court.

In prior roles, he was an attorney at Willkie Farr & Gallagher LLP and served as Federal Judicial Law Clerk to the Honorable Robert D. Drain of the Southern District of New York, U.S. Bankruptcy Court.

Sheila Warren

Senior Global Policy Advisor

In 2023, Sheila was voted one of the most influential women in DC by the Washingtonian. Prior to the Crypto Council, she founded the World Economic Forum’s blockchain and digital assets team and was a member of the Executive Leadership Team. She oversaw tech policy strategy across 14 countries and regularly briefed ministers, CEOs of the Fortune 100 and Heads of State.

She spent significant time as a lawyer and executive in the nonprofit sector helping companies work with emerging technology to solve problems and increase efficiency. She was on the leadership team at TechSoup and built NGOsource, an online service that helps US foundations reduce costs on cross-border grants.

Sheila began her career as a Wall Street attorney at Cravath, Swaine & Moore LLP after earning her J.D. at Harvard Law School. She graduated magna cum laude from Harvard College with a degree in Economics. She is the co-host of Money Reimagined, a CoinDesk podcast.

Senator Cory Gardner

Senior Political Advisor

Senator Gardner honorably represented the state of Colorado from 2015 to 2021 after two terms in the United States House of Representatives. During his tenure, Cory was consistently recognized as one of the most bi-partisan members of the Senate, sponsoring and passing milestone legislation like the Great American Outdoors Act,

America COMPETES Act, the Asia Reassurance Initiative Act and the 988 Suicide Prevention Hotline. He served on the Senate Committee on Foreign Relations, Senate Committee on Energy and Natural Resources, and the Senate Committee on Commerce, Science, and Transportation.

Mark Foster

EU Policy Lead

Mark has over 20 years of experience advising public and private sector entities on EU policy and politics. He started his career in Brussels as a European Parliamentary Assistant from 2003 to 2007. He later developed expertise in EU financial services as a Senior Official in the UK Permanent Representation.

In 2011, he moved to Kreab, a global public affairs and consultancy firm, where he became Partner in the financial services practice. He has held elected roles in trade associations including vice-chair at the financial services committee of AmCham EU and he retains a role as vice-chair for the EU/UK task force at the British Chamber of Commerce to the EU.

Mark was VP of Government Relations at Barclays from 2019-2021 before establishing his own business – Strategic Advisory Management - at the start of 2022.

Alison Mangiero

Senior Director, Staking Coalition & Industry Affairs

Alison Mangiero is the Executive Director of Proof of Stake Alliance (POSA), a CCI project that advocates for clear and forward-thinking public policies that foster innovation in the rapidly growing, sustainable, multi-billion dollar staking industry.

Alison began working in the industry in 2018, when she founded the Tocqueville Group (“TQ”), an entity that created open-source software and other public goods for Tezos, one of the first proof-of-stake blockchains to launch. Before founding TQ, she spent a decade in public policy and academia, and has broad experience fundraising and growing membership associations.

A passionate advocate of the liberal arts, Alison also teaches courses on leadership at the College of the Holy Cross and is on the Executive Board of Advisors for the University of Richmond's Jepson School of Leadership Studies.An alum of the University of Richmond and Boston College, Alison lives in the New York City suburbs with her husband and two young daughters.