The Commissioners' dissent is not with the fact that the transfer agent was subject to an enforcement action - taking the facts of the Order as true, the transfer agent did not satisfy its obligation to conduct a diligent search for shareholders. The dissent is directed to the undertaking that would require the transfer agent to request its mutual fund clients to themselves take actions that are not required by law. As the dissenting Commissioners observe, if the SEC believes that mutual…

Director Chopra's remarks about "using our existing laws," raises the concern that the agency may stretch existing law. Assuming that there is a general consensus that there should be a regulatory scheme of some type to govern the purchase and sale of data by brokers, it would seem more appropriate for the CFPB to seek explicit legislative authority from Congress than to push legal boundaries.  

The SEC's original proposal seemed unduly limiting in that it required that a broker-dealer that received approval to custody digital assets would be permitted to custody only those digital assets that were "securities." While the SEC officially took the view that all crypto digital assets were securities, the Ripple decision has thrown that view into significant doubt. As a result, the extent to which the approved SPBD is actually authorized to custody crypto assets is unclear, at least as…

The professors' conclusion is consistent with, and arguably goes well beyond, the recent decision by the Court in , which found that the SEC lacked jurisdiction over sales of the relevant digital asset in the secondary market and even some of the primary sales. (See also, , discussing the Ripple decision.) 

In the brief, the professors make a strong argument that the SEC does not have the broad jurisdiction that it asserts over digital assets. Whether this District Court decides…