OpenSea in Hot Water, SEC Claim NFTs on the Marketplace Are Securities

• NFT marketplace Opensea received a Wells notice from SEC on Aug. 28.
• Opensea vows to fight against SEC’s vendetta enforcement action.
• Many users on social media pointed out that the Wells notice comes just a day after Trump launched his new NFT collection.

The Securities and Exchange Commission (SEC) has apparently set its sights on OpenSea, the largest nonfungible token (NFT) marketplace, alleging that the platform’s digital treasures may be masquerading as unregistered securities.

OpenSea Pledges to Fight Against SEC

OpenSea co-founder and CEO Devin Finzer said on Wednesday, Aug. 28, that the NFT marketplace had received a Wells notice from the SEC, a formal warning that the agency is considering enforcement action.

As per Finzer, the SEC had informed the company that it considered NFTs to be securities, a classification that OpenSea disputes.

The OpenSea CEO called the agency’s stance “unprecedented” and warned that it would broadly impact the Web3 ecosystem, including artists, collectors, and other market participants.

“By targeting NFTs, the SEC would stifle innovation on an even broader scale: hundreds of thousands of online artists and creatives are at risk, and many do not have the resources to defend themselves,” Finzer added. 

Finzer also noted that many of these individuals and small businesses lack the resources to defend themselves against regulatory action.

In response to the SEC’s notice, OpenSea has pledged $5 million in legal aid to support artists and developers who may be affected by the agency’s decision.

Are NFTs securities?

The question of whether NFTs should be considered securities has sparked a heated debate in the wake of the SEC notice to OpenSea.

When NFTs first gained mainstream attention in 2021, they were largely viewed as a digital equivalent of traditional art collectibles.

Digital artists like Beeple made headlines by selling their work as NFTs for millions of dollars, blurring the lines between art and asset.

However, as the sector grew, NFTs became an integral part of a broader ecosystem, encompassing play-to-earn online games, ticketing, fan memorabilia, and even sports clubs.

Yet, as with many trends in the crypto space, the NFT market attracted its fair share of speculators and scammers.

The most egregious cases of grifters minting NFTs out of thin air and making a quick profit are often cited as examples of the industry’s worst excesses. However, it is unfair to generalize about the entire market based on these incidents, which are by no means unique to the crypto world.

The SEC’s notice to OpenSea has reignited the debate over the regulatory status of NFTs.

Some have argued that if NFTs are deemed securities, then any painting sold on the secondary market could potentially be subject to securities law. Critics of the regulator’s approach argue that the agency’s regulation-by-enforcement strategy has created a lack of clarity and uncertainty in the market.

As the SEC continues to grapple with how to regulate NFTs, many are pointing out the irony of the timing of the Wells notice.

Just a day earlier, former President Donald Trump launched his fourth NFT collection, sparking questions about the consistency and fairness of the agency’s approach.

SEC’s Securities Law Fiasco

The U.S. SEC, headed by Gary Gensler, has become infamous for its regulation-by-enforcement approach.

The Securities regulatory body has issued multiple Wells notices to several crypto firms, including Coinbase , Kraken , Robinhood, and others, alleging that several crypto products on their platforms violate securities law.

Regularity and legal experts have said that the old age Howey Test and the Securities Act are insufficient for modern technology like crypto.

Despite numerous calls from lawmakers and crypto companies alike for clarity of securities law, the SEC has only focused on enforcement. However, the SEC’s enforcement actions have often backfired in a court of law. 

The SEC has faced setbacks in several high-profile cryptocurrency cases, questioning its regulatory approach. A judge ruled against the agency in the Ripple lawsuit.

The agency also failed to secure favorable verdicts against Bittrex and Binance. 

For years, crypto companies have called for better regulatory clarity on crypto. However, the SEC has ignored all such requests and has continued its enforcement action, deeming most crypto-focused products as securities.