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The SEC has recently ramped up efforts to establish regulatory authority over cryptocurrencies. However, in recent decisions, two federal courts concluded that the SEC cannot regulate Bitcoin.
Defining “Security” Under Federal Law
A “security” is an investment in a business intended to generate a return. The SEC has used the broad definition of “investment contract” under the Howey Test: an investment of money in a common enterprise with the expectation of profits derived from the efforts of others.
Federal Courts Rule Bitcoin Is Not a Security
In March 2024, both the Second and Seventh Circuits concluded the SEC cannot regulate Bitcoin as it is not an “investment contract.”
In SEC v. Coinbase, the court found the SEC failed to allege that Coinbase’s staking program involved a “common enterprise” and rejected claims about investor expectations of profit based on the company’s efforts.
The Seventh Circuit reached the same conclusion in Balestra v. ATBCOIN LLC.
What About SEC v. Ripple Labs?
The Ripple Labs case is distinguishable because it involved a new cryptocurrency offering (ICO), not the sale of an existing cryptocurrency. The court’s decision appears limited to ICOs.
What About Bitcoin ETFs?
SEC approval of a spot Bitcoin ETF does not mean Bitcoin is a security. The ETF itself is a security as an investment vehicle, but the underlying asset (Bitcoin) is not.
Reduction in pretrial jail population since NJ bail reform implementation.
Source: NJ Judiciary Annual ReportApproval rate for properly filed expungement petitions in NJ.
Source: NJ Courts Statistical ReportCommon Mistakes to Avoid
Actually Stay Silent
Most people know they have the right to remain silent but still talk to police. Anything you say can and will be used against you. Politely decline to answer questions until your attorney is present.
Bail Conditions Are Enforceable
Violating bail conditions, even minor ones, can result in immediate re-arrest and make it much harder to obtain bail again. Follow every condition to the letter.
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Featured on Netflix's "Inventing Anna," Todd Spodek brings decades of high-stakes criminal defense experience to every case.
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Frequently Asked Questions
New Jersey reformed its bail system in 2017. Instead of a cash-based system, judges now use a Public Safety Assessment (PSA) to determine whether a defendant should be released pretrial. Most defendants are released with conditions, while those deemed high-risk may be detained. An experienced attorney can argue for favorable release conditions at your detention hearing.
No. You have the constitutional right to remain silent and to have an attorney present during questioning. Anything you say to police can be used against you in court. Politely invoke your rights by saying "I want to speak with my attorney before answering any questions." This cannot be held against you.
Attorney fees vary based on the complexity of the case, the charges involved, and whether the case goes to trial. At Spodek Law Group, we offer transparent pricing and flexible payment plans. We provide a free initial consultation to discuss your case and give you an honest assessment of costs. Investing in quality representation often saves far more in the long run than choosing the cheapest option.
An arraignment is your first court appearance after being charged with a crime. The judge will read the charges against you, and you'll enter a plea (usually not guilty at this stage). The judge will also set bail or release conditions. Having an attorney at your arraignment is critical, as they can advocate for favorable bail terms and begin building your defense strategy from day one.
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