The United States securities regulator apparently “failed” to effectively argue the difference between Beanie Babies and securities during a recent hearing in New York — one of a few signs that could bode well for Coinbase in its defense, according to lawyers.

The crypto exchange has been trying to have a lawsuit from the United States Securities and Exchange Commission against it dismissed by a New York court, with oral arguments recently heard over a five-hour hearing on Jan. 17.

Reflecting on the proceedings in an X (Twitter) post, Hogan & Hogan law firm partner Jeremy Hogan recounted that part of the hearing saw District Judge Katherine Polk Failla remark that the agency’s test to determine securities would lead to a class-action lawsuit against the seller of Beanie Babies.

Hogan said the regulator then tried to distinguish Beanie Babies from securities to the judge but “for the most part fails because the truth is that, for the SEC, a Beanie Baby IS a security.”

Judge Failla (paraphrasing): “The SEC’s security test would lead to a class action lawsuit against the seller of Beanie Babies.”

The SEC then tries to distinguish Beanie Babies, and for the most part fails because the truth is that, for the SEC, a Beanie Baby IS a security.

— Jeremy Hogan (@attorneyjeremy1) January 17, 2024

“Today’s [Coinbase] hearing revealed a key flaw in the SEC’s legal theory: it turns nearly every asset on the planet into a security,” remarked Jake Chervinsky, legal chief of crypto venture capital firm Variant.

Judge Failla seemed to see it the same way after reportedly describing the situation as a “specter of collectibles being regulated by the SEC,” according to Chervinsky.

2/ Judge Failla seems to get this flaw quite well:

“I am presented with the specter of collectibles being regulated by the SEC,” she said.

She’s right. The SEC’s theory would give it authority over sneakers, trading cards, watches—basically anything with a market price.

— Jake Chervinsky (@jchervinsky) January 17, 2024

“After hours and hours, this much remain clear: the SEC continues to claim broad authority over all investments while offering no limiting principle to its definition of investment contract,” reflected Coinbase legal chief Paul Grewal in a Jan. 18 post on X.

Lawyers not confident in major questions doctrine argument

Meanwhile, part of the hearing was dedicated to arguments on the major questions doctrine — a 2022 U.S. Supreme Court ruling saying agencies should delegate authority to Congress on certain matters. Many crypto firms, including Coinbase, have attempted to use this as a reason to dismiss their respective SEC lawsuit.

However, securities lawyer James Murphy said in a Jan. 17 tweet that Judge Failla seemed “uncomfortable” with the idea of dismissing the case based on the Supreme Court ruling.

On the other hand, Chervinsky said the judge “noted problems with the SEC’s case” in light of Senator Cynthia Lummis’ amicus brief that outlines Congress’ current debate on how to regulate crypto, which supported Coinbase’s motion to dismiss.

Judge Failla closed the hearing with a clear statement that she was not making a decision on Coinbase’s dismissal motion today. It’s possible she could issue a partial dismissal, ruling to dismiss portions of the case but not others.

“My guess (and it’s just a guess) is she is going to allow the case to go forward to discovery, like the Ripple case,” Murphy said.

He predicted Judge Failla would decide on the motion to dismiss within the next three months and that Coinbase would “ultimately win the case in the end.”