Crypto Litigation Shows the Industry Won Fight Over Legitimacy

You can learn a lot about an industry from the litigation filed against it. Consider cryptocurrency and other digital assets—whose total market value surpassed $4 trillion in July—and how crypto litigation has evolved.

Alexander Drylewski, co-head of Skadden’s blockchain and digital assets group, began his career as a securities litigator. Around 2017, he started noticing—and focusing on—the application of US securities laws to emerging technology.

This led Drylewski to start litigating crypto-related cases—which took off. Today, the vast majority of his practice, which includes both litigation and counseling, involves crypto and other digital assets (although he maintains a “side hustle” in traditional securities litigation).

Over the past year or so, he has noticed a change in the mix of his work. For starters, Drylewski said, the center of gravity has moved away from government investigations and enforcement, a very active space during the Biden administration.

Michelle Kallen, co-chair of Steptoe’s appeals and advocacy practice and a litigator of crypto-related cases, agreed.

“From a litigation standpoint, things have shifted,” Kallen said. “Under the last administration, many crypto companies complained of ‘regulation by enforcement’ because the Securities and Exchange Commission never promulgated rules defining which crypto assets are securities; it just brought enforcement actions. Under the Trump administration, the SEC has dropped most if not all of these actions.”

And this came as no surprise. Donald Trump won the 2024 presidential election after running a pro-crypto campaign, and since taking office in January, he has implemented numerous pro-crypto policies. In addition to scaling back enforcement actions, he has issued executive orders supporting the industry and signed the GENIUS Act, the first federal law to regulate stablecoins.

The crypto industry has welcomed this move away from enforcement in favor of regulation and even legislation.

“The Trump administration is taking a disciplined, constructive approach to crypto regulation,” said Katie Biber, chief legal officer of Paradigm, a prominent crypto investment firm. “They’re starting where good regulators should, with clear guidance to industry. We’re also seeing the Department of Justice and the SEC demonstrate a renewed respect for due process, which is both heartening and long overdue.”

As the federal government has shifted away from aggressive enforcement, Drylewski has found himself doing more proactive advising on crypto issues, working with clients that are both crypto-native and what he calls “crypto-curious.” His litigation practice remains very busy—but it’s more focused on cases filed by private parties, including putative class actions, and investigations by state regulators under state blue sky and other laws.

Many of the issues raised in private litigation are similar to the issues involved in the enforcement actions brought by the Biden administration. For example, what qualifies as a “security” for purposes of federal securities laws, under the US Supreme Court’s Howey test, remains a hotly contested question.

In a 2022 speech, then-SEC chair Gary Gensler expressed the view that “[o]f the nearly 10,000 tokens in the crypto market… the vast majority are securities.” And the SEC under Biden frequently took this position, bringing a slew of enforcement actions that some dubbed a “war against crypto.”

As reflected in the dramatically reduced number of SEC crypto enforcement actions filed in 2025, the Trump administration holds a very different view. But plaintiffs in private securities cases, in order to move forward with a securities fraud or unregistered securities theory, must still prove that the digital asset at issue in their lawsuit counts as a “security” or involves an “investment contract” under Howey.

According to Tibor Nagy, a trial lawyer with extensive experience in the crypto space, it used to be rare to see defendants filing motions to dismiss in these “is it a security” cases, instead trying to win on summary judgment. But now, he said, it’s more common for defendants to file motions to dismiss, arguing that discovery isn’t needed to establish that the token or asset isn’t a security.

And last month, Drylewski and his colleagues at Skadden prevailed on such a motion, in Real v. Yuga Labs, Inc. Brought by purchasers of Bored Ape Yacht Club non-fungible tokens, the Real case was widely followed—in large part because the defendants included celebrities such as Madonna, Paris Hilton, and Justin Bieber. After the defense win in that high-profile case, expect to see even more motions to dismiss at the pleading stage.

Looking ahead, some private securities lawsuits could become much harder to bring if certain “market structure” legislation becomes federal law. For example, the CLARITY Act—passed by the House in July, now pending in the Senate—would classify most tokens as commodities rather than securities, placing them beyond the reach of federal securities laws.

Perhaps anticipating tough sledding ahead, plaintiffs’ lawyers in the crypto space are exploring theories of liability independent of the securities laws, bringing causes of action that don’t require establishing the presence of a security or investment contract. As Nagy told me, more recent crypto cases might involve allegations of fraud (other than securities fraud) or the violation of consumer-protection laws. Even racketeering (civil RICO) claims have been the basis of some actions, according to both Nagy and Drylewski.

So in addition to the reduced focus on federal enforcement, the increased diversity in causes of action represents another way that crypto litigation has changed over time. One can even argue about whether it should be considered “crypto litigation” as such.

“Today, a lot of what might be called crypto litigation is run-of-the-mill commercial litigation that happens to unfold in the crypto world,” explained Nagy. He’s currently litigating contract, founder, and shareholder disputes involving crypto companies—but the issues in his cases aren’t crypto-specific.

This transformation of the crypto docket to focus on more mundane, fact-specific issues, rather than cutting-edge questions of law, also speaks volumes about how far the crypto industry has come. The issues in dispute are no longer existential ones on the fundamental legitimacy or viability of crypto.

“The current state of crypto litigation shows that crypto as an industry has matured,” said Nagy. “And the regulatory environment has either accepted crypto’s legitimacy or itself evolved, so that the lack of clarity that gave rise to many legal claims is going away or gone. There’s no longer this cloud of ‘can I exist’ litigation hanging over crypto companies.”

“Crypto has arrived,” Nagy concluded. “And now—for better or worse—crypto players can be sued for the same reasons as everyone else.”

David Lat, a lawyer turned writer, publishes Original Jurisdiction. He founded Above the Law and Underneath Their Robes, and is author of the novel “Supreme Ambitions.”

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