Non-fungible token marketplace OpenSea has requested the United States Securities and Exchange Commission to exempt NFT marketplaces from being classified as securities exchanges or brokers under federal law.
In a letter to SEC Commissioner Hester Peirce, the New York-based firm said the agency should “clearly state” that platforms like OpenSea don’t meet the legal criteria for either designation.
The company has urged the Commission to step in and remove the “uncertainty” created by past enforcement efforts, and instead let “actual issues guide the regulatory solutions.”
OpenSea argued that NFT marketplaces aren’t exchanges because they don’t “bring together multiple sellers” of the same asset, which is a key requirement under current SEC rules.
According to the firm, since each NFT is unique, there’s usually only one owner and one seller at a time. That makes them non-fungible by nature, and very different from traditional securities.
“Even if, however, the Commission were to conclude that some NFT transactions constitute securities, classifying OpenSea and similar NFT marketplaces as securities exchanges or brokers would be regulatory overreach,” the letter stated.
Further, it pointed out that OpenSea doesn’t operate a “trading facility” or set rules for how transactions are executed. Instead, all transactions are executed directly on the blockchain via smart contracts, with users initiating transfers from their own self-custodied wallets.
OpenSea described itself as a tool that “allows people to discover NFTs,” not a platform that processes or finalises trades.
Are NFT marketplaces brokers under federal law?
A broker, as defined by the commission, is an entity “engaged in the business of effecting transactions in securities for the account of others.” This typically includes firms that facilitate trades, handle client funds, or participate directly in the execution or negotiation of securities transactions.
OpenSea contends that it does none of these things. In its letter, the company emphasised that it does not provide investment advice, negotiate deals, custody assets, or execute transactions on behalf of users.
Merely displaying NFT listings or highlighting popular collections, it said, does not amount to “solicitation or investment advice.”
OpenSea argued that assigning a broker designation to platforms like itself is “superfluous,” noting that “the underlying risks” typically addressed by such regulations, namely “conflicts of interest, financial instability, and misconduct,” do not exist in the crypto ecosystem.
It also referred to the SEC’s case against Coinbase, where the court held that providing wallet tools and pricing data did not constitute broker activity — a decision OpenSea said supports its own position, noting that its role is even more limited.
The SEC must step in
To address the ongoing uncertainty, OpenSea is asking the SEC to issue informal guidance clarifying that NFT marketplaces are not subject to broker or exchange regulations.
“This clarification would offer immediate benefits to NFT collectors, buyers, and sellers, as well as the broader NFT ecosystem,” the company wrote, adding that such guidance would help the industry move forward without fear of enforcement action based on misapplied rules.
In the longer term, we invite the Commission to exempt NFT marketplaces like OpenSea from proposed broker regulation under Section 15(a) of the Exchange Act.
To help shape practical policy, the OpenSea offered to work directly with the agency.
OpenSea vs SEC
The tension between OpenSea and the SEC has been building since last year, when the agency issued a Wells notice to the company, a formal warning that it was considering enforcement action.
The notice suggested that OpenSea may have violated federal securities laws by operating as an unregistered exchange or broker through its NFT marketplace.
The move sparked pushback across the crypto industry, with critics arguing that the SEC was overreaching and relying on a strategy of “regulation by enforcement” rather than providing clear rules.
Many viewed the attempt to classify NFTs as securities and marketplaces like OpenSea as subject to securities law as a fundamental misunderstanding of how non-fungible tokens function.
In February 2025, the SEC formally closed the investigation without filing any charges. The decision came under the Trump administration, which has taken a more hands-off approach to crypto and instructed agencies to focus on clarity over enforcement.
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