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spotted first by @stephendpalley, the order in Berk v. #Coinbase is big for #crypto & maybe for #clickwrap & #browsewrap agreements too. First, the court says that having a policy barring insider trading doesn’t prevent claims for insider trading occurring on platform /1 
Tort duties existed outside of its contract w/users. Existence of a mandatory user agreement doesn't matter- negligence is actionable separate & apart from any contractual remedies & Coinbase had a duty of reasonable care to its traders “originating outside of the agreement.”/2
California law (perhaps uniquely?) recognizes a duty to protect against economic loss: elements: “[1] the extent to which the transaction was intended to affect the plaintiff, [2] the foreseeability of harm to him, [3] the degree of certainty that the plaintiff suffered injury/3
4] the closeness of the connection between the defendant’s conduct and the injury suffered, [5] the moral blame attached to the defendant’s conduct, and [6] the policy of preventing future harm.” Sufficient allegations to state a claim; so this claim exists under CA law. /4
Court sites to a S.D. NY Case that found the NASDAQ owed investors a duty to properly process orders- so there's a similar theory available under NY law. So, enough minutae, -what does this mean? Looking into the crystal ball:
there appear to have been drafting issues w/Coinbase's user agreement that let this out of arbitration. Expect revisions & even tighter contracts to keep these disputes in arbitration, which (although systematically efficient) prevents the creation of precedent & implicitly /6
can be understood to harm consumers who are then potentially deprived of consistency in the interpretation and enforcement of these agreements. Now that there's an argument that we're entitled to functional markets, will we see courts crafting "rules of fairness" to be applied /7
to these markets based on markets that are regulated differently? Maybe, in an unanticipated set of events, courts functionally impose rules on exchanges based upon duties of fairness as opposed to the CFTC or SEC grabbing drafting long technical rules. stranger things... /8
does it make sense for courts to analogize cryptoasset exchanges to the more robustly regulated exchanges like the NASDAQ? or is there some "natural law of fair dealing" when it comes to exchange-like venues to emerge here by judicial fiat? NYAG has given us enough data to /9
understand what abuses existed on exchanges (virtualmarkets.ag.ny.gov) already- this is another step toward cleaning that up, so while it's good in that sense, it may lead to unanticipated results. But are stock exchanges the right model? Maybe.
It is easy to understand what a national stock exchange owes its users- look at the regs. But what about here?
from another angle- here's a way that a court can hold a company protecting itself with a clickwrap agreement to additional duties not included in the agreement. Ponder the implications as most internet companies use these agreements to limit their liability- how far can this go?
