The point here is regulators don’t have to get the court to rule on that to get whatever outcome they want with any one of these exchanges so they probably will go out of their way to avoid pressing that.

Their strategy seems to be to go after smaller fish, governance tokens, ICO tokens etc: things which the exchanges have clearly marketed as investments. Since all the exchanges have traded some of these they don’t have to press the matter about Eth and bitcoin so they don’t run the risk of losing that.

It looks and acts like a commodity but the SEC desperately wants to call it a security. The facts won't matter much here as this is a political issue engulfed in the SEC's regulatory land grab.

https://www.wsj.com/articles/gary-genslers-bitcoin-land-grab...

That's not established by the courts.