I also don't think this will work for them in the context of the Ripple case they just lost - and decided to not appeal - as this will be referenced as part of Kraken's defense. It'd be very different if the SEC maintained a list of even examples of tokens that are/aren't compliant and a straightforward registration process with active registrants. The fact that neither of these exist but the SEC likes to pretend they do isn't working in their favour. There is no such thing as a 'registered securities exchange' for cryptocurrency, so how can they be at fault (note its unregistered, not illegal is the allegation).