The SEC’s Crypto Bait And Switch And Investors’ Loss Of $15 Billion

By Roslyn Layton. June 15, 2022. (Forbes)

Four years ago this week, Security Exchange Commission’s (SEC) Director of Corporation Finance William Hinman detailed a vision for regulating digital assets. The speech was a bait and switch. It promised the opening of a blockchain revolution, the next chapter in the American innovation success story. In practice, the SEC wants to hammer crypto out of existence. On that fateful day, Hinman said that decentralization of a blockchain ledger, where tokens are being “used to purchase a good or service through the network on which it is created”, could transform a digital asset into a commodity outside the SEC’s purview. He opined that once they became “sufficiently decentralized”, a token and its network could operate without fear of an SEC enforcement action for failing to register like a stock. How wrong he was.

Crypto’s ‘trial of the century’: Ripple case could be decided over just a few words from former SEC official

Following 16 months of intense pre-trial litigation, countless hours in court and over 600,000 documents reviewed by both sides, the case that’s being billed as “the cryptocurrency trial of the century” could all come down to one speech made by a former Securities and Exchange Commission official four years ago.

That case, of course, is the lawsuit brought in late 2020 by the SEC against payment settlement company, Ripple. The SEC says Ripple violated securities laws when it failed to register with the agency sales of its native cryptocurrency token, XRP, that helped finance its platform and facilitate payments on Ripple’s network.

At the heart of the commission’s case is a contention that XRP was being sold by Ripple and its top executives as an illegal and unregistered security. The commission is seeking billions of dollars in damages.

Read the full article here.

Crypto industry scores a big win under long anticipated Senate bill

A highly anticipated Senate proposal to bring the freewheeling cryptocurrency industry under federal oversight would deliver a win for the sector by empowering its preferred regulator, the Commodity Futures Trading Commission (CFTC), over the Securities and Exchange Commission.

The bill’s sponsors, Sens. Cynthia M. Lummis (R-Wyo.) and Kirsten Gillibrand (D-N.Y.), are touting it as the first serious effort to apply comprehensive regulation to the crypto industry, which has minted a new class of billionaires and promised to reinvent financial services while also spawning scams and investor wipeouts that have raised regulators’ alarms.

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The Crypto Security Debate Goes to Court

By Paul Kiernan. May 26, 2022. (Wall Street Journal)

WASHINGTON—Investors are asking the courts to decide an existential question for the cryptocurrency industry: whether digital tokens are, for legal purposes, more similar to stocks or to gold.

Attorneys for cryptocurrency-trading platform Coinbase Global Inc. COIN 9.47% filed a motion this month to dismiss a class-action lawsuit arguing that 79 of the tokens listed on the firm’s platform are unregistered securities. 

The group of Coinbase users is demanding reimbursement for trading fees and market losses and seeking to prevent the assets from continuing to trade on the platform. 

Outside of enforcement actions, the Securities and Exchange Commission hasn’t indicated which cryptocurrencies it considers to be securities. But federal statutes passed in the 1930s deputize ordinary investors to help the SEC do its job, by giving buyers of unregistered securities the right to sue the seller for their money back. 

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SEC Can’t Shield Ex-Official’s Speech Drafts, Ripple Says

By Elise Hansen. May 16, 2022. (Law360)

The U.S. Securities and Exchange Commission can’t use attorney-client privilege to shield early drafts of former official Bill Hinman’s speech about cryptocurrencies, since Hinman gave the speech in his personal capacity, Ripple Labs told a New York federal court.

Attorney-client privilege doesn’t cover communications about Hinman’s personal remarks, and Hinman can’t be considered a “client” of the SEC’s attorneys for activities outside his official duties, Ripple and its executives argued Friday.

The letter was the latest shot in the discovery battle between the SEC and Ripple after the agency accused the blockchain-based payments company and its executives of violating federal securities laws in their sales of Ripple’s signature digital asset, XRP.

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Former SEC director Hinman made millions from a pro-Ethereum firm during tenure

By Protos Staff. May 13, 2022. (Protos)

A Freedom of Information Act (FOIA) request by a whistleblower has revealed former Securities and Exchange Commission (SEC) director William Hinman was receiving millions of dollars in retirement benefits from a pro-Ethereum law firm during his tenure.

Hinman worked as the SEC’s corporate finance division chief from mid-2017 to late-2020. In June 2018, Hinman famously stated, “The Ethereum network and its decentralized structure, current offers and sales of Ether are not securities transactions,” (our emphasis).

However, information obtained by Empower Oversight Whistleblowers & Research shows Hinman was receiving substantial retirement benefits from his previous employer at the time of his statement. Law firm Simpson Thatcher & Bartlett is a member of the Enterprise Ethereum Alliance, a group that supports Ethereum projects. Hinman returned to the entity after his time at the SEC, serving as a senior advisor.

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SEC Asked To Probe Ex-Official’s Crypto Statements

By Al Barbarino. May 10, 2022. (Law360)

A nonprofit watchdog asked the U.S. Securities and Exchange Commission to investigate its former corporate finance head, Bill Hinman, now a Simpson Thacher & Bartlett LLP senior adviser, claiming statements he made about cryptocurrencies while at the agency may have presented a conflict of interest. 

Empower Oversight Whistleblowers & Research claims Hinman didn’t follow instructions that the SEC’s ethics office gave him to avoid conflicts tied to his financial interests in Simpson Thacher, including the firm’s connection to the Enterprise Ethereum Alliance, or EEA, according to a letter the group sent Monday to the SEC’s Office of the Inspector General.

“Directives without compliance monitoring and sanctions for noncompliance are not meaningful; they are window dressings,” said Jason Foster, president of Empower Oversight, in an announcement about the letter.

Read the full article here.

Empower Oversight Requests SEC-OIG Conduct Investigation into the Failure of the SEC’s Ethics Office to Prevent Cryptocurrency Conflicts of Interest by Senior Staff

By Empowr Oversight. May 10, 2022. (Empowr)

WASHINGTON — Empower Oversight sent a letter to the Office of the Inspector General of the Securities and Exchange Commission (SEC-OIG) requesting a comprehensive review of the SEC’s ethics officials to properly manage SEC official William Hinman’s potential conflict of interest regarding cryptocurrency issues. The letter describes in detail instructions that the SEC’s Ethics Office provided to Mr. Hinman and actions by Mr. Hinman that are inconsistent with the instructions.

Specifically, records that were disclosed to Empower Oversight in response to an August 12, 2021, FOIA request show that the SEC’s Ethics Office cautioned Mr. Hinman that he had a direct financial interest in his former law firm, Simpson Thacher, and thus, he needed to recuse himself from any matters that would affect the firm; and, lest he may have misunderstood its position, the Ethics Office explicitly told him not to have any contact with Simpson Thacher personnel. Further, the Ethics Office provided Mr. Hinman with a draft memorandum, which was to be issued under his name, that established a screening arrangement to ensure that he complied with his obligation to recuse himself from certain matters with which he had a financial interest, or a personal or business relationship.

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She’s not your ‘Crypto Mom’: Hester Peirce’s fight with the SEC

By Benjamin Pimentel. May 9, 2022. (Protocol)

SEC Commissioner Hester Peirce is celebrated in memes as “Crypto Mom.” She’s considered crypto’s staunchest ally on a regulatory body that’s become the industry’s nemesis.

It’s an off-target moniker and a flawed portrait, Peirce said.

“It’s kind of funny because I don’t have children,” she told Protocol in a wide-ranging interview. She denies being an advocate for the crypto industry and thinks it’s a bad idea for people to think of the government “in parental terms.”

But Peirce is sympathetic to the crypto industry’s key complaint about the SEC: that under Chair Gary Gensler the agency has failed to offer adequate guidance to the industry on the regulations that apply to cryptocurrencies and digital assets.

Read the full article here.

The Ripple-SEC legal brawl could be a game-changer for crypto

By Benjamin Pinmentel. May 1, 2022. (Protocol)

It’s been more than a year since the SEC stunned the technology world by suing Ripple, kicking off what has become the most closely watched legal battle in crypto.

The case, in which the SEC accused the crypto powerhouse of violating securities laws, has morphed into a protracted brawl, with the future of crypto regulation potentially at stake.

The battle will likely drag on into next year after Ripple and the SEC agreed on a schedule for the next phase of the case: Filings and hearings on motions for summary judgment will extend to December. At that point, a federal judge will either decide the case or have it go to trial.

“It now looks like a resolution will come in 2023,” Ripple general counsel Stuart Alderoty said in a tweet.

Read the full article here.