The Challenges of Regulating Cryptocurrency

By Sheelah Kolhatkar. October 6, 2021. (The New Yorker).

The S.E.C. has yet to set clear rules on cryptocurrencies, leaving the industry guessing. Maybe that’s just how the agency wants it.

On September 14th, the new chair of the Securities and Exchange Commission, Gary Gensler, appeared before the Senate Banking Committee to talk about how his agency planned to handle the financial markets during his term. He praised the American financial system, discussed the future of corporate bonds, and ruminated on how the rules of the stock market might be modified to make it more efficient. Soon, he turned to cryptocurrency markets, which are notoriously volatile, and adopted a darker tone. “Frankly, as I’ve said before, I think it’s more like the Wild West,” Gensler said. On another occasion, he had described cryptocurrency investments as “rife with fraud, scams, and abuse.”

Read the Full Article Here.

The Ethereum Free Pass, Fair Notice and the Fight Ahead

By John E. Deaton, Founder and Host, CryptoLaw.

I believe we have reached a turning point in the fight against the Securities and Exchange Commission’s unfair and abusive treatment of XRP holders in its lawsuit against Ripple. So much evidence has come out in this case that exposes the outrageous actions of the SEC and the key figures behind the lawsuit, that I felt it was important to send you a complete summary of what has happened, why it’s important, and what I and 20,0002 XRP holders are doing in this fight.

It is a story of an overreaching regulator unfairly picking winners and losers in the blockchain business space, a web of insider connections and conflicts of interest, and thousands of retail investors who were egregiously harmed by the federal agency that is supposed to be protecting them.

The Key Players:

First, it is important to remind everyone of the key figures in this story.

Jay Clayton was a longtime partner at the law firm of Sullivan & Cromwell, where he notably co-engineered the Alibaba IPO in 2014. Alibaba owns Alipay, the Chinese payments service that was designed to directly compete with western fintech innovations using blockchain. Alipay has moved into cross-border remittances which is Ripple’s primary use case for XRP. When he was nominated to be SEC Chairman in 2017, he was dubbed “the most conflicted SEC Chairman in history” in an article that ran down his baggage of potential conflicts in the job. At his nomination hearing, he was reminded (and conceded) that if any matter related to a client of his from Sullivan & Cromwell came before the SEC, he would be barred from voting.

William Hinman was a longtime partner at the firm of Simpson Thacher & Bartlett, and co-engineered the Alibaba IPO with Jay Clayton. Hinman “retired” from Simpson Thacher to join the SEC as Clayton’s Director of Corporation Finance.

Ethereum was launched by the Ethereum Foundation in 2014 as an enterprise blockchain system, and its native currency, ether, was issued in an ICO to “anyone who wants to purchase” it. An early investor and co-founder was Joe Lubin. In parallel, Lubin founded…

ConsenSys, a for-profit consulting firm to promote and profit from building enterprise blockchain solutions exclusively on the Ethereum network. Lubin received 9.5% of ether. For reference, a $10,000 investment in the ether ICO and held to this day is worth more than $120 million. Thus, you can imagine Lubin and anyone else’s financial interest in ether.

ConsenSys is a client of Sullivan & Cromwell (Clayton).

The Enterprise Ethereum Alliance, a coalition of companies built to market Ethereum as an enterprise solution, includes Simpson Thacher & Bartlett (Hinman).

This is how Clayton, Hinman and Lubin were connected as this story began.


The “free pass” for Ethereum’s cryptocurrency, ether:

Papers filed in court and public statements on video from Lubin, Hinman and others linked to ConsenSys reveal that multiple meetings between ConsenSys and senior SEC officials were held in 2017 and 2018 to lobby the agency to give the ether token a regulatory “free pass”.

In Hinman’s deposition (taken in July by Ripple’s legal team), it is clear that Hinman directed his staff to set up a meeting with Lubin and Consensys on December 13, 2017. It should not be lost on you that the SEC was investigating and prosecuting dozens of ICOs that orchestrated crowd-fundraising exactly the way Lubin and Ethereum did (i.e., anyone could buy pre-mined ether tokens and their funds were used to build the blockchain). In fact, many people refer to the period as the “2017 ICO craze”.

The SEC actually sued a company called Telegram and achieved a preliminary injunction that prevented the development of its blockchain for conducting an ICO substantially similar to ether’s. At the time of this December 13, 2017 meeting, Ripple was not under investigation and XRP had been publicly sold and traded for over 4 years. XRP was also battling ether for the number 2 cryptocurrency by market cap behind bitcoin.

A key meeting was organized on March 28, 2018, by Andreessen Horowitz, where Ethereum investors presented a proposal for a regulatory free pass for ether. I have reviewed that “safe harbor” proposal thoroughly, and the only digital asset it even mentions is ether. Furthermore, key elements of the document were incorporated directly into Hinman’s speech saying that ether is no longer a security. In essence, Hinman’s speech was suggested by and partly written by some of Ethereum’s top investors.

We know that Lubin and Consensys met with the SEC at least three more times before Hinman’s June 14, 2018, speech where he declared that, “putting aside the fundraising” conducted by Ethereum with its token, ether is not a security and therefore not subject to SEC regulation. 

ConsenSys has been battling to gain market share of the cross-border payments market for Ethereum, competing directly with Ripple’s cross-border payments solution on the XRP ledger. After Hinman’s speech, Lubin publicly predicted that Ethereum would be the only enterprise platform to get a free pass from the SEC, and that “a reckoning is coming” for others — specifically Ripple. Mike Novogratz, Lubin’s college roommate and a major investor in ether, predicted just nine days before the speech that he would “bet dollars to donuts” that the SEC would declare ether to not be a security.

If you know Mike Novogratz, he cares deeply about his public perception and credibility and he would not go out on a limb and guarantee what the SEC was going to say unless he was assured of it from someone with personal knowledge. Novogratz, like Lubin, predicted that the SEC was going to select one token and its promoters and go after them to shut them down as an example. Shortly after Lubin and Novogratz’s public predictions, we now know that Ripple was notified of an informal investigation. 

Meanwhile, while Lubin and ConsenSys were holdings meetings with the SEC, future SEC Chairman Gary Gensler told an MIT audience that he didn’t see enough regulatory clarity in the market for digital assets, and said “even Ripple” needed clarity.


The Ripple Lawsuit:

The XRP cryptocurrency was never issued in an ICO, operates on a fully decentralized ledger and has been used by project developers and consumers with no connection to Ripple for years.  XRP fits the criteria of Hinman’s 2018 speech better than ether does. In fact, Ripple controls less than 4% of the validators on the XRP Ledger. Ripple once objected to a change on the ledger but was overruled by the majority of validators. The point is that the XRP network is arguably more decentralized than the ether network.  

The Ripple lawsuit was filed on Clayton’s last full day at the SEC in 2020. The timing was very curious. About two weeks before Clayton directed the suit be filed against Ripple, former SEC Commissioner Joseph Grundfest sent a letter to Clayton stating that he should not file the lawsuit as he was leaving the SEC. Grundfest argued that no exigency existed to file considering that XRP had been traded for over 7 years. Grundfest informed Clayton that the SEC could not make any material distinction between XRP and ether and if he filed the case it would call into question the SEC’s exercise of discretion. He also warned Clayton that the mere filing of the lawsuit would cause unprecedented billions of losses to individual investors with no connection to Ripple. When the suit was filed, XRP lost $15 billion in market cap. (It should be noted that Grundfest was retained by Ripple. It doesn’t change what he said being true.)

It’s also important to note that Clayton was the deciding vote to sue Ripple, on the 5-member commission. He chose to bring the most consequential enforcement action since the 1946 Supreme Court decision on Howey against Ripple, a direct competitor of his former law firm’s client, ConsenSys.

When challenged in court by Ripple’s legal team on the contradiction between Hinman’s speech and the SEC’s actions, the SEC has attempted to disown Hinman’s speech as market guidance or a determination by the SEC, claiming it was just his personal opinion and irrelevant to the case. In fact, the SEC had Hinman sign an affidavit that his speech was “only” his personal opinion and not that of the SEC.

This flimsy argument is now being torn apart by Ripple’s legal team, which has launched a “fair notice and due process” defense that could decide the case in summary judgment and possibly set a sweeping precedent that limits the SEC’s power to regulate cryptocurrencies.

All available evidence indicates that Hinman’s speech was intended as market guidance by everyone at the SEC; it was believed to be market guidance by Lubin, Ethereum Foundation and ConsenSys, and taken as market guidance by the media and investors. Multiple documents issued by SEC legal staff on other matters reference the Hinman speech as representing a “recognition” of Ethereum and ether by “the Commission”. The SEC has also admitted in court that no investigation was ever opened against ether. This means the agency never considered enforcement action against Ethereum despite its 2014 ICO and the Ethereum Foundation’s large-scale sales to speculators, like to Novogratz.

To date, ether is still the only altcoin in the market that the SEC has affirmatively anointed as a currency or commodity and not a security, even though it’s now trying to pretend it never anointed it, and Chairman Gensler is trying to pretend he never said in 2018 that Ripple deserved regulatory clarity.


Why did Ethereum get a free pass and Ripple get sued?

The “fair notice” defense in the Ripple case has led to this embarrassing question for the SEC. Here are some key observations:

  • The SEC has taken a well-deserved battering in court since it filed the Ripple lawsuit, and it raises another question: why file such a flawed case that could ultimately backfire so badly and set a sweeping precedent limiting the agency’s power?
  • Despite the SEC fighting tooth-and-nail to stop it, Ripple was granted the right to depose Hinman and now they are battling to get SEC documents showing who drafted, edited and saw the Hinman speech in advance. Those discovery documents revealed the speech was attached to 63 emails in the drafting phase, but the SEC refuses to disclose who was on them. Discovery also revealed that Hinman only provided a draft to Clayton and no other commissioner. This means Commissioner Hester Peirce, a.k.a. “Crypto Mom”, was not allowed to give input. The last official meeting between the SEC and Lubin and Consensys before the speech, was June 8, 2018. And thanks to the investigative work of the XRP Army on social media, I have obtained a copy of the March 2018 Andreessen Horowitz investor group memo to Hinman, advocating for a specific free pass for ether. We have proof that Hinman used the investors’ memo as the basis of his speech.
  • The Ripple lawsuit, filed on Clayton’s last day, has slowed Ripple’s interbank payments business and given ConsenSys an opening to try to pull ahead. Two months before the Ripple lawsuit was filed, Clayton’s firm of Sullivan & Cromwell assisted ConsenSys to acquire the Quorum interbank payments platform. And it has brought a lot of scrutiny to the web of personal financial interests tied up between Clayton, Hinman, Lubin and the Hinman speech.  

    Here is what we’ve documented:
  • Almost immediately after leaving the SEC, Clayton was hired by One River Digital Asset Management, a crypto hedge fund that “quietly” made a huge financial bet exclusively on bitcoin and ether starting shortly before the Ripple lawsuit was filed.  What a coincidence.
  • Less than a month after filing the Ripple lawsuit, SEC Enforcement Director Marc Berger left the agency to join Simpson Thacher & Bartlett, of the Enterprise Ethereum Alliance. What a coincidence.
  • From 2017 to 2020 – the same years he served at the SEC – Hinman received over $15 million in payments from Simpson, Thacher & Bartlett. What a coincidence.
  • Immediately after leaving the SEC, Hinman returned to Simpson Thacher & Bartlett. He also was named senior advisor to a new $2 billion crypto fund at Andreessen Horowitz. What a coincidence.


My Role and Why I’m Doing This:

I am not here to defend the company Ripple in any manner. Ripple’s legal team is as impressive as it can be. Ripple has former SEC Chair Mary Jo White as counsel, along with a former Director of Enforcement and a former Director of Corporation Finance on its team. 

The truth is that all of these cryptos start out as a security in the first few years. Arguably, bitcoin is the only crypto asset not to originate a security. But even bitcoin was sometimes considered a security by the SEC in 2014 and 2015. 

I now represent 20,000 XRP holders who were harmed by the SEC’s lawsuit against Ripple. I got involved in this from the very beginning. The SEC filed the case on December 22, 2020. When I read the Complaint I knew that this case was NOT about securities laws but about something very different. I acted immediately.

Nine days later, on January 1, 2021, I filed a Writ of Mandamus against the SEC in Rhode Island Federal Court, asking for the Court to order the SEC to amend its Complaint. Specifically, I wanted the SEC to exclude characterizing as unregistered securities the XRP held by my clients that were purchased in the secondary market from Coinbase and other exchanges and not from Ripple. Many of my clients had never heard of Ripple until the lawsuit. It is difficult to enter into a common enterprise and rely on the efforts of someone you’ve never heard of.

The SEC objected to my Writ of Mandamus and stated that only the Southern District Court of New York – where Ripple lawsuit was filed – could hear any matter related to XRP. I immediately withdrew my Writ and filed a motion to intervene as a defendant in the SEC case against Ripple. The motion has been fully briefed and we are waiting for a decision.1 If the SEC had limited its claims against Ripple to early specific distributions of XRP, I would have never filed anything.

But, for the first time in SEC history in a non-ICO setting, the SEC is claiming that all XRP, even the XRP purchased by people in the secondary market with no connection with Ripple, are unregistered securities. The SEC is claiming this 8 years after it allowed XRP to be publicly traded and after it allowed Ripple to purchase a minority stake in MoneyGram knowing XRP would be utilized. After approving that acquisition, the SEC is now claiming that the XRP distributed by Ripple to MoneyGram, that MoneyGram sold to Coinbase, and that Coinbase sold to me, or you, are all unregistered securities. It’s madness.

As far as my role or potential bias in this case, I am not being paid for my efforts and I have used my own money to fund the intervention. I have no connection to Ripple or its attorneys. If I have a bias, it’s a free-market, libertarian bias. Plus, if one looks at the stories I’ve read of people’s life savings being wiped out because of the SEC’s actions, you will understand why I’m doing this as well. If someone gets harmed because they made a bad investment that’s fine. But it shouldn’t be because government officials are picking the winners and the losers in an environment where there is no regulatory clarity at all.

With all these facts as our greatest strength, along with our numbers, we will fight to the end.

1 On October 4, 2021, in response to the Motion to Intervene, U.S. District Judge Analisa Torres granted the movants and me “friend of the court” status (amici curiae) “to assist the Court by briefing legal issues relevant to the case as approved in advance by the Court. The Court contemplates that such assistance will be most beneficial during briefing on dispositive motions, but may exercise its discretion to request or deny further applications as appropriate.”
2 The number of XRP holders who have joined the putative class as amici curiae has grown to more than 60,000 since the publication of this blog post.

It’s Time To End The SEC’s ‘Clarity’ Charade On Crypto

By Roslyn Layton. September 12, 2021. (Forbes).

For five years, investors and project developers in the $2 trillion blockchain innovation space have been subjected to an increasingly maddening charade that the U.S. Securities and Exchange Commission (SEC) has called “regulatory clarity.” Years of SEC speeches, public statements, meeting records, correspondence and first-hand accounts from market participants provide anything but clarity for the rules on digital assets or distributed ledger technology (DLT) projects. This is another financial crisis in the making.

SEC Chairman Gary Gensler said at an Aspen Institute appearance this summer that the rules are “awfully clear” on crypto. In a recent interview with Financial Times, he urged developers to “talk to us, come in” because the fate of the industry, like all finance, “is about trust.” Few can see this “clarity,” but its absence is so acute that even the biggest U.S. companies in the blockchain industry can no longer count on the SEC to provide any clear guidance other than through a lawsuit.

Read the Full Article Here.

The Crypto Uprising The SEC Didn’t See Coming

by Roslyn Layton. August 31, 2021. (Forbes).

When the U.S. Securities and Exchange Commission (SEC) filed its bombshell lawsuit against cryptocurrency innovator Ripple Labs in December 2020, it didn’t expect blowback. But during the pre-trial phase, Ripple’s legal team has put the SEC itself on trial after years of conflicting and confusing guidance on the rules for cryptocurrencies. No one expected the tsunami of legal, political and social media action from retail cryptocurrency investors, outraged by the betrayal from an agency claiming to protect their interests. The meltdown of the SEC’s credibility with this $2 trillion global investor community exposes a costly SEC miscalculation.

Indeed, official Washington has been back-footed by the size, scale and diversity of the crypto investor class and the industry they support. Lampooned by mainstream media and the U.S. government for years, the crypto community has built a media ecosystem that connects millions of investors, consumers, developers and entrepreneurs across the globe. It’s fitting that the pioneers of the blockchain economy would apply consensus protocols to their communication. This decentralized social media apparatus has proven powerful — just ask Congress after the backlash of the infrastructure bill over a badly written crypto tax provision. When the Ripple lawsuit was filed, that ecosystem galvanized an independent battlefront unexpected by the SEC.

Read the Full Article Here.

Is Ether a security? Why Ethereum might not be out of the water

By Steven Msoh. August 17, 2021. (Crypto News Flash).

Is Ether a security? This is a question that has been asked for years now, but to date, there has been no affirmative answer. A simple question it may look like from a glance, but the implications might be worth over $350 billion and could collapse an entire industry, given that Ethereum underpins many of today’s cryptocurrency projects. And while most people – from experts to price speculators – have considered Ethereum as exempt from being deemed a security, recent developments are putting doubts about the token’s status.

Hinman clarity, and why we can’t depend on it today

To date, the clearest direction has been given by William Hinman, the former director of corporate finance at the U.S Securities and Exchange Commission. Hinman was speaking at the Yahoo All Markets Summit in San Francisco in June 2018 when he made the clearest remarks yet as to whether the watchdog considers Ether a security.

Putting aside the fundraising that accompanied the creation of Ether, based on my understanding of the present state of Ether, the Ethereum network and its decentralized structure, current offers and sales of Ether are not securities transactions.

Of course, Hinman also cleared Bitcoin from being a security. However, BTC and ETH were created and sold in different ways, making each coin’s case unique.

Read the Full Article Here.

The SEC’s Fair Notice Farce, Starring William Hinman

By Roslyn Layton. July 19, 2021. (Forbes)

Covering the U.S. Securities and Exchange Commission’s (SEC) ill-conceived enforcement action against Ripple Labs is never dull, and last week offered another development in the case. When the agency accused the San Francisco-based software company of seven years of unregistered securities trades by its distribution of the XRP digital currency, it unwittingly opened the door to replacing the SEC’s antiquated Howey Test for defining securities. Moreover, it appears that the judge agrees with the defense’s argument that the SEC failed to provide fair notice to Ripple (or any market participant) that XRP was, in the agency’s view, a security since 2013.

Throughout the pre-trial phase of the case, Ripple’s legal team has demonstrated that the SEC denied fair notice not just on XRP, but cryptocurrencies in general. When Ripple filed an intention to present a fair notice defense, the SEC launched a series of desperate filings to stop Ripple, knowing that if that defense is permitted, the trial case against Ripple will be dead on arrival.

Read the Full Article Here.

Ripple Labs Can Question Former SEC Official in Suit Over XRP

By Chris Dolmetsch. July 15, 2021. (Bloomberg)

Ripple Labs Inc. can question a former Securities and Exchange Commission official about the agency’s policy decisions as the company fights a lawsuit accusing it of misleading investors about its XRP cryptocurrency, a federal judge ruled.

The SEC sued Ripple, co-founder Christian Larsen and Chief Executive Officer Bradley Garlinghouse in New York last year, saying they had created a “vacuum” that allowed them to sell XRP into a market with limited information they chose to share. The agency alleges that the two men personally profited by about $600 million and ignored legal advice that the cryptocurrency could be considered an investment contract and therefore a security. It accused them of selling the virtual tokens without registering them as such.

Ripple has said the SEC can’t regulate XRP because, as a virtual currency used in international and domestic transactions, it’s a medium of exchange and not a security.

Read the Full Article Here.

SEC v. Ripple Key Hearing Today: John Deaton Offers Line of Questioning

By Rick Steves. July 15, 2021. (Finance Feeds) Judge Sarah Netburn will hold a hearing today to discuss the SEC’s motion to quash the deposition of former SEC Division of Corporation Finance Director, William Hinman. The scheduled telephone call, which was deemed “bad for Ripple” by attorney Jeremy Hogan, is expected to clear the way for the deposition on July 19 following Ripple’s re-notice as the defendant grows impatient.

The SEC argues that Ripple and its co-founders are unable to demonstrate “exceptional circumstances” for the testimony of a high-ranking government official. John E. Deaton, the attorney who has previously filed a Motion to Intervene in the name of XRP holders, admitted that it is “a big deal to subpoena a former high-ranking official for a deposition in order to answer for his actions while in office”. But Hinman’s actions were clearly material for a precedent-setting case such as SEC v. Ripple, he stated, arguing in favor of the deposition. Commenting ahead of today’s hearing, Mr. Deaton offered a “quick, but not exhaustive, review of what XRP holders and crypto holders and investors, in general, deserve to know should William Hinman be permitted to testify under oath”.

Read the Full Article Here.

The Hinman Deposition: A Review of What We Deserve to Know

By John E. Deaton, Founder and Host, CryptoLaw.

Tomorrow (Thursday 7/15), Magistrate Judge Sarah Netburn is scheduled to hold hearing to discuss whether to grant the SEC’s motion to quash the deposition of former SEC Division of Corporation Finance Director, William Hinman. The judge may even issue an order on this pivotal matter during tomorrow’s hearing.

In its motion to quash the deposition and prevent Hinman from testifying under oath, the agency argued that Ripple, and executives Brad Garlinghouse and Chris Larsen could not demonstrate the “exceptional circumstances” needed to order the testimony of a high-ranking government official. However, an examination of the facts tell a very different story. For starters, Hinman is no longer a high-ranking government official. He is a private citizen. Surely, after investing millions of dollars in Hinman while he was serving at the SEC, Simpson Thacher would give him adequate time off to answer some questions.

Here is a quick, but not exhaustive, review of what XRP holders and crypto holders and investors in general deserve to know should William Hinman be permitted to testify under oath:

  1. Ethereum, Simpson Thacher and Millions of Dollars in His Bank Account: Before and after his tenure at the SEC, Hinman has been a partner at the law firm of Simpson Thacher, which sits on the Enterprise Ethereum Alliance, a coalition of organizations devoted to the business case for the Ethereum blockchain. In 2018, Hinman declared, “offers and sales of ether are not securities transactions” in a speech that is still available on the SEC’s website, sending its value soaring. Hinman received millions in payments from the firm while he was at the SEC, including when he prepared and delivered those remarks. If that was not a clear conflict of interest, then he needs to explain why under oath. According to the documented evidence, Hinman’s personal financial interests were clearly connected to that speech he gave.
  • Hinman’s ETH Speech and the Coinbase Listing of Ethereum Classic: Three days before the pivotal Hinman speech on ether in 2018, Coinbase announced the listing of Ethereum Classic on its exchange, an asset forked from the Ethereum blockchain that was widely anticipated to be declared a security, like ether itself.  (Ether was launched in an ICO in 2014, after all.) This immediately raised questions at the time among analysts about whether the SEC had privately given advance notice to Coinbase or the Ethereum Foundation of what Hinman was about to announce. Did the SEC tip off Hinman’s Simpson Thacher colleagues before the market got his speech? Let’s hear his answers under oath.
  • Hinman’s Meeting with the Ethereum Foundation After the ETH Speech: In the discovery phase, Ripple has apparently forced Hinman to admit he met with the Ethereum Foundation, Consensys and other very relevant market participants after his 2018 ETH speech. (The redactions in the July 1 filing don’t confirm it but the rest of the filing strongly points in that direction.) Why didn’t the market know about this before now? Did the man in charge of no action letters on cryptocurrency offerings discuss his ETH speech in private with these key market participants? Did they discuss rival coins? Let’s have him walk us through all of those conversations under oath.
  • And About the Whole “Just a Personal Opinion and Not Policy” Nonsense: Everything about the behavior of Hinman and the SEC before, during and after that infamous ETH speech clearly indicated that they knew the speech would move markets. The headlines in major business dailies clearly indicated that a senior SEC official was declaring that ETH is not a security. Hinman never personally corrected the record in any interview with the media or public appearance that I could find, nor did the actions of Coinbase three days before the speech or Hinman’s communications with market participants after the speech point to anything other than a policy statement from the official in charge of no action letters for the SEC. Later in 2018, he very clearly said in a Georgetown University School of Law speech that his ETH speech “got a lot of attention because it was the first time we had expressed to the world that we didn’t view ether as a security.” There was no disclaimer from him at Georgetown that “we” meant William Hinman. “We” meant the SEC, pure and simple. Hinman needs to be questioned under oath extensively about all the events leading up to the ETH speech – and afterward – to clearly paint a believable picture as to how this market-shaking speech was just his opinion as a private citizen.

It’s laughable that, in their desperate effort to shield Hinman from being deposed, the SEC claimed that Hinman “does not have unique first-hand knowledge of “what was going on in the [Crypto] market.” However, these selected facts alone get to the heart of Hinman’s pivotal role in giving Ethereum the rocket fuel for its token’s trip to the moon, while he was personally collecting millions of dollars from an Ethereum-connected law firm. He and/or the SEC may have given notice to an exchange about his ETH speech in advance, while other market participants were in the dark. And now both Hinman and the SEC want us to believe the ETH speech should never have been interpreted as policy or any kind of notice about ETH’s status, in the same way that the SEC argued in the Ripple complaint in December 2020 that all of us should have known XRP was a security since 2013.

A deposition in federal court is limited to seven hours. Government documents indicate Hinman received over $15 million in payments from Simpson Thacher over the four years he worked at the SEC:

Investors lost over $15 billion in the wake of the SEC’s complaint against Ripple. Is a seven hour deposition too much to ask? Apparently, Hinman and the SEC, whose very mission is to protect investors, seem think so.

It is a big deal to subpoena a former high-ranking official for a deposition in order to answer for his actions while in office.  Judge Netburn is not taking this question lightly. But when those actions were so clearly material to the central questions at dispute in a case as big and precedent-setting as SEC v. Ripple, it’s a damn good reason to reject the SEC’s attempts to shade Hinman and prevent the whole truth from coming to light.

Hinman’s Revolving Door Now Swings to Andreessen Horowitz

By John E. Deaton, Founder and Host of CryptoLaw.

Former SEC Director of Corporation Finance William Hinman continues his journey around the golden revolving door.  The man who helped take Alibaba public in 2014 as a partner at the Ethereum-connected law firm Simpson Thacher went into the SEC in order to give public regulatory clarity to only one cryptocurrency – ETH – to then exit the SEC and return to Simpson Thacher. Well, he was not finished.

Today, the tech venture capital giant Andreessen Horowitz announced Hinman has joined their firm as an advisory partner in their $2.2 billion “a16z crypto” fund.  The company said that Hinman “will provide valuable insights to us and our portfolio companies as well as play a key role in shaping the future regulatory environment in which we and they operate.”

Hinman’s new fund is among the largest crypto investment funds in history, about four times the size of Andreessen’s previous crypto fund. It’s easy to see why Andreessen would ask him to “shape the future of the regulatory environment” to turn their chosen investments into winners. Look at all he did to send the price of ETH soaring when he was a public official who happened to be receiving $15 million in payments from Simpson Thacher while in office.  ETH started soaring from around $477 the day before he gave his “ETH is not a security” speech in June 2018 as an SEC official, to over $4000 last month. Simpson Thacher also cashed in on Hinman’s 2018 speech when it took the Chinese crypto mining equipment maker Canaan into an IPO that raised $100 million in late 2019. The regulatory clarity for a mined cryptocurrency like ETH after Hinman’s speech certainly helped boost Canaan’s value, and the IPO certainly made Simpson Thacher richer – and Hinman, thanks to the millions they were paying him.

Hinman is no longer at the SEC, but the experience of riding the most brazen revolving door in recent memory must have some experiential value for his new firm. However, the folks at Andreessen Horowitz might consider the darkening cloud over their new advisory partner, particularly as the discovery phase of the Ripple case proceeds and depositions are ordered. Regardless of the ultimate case outcome, the questions around Hinman’s financial conflicts of interest while he served at the SEC will travel with him wherever he goes until they are answered.

If the SEC gets its way, those questions will remain outstanding, as the SEC has been fighting to prevent Hinman from facing deposition. This begs yet another question — is this fight worthy of taxpayer dollars? Surely Simpson Thacher can find a qualified attorney or two, so why should the taxpayers have to carry the water in preventing the truth from being exposed?