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? 

We Need A Ripple Test To Stop The SEC’s Overreach On Cryptocurrency

By Roslyn Layton. May 18, 2021. (Forbes).

The regulatory future of cryptocurrency seems destined to be decided by the courts, thanks to an ill-conceived lawsuit filed by the Securities and Exchange Commission. If Ripple’s arguments prevail in the Southern District of New York and on appeal, this case could give the Supreme Court a chance to review the 1946 Howey decision which set a standard for what constitutes a security. 

Courtroom Showdown

I’ve covered the SEC’s case against Ripple Labs case since it was filed by the SEC in December 2020 because it had all the hallmarks of classic enforcement overreach. Ripple and cryptocurrency investors have fought back with robust arguments while the SEC has stumbled and exposed its former leaders’ troubling conflicts of interest. It looks like something bigger than a mere lawsuit. The historical moment adds urgency to resolving whether XRP is a currency or security, a question which financial innovation makes difficult, but also demonstrates the SEC’s abuse of its authority.

The total market cap of all cryptocurrencies, including the XRP digital token at the heart of the Ripple case, tops $2 trillion dollars. The sum of these digital assets is now worth more than the total number of U.S. dollars in circulation. Global companies like Goldman Sachs and PayPal are racing to adopt the technology for consumer products. But more ominously, China has already rolled out a central bank digital currency (CBDC) called the Digital Yuan for domestic commercial and consumer use on a big scale. Mastercard has opened talks to act as a financial bridge for China to expand the Digital Yuan’s global network, export its applications and compete against both cryptocurrencies as the U.S. dollar in the emerging digital economy.

Read the Full Article Here.

Was there corrupt intent at the SEC?

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

You would think that blatant government corruption and self-dealing was the stuff of a Hollywood movie, but when you peel back the layers of the Ripple case, examine its origins, and review key facts related to some of its central figures at the Securities and Exchange Commission, a larger story emerges that can’t be ignored.

Former Chairman Jay Clayton, ex-Corporation Finance Director William Hinman, and former Enforcement Director Marc Berger took very specific actions while they were in office, related to very specific cryptocurrencies. In parallel, they have very specific financial interests related to cryptocurrencies, which were benefited by those actions, while millions of retail holders of a specific cryptocurrency were directly harmed. 

Those are the indisputable facts, and taken together they point very clearly to something very troubling behind the SEC’s filing of the Ripple case on Clayton’s last day in office. How can we look at these facts and just dismiss the idea of corrupt intent? 

Here is what we know, in detail:

  • Before joining the SEC, we know that both Clayton and Hinman earned massive fees to support Chinese tech giant Alibaba Group carry out its 2014 IPO on the New York Stock Exchange. Alibaba’s Alipay is the largest digital mobile payments platform in the world, and its New York IPO set the stage for China’s intended dominance in global digital payments.
  • By 2016, Chinese-controlled bitcoin miners had moved to control 65% of the bitcoin network hash rate.  Since bitcoin is a proof-of-work token, this gives China control of its network.
  • On May 9, 2017, William Hinman was named the Director of Division of Corporation Finance at the SEC. Upon his appointment to the SEC, Hinman left his post at the law firm Simpson Thacher – which sits on the Enterprise Ethereum Alliance and represents cryptocurrency-related financial interests – but continued to receive millions in financial payments from the firm.  In short, Hinman had a clear financial interest in any regulatory action by the SEC related to cryptocurrencies – while he was serving in a top SEC position!  This was something one former SEC ethics lawyer said was “a little unsettling.” (A little?) 
  • In 2018, Clayton publicly declared bitcoin not a security, sending the price of bitcoin soaring.
  • During a 2018 Yahoo Finance summit in San Francisco, Hinman declared that the Ethereum token, ether, is not a security.  The price of ether skyrocketed.
  • In 2019, Simpson Thacher led Chinese-based crypto mining company Canaan to their IPO. Canaan provides the technology used for mining bitcoin, and is publicly bullish on Bitcoin.  Hinman was still at the SEC when this happened, and still collecting checks from Simpson Thacher.
  • In early November 2020, then-Director of National Intelligence John Ratcliffe wrote Chairman Clayton to express his growing concerns over China’s dominance in crypto and the risk it poses for U.S. national security.
  • On December 4, 2020, Hinman resigned from the SEC.
  • On December 22, 2020 – Clayton’s last day in office – the SEC Enforcement division led by Berger filed its lawsuit against Ripple and its executives alleging that XRP sales over seven years were unregistered securities trades.  The complaint indicates “all sales” were illegal, therefore ensnaring millions of retail XRP holders who have never heard of Ripple but traded the digital currency for years.  The price of XRP plummeted.
  • On January 12, 2021, Acting Enforcement Director Marc Berger announced his resignation from the SEC, departing the agency at the end of the month.
  • As of March 2021, the People’s Bank of China (PBOC) had edged closer to the full-scale launch of their Digital Yuan, releasing millions of dollars of the digital currency in trials.
  • On March 29, 2021, Bloomberg reported that Clayton had accepted a position at One River Asset Management, a digital asset hedge fund focused exclusively on bitcoin and ether.
  • In its case against Ripple, SEC attorneys have been fighting tooth and nail not to adhere to the One River Asset Management subpoena, more than likely in an attempt to keep potentially incriminating evidence about Clayton’s compensation from coming to light.  
  • On April 15, 2021, Bloomberg reported that Berger was joining Hinman as a partner at Simpson Thacher.

Neither Clayton, nor Hinman, nor Berger, nor the SEC have disputed any of these facts or the chronology of how this all unfolded.  Any objective reading clearly suggests that these three had and/or currently retain financial interests linked to the officials’ actions they took at the SEC. 

Why haven’t these individuals, Simpson Thacher and One River been challenged to explain these facts? 

These facts suggest glaring improprieties, so why aren’t they being investigated? Given  cryptocurrencies total market capitalization swelling into trillions of dollars, if now is not the time to investigate, then when?

It is up to the millions of retail XRP holders, who were directly impacted by these actions, to demand answers if no one else will.

With Crypto, Congress, Not Agencies, Should Decide What’s Next

By Andrew Langer. April 27, 2021. (The American Spectator).

Alongside the public’s newly found fascination with cryptocurrencies (which only sometimes includes their attempts to try and understand what they are — a process for the teacher akin to trying to explain to an AARP member how to program a VCR back in the day), there is serious debate and discussion among scholars and policymakers about how to look at them and treat them for public policy purposes.

From a public policy perspective, the question centers essentially on assigning “crypto” to one of four different categories. Are they

  • Securities? Are they a tradeable “financial instrument” that create some kind of ownership right?
  • Commodities? Are they some kind of raw material gained through a resource-intensive extraction process?
  • Currencies? Are they some kind of unit of exchange backed by some kind of hard asset?
  • Something different entirely, requiring a whole new vocabulary or public policy approach?

All are being considered, and each approach has its adherents and detractors.

The most logical route would be to view cryptocurrency as an entirely new thing (which it is). It doesn’t easily fit into any of the preexisting categories — it’s somewhere, honestly, between a commodity and a currency. Many cryptocurrencies do require intense resource utilization, but they can immediately be used as a standard of exchange.

Read the Full Article Here.

The SEC Is Misleading the Court. Every XRP Holder is a Target.

By John E. Deaton, Founder and Host of CryptoLaw

The SEC’s attack on Ripple has been a case against all XRP transactions from 2013 to the present day.  That is not only the clear message of the SEC’s complaint, but also in the precedence of its attacks on other digital assets.  Judge Sarah Netburn caught SEC prosecuting attorney Jorge Tenreiro saying it as clearly in court during a March 12 hearing: “Every sale is a violation,” he said.  Judge Netburn pressed Tenreiro: “Presumably under this theory then, every individual in the world who is selling XRP would be committing a Section 5 (of the Securities Act of 1933) violation based on what you just said.”  Tenreiro scoffed at the judge’s question, saying that retail holders of XRP are protected under the exemptions of Section 4 and only “the issuer” is a legal target.

Well, we know that isn’t true.  What is worse, the SEC also knows it isn’t true.

Just look at the case against Telegram.  Judge P. Kevin Castel of the same U.S. District Court for the Southern District of New York found that Telegram’s offers and sales of its Gram token were an ongoing violation of Section 5 and “[w]hen distribution reaches the public, the SEC can invoke jurisdiction and claim that the public needs the protection of the Securities Act. The term issuer means every person who issues or proposes to issue any security.” 

That means any exchange who lists the token and any retail holder who sells it to someone else. 

Tenreiro’s attempt to mislead the court goes further.  He was the lead attorney for the SEC in the Telegram case.  He knows what he argued, and what the judge ultimately ruled in the case.  He can’t claim ignorance in front of Judge Netburn, or any of us. We are watching the case closely and we are well aware of the stakes for us, as holders of XRP, but more broadly as holders of all cryptocurrencies. Make no mistake, what happens in this case will have a major impact on the future of crypto, at least in the U.S. 

The absence of any protections granted or expressed for holders of XRP in the SEC’s complaint against Ripple was deliberate.  If they wanted to reassure the millions of XRP holders, they would have done so at the beginning.  To date, the SEC has not offered reassurance in any manner, not in Tenreiro’s response to Judge Netburn, not in their reply to our pre-motion letter, not anywhere.

The SEC’s mission to “protect investors; maintain fair, orderly, and efficient markets,” appears to be in vain in this case. Their decision to establish policy by enforcement, filing an 11th hour lawsuit, not only sparked panic-selling of XRP and delisting of the token by exchanges, it fostered an uneven market by picking winners and losers, and added even more regulatory uncertainty surrounding crypto. 

Also, don’t forget that in the Telegram case, the SEC sought and received a preliminary injunction preventing the company from using the funds raised from selling Grams to build its TON Blockchain, noting its fundraising scheme violated existing securities law. Notably, the fundraising scheme used by Telegram is strikingly similar to the offering scheme Vitalik Buterin used to launch Ethereum. Also curiously, ex-SEC Director of Corporation Finance William Hinman made it clear that in his eyes ETH is not a security. So why then go after Telegram?  Perhaps the $1.6 million in payments he received from a law firm that sits on the Enterprise Ethereum Alliance during his tenure at the SEC had something to do with it.

I have said from day one, I am not an expert in crypto nor a securities lawyer, but it doesn’t take an expert to see that plenty is very wrong, very corrupt and very outrageous about the SEC’s lawsuit against Ripple.  I hope that clarity is on the horizon, but I fear that for the retail holders represented in our case the fight has just begun. 

In The Ripple Case, The SEC Is Now On Trial – And Knows It

By Roslyn Layton. April 8, 2021. (Forbes)

Some agency chairs find an ambiguous statute hard to resist. They overinterpret their authority to regulate, and Congress too often goes along. The backstop of this excess is the courts, provided that the aggrieved have the wherewithal to defend themselves against the gargantuan administrative state. This familiar story is playing out in the U.S. Securities and Exchange Commission’s (SEC) lawsuit against cryptocurrency innovator Ripple, but the buck stops with Magistrate Judge Sarah Netburn whose discovery hearing in U.S. District Court for the Southern District of New York on Tuesday exposed the SEC’s unfounded and flawed arguments and some inconvenient truths for former SEC Chair Jay Clayton and former SEC Corporation Finance Division head William Hinman.  

The hearing showed that the case the San Francisco fintech was based on an illogical premise. It alleged that XRP, the digital currency that Ripple uses for cross-border payments, has been an unregistered security since 2013 and that the SEC was just getting around to saying so on the last day of Clayton’s tenure last December. With this late in the game regulatory determination, the SEC now deems that every Ripple sale for seven years was an illegal securities trade. And that Ripple, its two top executives named in the suit, along with millions of retail holders, should have known this all along, even though the agency never did. Due process and fair notice were thrown out the window to get the case across the transom on the day that Clayton walked out the door.

Read the Full Article Here.

Ripple Labs Wins Access To SEC Internal Crypto Discussions

By Pete Brush. April 6, 2021. (Law360).

Ripple Labs on Tuesday won discovery from the U.S. Securities and Exchange Commission concerning its internal discussions about whether Ripple’s XRP tokens are similar to cryptocurrencies like bitcoin and ether, which have not been officially deemed securities.

It was a “high-stakes” discovery win, U.S. Magistrate Judge Sarah Netburn said, as she ruled from the bench in the SEC’s suit claiming San Francisco-based Ripple and two top executives sold $1.38 billion of XRP without registering the offering as required by federal securities laws.

“I’m going to grant in large part the defendants’ motion,” she said.

Read the Full Story Here.