Lawyer, musician, family man, aspiring polymath. Regulatory enforcement/litigation. #CryptoTwitter, #AppellateTwitter, đ, #NYTXW. Tweets solely my own opinion.
New York, NY
- Tweets 6,196
- Following 3,406
- Followers 8,749
- Likes 55,468
Dear @SenWarren: I am generally a fan of yours. I am a liberal progressive and support many of the same things you do. But you are absolutely wrong on crypto, and specifically wrong about this issue. Please let me explain: (1/)
Cryptocurrencies risk undermining sanctions against Russia, allowing Putin and his cronies to evade economic pain.
U.S. financial regulators need to take this threat seriously and increase their scrutiny of digital assets. nytimes.com/2022/02/23/businâŠ
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Steve King is upset he only got to invite 1/2 of Diamond & Silk; he wanted to invite 3/5 of them
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I find the SECâs âall crypto projects have to do is come in and registerâ line unbelievably insulting.
It assumes thereâs this vast quantity of sophisticated securities lawyers advising clients, ânah man, screw the SEC, yolo baby, do whatever you want.â 1/6
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Every time someone tweets that crypto might be used by foreign oligarchs for money laundering, Iâm gonna repost this picture for no particular reason.
(gm from NYC!)
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I canât get over the fact that the SEC reviewed Coinbaseâs entire business model, approved their S-1, and then turned around and claimed that the same business model was a violation of securities laws.
I donât think a federal judge will get past that either.
Coinbase applied for Acceleration regarding its IPO. BEFORE the SEC APPROVED the Acceleration it had to make a specific determination that the listing was:
IN THE PUBLICâS INTEREST đ
2 years later the SEC claims its in the publicâs interest to PERMANENTLY shut down Coinbase.
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If North Korea used Microsoft Excel to keep track of all the money it laundered, should we sanction Excel software?
If North Korea coded its hacking attacks using C on Linux OS, should we sanction the Linux OS? Or C?
Don't these ideas seem self-evidently preposterous?
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People asking why the SEC/Gensler are taking a ridiculous position on crypto -- i.e., "come in and register, but haha you can't actually because crypto doesn't fit our regs." Is it dumb? Evil? Just protecting incumbents?
No -- it's that they don't see the paradigm shift. 1/
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If registration were possible, weâd do it. Give us a pathway. Show us it can be done efficiently, or at all, and watch the flood of registrations.
Or, donât, and watch the industry move offshore, and watch America get left behind in the next wave of FinTech. 6/6
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I sent you a letter in 2000 suggesting ways you could drop out of the race and support Gore, because you were risking tipping the race to Bush. You have not replied, despite history proving me right. Can anyone help us get you to see the damage internecine squabbling causes?
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If the new de facto rule is âcrypto = no,â that rule has to come from Congress, or at least through an APA process. Not through enforcement.
Going on CNBC to say that registration is âjust a form on our websiteâ is a painful misrepresentation of the registration process. 4/6
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There is simply no path to registration for many crypto products. The SEC says âjust register.â We say âcool but ⊠as what?â Because the regs just donât fit.
In response, we get blank stares, apologies, and mumbles that theyâre not going to give us legal advice. 3/6
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Again: itâs just insulting. It brands a whole industry (and its lawyers!) as scofflaws, who donât bother following easy rules, instead of the reality: people desperately trying to figure out how to offer a product legally, and getting zero guidance other than âno.â 5/6
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Fundamentally, crypto frees people from corrupt, evil, or incompetent intermediaries who can cancel their money at any time. It puts financial power back into the hands of individuals, and out of the hands of the elites and banks. (7/)
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Tons of projects (and their lawyers!) desperately *want* to come in and register. But when they do, theyâre just told âno.â Or worse, they draw a Wells notice (or, as @HesterPeirce said, a court date). 2/6
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âCan we register our products with the SEC?â
âNo, not really.â
âCan we have access to banks?â
âLol no.â
âHow about laws to tell us what we can and canât do?â
âAlso no.â
âCan you pick one regulator, at least?â
âNope, you get all of them.â
(âŠ)
âWhy havenât you provided value??â
A year and a couple weeks after releasing an EO to establish a framework for the responsible development of digital assets, the White House now says crypto has delivered none of the promised benefits, âand many of them have no fundamental value.â
whitehouse.gov/wp-content/upâŠ
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The fact that âpeople close to the President including several senior White House officialsâ are fretting about how Trumpâs tweets will hurt him with independents and women, instead of doing anything to help a country on fire, is exactly the problem.
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The SEC could solve so many problems if it made the following simple deal with the crypto industry:
You can issue a token, on two conditions: (1) a 5-page disclosure on your team, your plan, and your tokenomics; and (2) subject your smart contracts to real security auditing.
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My instinct turned out to be right, at least at the first court conference. The (very experienced & thoughtful) judge seemed skeptical of the notion that the SEC allowed the Coinbase S1 to go effective without mentioning that SEC thought the whole business model was illegal.
I canât get over the fact that the SEC reviewed Coinbaseâs entire business model, approved their S-1, and then turned around and claimed that the same business model was a violation of securities laws.
I donât think a federal judge will get past that either.
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âI was just so shocked when the leopard starting eating peopleâs faces close to me. I wasnât on board with that.â
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The TL;DR - clamping down on crypto in Russia right now would hurt many ordinary citizens, and not do much to hamper oligarch money laundering that we can't do already. Don't make innocents suffer for the evil wrought by their leaders. (13/13)
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Yes, it is possible that Putin and his cronies will use crypto to move/hide money. But that was already possible, and happening, with cash, jewels, real estate, yachts, etc. There are conventional ways to stop money laundering that - if we try - work quite well. (2/)
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But shutting down crypto indiscriminately to Russians would be a disaster. Many Russians are either aghast at their government, or are pure innocents who are apolitical and don't support violence. Just looking out for their family in a bad situation (4/)
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Coinbase's brief is fantastic -- no surprise, given the strong arguments in their favor, and great lawyers (in-house and outside) working on it.
On one point, though -- the Major Questions Doctrine -- I think Coinbase actually *undersold* just how major a question this is. 1/
Today, @coinbase filed our brief asking the Court to dismiss the SECâs case against us. Our core argument is simple â we do not offer "investment contracts" as that term has been construed by decades of Supreme Court and other binding precedent. 1/3 assets.ctfassets.net/c5bd0wqâŠ
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SEC.gov | SEC Charges SolarWinds and Chief Information Security Officer with Fraud, Internal Control Failures
Let me explain how this is relevant to the SEC v Coinbase case. 1/ sec.gov/news/press-release/2âŠ
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What about the money laundering by Putin & gang, you may ask? The answer is that it is absolutely much harder to launder money on systems that leave a publicly available, immutable trace. (9/)
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An open invitation to you and your staff: I am happy to come speak to you anytime to talk about crypto: why it is a fundamentally liberal, progressive technology, and why - with intelligent U.S. regulation - it will be the future of finance. (11/)
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Isn't that one of the big goals of progressive financial policy? That, in a nutshell, is the progressive case for crypto. (8/)
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Crypto - for all its flaws and issues - lets people maintain their own independent stores of value. Yes, it's susceptible to market see-sawing. But it's not affected by the rouble collapse, or closing of (say) Sberbank ATMs. (6/)
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When Trump is gone, a lot of former admin officials are going to brag that they âheld him back,â and âit would have been so much worseâ without them. That will be a lie. They did the bad stuff they wanted to do. And they should face the appropriate consequences for it.
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But their government has failed them, and as a result, their currency is collapsing, they can't move money, they can't leave, and the banks -- their entire financial system -- may collapse. Innocent bystanders are going to suffer even more. (5/)
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Todayâs events underline: when the SEC speaks about a particular token, the SEC can radically affect its market value.
How many billions of dollars of value has the SEC destroyed by declaring, before any trial or settlement, that specific tokens violate federal law?
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Thanks to amazing work by firms like @trmlabs (and its leaders @estebancastano and @ARedbord), tracing money laundering in crypto is inarguably *easier* than tracing it in "conventional" methods. It's no secret that front-line AML enforcers love crypto. (10/)
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I've had a day to absorb the Ripple summary judgment decision. Yesterday's crypto-legal-Twitter commentary (from @BrandonFerrick, @CryptoTaxGuyETH, and many others) was great on the holding. Let's talk about the new questions it raises, and the possible routes it opens. 1/22
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The implicit but critical point here:
Trump is a powerless, weak leader. When his subordinates want to ignore his orders, they can and do.
Which means that when they DO execute awful plans (child separations; suing to overturn ACA) ... itâs because they *want* to.
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âThis fight isnât just about cryptocurrency. Itâs a much larger battle for the right to your digital life, and whether you actually own or control any part of it.â
news.bloomberglaw.com/us-lawâŠ
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âI was just so shocked when the leopard starting eating peopleâs faces close to me. I wasnât on board with that.â
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So you know how all ex-Presidents get a Secret Service detail for life? Does that apply in prison? Do the Secret Service guys have to, like, live in the prison with him?
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I have a solution for this problem! Make clear rules that people can follow!
Most people are NOT scofflaws. Most just want to build in crypto, legally. And then they find out that, according to the SEC, there's basically no way to do that.
law360.com/fintech/articles/âŠ
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I agree with @brian_armstrong that DeFi protocols should challenge the CFTC (and SEC) in court on overreaching settlement demands. The sad reality is that the agencies first attack smaller outfits, for whom it makes vastly more economic sense to settle rather than litigate. 1/
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If New York City is going to convert dollars to BTC to pay the Mayor, does the City first need to obtain a New York Virtual Currency License from DFS?
In New York we always go big, so Iâm going to take my first THREE paychecks in Bitcoin when I become mayor. NYC is going to be the center of the cryptocurrency industry and other fast-growing, innovative industries! Just wait!
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There is no doubt, as you say, that regulation has a role to play in digital assets. I welcome that conversation, so that the regulation is fully informed on what it can achieve, what it can't achieve, and what are the costs of getting it wrong (very high). (12/)
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The US sanctions (both pre-existing, and newly enacted) will squeeze hard at Putin's inner financial circle. The Biden admin should be praised for these. He's doing a great job managing this horrible situation. (3/)
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A significant appellate court decision today in Williams v. Binance , on the extraterritoriality of the US securities laws (i.e. when US laws apply to potentially âoffshoreâ transactions. Important for web3 companies trying to avoid the US because of our lack of legal clarity. 1/
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A great statement from @HesterPeirce.
In the internet era, an SEC settlement is a life sentence. Many people sued by the SEC settle because they canât afford the litigation. Then, every Google search for that person, forever, shows that the SEC branded them a scofflaw. 1/
My thoughts on the SEC's unusual practice of telling defendants who settle with us that they can't ever say anything bad about the settlement: sec.gov/news/statement/peircâŠ
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He hands the Sox girl a Yankees cap off his own head. She removes the Sox cap and dons the Yankees cap. He says loudly, "THAT'S BETTER. CARRY ON." They kiss. Applause and laughter. 2/2
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Respectfully, no, I donât believe she does know what sheâs doing. I believe she (and her staff) havenât truly dug into the weeds. As a result, her stance is wrong on policy, and wrong on the politics as well. Again, I say this as a supporter.
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Tokens, themselves, are not securities.
Code is not illegal.
The SEC is trying to arrogate control over the entire digital economy. Thatâs not the law, and Iâm looking forward to Coinbase (among many others in the fight) proving that in court. 14/14
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In the old days, a stock certificate was printed on a piece of paper. The physical piece of paper itself was no more than a representation of ownership, rights to voting, dividends, etc. If you could somehow separate those rights from the paper, the paper was good for ... 1/
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Here's the thing: digital assets truly are different.
This is the important paradigm shift, a fundamental philosophical change that right now, Gensler (and his supporters) do not understand. 5/
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Statute of limitations ("SOL") issues in a potential Coinbase case:
If Coinbase started trading crypto in 2012, the SOL at the time for the SEC was 5 years. (As of 1/1/19 it became 10 years; it's not retroactive.) Did the SOL run out in 2017? 1/
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Real talk about DAOs. Every organization, of any kind, is organized in some way. A corporation. A partnership. Your family. Your local school board. The United States. Theyâre all, to varying degrees, organized and autonomous. 1/
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I donât think we need to listen to racist Americans about their sense of pain and grievance over racism theyâre committing
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The SECâs broadside attack against art is exactly why my clients @songadaymann and @brianlfrye bravely stood up to file an action against the SEC.
How is an artist, promoting themselves and their art, supposed to know when their art is a security?
OpenSea has received a Wells notice from the SEC threatening to sue us because they believe NFTs on our platform are securities.
We're shocked the SEC would make such a sweeping move against creators and artists. But we're ready to stand up and fight.
Cryptocurrencies have long been in the crosshairs of the SEC, and companies like @coinbase, @Uniswap, @RobinhoodApp, @krakenfx, and @Consensys have been fighting against the SEC's single-track approach of "regulation by enforcement."
But this is a move into uncharted territory. By targeting NFTs, the SEC would stifle innovation on an even broader scale: hundreds of thousands of online artists and creatives are at risk, and many do not have the resources to defend themselves.
NFTs are fundamentally creative goods: art, collectibles, video game items, domain names, event tickets, and more.
We should not regulate digital art in the same way we regulate collateralized debt obligations.
As we've built OpenSea, we've heard so many stories about the impact of NFTs on peopleâs lives, including:
âą Student artists finding full-time careers in selling their digital art
âą Indie game developers instantly enabling open markets for their in-game items, without having to build marketplaces from scratch
âą Passionate collectors from different corners of the world joining new communities, all centered around shared digital ownership
It would be a terrible outcome if creators stopped making digital art because of regulatory saber-rattling. Take, for example, the suit filed against the SEC by the musician @songadaymann and conceptual artist @brianlfrye, which describes their fear that the sale of their art and music could be deemed unregistered securities offerings.
In addition to standing our own ground, we're pledging $5M to help cover legal fees for NFT creators and devs that receive a Wells notice. Every creator, big or small, should be able to innovate without fear.
I hope the SEC will come to its senses sooner rather than later, and that they'll listen with an open mind.
Until then, we'll stand up and fight for our industry.
Onwards đâ”ïž
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Andean, I am a lawyer representing certain individuals involved with Indexed. I have been a regulatory enforcement lawyer for 20+ years. My crypto-credentials/experience at morrisoncohen.com/jgottlieb. I want to explain to you why what you did was illegal and wrong. 1/
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We have a long, sad history of "national security" being abused to deprive us of so many liberties. There's a straight and terrible line from the Alien and Sedition Acts, to the Japanese internment camps, to the Patriot Act, to the prosecutions of coders of neutral software.
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Respectfully, anyone who believes that "itâs perfectly possible for blockchain-based businesses to comply with the securities laws" is welcome to talk to me (or my compatriots), and learn first-hand just how challenging it is. The number of unanswered questions keeps rising...
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So there I was in the park, writing software on my laptop, and some cop came up to me and said my software was a dog and fined me for not having it on a leash
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OK, the skeptical anon asks, *why* are they different? Well, for starters, they divorce the "asset" from the "investment contract." You can sell crypto (just software!) as *part* of an investment contract. But it is not the investment contract itself. 6/
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After the 2008 financial markets collapse, two related things happened.
At the time, the much bigger thing was a revamp of American financial compliance laws and regs -- the Dodd-Frank Act, and all the regulations passed as a result. (many by Gary Gensler at CFTC!). 1/
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Itâs like a con law final: spot all the constitutional challenges, and predict how Alitoâs 6-3 decision says theyâre wrong
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This is a really strong brief. The SEC should not be allowed to âpocket vetoâ rulemaking to avoid court challenges.
Today, we filed a narrow action in the U.S. Circuit Court to compel the SEC to respond âyes or noâ to a rulemaking petition we filed with them last July asking them to provide regulatory guidance for the crypto industry. 1/4 coinbase.com/blog/coinbase-tâŠ
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Support the groups lobbying for positive change -- @BlockchainAssn, @coincenter, @fund_defi, @crypto_council, @LeXpunK_Army, and others. Everyone may or may not agree with everything each one says, but you can support your favorite. 22/
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I've said it before - the SEC could cure 90% of the things it hates about crypto by forcing crypto projects to publish a doxxed 5-page disclosures paper, and have their smart contracts audited. This could be a good start. (Could be. We'll see.)
theblock.co/post/168695/sec-âŠ
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Digital assets, and disintermediated trading systems, are a fundamental paradigm shift in the way people interact with the economy. Failing to recognize this shift, and adapt our laws for it, will leave America floundering, as the rest of the world leaves us behind. 14/
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So, again, I just can't believe anyone could think the SEC has acted in the best interest of investor protection here.
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But, like, come on.
If the SEC actually thought that Coinbase was actively acting as a broker-dealer / exchange, how could they approve an S-1 without *at least* requiring a disclosure that Coinbase was actively violating securities laws?
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This SEC insider trading action alleges that 9 tokens are securities, and charges Coinbase employees with insider trading before their listings on Coinbase.
But the projects aren't parties here. They can't defend themselves here. And... 1/
sec.gov/news/press-release/2âŠ
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Another big difference is disintermediation. Securities require two parties: you're investing in someone else. A crypto token is software, a tool. You can buy it without investing in anything or anyone. 8/
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Similar, cryptosystems (like defi exchanges) can run autonomously, peer-to-protocol. This disintermediation is a *fundamental* difference from traditional exchanges or ATSs, and the core reason why the SEC's new proposed exchange rule is just ... wrongheaded. 9/
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This is a really perceptive thread on why the SEC enforcement push in crypto is so weird. The SEC is pushing beyond regulating behaviors, to regulating software systems, and thatâs a paradigm shift with little support in the law.
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Awkwardly asked a friend I was crushing on to go to a movie. I wasnât clear enough it was a date. She brought a friend. The movie was The Crying Game. Took me a spluttering forever to convey that I liked her.
28 years later weâre still married. So I guess it worked out.
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Every time we say "registration is basically impossible," we hear "you're just scofflaws." What we never hear? HOW TO REGISTER. Tell us how. Make the path. Folks will come in. And we'll show you how we can all make things safer, together. 18/18
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(For incredible depth on that last point, I strongly commend @NYcryptolawyer & team's "Ineluctable Modality" paper, dlxlaw.com/wp-content/uploadâŠ) 7/
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âWhat!?!? Weâre not racists!â cried the white people who claimed there was widespread voter fraud that somehow only occurred in black areas
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I make no secret about being on the D side of the aisle. I truly believe in the progressive case for crypto. Tip of that hat to these Democrats for seeing the future of digital assets. And ⊠1/2
It's important not to think crypto is fully partisan. If you are on the D side of the aisle, support all of these Representatives for doing the right thing.
@jahimes @RepRitchie @RepJoshG @RepHorsford @RepWileyNickel @pettersen4co
Well done, all of you.
@twobitidiot
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Thrilled to be able to support @BlockchainAssn on these important issues for the industry. Read @jchervinsky's thread!
1/ Iâm proud to announce that @BlockchainAssn has filed an amicus brief in the SECâs case against @Ripple.
In short: the SEC is wrong on the law, and its pattern of regulation by enforcement is harmful to both US crypto companies and the investors that it's meant to protect. đ§”
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Lots of people seem to have forgotten what Trump was like as president.
So here are the photos, to help jog your memory.
This was Trump, urging his supporters to raid the Capitol to overturn the election he lost.
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Proud to represent my client and friend Brian Frye @brianlfrye in his brave and unfortunately necessary lawsuit against the SEC.
Art is not a security, and artists working in a digital medium should not have to hire expensive securities lawyers just to release their art.
Today, @songadaymann and I sued the @SECGov in Louisiana federal court, asking for a declaration that the SEC canât regulate the sale of NFT art. Iâve argued that the SEC is abusing its authority for years & now Iâm testing my theory. Hereâs the complaint. drive.google.com/file/d/1zcnâŠ
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Analogy time: Model T cars started rolling out in earnest in the early 1920s. One can easily imagine the Secretary of Transportation at the time (if we had one!) saying, "the rules of the road have worked for 90 years, we don't need new rules, just follow the old ones." 11/
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My team and I were honored to help the @BlockchainAssn file this amicus brief.
It is no secret that I also think the SEC has been regulating by enforcement, and I stand ready to work with the SEC anytime to help create more sensible rules for a burgeoning tech industry.
I'm proud of the brief that @BlockchainAssn filed in SEC v. Wahi today, calling out the SEC for its improper practice of regulation by enforcement.
Thanks to BA's chief in-house litigator @mtcoppel, and our counsel @ohaiom and team, for fighting to hold the SEC accountable here.
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SEC: you need to register because disclosures are key to protect the public, we're a disclosures regime
Crypto: ok can we register this project?
SEC: haha no.
Crypto: ok well then we'll just disclose everything about the project without registering, happy?
Gary Gensler told @SquawkCNBC @andrewrsorkin he would rather not talk about crypto saying itâs a small part of the overall capital markets and doesnât deserve the attention itâs getting.
Gensler asks âwhere are the financial reports for these crypto tokensâ?
He doesnât understand crypto, clearly. And heâs going after the wrong âbad guysâ. He continues being the villain of crypto, not the right cop.
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Every 10-20 years, people create some newfangled thing and say, "it's not really securities, we're different!" And the SEC says: no, come on. The securities laws are *designed* to be flexible, to account for all the different and creative ways to have investment contracts. 2/
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Yesterday @matt_levine, the Greatest Financial Writer on Earth,[1] wrote 2 paras I want to explore. bloomberg.com/opinion/articlâŠ
[1] His free daily newsletter is best in the business. Go subscribe now. Footnotes in this thread in his honor.
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OK seriously, some random notes on attorney-client privilege for all my #cryptotwitter friends (inspired by @RosenfeldM):
1. The privilege belongs to the client. You, not me. You can waive it if you want (or if you mess up). I couldn't waive it even if I wanted. It's yours.
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The CFTC settlement with 0x flies in the face of the reasoning of Risley v Uniswap.
Developers should be free to write software that can be (and overwhelmingly is) used legally, without being held liable for a tiny minority that abuse the software for illegal purposes.
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If our "well-regulated capital markets" are the "envy of the world" when it comes to crypto regulation, then why are so many countries passing new regulations that accommodate crypto markets? (EU, HK, Switzerland, UK, Singapore, Japan, Caymans, BVI, Brazil...)
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(For more on that point, see @HesterPeirce's terrific dissent published yesterday, at sec.gov/news/statement/peircâŠ.) 10/
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There was no change in the laws, or the regulations, or the guidance, or the case law. The change was political. It was frustration at an industry that didnât merely accept the Chairâs alegal dictates of what the digital economy should look like. 12/
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Wait til she hears about the original intent and public meaning of Article III when it comes to having women as judges on the Supreme Court.
Iâm assuming sheâs going to think some exception applies to that situation though.
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Each time, the effects were terrible for his agenda, and he bought absolutely zero good will from the other side. They called him a tyrant, even as he watered down his own agenda to try to appease them. Weâre still reeling from his attempts to âgo high.â 2/2
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Really wish @EricLiptonNYT would bother providing the industryâs views here. Or challenge the SECâs position that it gets to regulate anything having to do with money. Or show the industry isnât âunregulatedâ at all. Really one-sided story. Disappointing.
nytimes.com/2021/09/05/us/poâŠ
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Proud to represent my client and friend Jonathan Mann @songadaymann in his brave and unfortunately necessary lawsuit against the SEC.
Art is not a security, and musicians working in a digital medium should not have to hire expensive securities lawyers just to release music.
I've been writing a song a day for 16 years and 211 days.
Today, Iâm suing the SEC.
(Yes, this is real)
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