MOTION to Unseal Document [102] SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by SECURITIES AND EXCHANGE COMMISSION (This document is SEALED and only available to authorized persons.) filed by SECURITIES AND EXCHANGE COMMISSION by SECURITIES AND EXCHANGE COMMISSION. (Attachments: # (1) Text of Proposed Order, # (2) Exhibit SEC Motion To Compel Exhibit 10 (Redacted), # (3) Exhibit SEC Motion to Compel Exhibit 14 (Redacted), # (4) Exhibit SEC Motion to Compel Exhibit 15 (Redacted), # (5) Exhibit SEC Motion to Compel Exhibit 16 (Redacted), # (6) Exhibit SEC Motion to Compel Exhibit 19 (Redacted), # (7) Exhibit SEC Motion to Compel Exhibit 21 (Redacted), # (8) Exhibit SEC Motion to Compel Exhibit 26 (Redacted), # (9) Exhibit SEC Memorandum in Support of Its Motion To Compel, # (10) Exhibit Declaration of Jennifer Farer in Support of SEC Motion to Compel)(Scarlato, Matthew). Added MOTION to Withdraw on 9/15/2023 (znmw).
Page 1 UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
SECURITIES AND EXCHANGE
)
COMMISSION,
)
)
Plaintiff,
)
)
v.
)
)
BINANCE HOLDINGS LIMITED,
)
BAM TRADING SERVICES INC.,
)
BAM MANAGEMENT US HOLDINGS
)
INC., AND CHANGPENG ZHAO,
)
)
Defendants.
)
__________________________________________)
No. 1:23-cv-01599-ABJ-ZMF
PLAINTIFF’S MOTION TO UNSEAL OR, IN THE
ALTERNATIVE, TO WITHDRAW ITS MOTION TO SEAL
Plaintiff Securities and Exchange Commission (“SEC”) respectfully submits this Motion
to Unseal or, in the Alternative, to Withdraw its Motion to Seal that was filed at Dkt. No. 102. (“Motion to Unseal”). As set forth herein, the parties have agreed 2 to unseal many of the
documents filed with the SEC’s Motion to Compel and For Other Relief and Opposition to BAM
Defendants’ Motion for a Protective Order (Dkt. No. 102-2) (“Motion to Compel”). The SEC
also does not oppose the sealing or partial sealing of certain documents designated as
confidential by Defendants BAM Trading Services Inc. and BAM Management US Holdings
Inc. (together, “BAM”), if they continue to request confidentiality. Further, the parties continue
As of the date of this filing, the original motion to seal is still pending before the Court.
Because the documents and information at issue are treated as sealed pending the outcome of the
ruling on the motion, the SEC is now moving to unseal or withdraw the pending motion. See
Local Civil Rule 5.1(h)(1).
The SEC notes that it took BAM over two weeks to respond to the SEC’s repeated requests
concerning proposed redactions, and to state any position regarding unsealing information BAM
had blanketly designated as confidential, which has resulted in considerable delay despite that
BAM has already placed redacted versions of its related filings on the public docket.Page 2 to dispute whether certain documents, as explained herein, should remain under seal or partial
seal (“Disputed Documents”). Accordingly, the SEC moves to unseal or, in the alternative,
withdraws its original motion to seal as follows:
1.
Documents The Parties Agree Can Be Unsealed
a. SEC Motion to Compel (Dkt. No. 102-2)
b. SEC’s Proposed Order to the Motion to Compel (Dkt. No.102-3)
c. Exhibit 1 to Declaration of Jenifer Farer (“Declaration”) (Dkt. No. 102-6)
d. Exhibit 2 to Declaration (Dkt. No. 102-7)
e. Exhibit 3 to Declaration (Dkt. No. 102-8)
f. Exhibit 4 to Declaration (Dkt. No. 102-9)
g. Exhibit 5 to Declaration (Dkt. No. 102-10)
h. Exhibit 6 to Declaration (Dkt. No. 102-11)
i. Exhibit 7 to Declaration (Dkt. No. 102-12)
j. Exhibit 8 to Declaration (Dkt. No. 102-13)
k. Exhibit 9 to Declaration (Dkt. No. 102-14)
l. Exhibit 11 to Declaration (Dkt. No. 102-16)
m. Exhibit 12 to Declaration (Dkt. No. 102-17)
n. Exhibit 13 to Declaration (Dkt. No. 102-18)
o. Exhibit 22 to Declaration (Dkt. No. 102-27)
p. Exhibit 27 to Declaration (Dkt. No. 102-32)
q. Exhibit 28 to Declaration (Dkt. No. 102-33) Page 3 2.
Documents BAM Proposes to be Kept Under Seal that the SEC Does Not
Oppose if BAM Requests Confidential Treatment
a. Exhibit 17 to Declaration (Dkt. No. 102-22)
b. Exhibit 23 to Declaration (Dkt. No. 102-28)
c. Exhibit 24 to Declaration (Dkt. No. 102-29)
d. Exhibit 25 to Declaration (Dkt. No. 102-30)
e. Exhibit 29 to Declaration (Dkt. No. 102-34)
f. Exhibit 30 to Declaration (Dkt. No. 102-35)
g. Exhibit 31 to Declaration (Dkt. No. 102-36)
3.
Documents BAM Proposes to be Partially Sealed (Redacted) that the SEC
Does Not Oppose if BAM Requests Confidential Treatment a. Exhibit 10 to Declaration (Dkt. No. 102-15)
b. Exhibit 14 to Declaration (Dkt. No. 102-19)
c. Exhibit 15 to Declaration (Dkt. No. 102-20)
d. Exhibit 16 to Declaration (Dkt. No. 102-21)
e. Exhibit 19 to Declaration (Dkt. No. 102-24)
f. Exhibit 21 to Declaration (Dkt. No. 102-26)
g. Exhibit 26 to Declaration (Dkt. No. 102-31)
4.
Disputed Documents
a.
Documents BAM Proposes to be Partially Sealed (Redacted) that the SEC
Opposes i.
ii.
Memorandum in Support of the SEC’s Motion Compel (Dkt. No.
102-4)
The Declaration of Jenifer Farer (Dkt. No. 102-5)
BAM’s proposed redacted versions of these documents are attached as exhibits to this Motion.
BAM’s proposed redacted versions of these documents are attached as exhibits to this Motion. Page 4 b.
Documents Nonparty FGMK, LLC Proposes to be Kept Under Seal that
the SEC Opposes i.
Exhibit 18 to Declaration (Dkt. No. 102-23)
ii.
Exhibit 20 to Declaration (Dkt. No. 102-25)
BAM or BAM’s auditor, FGMK, LLC (“FGMK”) are the proponents of the relevant
confidentiality designations, and therefore, they bear the burden of demonstrating a basis for
withholding these judicial documents from public disclosure. See, e.g., FTC v. Match Grp., Inc.,
No. 1:22-MC-54, 2023 WL 3181351, at *8 (D.D.C. May 1, 2023) (“The burden is on the party
seeking to restrict disclosure ‘to come forward with specific reasons why the record, or any part
thereof, should remain under seal’”) (quoting and citing Johnson v. Greater Southeast
Community Hosp. Corp., 951 F.2d 1268, 1278 (D.C. Cir. 1991)). 6 This Court should order
BAM and FGMK, within seven days, to provide the Court with their basis for maintaining the
seal over these documents. The SEC does not oppose the sealing of the documents described
above except for the Disputed Documents.
For the foregoing reasons, this Court should enter the proposed order attached hereto.
Based on correspondence with counsel for FGMK, LLC, the SEC is uncertain whether it
continues to assert confidentiality over these documents, but these documents correspond with
proposed redactions from FGMK LLC, and, in abundance of caution, the SEC is noting that they
may be in dispute.
This approach is also consistent with the procedures the parties have agreed to pursuant to the
proposed protective order the parties have proposed for this litigation. See Dkt. No. 106. In
particular, under the proposed protective order, the burden would be on the designating party to
move the court within a time certain to maintain under seal any documents or information
designated as confidential that is used in a court filing.
6Page 5 Dated: September 14,
Respectfully submitted,
/s/ Matthew Scarlato
Matthew Scarlato (D.C. Bar No. 484124)
Jennifer L. Farer (D.C. Bar No. 1013915)
J. Emmett Murphy
David A. Nasse (D.C. Bar No. 1002567)
Jorge G. Tenreiro
SECURITIES AND EXCHANGE
COMMISSION
(202) 551-3749 (Scarlato)
scarlatom@sec.gov
Attorneys for Plaintiff
PDF Page 1
PlainSite Cover Page
PDF Page 2
Case 1:23-cv-01599-ABJ-ZMF Document 110 Filed 09/14/23 Page 1 of 5
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
SECURITIES AND EXCHANGE
)
COMMISSION,
)
)
Plaintiff,
)
)
v.
)
)
BINANCE HOLDINGS LIMITED,
)
BAM TRADING SERVICES INC.,
)
BAM MANAGEMENT US HOLDINGS
)
INC., AND CHANGPENG ZHAO,
)
)
Defendants.
)
__________________________________________)
No. 1:23-cv-01599-ABJ-ZMF
PLAINTIFF’S MOTION TO UNSEAL OR, IN THE
ALTERNATIVE, TO WITHDRAW ITS MOTION TO SEAL
Plaintiff Securities and Exchange Commission (“SEC”) respectfully submits this Motion
to Unseal or, in the Alternative, to Withdraw its Motion to Seal that was filed at Dkt. No. 102. 1
(“Motion to Unseal”). As set forth herein, the parties have agreed 2 to unseal many of the
documents filed with the SEC’s Motion to Compel and For Other Relief and Opposition to BAM
Defendants’ Motion for a Protective Order (Dkt. No. 102-2) (“Motion to Compel”). The SEC
also does not oppose the sealing or partial sealing of certain documents designated as
confidential by Defendants BAM Trading Services Inc. and BAM Management US Holdings
Inc. (together, “BAM”), if they continue to request confidentiality. Further, the parties continue
1
As of the date of this filing, the original motion to seal is still pending before the Court.
Because the documents and information at issue are treated as sealed pending the outcome of the
ruling on the motion, the SEC is now moving to unseal or withdraw the pending motion. See
Local Civil Rule 5.1(h)(1).
2
The SEC notes that it took BAM over two weeks to respond to the SEC’s repeated requests
concerning proposed redactions, and to state any position regarding unsealing information BAM
had blanketly designated as confidential, which has resulted in considerable delay despite that
BAM has already placed redacted versions of its related filings on the public docket.
PDF Page 3
Case 1:23-cv-01599-ABJ-ZMF Document 110 Filed 09/14/23 Page 2 of 5
to dispute whether certain documents, as explained herein, should remain under seal or partial
seal (“Disputed Documents”). Accordingly, the SEC moves to unseal or, in the alternative,
withdraws its original motion to seal as follows:
1.
Documents The Parties Agree Can Be Unsealed
a. SEC Motion to Compel (Dkt. No. 102-2)
b. SEC’s Proposed Order to the Motion to Compel (Dkt. No.102-3)
c. Exhibit 1 to Declaration of Jenifer Farer (“Declaration”) (Dkt. No. 102-6)
d. Exhibit 2 to Declaration (Dkt. No. 102-7)
e. Exhibit 3 to Declaration (Dkt. No. 102-8)
f. Exhibit 4 to Declaration (Dkt. No. 102-9)
g. Exhibit 5 to Declaration (Dkt. No. 102-10)
h. Exhibit 6 to Declaration (Dkt. No. 102-11)
i. Exhibit 7 to Declaration (Dkt. No. 102-12)
j. Exhibit 8 to Declaration (Dkt. No. 102-13)
k. Exhibit 9 to Declaration (Dkt. No. 102-14)
l. Exhibit 11 to Declaration (Dkt. No. 102-16)
m. Exhibit 12 to Declaration (Dkt. No. 102-17)
n. Exhibit 13 to Declaration (Dkt. No. 102-18)
o. Exhibit 22 to Declaration (Dkt. No. 102-27)
p. Exhibit 27 to Declaration (Dkt. No. 102-32)
q. Exhibit 28 to Declaration (Dkt. No. 102-33)
2
PDF Page 4
Case 1:23-cv-01599-ABJ-ZMF Document 110 Filed 09/14/23 Page 3 of 5
2.
Documents BAM Proposes to be Kept Under Seal that the SEC Does Not
Oppose if BAM Requests Confidential Treatment
a. Exhibit 17 to Declaration (Dkt. No. 102-22)
b. Exhibit 23 to Declaration (Dkt. No. 102-28)
c. Exhibit 24 to Declaration (Dkt. No. 102-29)
d. Exhibit 25 to Declaration (Dkt. No. 102-30)
e. Exhibit 29 to Declaration (Dkt. No. 102-34)
f. Exhibit 30 to Declaration (Dkt. No. 102-35)
g. Exhibit 31 to Declaration (Dkt. No. 102-36)
3.
Documents BAM Proposes to be Partially Sealed (Redacted) that the SEC
Does Not Oppose if BAM Requests Confidential Treatment 3
a. Exhibit 10 to Declaration (Dkt. No. 102-15)
b. Exhibit 14 to Declaration (Dkt. No. 102-19)
c. Exhibit 15 to Declaration (Dkt. No. 102-20)
d. Exhibit 16 to Declaration (Dkt. No. 102-21)
e. Exhibit 19 to Declaration (Dkt. No. 102-24)
f. Exhibit 21 to Declaration (Dkt. No. 102-26)
g. Exhibit 26 to Declaration (Dkt. No. 102-31)
4.
Disputed Documents
a.
Documents BAM Proposes to be Partially Sealed (Redacted) that the SEC
Opposes 4
i.
ii.
Memorandum in Support of the SEC’s Motion Compel (Dkt. No.
102-4)
The Declaration of Jenifer Farer (Dkt. No. 102-5)
3
BAM’s proposed redacted versions of these documents are attached as exhibits to this Motion.
4
BAM’s proposed redacted versions of these documents are attached as exhibits to this Motion.
3
PDF Page 5
Case 1:23-cv-01599-ABJ-ZMF Document 110 Filed 09/14/23 Page 4 of 5
b.
Documents Nonparty FGMK, LLC Proposes to be Kept Under Seal that
the SEC Opposes 5
i.
Exhibit 18 to Declaration (Dkt. No. 102-23)
ii.
Exhibit 20 to Declaration (Dkt. No. 102-25)
BAM or BAM’s auditor, FGMK, LLC (“FGMK”) are the proponents of the relevant
confidentiality designations, and therefore, they bear the burden of demonstrating a basis for
withholding these judicial documents from public disclosure. See, e.g., FTC v. Match Grp., Inc.,
No. 1:22-MC-54, 2023 WL 3181351, at *8 (D.D.C. May 1, 2023) (“The burden is on the party
seeking to restrict disclosure ‘to come forward with specific reasons why the record, or any part
thereof, should remain under seal’”) (quoting and citing Johnson v. Greater Southeast
Community Hosp. Corp., 951 F.2d 1268, 1278 (D.C. Cir. 1991)). 6 This Court should order
BAM and FGMK, within seven days, to provide the Court with their basis for maintaining the
seal over these documents. The SEC does not oppose the sealing of the documents described
above except for the Disputed Documents.
For the foregoing reasons, this Court should enter the proposed order attached hereto.
5
Based on correspondence with counsel for FGMK, LLC, the SEC is uncertain whether it
continues to assert confidentiality over these documents, but these documents correspond with
proposed redactions from FGMK LLC, and, in abundance of caution, the SEC is noting that they
may be in dispute.
This approach is also consistent with the procedures the parties have agreed to pursuant to the
proposed protective order the parties have proposed for this litigation. See Dkt. No. 106. In
particular, under the proposed protective order, the burden would be on the designating party to
move the court within a time certain to maintain under seal any documents or information
designated as confidential that is used in a court filing.
4
6
PDF Page 6
Case 1:23-cv-01599-ABJ-ZMF Document 110 Filed 09/14/23 Page 5 of 5
Dated: September 14, 2023
Respectfully submitted,
/s/ Matthew Scarlato
Matthew Scarlato (D.C. Bar No. 484124)
Jennifer L. Farer (D.C. Bar No. 1013915)
J. Emmett Murphy
David A. Nasse (D.C. Bar No. 1002567)
Jorge G. Tenreiro
SECURITIES AND EXCHANGE
COMMISSION
(202) 551-3749 (Scarlato)
scarlatom@sec.gov
Attorneys for Plaintiff
5
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