Page 1 IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff,
v.
Civil Action No. 1:23-cv-
BINANCE HOLDINGS LIMITED, BAM
TRADING SERVICES INC., BAM
MANAGEMENT US HOLDINGS INC., AND
CHANGPENG ZHAO,
Defendants.
MOTION OF INVESTOR CHOICE ADVOCATES NETWORK
FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF DEFENDANTS’
MOTIONS TO DISMISS
Pursuant to Local Rule 7(o) of this Court, Investor Choice Advocates Network (“ICAN”),
through its undersigned attorneys, respectfully moves this Court for leave to file an amicus
curiae brief in support of defendants’ motions to dismiss in the above-captioned matter. The
proposed amicus curiae brief of ICAN is attached to this Motion as Exhibit A.
STATEMENT OF INTEREST
ICAN is a nonprofit organization that advocates for expanding access to markets for
underrepresented investors and entrepreneurs. As explained more fully in the attached brief,
ICAN has a strong interest in this case, but its perspective differs from the parties. ICAN’s focus
on investor choice positions it as an amicus curiae that can offer valuable input to aid the Court
in deciding significant issues relating to the scope of the SEC’s authority to regulate digital assets
as securities.Page 2 ARGUMENT
Because an amicus curiae “‘does not represent the parties but participates only for the
benefit of the Court . . . [i]t is solely within the discretion of the Court to determine the fact,
extent, and manner of the participation.’” Jin v. Ministry of State Sec., 557 F. Supp. 2d 131, (D.D.C. 2008). Among other reasons, an amicus curiae brief “should normally be allowed . . .
when the amicus has unique information or perspective that can help the court beyond the help
that the lawyers for the parties are able to provide,” id. at 137, including by “presenting ideas,
arguments, theories, insights, facts or data that are not to be found in the parties’ briefs.’” Arias
v. Dyncorp, 2001 WL 13377371, at *1 (D.D.C. Nov. 21, 2011) (quoting Commonwealth of the N.
Mariana Islands v. U.S., 2009 WL 596986, at *1 (D.D.C. Mar. 9, 2009)). See also Hard Drive
Prod., Inc. v. Does 1-1,495, 892 F. Supp. 2d 334, 338 (D.D.C. 2012) (allowing amicus curiae
brief that raised “issue not developed fully in the motions” filed by the parties); Ellsworth
Assocs., Inc. v. United States, 917 F. Supp. 841, 846 (D.D.C. 1996) (allowing amicus curiae brief
where “movants have a special interest in [the] litigation as well as a familiarity and knowledge
of the issues raised therein”). ICAN’s proposed amicus curiae brief meets these standards.
ICAN’s proposed amicus curiae brief provides a perspective that is central to the
litigation but offered by neither the SEC nor the defendants—the interests of investors who
choose to invest in digital assets, including those at issue here. The brief highlights how the
positions taken by the SEC in this litigation could hinder investors’ opportunities to invest in
digital assets at home and abroad, ultimately leaving them with fewer choices of digital assets
and less information about them.
In particular, the brief explains that the SEC’s apparent residency-based approach toward
the Morrison test for extraterritorial application of the securities laws risks undoing technological Page 3 progress that has enabled investors who choose to pursue opportunities in foreign asset markets
to do so using the Internet and blockchain a residency-based framework would risk turning the
SEC into a global digital asset regulator, while creating an unworkable web of conflicting
regulatory regimes. Investors would ultimately bear the cost through higher prices and reduced
opportunities.
The brief also explains certain technical features of digital assets, including “burning”
and “staking” mechanics, that the SEC relies upon in contending that the assets constitute
investment contracts. The brief discusses why those features are inherent to the programming of
the assets and do not evince an investment contract, and how concluding otherwise would harm
investors and consumers by removing features they desire from the marketplace.
Finally, the brief provides an investor perspective on statements made by creators of
digital assets, which the SEC relies upon in contending that they constitute investment contracts.
The SEC’s use of such statements to suggest an expectation of profit, without any accompanying
promise or guarantee, is an incorrect interpretation of the Howey test that would risk chilling
important commercial speech and silencing innovators, leaving investors and consumers with
less information about the assets they wish to purchase.
Taken together, ICAN’s brief offers novel insights and an important perspective that may
assist the Court in evaluating the scope of the federal securities laws and the interpretation of
“investment contract.” While the interests of investors are central to this dispute, investors
themselves often have limited ability to participate in these suits, and none are present in this
case to advocate for themselves. See, e.g., SEC v. Everest Mgmt. Corp., 475 F.2d 1236 (2d Cir.
1972). ICAN’s brief helps to provide the perspective of investors who believe in freedom of Page 4 choice, including the choice to invest in digital assets such as those at issue here. Absent ICAN’s
amicus curiae brief, those important interests might be overlooked.
This motion is timely filed before resolution of the pending motions to dismiss. Pursuant
to Local Rule 7(m), counsel for ICAN discussed this motion with both parties. Defendants do
not oppose ICAN’s filing of an amicus curiae brief. Plaintiff has taken no position on ICAN’s
filing of an amicus curiae brief and has reserved the right to object to the filing upon review of
the proposed brief.
CONCLUSION
For the foregoing reasons, ICAN respectfully requests leave to file the attached amicus
curiae brief. A proposed order is attached.
Dated September 28,
Respectfully submitted,
KIRK & INGRAM, LLP
David E. Kirk (pro hac vice filed)
43 West 43rd St., Suite New York, NY Tel: (302) 593-dkirk@kirkingram.com
MILES & STOCKBRIDGE, PC
By: ________________________
/s/ John T. Farnum
John T. Farnum (DC Bar 983831)
1201 Pennsylvania Ave., Suite Washington, DC Tel: (202) 465-jfarnum@milesstockbridge.com
Michael W. Ingram (pro hac vice filed)
100 Wilshire Blvd., Suite Santa Monica, CA Tel: (310) 487-mingram@kirkingram.com
GRAY REED McGRAW LLP
Chris Davis (pro hac vice filed)
1601 Elm Street, Suite Dallas, Texas Tel: (469) 320-cdavis@grayreed.com
Attorneys for Amicus Curiae
Investor Choice Advocates Network
PDF Page 1
PlainSite Cover Page
PDF Page 2
Case 1:23-cv-01599-ABJ-ZMF Document 135 Filed 09/28/23 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff,
v.
Civil Action No. 1:23-cv-01599
BINANCE HOLDINGS LIMITED, BAM
TRADING SERVICES INC., BAM
MANAGEMENT US HOLDINGS INC., AND
CHANGPENG ZHAO,
Defendants.
MOTION OF INVESTOR CHOICE ADVOCATES NETWORK
FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF DEFENDANTS’
MOTIONS TO DISMISS
Pursuant to Local Rule 7(o) of this Court, Investor Choice Advocates Network (“ICAN”),
through its undersigned attorneys, respectfully moves this Court for leave to file an amicus
curiae brief in support of defendants’ motions to dismiss in the above-captioned matter. The
proposed amicus curiae brief of ICAN is attached to this Motion as Exhibit A.
STATEMENT OF INTEREST
ICAN is a nonprofit organization that advocates for expanding access to markets for
underrepresented investors and entrepreneurs. As explained more fully in the attached brief,
ICAN has a strong interest in this case, but its perspective differs from the parties. ICAN’s focus
on investor choice positions it as an amicus curiae that can offer valuable input to aid the Court
in deciding significant issues relating to the scope of the SEC’s authority to regulate digital assets
as securities.
PDF Page 3
Case 1:23-cv-01599-ABJ-ZMF Document 135 Filed 09/28/23 Page 2 of 4
ARGUMENT
Because an amicus curiae “‘does not represent the parties but participates only for the
benefit of the Court . . . [i]t is solely within the discretion of the Court to determine the fact,
extent, and manner of the participation.’” Jin v. Ministry of State Sec., 557 F. Supp. 2d 131, 136
(D.D.C. 2008). Among other reasons, an amicus curiae brief “should normally be allowed . . .
when the amicus has unique information or perspective that can help the court beyond the help
that the lawyers for the parties are able to provide,” id. at 137, including by “presenting ideas,
arguments, theories, insights, facts or data that are not to be found in the parties’ briefs.’” Arias
v. Dyncorp, 2001 WL 13377371, at *1 (D.D.C. Nov. 21, 2011) (quoting Commonwealth of the N.
Mariana Islands v. U.S., 2009 WL 596986, at *1 (D.D.C. Mar. 9, 2009)). See also Hard Drive
Prod., Inc. v. Does 1-1,495, 892 F. Supp. 2d 334, 338 (D.D.C. 2012) (allowing amicus curiae
brief that raised “issue not developed fully in the motions” filed by the parties); Ellsworth
Assocs., Inc. v. United States, 917 F. Supp. 841, 846 (D.D.C. 1996) (allowing amicus curiae brief
where “movants have a special interest in [the] litigation as well as a familiarity and knowledge
of the issues raised therein”). ICAN’s proposed amicus curiae brief meets these standards.
ICAN’s proposed amicus curiae brief provides a perspective that is central to the
litigation but offered by neither the SEC nor the defendants—the interests of investors who
choose to invest in digital assets, including those at issue here. The brief highlights how the
positions taken by the SEC in this litigation could hinder investors’ opportunities to invest in
digital assets at home and abroad, ultimately leaving them with fewer choices of digital assets
and less information about them.
In particular, the brief explains that the SEC’s apparent residency-based approach toward
the Morrison test for extraterritorial application of the securities laws risks undoing technological
2
PDF Page 4
Case 1:23-cv-01599-ABJ-ZMF Document 135 Filed 09/28/23 Page 3 of 4
progress that has enabled investors who choose to pursue opportunities in foreign asset markets
to do so using the Internet and blockchain a residency-based framework would risk turning the
SEC into a global digital asset regulator, while creating an unworkable web of conflicting
regulatory regimes. Investors would ultimately bear the cost through higher prices and reduced
opportunities.
The brief also explains certain technical features of digital assets, including “burning”
and “staking” mechanics, that the SEC relies upon in contending that the assets constitute
investment contracts. The brief discusses why those features are inherent to the programming of
the assets and do not evince an investment contract, and how concluding otherwise would harm
investors and consumers by removing features they desire from the marketplace.
Finally, the brief provides an investor perspective on statements made by creators of
digital assets, which the SEC relies upon in contending that they constitute investment contracts.
The SEC’s use of such statements to suggest an expectation of profit, without any accompanying
promise or guarantee, is an incorrect interpretation of the Howey test that would risk chilling
important commercial speech and silencing innovators, leaving investors and consumers with
less information about the assets they wish to purchase.
Taken together, ICAN’s brief offers novel insights and an important perspective that may
assist the Court in evaluating the scope of the federal securities laws and the interpretation of
“investment contract.” While the interests of investors are central to this dispute, investors
themselves often have limited ability to participate in these suits, and none are present in this
case to advocate for themselves. See, e.g., SEC v. Everest Mgmt. Corp., 475 F.2d 1236 (2d Cir.
1972). ICAN’s brief helps to provide the perspective of investors who believe in freedom of
3
PDF Page 5
Case 1:23-cv-01599-ABJ-ZMF Document 135 Filed 09/28/23 Page 4 of 4
choice, including the choice to invest in digital assets such as those at issue here. Absent ICAN’s
amicus curiae brief, those important interests might be overlooked.
This motion is timely filed before resolution of the pending motions to dismiss. Pursuant
to Local Rule 7(m), counsel for ICAN discussed this motion with both parties. Defendants do
not oppose ICAN’s filing of an amicus curiae brief. Plaintiff has taken no position on ICAN’s
filing of an amicus curiae brief and has reserved the right to object to the filing upon review of
the proposed brief.
CONCLUSION
For the foregoing reasons, ICAN respectfully requests leave to file the attached amicus
curiae brief. A proposed order is attached.
Dated September 28, 2023
Respectfully submitted,
KIRK & INGRAM, LLP
David E. Kirk (pro hac vice filed)
43 West 43rd St., Suite 279
New York, NY 10036
Tel: (302) 593-0650
dkirk@kirkingram.com
MILES & STOCKBRIDGE, PC
By: ________________________
/s/ John T. Farnum
John T. Farnum (DC Bar 983831)
1201 Pennsylvania Ave., Suite 900
Washington, DC 20004
Tel: (202) 465-8385
jfarnum@milesstockbridge.com
Michael W. Ingram (pro hac vice filed)
100 Wilshire Blvd., Suite 700
Santa Monica, CA 90401
Tel: (310) 487-0270
mingram@kirkingram.com
GRAY REED McGRAW LLP
Chris Davis (pro hac vice filed)
1601 Elm Street, Suite 4600
Dallas, Texas 75201
Tel: (469) 320-6215
cdavis@grayreed.com
Attorneys for Amicus Curiae
Investor Choice Advocates Network
4
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