MOTION for Leave to File Brief of Amicus Curiae in Support of Defendants' Motion to Dismiss by CHAMBER OF DIGITAL COMMERCE. (Attachments: # (1) Appendix Brief of Amicus Curiae)(Jiang, Weisiyu)
Page 1 UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff,
v.
BINANCE HOLDINGS LIMITED, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
CIVIL ACTION NO. 1:23-cv-01599 (ABJ-ZMF)
MOTION OF CHAMBER OF DIGITAL COMMERCE
FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF DEFENDANTS’
MOTION TO DISMISS
Pursuant to Local Rule 7(o) of this Court, The Chamber of Digital Commerce (“The
Chamber”), through its undersigned attorneys, respectfully moves this Court for leave to file an
amicus curiae brief in support of defendants’ motion to dismiss in the above-captioned matter.
The proposed amicus curiae brief of the Chamber of Digital Commerce is attached to this Motion
as Exhibit A.
STATEMENT OF INTEREST
Founded in 2014, The Chamber is the world’s largest digital asset and blockchain trade
association. The Chamber represents more than 200 diverse members of the blockchain industry
globally, including digital asset exchanges, leading banks and investment firms, startups, and other
digital asset economy participants. Guided by the principle of promoting industry compliance
with applicable law, The Chamber seeks to foster a legal and regulatory environment in which
digital asset users can enjoy regulatory certainty as they apply blockchain technologies to an array
of commercial, technological, and social purposes. An important aspect of that mission isPage 2 representing the interests of its members, including regularly filing briefs as amicus curiae in novel
cases that implicate issues of importance to the blockchain community.Pursuant to its mission, The Chamber also sponsors several compliance-focused initiatives,
in addition to advocating for legislative and regulatory clarity. These include the Blockchain
Alliance, which since 2015 has combatted criminal uses of blockchain technology, providing
technical assistance and information-sharing resources.
This initiative serves over
governmental and commercial entities, including the Securities and Exchange Commission (the
“SEC”). The Chamber also encourages industry compliance with federal securities law through
initiatives like the Token Alliance, a network of 400+ thought leaders and technologists that has
developed numerous tools and resources for industry and policymakers as they engage with the
blockchain and digital asset community.
ARGUMENT
“[T]his Court has ‘broad discretion’ in determining whether to permit a party to participate
in a lawsuit as amicus curiae.” Commonwealth of the N. Mariana Islands v. United States, No.
08-1572, 2009 WL 596986, at *1 (D.D.C. Mar. 6, 2009) (citation omitted). “Amicus participation
is normally appropriate when,” among other reasons, “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.” Hard Drive Prods., Inc. v. Does 1-1, 495, 892 F. Supp. 2d 334, 337 (D.D.C. 2012)
(citation omitted). The Chamber’s proposed amicus curiae brief meets these standards.
The Chamber and its members have a strong interest in this case. The gravamen of the
For example, The Chamber recently filed an amicus brief in Securities and Exchange
Commission v. Coinbase, Inc., et al., and Coinbase Global, Inc. See Brief of Amicus Curiae,
The Chamber of Digital Commerce, SEC v. Coinbase Inc. et al., Case No. 1:23-cv-04738-KPF,
Dkt. No. 55 (S.D.N.Y. filed Aug. 11, 2023).Page 3 SEC’s Complaint is a novel misapplication of almost 100 years of U.S. securities law precedent,
including recent court decisions directly addressing the intersection of digital assets and the U.S.
securities laws. The SEC’s aggressive assertion of its jurisdiction over the blockchain economy
through enforcement actions against market participants and intermediaries creates further legal
and regulatory uncertainty, stifles innovation, and hurts the U.S. innovator, consumer, and worker.
As articulated more fully in The Chamber’s proposed brief, the SEC’s aggressive
enforcement program against digital asset market participants and intermediaries is premised on a
flawed theory that collapses the long-recognized distinction between the subject of an investmentcontract security, which could be virtually any type of asset, and the “investment contract” itself,
which may be a security under applicable U.S. securities laws. Further, The Chamber’s proposed
brief explains why the SEC’s regulation-by-enforcement approach is not only destructive to the
development of an already trillion-dollar industry, but also presents a “major question” under the
U.S. Supreme Court’s Major Questions Doctrine. The SEC should seek proper authorization from
Congress through legislative action rather than rushing into a perceived void to capture a bigger
piece of the regulatory and enforcement pie through litigation.
As the world’s largest digital assets and blockchain trade association, The Chamber is
uniquely well positioned to aid the Court in understanding the negative consequences on the
industry of the SEC’s legal positions. The Chamber is also uniquely well placed to assist the Court
in understanding the salient technical aspects of digital assets, including why those assets, when
stripped of any accompanying promises, rights or obligations, do not fit within the SEC’s
established investment contract framework.
This motion is timely filed before resolution of the pending motions to dismiss. Pursuant
to Local Rule 7(o), counsel for the Chamber has notified the parties of its intention to file thisPage 4 motion. The Defendants do not oppose the Chamber’s filing of an amicus curiae brief. The SEC
declined to take a position the SEC declined to take a position but reserved the right to object upon
review of the brief.
CONCLUSION
For the foregoing reasons, The Chamber respectfully requests that the Court grant its
Motion for leave to file the attached amicus curiae brief. A proposed order is being filed alongside
this Motion.
Dated: October 19,
/s/ Weisiyu Jiang________________________
Steven F. Gatti*
Weisiyu Jiang
CLIFFORD CHANCE US LLP
2001 K Street NW
Washington, District of Columbia (202) 912-Steven.Gatti@cliffordchance.com
Weisiyu.Jiang@cliffordchance.com
Jesse Overall*
CLIFFORD CHANCE US LLP
31 West 52nd Street
New York, New York (212) 878-Jesse.Overall@cliffordchance.com
*pro hac vice to be filed
Attorneys for Amicus Curiae
The Chamber of Digital Commerce
PDF Page 1
PlainSite Cover Page
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Case 1:23-cv-01599-ABJ-ZMF Document 159 Filed 10/19/23 Page 1 of 4
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff,
v.
BINANCE HOLDINGS LIMITED, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
CIVIL ACTION NO. 1:23-cv-01599 (ABJ-ZMF)
MOTION OF CHAMBER OF DIGITAL COMMERCE
FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF DEFENDANTS’
MOTION TO DISMISS
Pursuant to Local Rule 7(o) of this Court, The Chamber of Digital Commerce (“The
Chamber”), through its undersigned attorneys, respectfully moves this Court for leave to file an
amicus curiae brief in support of defendants’ motion to dismiss in the above-captioned matter.
The proposed amicus curiae brief of the Chamber of Digital Commerce is attached to this Motion
as Exhibit A.
STATEMENT OF INTEREST
Founded in 2014, The Chamber is the world’s largest digital asset and blockchain trade
association. The Chamber represents more than 200 diverse members of the blockchain industry
globally, including digital asset exchanges, leading banks and investment firms, startups, and other
digital asset economy participants. Guided by the principle of promoting industry compliance
with applicable law, The Chamber seeks to foster a legal and regulatory environment in which
digital asset users can enjoy regulatory certainty as they apply blockchain technologies to an array
of commercial, technological, and social purposes. An important aspect of that mission is
PDF Page 3
Case 1:23-cv-01599-ABJ-ZMF Document 159 Filed 10/19/23 Page 2 of 4
representing the interests of its members, including regularly filing briefs as amicus curiae in novel
cases that implicate issues of importance to the blockchain community.1
Pursuant to its mission, The Chamber also sponsors several compliance-focused initiatives,
in addition to advocating for legislative and regulatory clarity. These include the Blockchain
Alliance, which since 2015 has combatted criminal uses of blockchain technology, providing
technical assistance and information-sharing resources.
This initiative serves over 100
governmental and commercial entities, including the Securities and Exchange Commission (the
“SEC”). The Chamber also encourages industry compliance with federal securities law through
initiatives like the Token Alliance, a network of 400+ thought leaders and technologists that has
developed numerous tools and resources for industry and policymakers as they engage with the
blockchain and digital asset community.
ARGUMENT
“[T]his Court has ‘broad discretion’ in determining whether to permit a party to participate
in a lawsuit as amicus curiae.” Commonwealth of the N. Mariana Islands v. United States, No.
08-1572, 2009 WL 596986, at *1 (D.D.C. Mar. 6, 2009) (citation omitted). “Amicus participation
is normally appropriate when,” among other reasons, “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.” Hard Drive Prods., Inc. v. Does 1-1, 495, 892 F. Supp. 2d 334, 337 (D.D.C. 2012)
(citation omitted). The Chamber’s proposed amicus curiae brief meets these standards.
The Chamber and its members have a strong interest in this case. The gravamen of the
1
For example, The Chamber recently filed an amicus brief in Securities and Exchange
Commission v. Coinbase, Inc., et al., and Coinbase Global, Inc. See Brief of Amicus Curiae,
The Chamber of Digital Commerce, SEC v. Coinbase Inc. et al., Case No. 1:23-cv-04738-KPF,
Dkt. No. 55 (S.D.N.Y. filed Aug. 11, 2023).
PDF Page 4
Case 1:23-cv-01599-ABJ-ZMF Document 159 Filed 10/19/23 Page 3 of 4
SEC’s Complaint is a novel misapplication of almost 100 years of U.S. securities law precedent,
including recent court decisions directly addressing the intersection of digital assets and the U.S.
securities laws. The SEC’s aggressive assertion of its jurisdiction over the blockchain economy
through enforcement actions against market participants and intermediaries creates further legal
and regulatory uncertainty, stifles innovation, and hurts the U.S. innovator, consumer, and worker.
As articulated more fully in The Chamber’s proposed brief, the SEC’s aggressive
enforcement program against digital asset market participants and intermediaries is premised on a
flawed theory that collapses the long-recognized distinction between the subject of an investmentcontract security, which could be virtually any type of asset, and the “investment contract” itself,
which may be a security under applicable U.S. securities laws. Further, The Chamber’s proposed
brief explains why the SEC’s regulation-by-enforcement approach is not only destructive to the
development of an already trillion-dollar industry, but also presents a “major question” under the
U.S. Supreme Court’s Major Questions Doctrine. The SEC should seek proper authorization from
Congress through legislative action rather than rushing into a perceived void to capture a bigger
piece of the regulatory and enforcement pie through litigation.
As the world’s largest digital assets and blockchain trade association, The Chamber is
uniquely well positioned to aid the Court in understanding the negative consequences on the
industry of the SEC’s legal positions. The Chamber is also uniquely well placed to assist the Court
in understanding the salient technical aspects of digital assets, including why those assets, when
stripped of any accompanying promises, rights or obligations, do not fit within the SEC’s
established investment contract framework.
This motion is timely filed before resolution of the pending motions to dismiss. Pursuant
to Local Rule 7(o), counsel for the Chamber has notified the parties of its intention to file this
PDF Page 5
Case 1:23-cv-01599-ABJ-ZMF Document 159 Filed 10/19/23 Page 4 of 4
motion. The Defendants do not oppose the Chamber’s filing of an amicus curiae brief. The SEC
declined to take a position the SEC declined to take a position but reserved the right to object upon
review of the brief.
CONCLUSION
For the foregoing reasons, The Chamber respectfully requests that the Court grant its
Motion for leave to file the attached amicus curiae brief. A proposed order is being filed alongside
this Motion.
Dated: October 19, 2023
/s/ Weisiyu Jiang________________________
Steven F. Gatti*
Weisiyu Jiang
CLIFFORD CHANCE US LLP
2001 K Street NW
Washington, District of Columbia 20006
(202) 912-5000
Steven.Gatti@cliffordchance.com
Weisiyu.Jiang@cliffordchance.com
Jesse Overall*
CLIFFORD CHANCE US LLP
31 West 52nd Street
New York, New York 10019
(212) 878-8000
Jesse.Overall@cliffordchance.com
*pro hac vice to be filed
Attorneys for Amicus Curiae
The Chamber of Digital Commerce
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