Amended MOTION for Leave to File Amicus Curiae Brief by CHAMBER OF DIGITAL COMMERCE. (Attachments: # (1) Appendix Amicus Curiae Brief, # (2) Text of Proposed Order)(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)
)
)
)
)
)
RENEWED 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, and this Court’s October 11, 2023 Minute Order
in this matter regarding motions for leave to file amicus curiae briefs, 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 abovecaptioned 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 arrayPage 2 of commercial, technological, and social purposes. An important aspect of that mission is
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.
The Chamber and its members have a strong interest in this case. The gravamen of the
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 regulation-by-enforcement approach has attracted the interest of The
Chamber and its members, because this approach stifles innovation while undermining The
Chamber’s goal of achieving regulatory certainty in the digital assets markets.
ARGUMENT
On October 11, 2023, this Court issued a Minute Order (the “Minute Order”) requiring any
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 motions for leave to file amicus curiae briefs filed after that date to “explain why the brief would
be helpful or necessary, if it sets forth a position already taken in prior amicus briefs filed in this
case.” The Chamber respectfully submits that its Proposed Brief principally sets forth positions
that have not previously been taken by other amici curiae who have filed briefs in this case. To
the extent, however, that the Court determines that The Chamber’s Proposed Brief advances
positions already taken by other amici curiae, we believe The Chamber’s perspective, which is
distinct from the other amici curiae, would nevertheless be helpful to this Court’s understanding
of the industry-wide impact of the SEC’s regulation-by-enforcement approach as well as its
attempt to aggrandize its jurisdiction through classifying substantially all digital assets as
securities.
“[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). In addition to satisfying the requirements of the Minute Order, The Chamber’s
Proposed amicus curiae Brief meets these standards.
I.
The Chamber’s Proposed Brief Sets Forth Positions not Previously Taken in Prior
Amicus Briefs Filed in this Case
The Chamber’s Proposed Brief makes three principal arguments, two of which have not
been addressed by other amici curiae.
First, the Chamber’s Proposed Brief argues that the legal and regulatory uncertainty
created by the SEC’s regulation-by-enforcement approach has stifled innovation and harmedPage 4 U.S. consumers and U.S. workers. Ex. A 610. The Chamber’s argument focuses on the negative
effects to the blockchain and digital assets community writ large. This is not an argument that
has been advanced by any of the other amici curiae in this matter. Amicus curiae Investors
Choice Advocates Network (“ICAN”) advances an argument that the SEC’s enforcement regime
harms American investors, but does not focus on harm to digital assets businesses or users. Dkt.
150, 2–6. No other amicus curiae advances an argument regarding the practical harms that the
SEC’s enforcement tactics have caused to the commercial use of blockchain technology and
digital assets.
Second, the Chamber’s Proposed Brief argues that the SEC’s theory in this case improperly
collapses the long-recognized distinction between the subject of an investment-contract security,
which could be virtually any type of asset, such as citrus groves (real estate)in the landmark Supreme Court decision in S.E.C. v. W.J. Howey Co., 328 U.S. 293 (1946), and the “investment
contract” itself, which may be a security under applicable U.S. securities laws, such as the right to
receive a share of the grove’s profits in Howey. Ex. A 1016. This argument, as well, has not been
advanced by any other amici curiae. Amicus Curiae Paradigm Operations LP (“Paradigm”)
advances a facially similar but distinct argument, which focuses on the requirement that an
investment contract include a contractual undertaking to deliver future value to the investor. Dkt.
147, 411. Unlike Paradigm, The Chamber’s argument focuses on the notion that anonymous
secondary transactions in digital assets necessarily eliminate any promises or undertakings that
may have accompanied those assets, and may therefore have constituted investment contracts
when those assets were initially sold. Ex. A, 1113. The other amici curiae focus on distinct
arguments, and do not advance a similar argument to that offered by The Chamber. The Chamber’s
investment contract argument also focuses on recent digital assets decisions from other courts,Page 5 which do not feature in the briefs of other amici curiae. Ex. A, 1318.
Finally, The Chamber’s Proposed Brief argues that the regulatory treatment of digital assets
is a “Major Question” that should be reserved to Congress under the Supreme Court’s Major
Questions Doctrine. Ex. A, 1619. The Chamber concedes that Paradigm advances a similar
argument. Dkt. 147, 1722. The Chamber, however, respectfully submits that the Proposed Brief
would nevertheless be helpful and necessary to this Court’s understanding of the Major Questions
Doctrine implications of this matter, as the Proposed Brief will bring to this Court’s attention
statements and communications by members of Congress regarding the SEC’s enforcement
overreach, which do not feature in the briefs of other amici curiae. See, e.g., Ex. A at 7 (statements
of Representative McHenry and Torres); id. at 18 n.8 (Letter from Representatives Hill & Johnson
to SEC Chair Gary Gensler). The Chamber’s Proposed Brief also reframes the Major Questions
Doctrine analysis from a narrow focus on digital assets to an assessment of the impact of the SEC’s
aggressive assertion of jurisdiction over subject assets that are not securities, which could
conceivably touch markets in a wide range of assets well outside the SEC’s historical purview.
II.
The Chamber’s Proposed Brief would be Helpful and Necessary to the Court’s
Understanding of the Issues in this Case.
Even if the Court finds that The Chamber is advancing positions previously taken by other
amici curiae in this matter, The Chamber nevertheless respectfully submits that the Proposed Brief
would be helpful and necessary to the Court’s understanding of the issues in this case, as required
by the Minute Order. As the world’s largest digital assets and blockchain trade association, The
Chamber is uniquely well positioned to aid the Court in understanding how the SEC’s aggressive
assertion of its jurisdiction over the blockchain economy through enforcement actions creates legal
and regulatory uncertainty, stifles innovation, and hurts the U.S. innovator, consumer, and worker.
Moreover, given The Chamber’s expertise in digital assets, it is also uniquely well placed to assistPage 6 the Court in understanding the salient technical aspects of the digital assets at issue in this case,
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
motion. The Defendants do not oppose the Chamber’s filing of an amicus curiae brief. The SEC
declined to take a position but reserved the right to object upon review of the Proposed 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.Page 7 Dated: October 27,
/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 165 Filed 10/27/23 Page 1 of 7
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)
)
)
)
)
)
RENEWED 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, and this Court’s October 11, 2023 Minute Order
in this matter regarding motions for leave to file amicus curiae briefs, 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 abovecaptioned 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
PDF Page 3
Case 1:23-cv-01599-ABJ-ZMF Document 165 Filed 10/27/23 Page 2 of 7
of commercial, technological, and social purposes. An important aspect of that mission is
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.
The Chamber and its members have a strong interest in this case. The gravamen of the
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 regulation-by-enforcement approach has attracted the interest of The
Chamber and its members, because this approach stifles innovation while undermining The
Chamber’s goal of achieving regulatory certainty in the digital assets markets.
ARGUMENT
On October 11, 2023, this Court issued a Minute Order (the “Minute Order”) requiring any
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 165 Filed 10/27/23 Page 3 of 7
motions for leave to file amicus curiae briefs filed after that date to “explain why the brief would
be helpful or necessary, if it sets forth a position already taken in prior amicus briefs filed in this
case.” The Chamber respectfully submits that its Proposed Brief principally sets forth positions
that have not previously been taken by other amici curiae who have filed briefs in this case. To
the extent, however, that the Court determines that The Chamber’s Proposed Brief advances
positions already taken by other amici curiae, we believe The Chamber’s perspective, which is
distinct from the other amici curiae, would nevertheless be helpful to this Court’s understanding
of the industry-wide impact of the SEC’s regulation-by-enforcement approach as well as its
attempt to aggrandize its jurisdiction through classifying substantially all digital assets as
securities.
“[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). In addition to satisfying the requirements of the Minute Order, The Chamber’s
Proposed amicus curiae Brief meets these standards.
I.
The Chamber’s Proposed Brief Sets Forth Positions not Previously Taken in Prior
Amicus Briefs Filed in this Case
The Chamber’s Proposed Brief makes three principal arguments, two of which have not
been addressed by other amici curiae.
First, the Chamber’s Proposed Brief argues that the legal and regulatory uncertainty
created by the SEC’s regulation-by-enforcement approach has stifled innovation and harmed
PDF Page 5
Case 1:23-cv-01599-ABJ-ZMF Document 165 Filed 10/27/23 Page 4 of 7
U.S. consumers and U.S. workers. Ex. A 610. The Chamber’s argument focuses on the negative
effects to the blockchain and digital assets community writ large. This is not an argument that
has been advanced by any of the other amici curiae in this matter. Amicus curiae Investors
Choice Advocates Network (“ICAN”) advances an argument that the SEC’s enforcement regime
harms American investors, but does not focus on harm to digital assets businesses or users. Dkt.
150, 2–6. No other amicus curiae advances an argument regarding the practical harms that the
SEC’s enforcement tactics have caused to the commercial use of blockchain technology and
digital assets.
Second, the Chamber’s Proposed Brief argues that the SEC’s theory in this case improperly
collapses the long-recognized distinction between the subject of an investment-contract security,
which could be virtually any type of asset, such as citrus groves (real estate)in the landmark 1946
Supreme Court decision in S.E.C. v. W.J. Howey Co., 328 U.S. 293 (1946), and the “investment
contract” itself, which may be a security under applicable U.S. securities laws, such as the right to
receive a share of the grove’s profits in Howey. Ex. A 1016. This argument, as well, has not been
advanced by any other amici curiae. Amicus Curiae Paradigm Operations LP (“Paradigm”)
advances a facially similar but distinct argument, which focuses on the requirement that an
investment contract include a contractual undertaking to deliver future value to the investor. Dkt.
147, 411. Unlike Paradigm, The Chamber’s argument focuses on the notion that anonymous
secondary transactions in digital assets necessarily eliminate any promises or undertakings that
may have accompanied those assets, and may therefore have constituted investment contracts
when those assets were initially sold. Ex. A, 1113. The other amici curiae focus on distinct
arguments, and do not advance a similar argument to that offered by The Chamber. The Chamber’s
investment contract argument also focuses on recent digital assets decisions from other courts,
PDF Page 6
Case 1:23-cv-01599-ABJ-ZMF Document 165 Filed 10/27/23 Page 5 of 7
which do not feature in the briefs of other amici curiae. Ex. A, 1318.
Finally, The Chamber’s Proposed Brief argues that the regulatory treatment of digital assets
is a “Major Question” that should be reserved to Congress under the Supreme Court’s Major
Questions Doctrine. Ex. A, 1619. The Chamber concedes that Paradigm advances a similar
argument. Dkt. 147, 1722. The Chamber, however, respectfully submits that the Proposed Brief
would nevertheless be helpful and necessary to this Court’s understanding of the Major Questions
Doctrine implications of this matter, as the Proposed Brief will bring to this Court’s attention
statements and communications by members of Congress regarding the SEC’s enforcement
overreach, which do not feature in the briefs of other amici curiae. See, e.g., Ex. A at 7 (statements
of Representative McHenry and Torres); id. at 18 n.8 (Letter from Representatives Hill & Johnson
to SEC Chair Gary Gensler). The Chamber’s Proposed Brief also reframes the Major Questions
Doctrine analysis from a narrow focus on digital assets to an assessment of the impact of the SEC’s
aggressive assertion of jurisdiction over subject assets that are not securities, which could
conceivably touch markets in a wide range of assets well outside the SEC’s historical purview.
II.
The Chamber’s Proposed Brief would be Helpful and Necessary to the Court’s
Understanding of the Issues in this Case.
Even if the Court finds that The Chamber is advancing positions previously taken by other
amici curiae in this matter, The Chamber nevertheless respectfully submits that the Proposed Brief
would be helpful and necessary to the Court’s understanding of the issues in this case, as required
by the Minute Order. As the world’s largest digital assets and blockchain trade association, The
Chamber is uniquely well positioned to aid the Court in understanding how the SEC’s aggressive
assertion of its jurisdiction over the blockchain economy through enforcement actions creates legal
and regulatory uncertainty, stifles innovation, and hurts the U.S. innovator, consumer, and worker.
Moreover, given The Chamber’s expertise in digital assets, it is also uniquely well placed to assist
PDF Page 7
Case 1:23-cv-01599-ABJ-ZMF Document 165 Filed 10/27/23 Page 6 of 7
the Court in understanding the salient technical aspects of the digital assets at issue in this case,
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
motion. The Defendants do not oppose the Chamber’s filing of an amicus curiae brief. The SEC
declined to take a position but reserved the right to object upon review of the Proposed 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.
PDF Page 8
Case 1:23-cv-01599-ABJ-ZMF Document 165 Filed 10/27/23 Page 7 of 7
Dated: October 27, 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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