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Crypto & Financial Forensics News

WSJ Op-Ed, From Nevertrump to Encore

J.W. Verret

I published an article in the Wall Street Journal today explaining why I have abandoned the “NeverTrump” camp to endorse Trump available here. And pasted below for those who are not subscribers.

From ‘Never Trump’ to ‘Encore’

In 2019 I wanted him impeached. Now I’ve become convinced that Biden is worse.

By

J.W. Verret

Jan. 25, 2024 3:24 pm ET

I called for President Trump’s impeachment in 2019. I stand by what I said then. But if Mr. Trump is the Republican nominee, I will vote for him in November.

Like many voters in 2020, I hoped Joe Biden would govern reasonably from the center. Instead, his administration has sought the furthest reaches of leftist ideology. What were once fringe progressive talking points have become national policy. Even the military has been infected with a divisive and unyielding woke doctrine. The economic landscape has been equally distressing: inflation, coupled with a ballooning national debt and deficit. Four more years of this means a bleak future for my children.

My work in financial regulation and cryptocurrency has shown me the havoc wrought by policies seemingly chosen not to foster economic growth but to appease the likes of Elizabeth Warren, who has enjoyed outsize influence over Mr. Biden’s nominations. One nominee to run the leading banking regulator, the Office of the Comptroller of the Currency, was an open member of Marxist groups and called for the Federal Reserve to provide retail bank accounts. It took a few brave Democrats to stop her nomination.

Before, I didn’t embrace the rallying cry of “Build the wall.” Yet the crisis at our border compels me to acknowledge that Mr. Trump was right. The border situation underlines a broader reality—we need practical policies, not politically expedient ones. Mr. Trump doesn’t care about the niceties of political discourse, and that is an asset.

I find myself parting ways with the Never Trump faction. I respect its stance, which was born of conviction. Yet our situation demands a re-evaluation. We can continue down a path that has led to division and economic stagnation, or pivot to a future that, while imperfect, promises governance rooted in traditional American values, economic liberty and a judiciary cut from the same cloth as the gifted nominees confirmed to the Supreme Court under Mr. Trump.

Count me as a former Never Trumper. Given the coming election, the Never Trump position is naive. No third-party candidate can win and heal America. It’s time to pick a side, and Mr. Trump is the only alternative to Mr. Biden’s hyperprogressive vision for America. This isn’t a repudiation of my past convictions but an acknowledgment that the future we face demands difficult choices.

I hope that the best parts of Mr. Trump’s administration—including the reasonable leaders tapped to head government agencies—get a second round. I hope the mistakes of the past won’t be repeated. And I hope for a future in which the federal government’s power is restrained, making the presidential election less important in our daily lives.

Mr. Verret is an associate professor at George Mason University’s Antonin Scalia Law School.

Expert J.W. Verret profiled in Cointelegraph

J.W. Verret

Veritas expert Professor J.W. Verret was profiled in Cointelegraph about his work tracing crypto transactions: https://cointelegraph.com/magazine/6-questions-for-jw-verret-an-attorney-whos-tracking-the-money-but-advocating-for-crypto/. The profile discusses his work on the US v. Sterlingov trial, the largest crypto money laundering trail in history, his work on financial regulation, and his views on government reports about aliens.

New WSJ Op-Ed: The NCPPR Lawsuit Could Put the SEC Back in Its Place

J.W. Verret

Just published a new op-ed in the Wall Street Journal at this link and pasted below.

The NCPPR Lawsuit Could Put the SEC Back in Its Place

Gary Gensler’s commission has become a warrior in America’s culture war.

By J.W. Verret, Wall Street Journal, July 13, 2023 6:35 pm ET

The Securities and Exchange Commission is now a central combatant in America’s culture wars. Originally conceived as a simple guardian of financial transparency and a sentinel against fraud, the SEC has seen its role gradually reshaped by progressives who envision the agency as a force for cultural change. The SEC has even begun trying to compel corporate speech on woke issues indirectly, but a recent lawsuit could help steer it back on the right path.

The SEC, under the stewardship of Biden-appointed Chairman Gary Gensler, has ratcheted up its authority over proxy voting to turn mundane company ballots into battlegrounds of cultural conflict. These ballots were once the simple mechanism through which shareholders asserted their voice on board elections and merger decisions. Today they have become engulfed in ideological warfare.

For decades, the SEC maintained that proposals concerning the ordinary business or everyday workings of a company weren’t fit for inclusion in proxy statements. It was a sensible position, acknowledging that decisions about what a company should sell or how it should operate were best left to the professionals running the business, not shareholder plebiscites.

Yet on Mr. Gensler’s watch the SEC executed a dramatic reversal. The agency determined in November 2021 that shareholder proposals could be exempt from the ordinary-business rule as long as they “raise significant social policy issues.” That reinterpretation has not only turned a neutral and sensible process into a political fight but has also put the SEC in a position to decide arbitrarily what counts as “significant social policy issues.” This has allowed the agency essentially to compel progressive speech, according to the National Association of Manufacturers’ intervention in a recent lawsuit by the National Center for Public Policy Research against the SEC.

The NCPPR sued the SEC after it denied the conservative foundation’s proxy proposal that retail giant Kroger issue a report on the risks of not guarding against viewpoint discrimination in its equal employment opportunity policy. The NCPPR is a longtime Kroger investor and submitted the proposal after the company paid $180,000 to settle claims from former employees that they were fired for refusing to wear aprons they thought endorsed the LGBT community. By any reasonable interpretation, the NCPPR proposal dealt with a significant social policy issue that could be material to Kroger and investors. Yet the SEC still denied it, even though it approved similar proposals dealing with discrimination regarding race and sexual orientation, such as a Pfizer proposal to report on its diversity, equity and inclusion efforts.

The SEC has sought to have the NCPPR’s suit dismissed because Kroger ultimately included NCPPR’s proposal for a shareholder vote, but the larger issues raised by the NCPRR and the National Association of Manufacturers remain unaddressed by the SEC. The National Association of Manufacturers argues that the SEC is violating the First Amendment by compelling corporate speech. As an example, its court filing alleges that the agency compelled Mastercard to include an antigun proposal in its proxy statement but allowed American Express to exclude a very similarly worded pro-gun-rights proposal. The National Association of Manufacturers also contends this runs afoul of securities law, which doesn’t give the agency the authority to dictate proxy statements’ content.

This suit could help steer the SEC back toward its original purpose of mandating disclosures of basic financial information and policing fraud.

Anything further is principally the purview of state law, not the SEC. The Supreme Court’s “internal affairs doctrine” approach to interpreting federal securities laws recognizes state law as the primary regulator of the internal governance matters between shareholders and boards. It is states that can intervene in the selection of company directors, changes to major governance policies in company bylaws, and major mergers and acquisitions decisions. By extending the reach of shareholder proposals, the SEC may be overstepping its bounds, encroaching on an area traditionally under state jurisdiction.

The Gensler proxy interpretation also seems to contravene the will of investors, who mostly seem to be rejecting social proposals outright. In the past year alone, investors voted down the overwhelming majority of socially framed proposals. The SEC still harms companies, however, by forcing them to deal with the costs associated with such proposals and potential reputational damage. And of course, it gives an important opportunity to investors who want to play social activist.

The SEC’s transformation into a tool for cultural conflict marks a departure from its original mission. It is a shift that may have turned the ratchet one too many times, possibly breaking the system it was designed to uphold. Hopefully, the courts can put things back in working order.

Mr. Verret is associate professor at the Antonin Scalia Law School at George Mason University and a former member of the SEC Investor Advisory Committee.

Law360 Op-Ed: Crypto Is a Major Question Only Appellate Courts Can Answer

J.W. Verret

My latest op-ed in Law 360 is available here and pasted below.

Crypto Is 'Major Question' Only Appellate Courts Can Answer

By J.W. Verret (March 6, 2023), Law360

Crypto enthusiasts and securities lawyers alike are awaiting the resolution of the U.S. Securities and Exchange Commission's case against Ripple Labs Inc. and its founders over their distribution of the cryptocurrency XRP.

The SEC alleges that there was an unregistered sale of securities when XRP was first distributed, as well as unregistered subsequent distributions. Under former SEC Chair Jay Clayton, the Ethereum network was appropriately blessed in guidance from the SEC's Division of Corporation Finance director as not meeting the Howey test for what is considered a security, but the distribution of XRP instead was met with a midnight enforcement action approved in Clayton's last days in the role.

The deck is usually stacked against defendants in cases of this type, as existing interpretations of what must register with the SEC are fairly flexible, but Ripple has argued strenuously that there are limits to that flexibility when it comes to this new asset class. Yet no matter how SEC v. Ripple Labs Inc. is resolved at the U.S. District Court for the Southern District of New York, conventional wisdom is that the losing side will appeal. When it does, this case may become the vehicle by which administrative law itself is transformed by the U.S. Court of Appeals for the Second Circuit and the U.S. Supreme Court.

The SEC has recently brought a series of cases against other cryptocurrency operators, including stablecoins and staking services, with more expected imminently. Meanwhile, the commission has proposed rules to require decentralized finance protocols in crypto — which are essentially just computer code written onto a blockchain like Ethereum to autonomously settle financial transactions — to register as licensed exchanges, which is impossible.

The Supreme Court has long held that when federal agencies seek to determine a matter of national significance, they must do so using clear authorization from Congress. This has been described as the "major questions doctrine" by lower appellate courts. In essence, for a federal agency to regulate a major question, the statute must clearly state that the agency shall regulate this issue.

The phrase "major questions doctrine" was used for the first time by the Supreme Court in 2022 in West Virginia v. U.S. Environmental Protection Agency, a landmark opinion that overturned one of the EPA's signature rules from the Obama administration. The major question in the case was whether the agency had the authority to regulate greenhouse gas emissions from power plants under the Clean Air Act.

Specifically, the EPA had issued a rule, known as the Clean Power Plan, that set carbon dioxide emissions limits on power plants and required states to develop plans to meet them, but there was no clear authority in the act for the EPA to do so. The agency tried to thread together a number of vague statutory references to justify a congressional grant of authority, but the Supreme Court was not convinced.

The Supreme Court has previously used the doctrine in a number of opinions limiting agency discretion, from stopping the U.S. Food and Drug Administration's attempt to regulate cigarettes using its authority over drugs in its 2000 decision in FDA v. Brown & Williamson Tobacco Corp. to similarly blocking the U.S. attorney general's regulation of assisted suicide using his authority over controlled substances in 2006's Gonzales v. Oregon.

The appellate courts invoke this doctrine when faced with something unique about the history and breadth of the authority asserted, or when dealing with a matter of distinct national political or economic importance that an agency is attempting to regulate using vague or outdated statutory authorization. Conservative lawyers are excited that the Supreme Court's renewed focus on the major questions doctrine may constrain agency discretion, and they are increasingly talking about how efforts to defend against the SEC's crypto enforcement cases are a prime vehicle toward that end.

One irony appreciated by, and sometimes embarrassing to, conservative constitutional and administrative lawyers is that the Supreme Court opinion most deferential to executive agencies, 1984's Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., was endorsed by Justice Antonin Scalia in a speech early in his tenure.

Times change, and so goes both law and politics. The progressives who once vigorously defended free speech against the overreach of conservative politicians are now fighting conservatives over the same principle. Those fights bleed into the political and legal realms. Similarly, Justice Scalia's deference for administrative agencies in a time that predated the exponential growth in the sheer size of the Code of Federal Regulations now gives way to a renewed push among conservative lawyers and judges to constrain the beast.

The SEC is using its authority to regulate traditional securities and stock exchanges to here regulate the transfer of value as computer code. This is different from the commission's transition to regulating online stock transfers in the 1990s, where the transfer may have taken place online but the assets transferred themselves were little different from what stocks and bonds were in the 1930s. With crypto, the asset only exists as numbers and letters in a blockchain computer code.

This is a revolution in finance that hopes to replace traditional banks and stock exchanges, as well as the existing system of property ownership fiat money itself. Whether this revolution in finance succeeds or not, it has surely reached the point where the major questions doctrine applies.

The SEC's reliance on a 1946 opinion in SEC v. W.J. Howey Co., which gave the SEC authority to regulate a contract to sell an interest in an orange grove, is an odd fit for crypto-assets and well ripe for the application of the major questions doctrine.

And to make matters worse, the Wall Street Journal and Bloomberg recently reported that these actions by the SEC appear to be part of an administration wide effort to simply freeze crypto-assets out of the traditional financial system rather than regulate them. That's one more unique fact that heightens the odds that appellate judges will apply the major questions doctrine to the Ripple case.

If the U.S. Postal Service had sought to regulate email using its authority over P.O. boxes and required that only certified postmen were allowed to deliver this new "email," courts would have rightly overturned it with the major questions doctrine.

The SEC's assertion over jurisdiction of what is now a trillion-dollar asset market — and has been as large as $3 trillion — is surely a matter of such significance that the vague language contained in the securities laws granting the SEC authority over investment contracts implicates the major questions doctrine.

Rather than predict the outcome of the Ripple lower court opinion, it would be safer to predict that litigation over the Ripple case and the SEC's other crypto regulations will continue for years, as the legal questions are far too big to settle at the district court level.

Eventually, the SEC's discretion to regulate crypto may well be substantially constrained by the major questions doctrine. Until then, this hope will prove little solace to crypto entrepreneurs seeking to come into compliance and those who just want to understand the rules of the road.

J.W. Verret is an associate professor of law at George Mason University's Antonin Scalia Law School. He is a former member of the SEC's Investor Advisory Committee.

Wall Street Journal Opinion piece: The SEC's Cryptocurrency Confusion

J.W. Verret

The SEC’s Cryptocurrency Confusion

By: J.W. Verret, 5:55, August 2, 2022, The Wall Street Journal

After years of threatening to sue Coinbase for listing unregistered securities, the Securities and Exchange Commission is now rumored to have launched an investigation into the company and other exchanges. If it proceeds, the SEC may be on track to make a serious mistake.

Skeptics wonder why Coinbase doesn’t simply register the tokens it sells with the SEC. It’s not that simple. Since its inception, cryptocurrency has confounded regulators because it is unlike any traditional financial instrument. Like regular money, crypto can be used to pay for ordinary goods. Bitcoin is one example, which has a growing base of thousands of merchants who accept payments directly over the currency’s Lightning Network.

Some leading cryptocurrencies can be sent to an app and then used to generate a QR code, which is accepted in 20 national chains like Petco, Chipotle, Office Depot and Regal Cinemas. Last week I used crypto tokens that the SEC has previously alleged were unregistered securities to buy an ice-cream cone and a burrito.

But here’s where things get confusing. Some crytpo tokens appear to function as a type of equity, from which you expect profit. Governance tokens in crypto exchanges, which allow users to vote on changes to how the protocol operates, will share their profit with you. But in a way, profit-sharing tokens aren’t like equity securities at all. The traditional corporate structures—boards of directors, executives, even companies—aren’t present on the other end of the transaction. There’s no one who could file or sign the financial statements for such projects.

There’s even more diversity among tokens. Some are like those you might get from a Chuck E. Cheese to play videogames. These often take the form of tokens used to store data. Imagine if every time you saved a document to the cloud, you needed a token to do so. Payment for data storage is one of the more popular uses of crypto tokens.

Cryptocurrency is so difficult to categorize because many of its variants blur the lines between traditional categories of money, stock and commodities. Most are a bit of each. Some tokens can be used to store data and serve as a form of payment or an investment—all at the same time. The purpose depends on the user’s preference.

Even if cryptocurrency developers wanted to register their projects with the SEC, as traditional public companies are required to, they couldn’t. They don’t have a board, CEO or CFO to file the requisite paperwork with the commission. Nor do they have proxy voting of shares by mail, which the commission still requires companies provide to shareholders.

Consider another facet of crypto that would shock the drafters of the 1933 Securities Act. Imagine if a bank or stock exchange were run by an autonomous, open-source computer code that took deposits and processed loans. Occasionally the code is modified by a few hundred anonymous coders around the world, who collaborate over the internet to keep it running smoothly.

This isn’t some science-fiction movie. Billions of dollars are deposited and loaned out in this way each day. The combined market capitalization of these “decentralized finance” developers would be enough to make them the 18th-largest bank in the U.S.

Tokens that represent an interest in these autonomous computer banks and exchanges are some of the targets of the SEC’s investigations and regulatory inquiries. They are also the same tokens I used to buy my ice cream and burrito last week.

The SEC’s position—that most tokens are securities and must register or face enforcement—is obtuse. It’s also an approach that works to the benefit of the scammers and hucksters who have abused the crypto space.

If the SEC were instead to build a regulatory regime tailored to the needs of crypto investors, as SEC Commissioner Hester Peirce has requested, we would be better able to separate the legitimate crypto projects from the scams. Defendants in SEC actions can now use the nebulous character of crypto tokens to their advantage. When cases are brought against legitimate enterprises, such as Coinbase, that’s a good thing; when brought against fake projects that steal crypto, it isn’t. The morphable character of crypto tokens will confound cookie-cutter application of the regulated security definition.

Innovations require a rethinking of federal securities law. The SEC was 10 years late to the game on delivering financial statements electronically. It was similarly behind the curve in allowing CEOs to share company information over social media. It shouldn’t make the same mistake with crypto.

Mr. Verret is an associate professor of law at Antonin Scalia Law School and a former member of the SEC’s Investor Advisory Committee.

BlockProf: Special Fight Club Edition

J.W. Verret

New edition of my crypto newsletter BlockProf here. This is a special fight club edition, where I feature debates I’ve had recently defending digital assets against SEC Chair Gensler and other former SEC Officials.

Law 360 Article Challenging SEC Abuse of Howey Test

J.W. Verret

(This article originally ran in Law360 and can be viewed behind the paywall here.)

SEC's Ripple Case Shows Limits Of Outdated Securities Test


By J.W. Verret (March 18, 2022)


The multitrillion-dollar digital asset market has caught the attention of Washington policymakers, including the U.S. Securities and Exchange Commission.

SEC Chair Gary Gensler has stated in public comments and in congressional testimony that at least one of the hundreds of tokens listed on most digital asset exchanges must be a security, therefore requiring crypto exchanges to register with the SEC.

Yet when Gensler is asked by members of Congress to provide more guidance about what he means, which tokens are securities and why they are deemed so, he will often respond that the SEC "doesn't give legal advice." That sort of gotcha game is inconsistent with the rule of law and the principles of a free
society. It is worth paying close attention to the U.S. Supreme Court's Howey test, which determines
whether an asset is an investment contract or security required to register with the SEC. A sizable component of the over $2 trillion invested in digital assets may well hinge on the correct interpretation of that test, established in the Supreme Court's 1946 SEC v. W. J. Howey Co. decision that has since been reinterpreted in many lower court cases in increasingly expansive ways.

The SEC's case against Ripple Labs Inc. for sales of the XRP token shows the limits of the Howey test.

This case, SEC v. Ripple, was in the news earlier this month, when, in a win for the defendants, the SEC's motion to strike their fair notice defense was denied by the U.S. District Court for the Southern District of New York. That defense argues that the SEC's nearly decadelong delay in bringing the case means that the SEC failed to give fair notice of the violation.

The ruling likely improves Ripple's odds. If the case continues to drag on, it may even provide circuit courts or the Supreme Court with an opportunity to curtail the Howey test's current application, as in subsequent interpretations the test has strayed far from its original meaning in the Howey decision, particularly with respect to the "common enterprise" and "profit from others" elements implicated in this case.

The digital asset ecosystem is one that the drafters of the securities laws never anticipated. Many crypto projects are more like computer systems or information transmittal systems than they are like publicly traded stock. They will often have tokens associated with the project that can be used to approve changes to the code to facilitate the transmission of information.

The SEC is using a test that was originally applied to orange groves to determine whether tokens associated with digital asset projects need to register with the commission. That has consequences for other participants in the blockchain ecosystem, which may also be required to register simply for investing in these tokens or facilitating their transfer. We need a new test to determine what digital assets should register with the SEC. We also need to reshape the disclosure requirements so that digital asset investors in those projects that must register are getting information tailored to their needs.

The SEC's ongoing case against Ripple — just one example of the SEC's aggressive approach to defining securities required to register with the commission — puts the digital asset community at risk.

Two elements of the Howey test include that the owners of the token have a common interest and that they expect profits solely from the efforts of others. Ripple is a blockchain software company whose founder helped to create the XRP token, which is an alternative payment system.

The SEC sued Ripple and its founders, alleging that sales of XRP in 2013 were unregistered securities. The SEC waited to bring the case until 2020.

The SEC alleges that Ripple's history of limited involvement in helping the XRP payment system maintain viability meets the second and fourth elements of the Howey test. Tens of thousands of XRP owners — the individuals the SEC asserts it is protecting — filed an amicus brief against the SEC. That brief lays out the case for why XRP is not an investment contract.

Individuals purchasing XRP typically know nothing about Ripple Labs; they purchase XRP for its value as a commodity and as a form of quasi-currency. Notably, XRP is classified as currency by the U.S. Department of the Treasury.

In the case of XRP and many other tokens, there may be a group of individuals performing basic maintenance of the code or providing market-making activities, but otherwise, profit potential principally derives from widespread valuation of the commodity, as in more analogous cases like gold or soybeans.

The feature that a common enterprise has in common is the source of its profit expectations, but in the case of tokens the source of most profits is entirely unrelated to a foundation — or here, individuals at Ripple — with some incidental link to the commodity. The Supreme Court hasn't provided much guidance on how to interpret the commonality element, and the SEC's aggressive expansion of the definition in the Ripple case and other cases against digital asset owners may well eventually spark a loss in the Supreme Court that resolves splits between the circuit courts of appeal over how this element is defined. This ongoing litigation may be where that happens.

The digital asset community is not asking the SEC for legal advice, but instead for regulatory clarity. And merely pointing to a 90-year-old law and demanding compliance is not a reasonable answer.

J.W. Verret is an associate professor of law at George Mason University's Antonin Scalia Law
School. He is a member of the SEC's Investor Advisory Committee.
The opinions expressed are those of the author(s) and do not necessarily reflect the views
of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This
article is for general information purposes and is not intended to be and should not be taken
as legal advice.