Binance Goes to Court Against the SEC

Binance, Binance.US and Changpeng “CZ” Zhao published their first responses to the SEC’s lawsuit against them and, taken at face value, the stakes appear to be dire. But by the end of the day, we may get a better sense of how the case is proceeding and what a judge thinks about the arguments so far.

On a related note, I’m in D.C. today covering the SEC v. Binance hearing on a temporary restraining order. Unfortunately it’s only today but if anyone is around the D.C. District Court after the hearing ends, feel free to say hi.

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Binance.US and Binance filed their first responses to the U.S. Securities and Exchange Commission (SEC) Monday, arguing that the regulator’s push for a temporary restraining order would prevent it from paying employees, vendors or anyone else. The filings also previewed their defense against the SEC’s actual charges.

The SEC made some pretty serious allegations against Binance last week. Those allegations will get put to their first test in court today.

Binance.US filed a dramatic response to the SEC’s restraining order motion, saying it could end the business if granted.

“The SEC seeks unnecessary and unjustified relief. Far from requesting relief that is ‘carefully calibrated’ to ‘maintain[] the status quo’ … the SEC’s proposed remedies would effectively end BAM’s business,” the filing said, calling the proposed temporary restraining order “draconian.”

District Judge Amy Berman Jackson, of the D.C. District Court, ordered Binance and Binance.US to describe any differences in their proposed stipulations by 1:00 p.m. ET (17:00 UTC), an hour before the hearing is set to begin.

She also ordered the SEC to describe what changes it wants from the Binance.US proposal that would make it acceptable to the agency “in lieu of the proposed” temporary restraining order.

“No additional argument or explication may be submitted by any party at this time,” the judge ordered.

At the risk of reading too much into the tea leaves, this minute order also suggests how the judge might approach at least the initial issues in the lawsuit. The order suggests that Judge Jackson may not want to sign off on a full temporary restraining order but is willing to enact some sort of restriction on who can access Binance.US’s funds.

There’s no real differences between the Binance.US and Binance proposed stipulations – mostly things like capitalization, though the Binance filing also specifies root access to Amazon Web Services instances as part of the software that may be involved.

The SEC’s filing calls for any restrictions to also cover staking services and the AWS access.

Ripple, which also faces an SEC lawsuit, published emails from officials deliberating the text of former SEC Director of Corporation Finance William Hinman’s famous 2018 speech in which he said Ether was not a security, probably.

Something that’s striking is just how much deliberation there actually was over the emails. We’re also granted a rare look into the deliberative process – SEC officials debated how clear the speech actually was and made suggestions about the Howey analysis.

Perhaps most interestingly, to me at least, an early version of the speech didn’t discuss ether (ETH) at all. The May 25, 2018 draft referenced bitcoin (BTC) but largely focused on how tokens might morph from securities to non-securities in the abstract.

If you’ve got thoughts or questions on what I should discuss next week or any other feedback you’d like to share, feel free to email me at nik@coindesk.com or find me on Twitter @nikhileshde.

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