NYAG Pushes Back on Bitfinex’s Claim That State’s Investigation Is Burdensome

Quit whining, Bitfinex.

That’s the message of the latest court filing by the New York Attorney General’s office (NYAG) in its ongoing case against the cryptocurrency exchange and affiliated stablecoin issuer Tether.

Earlier this week, Bitfinex and Tether’s lawyers complained to New York State Supreme Court Judge Joel M. Cohen that the companies had spent $500,000 and tasked 60 lawyers simply with finding documents that the NYAG’s office has asked for. Part of the expense comes from the fact that the respondents use 10 different communications systems, they wrote.

But in a letter to the judge Thursday, the NYAG’s attorneys scoffed at the suggestion that its demands were somehow onerous.

“Whatever difficulty Respondents may claim in collecting and reviewing the communications called for in the 354 Order, the Court should take note that the 354 Order also calls for information that any responsible trading platform or venue of exchange should have at its fingertips,” wrote the lawyers, John Castiglione, Johanna Skrzypczyk and Brian Whitehurst.

The information the NYAG’s office is looking for includes tether issuance and redemptions, its current corporate, trading and client accounts, tax filings, and information about any customers who wanted to withdraw cash from Bitfinex.

The letter added:

“The 354 Order also directs production of documentation of the so-called ‘line of credit’ transaction, all of which was ostensibly generated while Respondents were under subpoena by the OAG, and therefore should be preserved and in reasonable order. There is nothing difficult, or costly, about producing that information.”

Let’s get on with it

Given the expected ease of producing the documents, Thursday’s filing asked Judge Cohen to dismiss a stay of proceedings requested by Bitfinex and Tether. The NYAG lawyers argued that the companies would have to turn over documents even if an order filed under section 354 of the Martin Act was permanently stayed by the court.

The NYAG is investigating a concern that Bitfinex covered up the loss of $850 million held by a payments processor by borrowing funds from Tether’s stablecoin reserves. The latter company extended a $900 million line of credit to Bitfinex, which borrowed $700 million before an injunction froze further transfers.

The New York investigators are looking for more information about the deal, and are awaiting a ruling by Judge Cohen after a hearing on Monday.

A ruling in Bitfinex and Tether’s favor would not help the companies, as they would still be required to turn over documents, they wrote.

“Because the stay they seek would not necessarily forestall the harm Respondents claim, their claim that they need an injunction to prevent that harm falls short,” the attorneys wrote.

Jurisdictional questions

The attorneys also addressed the key question from Monday’s hearing: whether the NYAG’s office has jurisdiction to conduct its investigation.

Cohen has the authority to decide personal jurisdiction, according to the letter.

“Those questions are well within the competence of this Court, and the First Department,” they wrote. The attorneys also noted that New York residents might have “a public interest” in the matter, writing:

“To the extent there is a public interest to be vindicated at this stage, it is that the people of the State of New York have an interest in the timely disclosure of materials sought in lawfully-issued subpoenas.”

Bitfinex image via Shutterstock