By Reuters | Updated: 1 June 2023

Indicted FTX founder Sam Bankman-Fried seems to be gearing up to blame the lawyers who helped him establish the crypto exchange.

That’s the subtext of a motion filed on Tuesday by his lawyers at Cohen & Gresser, who are defending Bankman-Fried against federal charges of fraud, conspiracy and bribery. They’re asking for access to documents from Fenwick & West, the Silicon Valley law firm that represented FTX and sister hedge fund Alameda Research from the companies’ inception through their collapse in November 2022.

Fenwick & West did not respond to my email queries. The firm has not yet filed a response to a civil suit by FTX customers who named Fenwick as a defendant.

Bankman-Fried has pleaded not guilty to the charges. The defense motion claims that Fenwick & West advised him, FTX and Alameda on at least four matters at the heart of the Manhattan federal court indictment against the onetime crypto billionaire.

The California law firm, for instance, allegedly provided counsel to FTX on the creation of shell companies that opened accounts at Silvergate Bank to receive deposits from FTX customers, according to Tuesday’s motion. Those shell company bank accounts are a critical element of the government’s bank fraud conspiracy charge.

Fenwick & West also allegedly advised FTX that it was not required to register with the U.S. government as a money transmitting business, according to the new motion. Prosecutors have charged Bankman-Fried with conspiring to violate wire transfer laws by failing to register but his lawyers said in the new motion that Fenwick’s alleged advice “directly contradicts the government’s theory.”

Bankman-Fried’s filing similarly contends that Fenwick & West reviewed internal agreements in which Alameda loaned money to Bankman-Fried and other FTX executives. The government alleges that the loans were an illegal misappropriation of customer deposits as part of a scheme to violate federal campaign finance laws. Bankman-Fried’s new motion argues that Fenwick & West’s legal advice on the tax consequences of the loans might rebut the government’s contention that the loans were improper.

Finally, the motion asserts that it was Fenwick that instructed Bankman-Fried to communicate with other FTX and Alameda executives via Signal and other ephemeral messaging apps. That alleged advice would undercut the government’s claim that Bankman-Fried directed his colleagues to use Signal and other encrypted communication apps to hide evidence of his crimes.

Bankman-Fried’s lawyers acknowledged in the motion that their assertions about Fenwick & West are based on a very limited set of documents.

The filing does not specifically invoke the words “advice of counsel” to refute government claims that Bankman-Fried acted with criminal intent. But Bankman-Fried’s lawyers seem to be headed in that direction, telling US District Judge Lewis Kaplan of Manhattan that they need to know more about Fenwick’s work for FTX and Alameda to determine if the law firm’s documents exonerate their client.

Those documents could help Bankman-Fried later argue at trial that he was following advice from FTX’s lawyers.

Tuesday’s filing asks Kaplan to order the government to turn over evidence from Fenwick & West or to authorize Bankman-Fried to subpoena documents from the law firm.

The firm would almost certainly rather not turn over client files to Bankman-Fried. Among other reasons, Fenwick & West has been named as a defendant in a sweeping class action by FTX customers. The plaintiffs’ lawyer who filed that case, Kerry Miller of Fishman Haygood, told me on Wednesday that he plans to monitor the Bankman-Fried criminal case for any Fenwick & West documents that might boost the class allegations.

Bankman-Fried’s lawyers from Cohen & Gresser declined comment on the new motion through a spokesperson. The Manhattan U.S. Attorney’s office also declined to comment.

Attorney-client privilege is often a complication for white-collar defendants who want to blame their companies’ lawyers for providing bad advice. Companies – rather than individual executives or outside law firms — control the right to insist that communications with their counsel remain confidential. Companies are typically reluctant to waive privilege for fear that their lawyers’ documents might be used in other cases.

Bankman-Fried’s new motion said his lawyers are in negotiations with FTX’s new counsel about whether the company intends to assert attorney client privilege over relevant Fenwick & West documents. (The motion did not name FTX’s new law firm but it is Sullivan & Cromwell.) Defense counsel also said that Fenwick & West told them it would not turn over any documents without FTX’s permission.

The motion floats two theories for why Bankman-Fried is entitled to access to certain Fenwick & West communications even if FTX claims privilege. Bankman-Fried said the law firm represented him personally in addition to serving as counsel to FTX and Alameda. That assertion seems to hint that Bankman-Fried will claim that he can personally waive privilege over some Fenwick & West communications.

Defense lawyers also argued that FTX, which is in Chapter 11 bankruptcy, has already waived its privilege over certain documents by turning them over to prosecutors. If that’s correct, said former federal prosecutor Harry Sandick of Patterson Belknap Webb & Tyler, it will be easier for Bankman-Fried to obtain Fenwick’s communications.

“It’s hard to see why the defense should be denied access,” Sandick said.

If Bankman-Fried’s lawyers believe that Fenwick documents can help them refute the government’s evidence of criminal intent, Sandick said, they will eventually have to make a strategic decision about how to get the law firm’s communications in front of a jury.

The documents must be introduced through a witness – presumably Bankman-Fried himself or a Fenwick & West lawyer. The strongest defense case, Sandick said, would probably feature testimony from a Fenwick & West witness to bolster testimony from Bankman-Fried about his reliance on advice from FTX lawyers. But contradictory testimony from a law firm witness could undermine Bankman-Fried’s advice-of-counsel defense.

That’s a concern for another day. Right now, Sandick said, Bankman-Fried’s lawyers just want to know whether Fenwick & West’s files will help their client.

“It’s an understandable motion,” he said. “They’re saying, ‘Let’s see what the documents say, then we’ll decide how to use them.’”

© Thomson Reuters 2023

By Reuters | Updated: 30 May 2023

Bitcoin prices on the Australian arm of Binance, the world’s largest crypto-currency exchange, were almost A$9,000 (roughly Rs. 4.8 lakh) lower than prices on rival exchanges on Tuesday, in a sign customers were seeking to exit their positions quickly.

The price of the world’s biggest cryptocurrency, bitcoin, was at around AUD 34,000 ($23,062.20, or roughly Rs. 18.3 lakh) on Binance Australia, compared with A$43,000 on BTC Markets, an Australia-based cryptocurrency exchange.

Bitcoin was quoted at $27,790 (roughly Rs. 23 lakh) outside Australia.

Binance did not immediately respond to Reuters request for comment.

Earlier this month, the Binance unit said some customers in Australia will not be able to deposit or withdraw money after a third-party service provider cut off its service.

Binance on social media had said users were unable to make Australian dollar deposits by bank transfer with immediate effect.

“We are working hard to find an alternative provider to continue offering AUD deposits and withdrawals to our users,” Binance had said in a statement.

Binance has been battling regulatory suits and probes around the world. The company said in April it would close its Australian derivatives business after relinquishing a financial services licence amid a regulatory probe into its operations.

Binance also withdrew from Canada earlier this month, weeks after the country issued a series of new guidelines for cryptocurrency exchanges including investor limits and mandatory registrations.

“Unfortunately, (the) new guidance related to stablecoins and investor limits provided to crypto exchanges makes the Canada market no longer tenable for Binance at this time,” crypto exchange Binance had said in a tweet.

($1 = 1.4743 Australian dollars)

© Thomson Reuters 2023

By Reuters | Updated: 26 May 2023

A US government default would trigger an initial pull-back from cryptocurrencies followed by a “push upward” the CEO of London-based crypto firm Blockchain.com said on Thursday.

The US government could fall behind on its bills next month – and even default on its debt – if Congress does not raise a $31.4 trillion (roughly Rs. 2,59,54,29,80 crore) cap on government borrowing, a failure that could trigger economic calamity and panic on global financial markets.

In the short term, “a US default or a US recession is probably bad for crypto. These are risk assets, and you want to take risk off,” Blockchain.com CEO Peter Smith said at the Qatar Economic Forum, organised by Bloomberg.

“On a long horizon, these are probably good for crypto…If the US government defaults, we’ll probably see a quick pull-back and then a very strong push upward in the crypto market.”

The cryptocurrency market has followed cyclical patterns and while 2022 was “quite painful”, it is recovering this year and 2024 will be “another exponential year”, Smith said.

Blockchain.com, which offers users a crypto wallet and is also a crypto exchange, is considering an expansion of its small Middle Eastern office in the commercial center of Dubai.

“The (Dubai) governments in a very healthy, consultative process with the industry and about regulations…I think so long as those end up where we think they will, we’ll probably be investing heavily in Dubai,” he said.

Last September, Blockchain.com signed an agreement with Dubai’s crypto regulator Virtual Assets Regulatory Authority (VARA) and has since opened an office and hired staff.

Currently, the company is investing most heavily to shore up operations in Singapore and Europe, Smith said.

© Thomson Reuters 2023

By Reuters | Updated: 17 May 2023

Bitcoin, ether and other cryptocurrencies should be regulated as gambling given they are potentially used by fraudsters and pose significant risks to consumers, a panel of UK lawmakers said in a report on Wednesday.

Britain is planning its first rules for cryptoassets, which currently only comply with anti-money laundering safeguards.

Bitcoin and ether account for two-thirds of all cryptoassets and are not backed by any currency or asset, leading to volatility in prices and the potential for all money invested in them to be wiped out, the report from parliament’s treasury committee said.

Regulating retail trading and investment in unbacked cryptocurrencies could create a ‘halo’ effect that leads consumers to think the activity is safer than it is, or protected when it is not, it said.

“We therefore strongly recommend that the Government regulates retail trading and investment activity in unbacked cryptoassets as gambling rather than as a financial service, consistent with its stated principle of ‘same risk, same regulatory outcome’,” the report said.

The Financial Conduct Authority has repeatedly warned consumers they could lose all of their money invested in cryptocurrencies.

Cryptoassets globally have a total market capitalisation of about $1.2 trillion (roughly Rs. 98,84,900 crore), a tiny part of the financial system, but the collapse of crypto firm FTX exchange last year introduced greater urgency into regulating the sector.

“The events of 2022 have highlighted the risks posed to consumers by the cryptoasset industry, large parts of which remain a wild west,” said Harriett Baldwin, chair of the treasury committee.

Around 10 percent of UK adults hold or have held cryptoassets, according to official figures.

The European Union approved the world’s first set of comprehensive rules for crypto markets on Tuesday. International regulators are due to propose global norms shortly.

The underlying technology used by cryptoassets has the potential to improve efficiency in payments, the report said.

© Thomson Reuters 2023

By Reuters | Updated: 16 May 2023

European Union states on Tuesday gave the final nod to the world’s first comprehensive set of rules to regulate cryptoassets on Tuesday, piling pressure on countries such as Britain and the United States to play catch up.

An EU finance minister meeting in Brussels approved rules that were thrashed out with the European Parliament, which gave its approval in April.

Regulating crypto has become more urgent for regulators after the collapse of crypto exchange FTX.

“Recent events have confirmed the urgent need for imposing rules which will better protect Europeans who have invested in these assets, and prevent the misuse of crypto industry for the purposes of money laundering and financing of terrorism,” said Elisabeth Svantesson, finance minister for Sweden, which holds the EU presidency.

The rules require firms that want to issue, trade and safeguard cryptoassets, tokenised assets and stablecoins in the 27 country bloc to obtain a licence.

Crypto firms say they want certainty in regulation, putting pressure on countries to copy the EU rules, and on regulators to come up with global norms for a cross-border activity.

Britain has outlined a phased approach, starting with stablecoins and broadening out to unbacked cryptoassets later on, but there is no firm timetable.

The United States has focused on using existing securities rules for enforcement action in the sector while it decides on whether to introduce bespoke new rules and who would apply them.

Hester Peirce, one of the commissioners at the US derivatives regulator CFTC, said last week that a number of federal and state authorities are trying to figure out what oversight role they could play in the crypto sector.

“We are wandering the in the desert a bit,” Peirce told a conference.

© Thomson Reuters 2023

By Reuters | Updated: 8 May 2023

Cryptocurrency exchange Binance halted Bitcoin withdrawals on Monday for the second time in a day, citing large volumes.

“Our team is currently working on a fix and will reopen (Bitcoin) withdrawals as soon as possible,” the company said in a tweet.

“There is a large volume of withdrawal transactions from Binance still pending as our set fees did not anticipate the recent surge in (Bitcoin) network gas fees,” Binance said, referring to payments made to crypto miners who process transactions on the blockchain.

Earlier in the day it had paused withdrawals for about an hour.

In March, Binance, the world’s largest crypto exchange suspended deposits and withdrawals citing tech issues. Bitcoin was down about 1 percent to $28,191 (roughly Rs. 23 lakh), its lowest in nearly a week.

Last month, Binance confirmed that the software that underpins the second-biggest crypto coin Ether was upgraded.

The move is said to give investors access to more than $30 billion (roughly Rs. 2,45,877 crore) of the digital tokens.

Known as Shapella, the latest upgrade to the Ethereum blockchain since its Merge upgrade will enable investors to redeem an offshoot of ether tokens that they have deposited in return for interest on the blockchain network over the past three years.

“The Shanghai/Shapella Upgrade is complete. Deposits & withdrawals for ETH, OP, ARB and ERC-20 tokens via the Ethereum, Optimism, and Arbitrum networks are now back online,” Binance said in a tweet.

Binance also closed its Australian derivatives business after relinquishing a financial services licence last month amid a regulatory probe into its operations.

The Australian Securities and Investment Commission (ASIC) had been conducting a “targeted review” of Binance, first confirmed in February, when Binance said it had misclassified some retail investors as wholesale.

© Thomson Reuters 2023