NickNack

[MrBeast @MrBeast]

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[NickNack @NickNackBigSack]

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[Yazan @YazanXBT]

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[Mario @0xM4R10]

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[NickNack @NickNackBigSack]

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[Glenn Galen @GlennGalen]

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[Massimo @Rainmaker1973]

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[NickNack @NickNackBigSack]

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[non aesthetic things @PicturesFoIder]

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[Sofía @HirukaCh]

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[NickNack @NickNackBigSack]

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[WF @WhaleFUD]

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[John Reed Stark @JohnReedStark]

Breaking News: A Binance Double Whammy. 1) Newly Unsealed US DOJ Filings Could Mean the End of Binance; and 2) SEC Files Supplemental Pleading Against Binance, Strengthening the SEC Binance Lawsuit Exponentially

There’s been a flurry of newly released Binance-related filings made by the U.S. Department of Justice (DOJ), which have shined glaring sunlight upon the extensive, robust and vigorous oversight that DOJ now enjoys over Binance.

At the same time, in their pending Binance-related enforcement action, the U.S. Securities and Exchange Commission (SEC) has begun to incorporate facts from the DOJ plea agreement into the SEC’s pending enforcement action against Binance and Changpeng Zhao (CZ).

(See the end of this post for links to all the newly released DOJ filings and the new SEC filing)

The DOJ Binance-Related Filings

The publicly available docket for the DOJ/Binance plea agreement now includes a slew of extraordinary exhibits that were previously unreleased.

Of the newly available information, the three most interesting are the: 1) "Statement of Facts" admitted to by Binance (Attachment A of the plea agreement); 2) "Compliance Commitments" (Attachment C of the pleas agreement); and 3) A Description of the role of the DOJ "Compliance Monitorship" (Attachment D of the plea agreement).

The breadth and scope of the DOJ monitorship, together with the monitorships imposed by the U.S. Financial Crimes Enforcement Network (FinCEN) and related Binance compliance commitments cannot be understated – in fact, this kind of DOJ/FinCEN supervision of a global financial firm is simply unprecedented. https://t.co/7kEhCDbcX1

For instance, the DOJ Compliance Commitments include mandates pertaining to an extraordinary and heretofore non-existent high level of compliance such as new procedures relating to: Policies, procedures, and internal controls customer and third-party relationships; anti-circumvention controls; periodic based review; proper oversight and independence; training and guidance; total reporting and investigation; enforcement and discipline; and monitoring, testing, and audit. https://t.co/7kEhCDbcX1

The exhaustive list of Binance’s new compliance commitments reads like a consulting firm’s wish list – and will cost tens, if not hundreds, of millions of dollars to implement and execute.

Along the same lines, the DOJ Compliance Monitor’s mandate is so wide-ranging and comprehensive, it takes DOJ 13-pages merely to present an overview of Binance’s obligations. https://t.co/hxjJMnngRr

The comprehensive post-plea engagement by DOJ is particularly striking. The duties and authority of the DOJ monitor, and the obligation of Binance with respect to the monitor, will be overseen by DOJ’s Criminal Division, including the Money Laundering, and Asset Recovery Sections; the DOJ National Security Division; The DOJ Counterintelligence, and Export Control Section; and the United States Attorney’s office for the Western District of Washington. This is essentially just about everyone in the DOJ who can criminally prosecute any form of financial fraud.

At the same time, the level of cooperation required of Binance cannot be overstated. Binance must facilitate the monitors access to the companies, documents and resources and provide the monitor with access to all information, documents, records, facilities, and employees as reasonably requested by the monitor. Binance must also use its best efforts to provide the monitor with access to the companies, former employees, agents, intermediary, consultants, representatives, distributors, licenses, contractors, suppliers, and joint venture partners.

The monitor may even opt NOT to inform Binance about its findings under certain circumstances. In fact, in some situations, the monitor must immediately report potential misconduct directly to the government, and not to Binance. Along these lines, the presence of any of the following factors militates in favor of reporting potential misconduct directly to the government, and not to finance, namely, where – in the monitors, good faith assessment – the potential misconduct: "1) poses a risk to US national security, public health, or safety, or the environment; 2) involves senior management of the company; 3) involves obstruction of justice; or 4) otherwise poses a substantial risk of harm." https://t.co/hxjJMnngRr

Per the agreement’s explicit terms, if the monitor believes that any potential misconduct or other misconduct has occurred which could somehow potentially constitute a criminal or regulatory violation, the monitor is required to report the misconduct to the government.

FinCEN Consent Decree

What’s most incredible about the DOJ monitorships and oversight is that DOJ is not the only infrastructure of US governmental oversight thrust upon Binance. There are also the FinCEN monitorships, which are equally extensive, forceful and titanic.

Per the FinCEN Consent Decree, Binance shall retain a Monitor for a period of five years to:

“(i) assess and monitor Binance’s compliance with the terms of the Consent Order, including completion of the Undertakings set forth in Section VI, so as to specifically address and reduce the risk of any recurrence of Binance’s misconduct; (ii) evaluate the effectiveness of Binance’s compliance with Relevant BSA Provisions and related implementing regulations applicable to MSBs, except with respect to any reporting requirements on an ongoing basis for transactions effected as of and after the date of the Consent Order (i.e., such exception to MSB reporting obligations does not apply to reports that Binance is required to file pursuant to the SAR Lookback described in Section VI.C); (iii) assess and monitor senior management’s commitment to, and effective implementation of, Binance’s AML and sanctions compliance programs; and (iv) assess and monitor Binance’s compliance with the applicable terms of the settlement agreement between Binance and OFAC, the consent order between Binance and the CFTC, as well as the applicable terms of Binance’s plea agreement with the Department of Justice (collectively, the Mandate).”

Binance Faces Unprecedented Governmental Scrutiny of Epic Proportions

Binance’s settlement requires it to offer years of instantaneous access, audit, examination and inspection to DOJ, FinCEN and all types of financial regulators and law enforcement, exposing the company — and its customers — to a 24/7, 365-days-a-year financial colonoscopy.

Meanwhile, these multiple monitorships will undoubtedly create extraordinary and unique opportunities for law enforcement and regulatory investigative and litigation teams to identify and utilize a perpetual stream of newly discovered inculpatory evidence.

Along these lines, nothing prevents any other government agency (especially the SEC, who remains engaged in contentious and active litigation with Binance and CZ) from reaching out to the various monitors to ask questions, seek documents, take depositions or even present the monitors as witnesses in related judicial proceedings. At the same time, the monitors could provide a constant flow of information to FinCEN, who could in turn, provide any information it deems appropriate to the other government agencies.

In fact, the FinCEN Consent Decree seems to contemplate making law enforcement and regulatory referrals, stating: “The [various monitorship] reports will likely include proprietary, financial, confidential, and competitive business information. Moreover, public disclosure of the reports could discourage cooperation, or impede pending or potential government investigations and thus undermine the objectives of the monitorship. For these reasons, among others, the reports and the contents thereof are intended: (i) to be made available to only FinCEN, OFAC, the CFTC, and the Department of Justice; and (ii) to remain non-public, except as otherwise agreed to by the parties in writing, or except to the extent that FinCEN determines in its exclusive discretion that disclosure would be in furtherance of FinCEN’s discharge of duties and responsibilities, or is otherwise required by law.” (emphasis added) https://t.co/t4WlpBgsiM

The SEC Supplemental Pleading

The SEC has quickly begun to incorporate by reference to the SEC’s enforcement action against Binance/CZ the facts alleged in Binance’s $4.3 billion settlement with DOJ, FinCEN and the Commodity Futures Exchange Commission (CFTC). These settlements all exponentially strengthen the pending SECs case against Binance and CZ. https://t.co/7O4xBoaFhI

Specifically, despite not being part of the DOJ/FinCEN/CFTC plea/settlement agreement, the SEC filed a “Notice of Supplemental Authority” yesterday that the federal court in Washington hearing its case should weigh admissions by Binance and the firm’s former chief executive, Changpeng CZ (CZ), in the Nov. 21 settlement. (Binance and CZ have asked the court to dismiss the SEC’s lawsuit.)

Specifically, the SEC has now asked the judge to take “Judicial Notice” of a slew of new inculpatory facts taken from the Binance plea agreement (which means that the SEC wants the Judge to declare a fact presented as evidence as true without a formal presentation of evidence). Many of these Binance-related facts and admissions not only strengthen the SEC case but also reinforce the SEC’s arguments in opposition to the Binance’s current motion to dismiss the SEC action.

First, contrary to CZ’s and Binance’s arguments that they lacked “fair notice” they were violating the law, their plea agreements admit what the SEC alleges: they were aware of and deliberately took steps to subvert U.S. law. CZ and Binance implemented a plan to give the public appearance that the https://t.co/g9knq29bJ7 Platform did not serve U.S. customers, while secretly permitting at least larger U.S. customers to trade on the platform, and creating U.S. entities (Defendants BAM Trading Services Inc., and BAM Management US Holdings Inc.) to “reduce regulatory pressure on Binance.”

Second, the plea agreements and Consent Order further undermine CZ’s and Binance’s arguments that the SEC’s claims relating to the https://t.co/g9knq29bJ7 Platform involve non-actionable extraterritorial conduct.

Binance admitted that it “intentionally sought and served millions of customers located in the United States,” and “intentionally maintained substantial connections to the United States, from which it generated, among other things, web traffic, user base, transaction volume, and profit.” Binance further admitted that it deliberately conspired to not comply with U.S. law “because it determined that doing so would limit its ability to attract and maintain U.S. users.” U.S. customers were “critical” to Binance because they provided market liquidity on the https://t.co/g9knq29bJ7 Platform that helped grow its business.

Per the Binance plea agreement, by August 2017, Binance estimated that more than 23 percent of its 122,729 users were based in the United States, which was more than any other country it served. Over time, the number of its U.S. customers continued to increase, and by March 2018, Binance had approximately three million U.S. customers, which represented more than a third of its total customers on the https://t.co/g9knq29bJ7 Platform. And around June 2019, CZ estimated that 20 to 30 percent of Binance’s website “traffic comes from the U.S.” and the U.S. market represented about 20 to 30 percent of its potential revenue.

In all, the total U.S. market volume on the https://t.co/g9knq29bJ7 Platform was staggering: Between August 2017 and October 2022, U.S. customers conducted trillions of dollars in transactions on the https://t.co/g9knq29bJ7 Platform, which generated approximately $1.6 billion in profit for Binance. This activity included U.S. customer deposits and withdrawals of over $65 billion.

In addition, the domestic nature of transactions on the https://t.co/g9knq29bJ7 Platform is demonstrated by Binance’s admission that it utilized a U.S.-based technology service provider to store its data, host its website, and operate the https://t.co/g9knq29bJ7 Platform. Further, the https://t.co/g9knq29bJ7 Platform’s over-the-counter, or “OTC,” market maker, a CZ-owned entity called Merit Peak Limited, settled approximately $1.2 billion in transactions using U.S. banks and a U.S.-based customer identified as Customer A.

Merit Peak was also a market maker on the https://t.co/XTbtqFFjrw Platform, and served as a “conduit” between the two platforms for certain transactions “while exploiting https://t.co/oE3XUqmFQ3’s corporate governance weaknesses to avoid scrutiny of this activity.”

Third, numerous facts contradict CZ’s argument that the Court did not have personal jurisdiction over him because he lacked sufficient contacts with the United States. CZ exercised “day-to-day” control of Binance, which included making “strategic decisions for Binance.” Among other things, he “authorized and directed” Binance’s strategies to secretly encourage U.S. customers to trade on the https://t.co/g9knq29bJ7 Platform. The SEC argues that this was important to CZ because he knew that U.S. customers “were essential for Binance to grow, were a significant source of revenue, and had a substantial network effect.” CZ “sought those benefits for the Company while disregarding the legal obligation to implement an effective [anti-money laundering] program.”

Expect a lot more activity from the SEC as a result of the Binance and CZ plea agreements. The SEC now has at its disposal a treasure trove of fresh and comprehensive Binance-related inculpatory evidence gleaned from the various pleadings, orders, attachments, and other Binance-related charging documents. https://t.co/kOxNnjmfO0

Indeed, a new evidentiary record of wide-ranging allegations and assertions will now provide the SEC with formidable cannon fodder for SEC investigators and litigators to fortify their Binance-related accusations and contentions.

Looking Ahead

The stark reality is that neither Binance nor any other mega-crypto firm (or any financial firm in the world for that matter) has ever been party to a DOJ/FinCEN plea agreement commanding governmental oversight as vigorous, forceful and all-inclusive as the one Binance has agreed to undertake (and pay for).

The monitorships and oversight installed going forward at Binance would be like installing bodycams on every member of a global criminal drug cartel, and making the cartel bear the cost for a large, experienced and well-credentialed team of former and current government agents to monitor the footage 24-7.

My take is that, just like a drug cartel, a secretive and opaque financial firm like Binance cannot suddenly transform itself into a traditional, law-abiding, open, transparent, obedient, submissive and government-friendly financial firm. Surviving an SEC audit would be tough enough for the beleaguered Binance infrastructure but facing a DOJ/FinCEN audit — well, that seems all but impossible.

To me, it’s only a matter of time before the entire Binance plea deal collapses, resulting in additional charges for Binance, additional charges for CZ and new charges against anyone else (partner, customer, joint-venturer, collaborator etc.) nefariously intertwined with the Binance criminal enterprise.

Links to Newly Released DOJ/SEC Binance Related Pleadings

1.Binance Plea, Attachment A: Statement of Facts
https://t.co/ZoBSzKcN1R

2.Binance Plea, Attachment C: Compliance Commitments
https://t.co/7kEhCDbcX1

3.Binance Plea, Attachment D: Independent Compliance Monitor
https://t.co/hxjJMnngRr

4.Complete 11/21/2023 DOJ/Binance Plea Agreement (With All Attachments)
https://t.co/50Y0vZi43g

5.SEC Supplemental Memorandum Relating to the SEC Enforcement Action Against Binance and CZ:
https://t.co/7O4xBoaFhI