Empower Oversight Whistleblowers & Research (EMPOWR), a prominent watchdog group, has recently filed a lawsuit against the United States Securities and Exchange Commission (SEC). The lawsuit aims to compel the SEC to comply with a Freedom of Information Act (FOIA) request made by EMPOWR. The request seeks access to communications between former SEC officials and their former and future employers, focusing specifically on potential conflicts of interest related to cryptocurrencies. This article will explore the details of the lawsuit, the involved individuals, and the implications for the regulation of the emerging cryptocurrency market.
Former SEC Officials and Conflicts of Interest
EMPOWR's lawsuit targets three former SEC officials: Jay Clayton, William Hinman, and Marc Berger. Jay Clayton, the former SEC Chair, joined cryptocurrency hedge fund One River Asset Management in 2021 after leaving his position. William Hinman, former Director of Corporate Finance, returned to his previous law firm, Simpson Thacher & Bartlett LLC, after his tenure at the SEC. Marc Berger, former Enforcement Division Director, became a partner at Simpson Thacher after leaving the SEC in 2021.
The Alleged Conflict of Interest
EMPOWR's lawsuit centers around the potential conflict of interest these former SEC officials may have had in their roles at the SEC regarding cryptocurrencies. The watchdog group contends that the requested communications will shed light on whether these officials had conflicts of interest when determining whether certain cryptocurrencies should be classified as securities, thus falling under SEC regulation.
Hinman's Connection to Simpson Thacher
EMPOWR specifically highlights William Hinman's ties to Simpson Thacher & Bartlett LLC as a potential conflict of interest. Hinman was a partner at the law firm before joining the SEC in 2017 and returned to the firm after leaving the SEC in October 2020. EMPOWR suggests that his ongoing relationship with Simpson Thacher raises questions about his objectivity during his tenure at the SEC, particularly concerning his famous speech titled "Digital Asset Transactions: When Howey Met Gary (Plastic)." In that speech, Hinman stated that Ether (ETH) should be considered a commodity, which subsequently led to a significant increase in its value. These documents were also subject to a legal dispute between the SEC and Ripple Labs in the agency's case involving allegations of securities law violations related to Ripple's XRP coin.
The FOIA Request and Legal Actions
EMPOWR's lawsuit is the latest development in a series of legal actions related to their original FOIA request filed in August 2021. The watchdog group initially received no response from the SEC, prompting them to file a complaint in December of the same year. The SEC later provided "no records" responses for four out of the eight requested categories. However, the SEC subsequently admitted that these responses were incorrect and that they had discovered around 1,000 pages of relevant records from their email searches.
After unsuccessful attempts to convince the SEC to broaden its document search, EMPOWR filed a new FOIA request in December 2022. The current lawsuit serves as a means for EMPOWR to obtain a response to this latest request and shed light on potential conflicts of interest.
Implications for Cryptocurrency Regulation
The outcome of EMPOWR's lawsuit has significant implications for the regulation of the cryptocurrency market. Given the growing interest and investment in cryptocurrencies, ensuring transparency and mitigating conflicts of interest within regulatory bodies is crucial for maintaining public trust. If the requested documents reveal substantial conflicts of interest, it could undermine the credibility and effectiveness of the SEC's regulation in the crypto space.
