On April 25, 2019, New York’s Attorney General secured a preliminary injunction against Bitfinex, a cryptocurrency trading platform, and Tether, the company behind tether (USDT), one of the world’s most popular cryptocurrencies. In papers filed with the court last Wednesday, the state AG accused the companies of misleading investors about their financial well-being while using Tether’s bank account to prop up Bitfinex with $700 million in undisclosed loans. The injunction requires Bitfinex and Tether to temporarily cease drawing down Tether’s cash reserves and to turn over detailed information about their finances and client accounts to the state AG as it investigates them for financial fraud.
As we have discussed in previous blog posts, courts and regulators have determined that some virtual currencies are securities or commodities that are subject to state and federal laws and regulations. Last week’s developments serve as a reminder to cryptocurrency exchanges and token distributors alike that they may be subject to the laws and regulations of any jurisdiction in which they operate. In this case, although Bitfinex purportedly no longer permits U.S. traders to use its platform and is not a licensed exchange in New York, the state AG’s office argued that it and Tether are subject to New York law because some New York residents still use the platform, just as some New York residents own USDT. The companies’ connections to New York subject them to scrutiny under the Martin Act, New York’s powerful “blue sky” securities law that gives the state AG the authority to investigate and prosecute securities fraud regardless of fraudulent intent.
In papers submitted to the court, New York’s AG alleged that Bitfinex dipped into Tether’s cash holdings to prop itself up after $851 million was seized from one of its bank accounts. Bitfinex had deposited the cash with an entity called Crypto Capital Corp., who was engaged by Bitfinex to process its clients’ withdrawals. In late 2018, Crypto Capital reported to Bitfinex that it could no longer process withdrawals or return Bitfinex’s funds to it because they had been seized by authorities in Portugal, Poland, and the U.S. To cover up the loss, Bitfinex allegedly caused Tether to extend it a $900 million line of credit, of which Bitfinex has accessed approximately $700 million. Neither Bitfinex nor Tether publicly disclosed these transactions. The state AG alleges that Bitfinex was able to borrow the funds from Tether because the two companies are operated by the same individuals and share the same parent company.
The New York AG has accused Bitfinex and Tether of misleading investors about the security of their investments and of engaging in self-dealing by causing Tether to transfer hundreds of millions of dollars to Bitfinex, taking on enormous amounts of risk without receiving anything of value in return. Tether has long represented that it holds one U.S. dollar in reserve for each of the 2.6 billion outstanding USDT, and that holders of USDT can redeem them at any time for U.S. dollars at a rate of one USDT to one U.S. dollar. Although Tether has recently disclosed that outstanding USDT may be backed by “other assets and receivables” in addition to U.S. dollars, the state AG is investigating, among other questions, whether Tether’s transactions with Bitfinex have rendered Tether’s public statements misleading. The New York AG has also accused the companies of misleading state investigators by purporting to cooperate in the AG’s investigation while secretly transferring funds from Tether to Bitfinex.
Bitfinex responded on Friday with a forcefully worded denial of the allegations brought against it and Tether and reiterated that the companies “are financially strong – full stop.”
Although the New York AG has stated that it does not want its investigation to harm Tether investors or Bitfinex clients, it’s possible that information revealed during the investigation could affect confidence in the companies or in cryptocurrency markets generally. Bitcoin’s price fell seven percent immediately following the announcement of the AG’s investigation on Thursday, perhaps providing a window into the volatility that will come if Bitfinex’s assurances that it and Tether are financially sound are found to be misleading.