Amanda Tuminelli
@amandatums
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Chief Legal Officer at DeFi Education Fund @fund_defi . Human to bader the dog. Avid reader of fantasy fiction. Constantly seeking excellent food.
New York, NY
Joined March 2011
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Today, we
@fund_defi
sued the SEC. It has everything to do with airdrops + stopping the SEC’s regulation by enforcement crusade against our industry. 🧵
🚨Today, DEF and
@BebaCollection
sued the SEC🚨
The crypto industry is facing an existential threat from an overzealous regulator who is abusing its power by targeting our industry through unending aggressive enforcement actions.
It’s time for the
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Today we
@fund_defi
are proud to submit an amicus brief in US v. Storm, arguing that the court should not validate the government’s unprecedented and damaging theory of criminal liability for software developers. This case has important implications for developers in every
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The DOJ's opposition to Roman Storm's motions to dismiss and suppress evidence in the Tornado Cash case is filled with technical inaccuracies, obvious disdain for privacy and emerging technology, and misapplication of the law.
The TLDR of the opposition is: look at our really
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So this is huge. Today,
@LEJILEX
and the Crypto Freedom Alliance of Texas (CFAT) sued the SEC seeking a declaration that “secondary-market sales of digital assets like the ones that LEJILEX intends to facilitate through the are not sales of securities.”
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Today's oral argument in SEC v. Coinbase was incredibly positive for the industry’s efforts to fight back against regulatory overreach and makes me hopeful. Here’s why 👇
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1/ Last week,
@fund_defi
submitted a FOIA request to the SEC asking for docs, comms and info related to its decision *not* to file an amicus brief in Kirschner v JPM. Here’s why you should care 👇
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That "revolving door" from SEC to industry just became a brick wall.
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We
@fund_defi
decided to take a different approach to our amicus in order to assist the court in understanding the nuances of the technology at issue.
This one is for the devs. 🧵
3/ At a high-level, we make two core arguments:
- Coinbase, similar to any other wallet application dev, does not act as a broker through “Wallet”; and
- Coinbase’s “Staking Program” provides an administrative service to users and does not = a securities offering.
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1/ Today DEF
@fund_defi
submitted our third comment letter to the SEC explaining why their proposed changes to the definition of “exchange” would unlawfully expand SEC jurisdiction in a way that is nonsensical and harmful to DeFi. 🧵👇
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When did “privacy” become a bad word?
@millercwl
and I thought it was a particularly important time to revisit why privacy in financial transactions and communications is valid and deeply rooted in our history👇
"Question any time there is wholesale disapproval of new technology simply because it affirms an individual’s well-established right to privacy,"
@amandatums
and Miller Whitehouse-Levine of the
@fund_defi
write.
Opinion.
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Today,
@fund_DeFi
submitted an amicus brief in the Harper v. IRS appeal (pending in the 1st Cir) to ensure the court understands the unique Fourth Amendment concerns in allowing the government unfettered access to US citizen’s crypto tx history. 👇
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8/ And Levine laid out the SEC’s catch-22 perfectly:
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@fund_defi
has petitioned the US Patent & Trademark Office for cancellation of a patent claiming invention of oracle-like tech and being used to sue MakerDAO and Compound. We are excited to talk about this project we have been working on the past few months👇
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Still digesting Judge Failla's Order partially denying Coinbase's MJOP, but a few quick thoughts:
1. The pleading standard for an MJOP, which only decides if the case continues to discovery, favors the SEC. The court assumes all well-plead facts are true in order to determine if
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Amicus briefs matter. As a non-litigant, we get an opportunity to provide the court helpful context and additional arguments on why a party should prevail.
We
@fund_defi
take this role seriously. We are proud to be able to bring a technology-first perspective to court
4/ This is where the crypto industry's passion and drive make a difference.
Most industries don't care enough to file amicus briefs in district courts. Maybe there's one from a trade association here or there.
In SEC v. Coinbase, we filed 6.
In SEC v. Ripple, we filed 14.
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Today the
@BlockchainAssn
& the Crypto Freedom Alliance of Texas filed suit against the SEC, challenging the recently finalized rule redefining a “dealer” to sweep in a vast array of additional entities that would never have thought of themselves as a dealer.
This is another
1/ Today,
@BlockchainAssn
and the Crypto Freedom Alliance of Texas sued the SEC over the recently finalized Dealer Rule. The rule is arbitrary and capricious, and presents significant risk for digital asset market participants in the U.S.
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1/ We are thrilled to share that the United States Patent and Trademark Office granted our petition to review the patent owned by True Return Systems LLC (“TRS”) that falsely claims to invent oracle-like tech 🙌
See my previous tweet on our petition 👇
@fund_defi
has petitioned the US Patent & Trademark Office for cancellation of a patent claiming invention of oracle-like tech and being used to sue MakerDAO and Compound. We are excited to talk about this project we have been working on the past few months👇
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Fin/ We were thrilled we could be helpful to the court by providing additional information on Coinbase's Wallet and Staking program, and remain grateful to our team at
@Cravath
for their work.
- The DeFi People
🚨🚨🚨 This evening, we filed an amicus brief in SEC v. Coinbase in which we discuss Coinbase Wallet and Staking Program... 🧵
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Three separate gov entities - SEC, CFTC, DOJ - looked at the same digital asset and the same fact pattern and came to vastly different—and mutually exclusive—conclusions. But that didn't stop them from filing three actions with different theories against the same man.
The law
🥭 OPINION: The vastly different—and mutually exclusive—conclusions that the SEC, CFTC, and DOJ have come to about MNGO have exacted a real cost on the growth of the U.S. crypto industry, write
@amandatums
and Jane Khodarkovsky.
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3/ Each time the DOJ addresses the amicus briefs filed by amici
@fund_defi
,
@BlockchainAssn
and
@coincenter
, they say "the defendant's amici" or "the defendant and his amici," which I have never seen before and must be meant to categorically dismiss the well-founded arguments
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2/ Page 3 👇 - This is simply not what Storm argued in his motion. It is difficult to imagine how this is not *intentionally* misleading.
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2/ High level: the government’s theory underlying each of the three counts in the indictment is that software developers are criminally liable for a third party's later illicit use of their software . . . even when there was no direct or active engagement between the software
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The SEC's newly-manufactured "ecosystem theory" is their attempt at sidestepping a faithful application of the Howey test. It should not be binding precedent.
Odd that we don't see it popping up in cases having nothing to do with digital assets 🤔
BA's brief explains why the
1/ On Friday,
@BlockchainAssn
filed a brief in support of
@coinbase
's motion to certify interlocutory appeal. We explain why adopting the SEC's "ecosystem" theory poses a question that merits the 2d Cir to weigh in on now. Not later. 🧵
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"Coinbase does not want to litigate against the SEC. And the SEC should not want to litigate this case either. Litigation will put the SEC's own actions on trial, erode public trust in the SEC's mission, [&] undermine any incentive for market participants to engage with the SEC”
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5/ Page 56 n. 16 - In response to the cogent comparison
@coincenter
made to the SWIFT network - a total obfuscation of what a blockchain protocol is.
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4/ Page 60 👇 Tell me you don't understand how immutable smart contract protocols work without telling me...
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4/ We point out that IEEPA has simply never been used the way that the government is using it in this indictment. We reviewed over 100 recent IEEPA cases and provided a table of 78 of the most relevant cases to the court, which you can see linked here. In every single one of
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Today, we
@fund_defi
, alongside our partners
@BlockchainAssn
, submitted an amicus brief supporting Kraken’s motion to dismiss the SEC’s complaint accusing Kraken of being an unregistered securities exchange, broker dealer, and clearing agency. 🧵
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end/ FOIA requests take time - months to years - but the SEC is required to respond. We will keep you posted 🫡
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6/ DOJ completely ignores the argument we raised in our amicus brief and the chart of cases attached - that IEEPA has never been used and should not be used to penalize a software developer that never directly engaged with or solicited conduct with a sanctioned entity.
We will
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12/ We hope you will read the amicus briefs submitted by our brilliant friends at
@coincenter
and
@BlockchainAssn
, who raise key arguments including that code is speech and addressing the remaining allegations in the indictment. We are lucky to have such good lawyers fighting for
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To be clear, this is the first time (that I am aware of) that a crypto market participant has proactively sued the SEC, pre-launch of their project and pre-anything by the SEC, to ask a court to adjudicate digital asset-related securities questions. Plaintiffs are not looking for
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11/ I cannot overstate how important this case is to our industry. I want to thank our board member
@jchervinsky
who co-authored this brief with me and shares our righteous indignation and passion for fair application of the law to software developers.
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2/We raise two claims.
Claim 1: Our co-plaintiff,
@Bebacollection
, did a free airdrop of $BEBA tokens and seeks a court order declaring that its free airdrop was not a securities transaction and $BEBA tokens are not investment contracts.
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1/ Today, DEF and
@BlockchainAssn
filed an amicus brief in support of plaintiff’s motion for summary judgment against Treasury to explain that its sanctions against Tornado Cash smart contracts are an impermissible extension of its powers and restriction on financial privacy.
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3/ We focused our brief on the charges alleging a conspiracy to launder money and a conspiracy to violate IEEPA (sanctions-related statute). We argue that, on the most basic principles of criminal law, software developers in any industry should not be held criminally liable when
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11/ Please show our co-plaintiff
@Bebacollection
some love for their bravery and conviction in joining us in this fight. Beba is a small, family-owned business in Waco, TX, that was founded by two brothers who believe digital assets have the power to change the world.
Buy their
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8/ Extending the government’s theory to its logical ends would create criminal liability in the following situations, none of which would be foreseeable or expected to the developers involved:
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It was a privilege to write with
@MTCoppel
about why values inherent to blockchain technology - decentralization and personal autonomy - align with core American values.
Crypto is not a partisan issue. Clear out the noise. Engage with the tech. Tell your reps to do the same.
OPINION: The right to free expression, privacy and due process are core American values
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Plaintiffs make one claim - under the Declaratory Judgment Act - asking the court to 1) order that secondary market sales of digital assets are not sales of securities, 2) declare does not need to register with the SEC as an exchange, broker, or clearing
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9/ So we
@fund_defi
decided to ask directly. We asked for docs, comms, and analysis reflecting why the SEC made this decision and what “other agencies” it consulted in doing so.
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1/ The prevailing (false) narrative blaming digital assets for this week’s banking collapse warrants a deeper look. Let’s remember correlation ≠ causation, and focus on the facts 👇
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You can read the oppo here if you want to ruin your weekend:
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8/ Congress makes law. The courts interpret law. Agencies enforce laws and regulate within the confines of the laws passed by Congress. Today, the SEC was reminded to stay in their lane.
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5/ But for developers of open-source, general-use smart contract protocols, there is no counterparty. There is no intended recipient, let alone a recipient that is an SDN. And that is a problem for the government in a case that stays true to IEEPA, which requires that the
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10/ Maybe we get nothing. Maybe we get something that evidences what the crypto industry has said for years - the SEC is avoiding taking a concrete public position on "securities" analysis so they can continue to regulate by enforcement and stifle APA challenges.
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3/ As the name suggests, free airdrops do not include any “investment of money” by token recipients. $BEBA tokens and the airdrop itself are not securities under the Howey test.
While that logic seems easy to follow, that has not stopped the SEC from enforcing against token
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6/ And on “possession or control” - software developers of non-custodial smart contract protocols used to send and receive tx messages do not have “possession or control” over anyone’s “property or interests in property” as contemplated by IEEPA. Even a basic understanding of
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7/ We use an analogy to explain this to the court:
"In a noncustodial smart contract protocol that involves pooling assets, it is as if a user has asked a safe manufacturer to build a safe around their assets, with the combination known only to the user. The safe holds the
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1/ Today
@fund_defi
filed an amicus brief in the CFTC v. Ooki DAO (NDCA) litigation, with
@paradigm
,
@a16zcrypto
&
@LeXpunK_Army
, to urge the court to enter a judgment that is appropriately narrow. 👇
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4/ There were also some incredible moments of lawyer snark (by the judge!), which is my favorite snark.
My favorite question from today: “what if your description of staking in the complaint was demonstrably wrong? Can I take judicial notice of that?” Legend. 📝 ⚖️
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10/ To be clear - we of course do not support financing bad actors and sanctioned entities. We understand that the indictment includes allegations of criminal conduct by hackers and DPRK sanctioned entities and we take those threats very seriously. However, as we say in our
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Next steps: Assuming the SEC accepts service (normal legal procedure), the SEC has 60 days to respond - either by filing an Answer to the Complaint’s allegations, moving to dismiss the Complaint, or asking for more time to respond. Safe bet that they do one of the latter two.
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5/ ICYMI, Judge Failla also wrote a thoughtful and detailed decision in the Risley v. Uniswap case, where she distinguished among apps, protocols, developers, and code itself. A good indication of how careful she will be here.
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6/ Why would the SEC want to avoid writing thoughtful analysis on whether something is a security? (said every crypto lawyer ever). Might it be that they are worried about publicly laying out how something *is not* a security?
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7/
@matt_levine
voiced what we were thinking in “Money Stuff” on 7/20/23 ():
“I think it is impossible to read this without reference to the SEC’s crackdown on cryptocurrencies.”
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9/ Related to money laundering, we argue that the indictment misunderstands how immutable smart contract protocols work and creates liability for developers who have no control over a third party’s use of their software.
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5/ Claim 2: DEF and Beba bring a claim under the Administrative Procedures Act challenging the SEC’s pattern of regulating by enforcement and finalizing - without opportunity for public notice and comment - an overbroad rule that nearly all digital assets are investment contracts
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3/ Judge Failla was laser-focused on the unique questions presented by secondary sales of crypto and she (unlike the SEC) clearly and coherently distinguished tokens themselves from supposed investment contracts. She did not gloss over the lack of accurate facts pled by the SEC.
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2/ For those who weren't able to tune in, Judge Failla asked questions of the SEC that show she is grappling with the realities of the technology and not giving the Commission *any* undue deference. A great play-by-play here:
We’re underway! Coinbase’s counsel have introduced themselves and explained which topics the three main attorneys will be covering: Howey, staking and major questions.
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4/ Like many businesses who use digital assets, Beba lives in fear that it will get a subpoena or face an enforcement action from the SEC. Thankfully, Beba is allowed to sue, pre-enforcement, rather than wait around to face actions that could put it out of business.
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Using impact litigation to present the courts with key questions of national significance is a tried-and-true method for bringing about meaningful change.
Read more in the op ed I was lucky to write with
@jchervinsky
for
@CoinDesk
👇
This was a huge week for crypto policy: the industry went on offense and took the SEC to court 💥
For
@CoinDesk
today,
@amandatums
and I explain how
@LEJILEX
's lawsuit exemplifies "impact litigation," a key strategy in the fight for regulatory clarity:
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4/ For a regulator who is, one might say, hyper focused on ensuring that everything in crypto is a security under its control, you might think they would be eager to comment. Or you might think they would want to help out a circuit court when specifically asked.
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6/ As a law nerd, these questions light up all areas of the brain and make me grateful to be working in this industry, right here right now.
Proud to be part of the most significant "rounding error" of all time
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10/ Relief Requested: what are we looking for? Here’s the list:
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5/ But instead, the SEC said they were “not in a position to file a brief on behalf of the Commission in this matter.” See . Huh?
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9/ The SEC’s enforcement activities, whether they be subpoenas, secret investigations, or complaints filed in federal court, are unlawful and pose an existential threat to our future. They have to be stopped.
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6/ Let’s be real, we in this industry know that the SEC absolutely has this finalized rule and they purposefully haven’t done a rulemaking. We have seen the SEC consistently enforce this rule through actions against businesses big and small (like Beba) in this industry.
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This article by the brilliant
@cravath
team is a must-read for anyone wanting a deeper understanding of the technology at issue in the Tornado Cash indictment
- and -
why the DOJ’s allegations do not align with FinCen guidance on MSBs.
.
@TheAcademyBrass
publishes a working paper written by Cravath lawyers which examines FinCEN’s 2019 guidance on money transmitters in the context of the Tornado Cash Indictment
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8/ The SEC hasn’t written the rule down for rulemaking because they know they will face massive backlash. They know Congress hasn’t give them the authority to cast such a wide net, and they know that whatever rule they write down will not do the technology justice.
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7/ The SEC might take different positions in different litigations to get to the result they want, but the consistent thread among their enforcement actions is that when a digital asset is involved, the SEC presumes it is a security and stops the real analysis there.
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2/ The Harper case concerns a “John Doe” summons the IRS sent to Coinbase that resulted in the collection of info about 8.9 million transactions by 14,355 Americans (none of whom were accused of any wrongdoing prior to the summons).
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3/ The 2d Cir invited the SEC to weigh in with an amicus brief explaining the SEC's “views on whether syndicated term loan notes” are "securities." After the SEC asked for more time twice, they basically told the circuit panel “no thanks.”
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2/ TLDR on Kirschner: SDNY district court judge dismissed case against JPM, holding the syndicated loans at issue were not “securities” under Reves v. Ernst & Young, and the investor plaintiffs appealed. Full case summary here:
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1/ A break from our regularly scheduled programming to *applaud* the efforts of a government regulator. It is refreshing to see the UK tax authority approach lawmaking for defi in a nuanced and technology-focused way.
1/ Yesterday, we provided comments in response to a consultation from
@HMRCgovuk
regarding “the taxation of DeFi involving the lending and staking of cryptoassets.”
You can read our full submission below:
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It is more important than ever for the crypto community to face policy and legal challenges as a united front.
Talking about policy and public engagement with
@amiravalliani
@AMangiero
@EmilyMMeyers
at
#HackerHouseNYC
was truly inspiring.
The future of web3 is being built right here at
#HackerHouseNYC
by the Solana Ecosystem!
What are you building? 🙌
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9/ And we hired an OG expert
@hudsonjameson
to explain to the Patent Board what this patent claims to do and how all this technology existed prior to TRS’s patent application.
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5/ “When old precedents meet new technology, courts must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo v. United States, 533 U.S. 27, 34-35 (2001).
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TLDR: the frontier we can gain the most ground in this year is the courtroom. File amicus briefs, support others who do so, or put your resources behind crypto industry defendants who have been targeted by regulators.
Good precedent in even one case floats all boats.
Today in
@FortuneCrypto
, DEF's
@amandatums
discusses the power of the amicus brief and how the industry can, and why we should, proactively engage with the courts more.
👇👇👇
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14/ We want to thank our ingenious and courageous lawyers at
@ConMcPLLC
, who have been on this ride with us for a long time and have been true partners along the way. They are the real deal.
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4/ To be a broker, you have to “effect” txs in securities for others; ie, you have to act as an intermediary.
But if the court looks at how Wallet actually works, it’s clear that this passive software application is not an intermediary.
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This is a huge resource - the 1st open database showcasing positive use cases and apps for Blockchain tech across networks. This answers "yes" to the question: “Does blockchain have value?”
1/👋Introducing The Value Prop - an open database showcasing amazing use cases for blockchain technology. In less than 2 months & w the community’s help, we crowdsourced 300+ blockchain-based apps making a positive impact in the 🌎. Dive in at & read 👇
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13/ You can support DEF directly too.
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2/ Because as much as
@coinbase
is a hugely popular exchange, it is also a software developer and IT service provider. We did not want the court to lose sight of that perspective and how this decision might affect tech developers and service providers more generally.
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3/ Our amicus focuses on the 4A questions this type of collection raises for American citizens engaging with digital assets, especially where the government appears to be on a fishing expedition with no specific target in mind.
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4/ We argue that the Court must take into account core differences between crypto technology and TradFi because blockchain data provides the government with an intimate view into a person’s financial life in the past, present, and future.
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7/ As the judge and parties acknowledged, these questions don't have easy answers. But there are some things that have always been true and will always be true:
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3/ First, we argue that developing and providing wallet application software is not broker activity.
We get detailed on the tech for wallets and wallet apps.
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"I wish we weren’t in this uncertain moment for technology that yields such unlimited promise and potential. But I felt compelled to stand up for myself, businesses like mine, our allies, and an entire industry yearning for clean and fair rules of the road. That’s why I am suing
At Beba, our mission goes above traditional commerce – it's about innovation and creating a more prosperous global economy through digital assets. We’re suing the SEC to advocate for clear and fair rules to make this possible.
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12/ Wondering if you got the drop? Find out more about the BEBA token and the airdrop here:
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8/ Our second argument is that Coinbase’s Staking Program is *not* a securities offering because Coinbase’s role with respect to staking is ministerial, similar to an IT service provider.
As with Wallet, the SEC ignores the technological realities of staking as a service.
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7/ We were lucky to work with the amazing team at
@ConMcPLLC
and
@abesutherland
who captured our goals and translated them into compelling legal arguments. We could not do this work without such talented and dedicated counsel.
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6/ Point 2 - Coinbase does not open customer “accounts” through Wallet. Simply put: there is no such thing as “opening” an “account” on a blockchain.
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6/ We are proud to support the industry by filing amicus briefs in precedent setting cases, especially to argue a core principle that the government cannot erode Americans’ 4A right to financial privacy simply because they won’t wrestle with the details of the tech.
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1/ Yesterday we
@fund_defi
submitted an amicus brief in Van Loon v. Treasury, in support of plaintiffs’ appeal seeking to reverse the district court’s dismissal of the suit. 🧵
Read our brief here:
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7/ Patent trolls pick targets that either can’t challenge them in court or don’t have the resources to do so. So
@fund_defi
is proactively challenging the validity of the patent itself.
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@RyanSAdams
@LEJILEX
I'm not aware of any precedent in the class action space, but there's no question that the SEC has caused millions of dollars in damages to the American people. I have to hope there's some way to address that in the courts. My DMs are open.
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11/ We also point out that stakers do not transfer crypto or private keys to another party or give up control over their crypto when staking; therefore, there is no “investment of money” under Howey.
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