Tether and Bitfinex have submitted their defense against the claims of fraud made by NY Attorney General, Letitia James. Stuart Hoegner has submitted an affidavit and Zoe Phillips a Memorandum of Law. In this post we will review the assertions offered by the legal counsel for Tether and Bitfinex.
Fractional Reserve Banking
Hoegner and Phillips argue that as the Federal Reserve is only required to hold 10% of deposit funds in cash then the defendants shouldn’t need to hold 100% in cash. This is a very weak argument as the Federal Reserve holds fiat and Tether is a cryptocurrency which is expected to be traded 24 / 7. If banks have liquidity problems they can simply shut up shop for a few weeks, as they did in Cyprus in 2013 while they were waiting for an EU bailout. Legal counsel is wrongly trying to compare fiat and crypto. One reason people invest in cryptocurrencies is their distrust of fractional reserve banking so this argument hardly provides any comfort.
Legal counsel asserts that the website of Tether Ltd disclosed details of the $900 million loan facility prior to the filing by the NY Attorney General. On this basis, they argue that they didn’t try to mislead anybody regarding Tether funds. Again this is a weak argument as the Tether website, even today, states 100% backed and “from time to time, may include other assets and receivables from loans made by Tether to third parties, which may include affiliated entities.” If the defendants were being open and above board they wouldn’t use the term “from time to time” and fail to disclose the size of the loan between the related parties. In the documents submitted by Hoegner and Phillips, they accept that USDT is currently only backed 74% in cash and if the full loan amount is drawn down this will fall to just 68%.
No Harm Done to Citizens of New York
The defense team argues that Tether has always been redeemable at par value and that citizens of New York have not lost any funds, to date. Effectively they are asking the Attorney General to withdraw the case until such time as Tether can’t be redeemed at par value. By that argument, if the Civil Aviation Authority knows that Boeing 737’s are not safe we should wait for a few planes to fall out of the sky before we ground them.
A lot of case law is cited, especially by Phillips, including the claim that Tether is neither a security nor a commodity and furthermore Tether is not an investment. Maybe not, when measured against traditional securities and commodities, but crypto traders use Tether as a hedge against the rise and fall of cryptocurrencies with the expectation that USDT can be redeemed on par with USD. Traders might want to consider an exchange like Coinbase until such time as the related party loan between Tether and Bitfinex is confirmed as lawful.
UPDATE 2 May 2019
The arrest of Reginald Fowler was announced Tuesday 30 April 2019 for alleged bank fraud. The indictment refers to various bank accounts held by Fowler and Global Trading Solutions LLC (GTS). For those that have still not figured this out, it is believed that GTS via Crypto Capital processed fiat transfers on behalf of Bitfinex.