| Coinbase Presses for Gary
Gensler Personal Device and
Private Email Before Chaired SEC
by
Matthew Russell Lee, Patreon Book
Substack
SDNY
COURTHOUSE,
July 11 – Coinbase in
the SEC's case against it is
seeking access to Chairman
Gary Gensler's personal device
and private emails, including
from before he chaired the
SEC.
On July 11 U.S.
District Court for the
Southern District of New York
Judge Katherine Polk Failla
held a hearing. Inner City
Press live tweeted it, thread:
Coinbase's
lawyer: The SEC has not
assured us that Mr. Gensler
has not used his personal
email and personal device to
communicate with market
participants. Their silence
leaves no basis for the
wholesale innocuation (?) of
Mr. Gensler's personal device
Judge
Failla: I understood from the
SEC's opening submission that
this request includes a period
before his Chairmanship.
You'll have a hard row to hoe
on that. I find your arguments
speculative. Coinbase's
lawyer: Even the period when
he'd been Chair, they say no
Coinbase's lawyer: We're
unable to get information from
the SEC... The time period
before, we included because we
tried to engage with Mr.
Gensler and the SEC, but
they've refused to say he
didn't use his personal device
to communicate about crypto
Judge
Failla: I do not find that
argument persuasive. Just keep
that in mind. Coinbase's
lawyer: Mr. Gensler's
pre-Chair communications would
inform our ability to make a
complete record about the fair
notice defense
Judge Failla: I
think you should cut your
losses and go to your second
point. Coinbase's lawyer: Mr.
Gensler occupied a unique role
in shaping the public
understanding of crypto. Did
fair notice exist for the
entire period, including
before Mr. Gensler was chair
Judge Failla:
Since you have not indicated
you are withdrawing the
subpoena, I expect there will
be further briefing. I won't
agree with you necessarily but
I hear you Coinbase's lawyer:
We understand the
significance. We aim be be
constructive with Mr. Gensler
Judge Failla: It
does trouble me if you've been
stonewalled. I'm saddened to
learn that there is another
motion forthcoming from you.
I'll be here for these
motions.
SEC lawyer
Jorge Tenreiro: What they are
asking for, from a public
official, is incredibly
intrusive - officials have
been things to do. The cases
look at the SEC's actions, not
the actions of one person.
Before they ask us to pick up
his personal phone, show us
SEC lawyer: Chair
Gensler is not a fact witness,
and is certainly not an expert
witness on the law. We think
the subpoena should be
quashed. Coinbase's lawyer:
The Ripple court ordered
discovery of 19 custodians
including then-Chair Clayton.
SEC lawyer: The
issue of the personal devices
did come up in Ripple - look
at the endorsement in Docket
Item 163. Judge Failla: I do
have strong views about the
disproportionate burden of
inquiry into Mr. Gensler's
statements before he became
chair.
Judge Failla: You
do not appear to be
withdrawing the subpoena. I'd
prefer you begin with a motion
to compel. Coinbase's lawyer:
We'll be glad to proceed that
way. Judge: Make a schedule
with the SEC, offline. Letter
by Monday? Coinbase's lawyer:
Certainly.
Judge Failla: OK,
I'll await your papers. Have a
good day.
More on X for
Subscribers here
& Substack here
Inner City Press
will stay on the case.
The case is
Securities and Exchange
Commission v. Coinbase, Inc.
et al., 23-cv-4738 (Failla)
***
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