In submitting this letter, we broaden on the problems we expressed by the preliminary comment interval. Our earlier letter, which we join as an exhibit, particulars the thrilling potential of blockchain experience, Consensys’s work throughout the blockchain sphere, and the fairly just a few shortcomings of the Price’s proposal. Nevertheless apart from taking a further categorical place on the amendments’ software program to blockchain experience, the Reopening Launch fails to acceptable these shortcomings and definitely goes further down the inaccurate observe.
We discuss our points in three parts with the trustworthy hope that the Price will rethink its current proposal and engage earnestly with the blockchain neighborhood to succeed in at a smart regulatory framework. First, we reiterate the strategies whereby the proposed amendments are principally flawed, highlighting shortcomings that the Reopening Launch does not acceptable. Second, we make clear why the model new Launch underscores and definitely exacerbates these shortcomings. Lastly, we discuss how the Launch’s attempt to provide blockchain-specific analysis solely serves to introduce new errors into the SEC’s proposal.
Collectively, these flaws suggest that the proposed amendments cannot be lawfully adopted of their current form. As we make clear beneath, the SEC’s analysis merely cannot be squared with the Change Act of 1934, present commerce guidelines, or an right understanding of blockchain experience or the ecosystem as a result of it exists right now and is susceptible to evolve over time. The proposed amendments shouldn’t solely flawed as a approved matter, though; they’d have giant smart penalties for a transformative and fast-growing sector of the monetary system. The amendments would subject blockchain-based packages to regulatory burdens for which compliance simply is not solely powerful, however moreover often unattainable, and thus throw the broader blockchain ecosystem within the USA into paralyzing regulatory uncertainty. Definitely, the Releases themselves are already fostering substantial uncertainty, as a result of the ecosystem tries to search out out whether or not or not the Price intends to adjust to through on its sweeping claims of authority, and, in that case, whether or not or not these claims are legally sound. Present entities are increasingly more considering whether or not or to not relocate outside the USA or shut down completely, whereas the uncertainty deters new entrants into the market, stifling growth and innovation. We respectfully request that the Price withdraw the proposed amendments— each often or a minimal of as utilized to blockchain-based packages. Such warning could be notably relevant on account of, as a result of the Price is undoubtedly acutely aware, Congress is at current crafting full legal guidelines for regulating blockchain experience and has been considering quite a few legislative proposals relating to a regulatory framework for plenty of years. The extreme probability that legal guidelines will seemingly be handed ultimately implies that the SEC will shortly need to undertake implementing guidelines beneath a model new approved framework. Given the fundamental questions regarding the Price’s authority to regulate on this home the least bit—along with questions being requested by members of the Price itself—we respectfully submit that the Price must proceed with care and prudence.
DISCUSSION
I. The Reopening Launch Fails to Applicable Key Approved Deficiencies throughout the Proposed Amendments.
In the middle of the preliminary comment interval, Consensys and totally different commenters acknowledged a bunch of shortcomings with the proposed amendments. The SEC is not silent on the amendments’ software program to blockchain experience, which is definitely an enchancment to the extent the intent of the amendments has on a regular basis been to make use of to blockchain, as a result of the Reopening Launch primarily admits. Nevertheless the Launch fails to meaningfully acceptable totally different deficiencies. Inside the curiosity of brevity, we do not restate the whole analysis in our earlier letter, nevertheless we reiterate that—as at current formulated—the proposed amendments cannot be squared with the ’34 Act, the Administrative Course of Act, or the U.S. Construction.
First, the proposed amendments search to broaden the regulatory definition of “commerce” previous what the ’34 Act can bear. The Act defines “commerce” as “any group, affiliation, or group of people, … which constitutes, maintains, or provides a market place or providers for bringing collectively purchasers and sellers of securities or for in another case performing with respect to securities the options typically carried out by a stock commerce.”
As we outlined in our earlier letter, this statutory definition is fearful solely with intermediary packages that convey collectively the orders of exact shoppers and sellers. And the statutory historic previous shows that Congress sought to regulate exchanges solely insofar as they’ve been centralized entities that possess—on account of their centralization—a uniquely important place in setting market prices and in another case affecting market circumstances. However the SEC is now proposing a regulatory redefinition of 17 C.F.R. § 240.3b-16(a) which may cope with as exchanges packages that merely attain potential shoppers and sellers, allowing them to get hold of and negotiate transactions with each other. And it seeks to make use of this regulation to blockchain-based packages no matter their predominantly decentralized nature—a building that does not implicate any of the market-setting points underlying the ’34 Act. The proposed amendments thus violate the important rule that an firm may not undertake a regulatory definition inconsistent with the statute it is decoding.
Second, the proposed amendments are impermissibly motivated by “parts which Congress has not supposed [the SEC] to ponder.”
When the Price initially launched the amendments, it made clear that, whereas their stated purpose was to broaden the regulatory definition of “commerce,” the amendments would not improve the number of registered exchanges. Moderately, the amendments would serve to induce new broker-dealer registrations by providing so-called “New Rule 3b-16(a) Strategies” a neater off-ramp through the Regulation ATS exemption. The issue with this, in spite of everything, is that the ’34 Act outlined the phrases “supplier” and “vendor” as courses distinct from “commerce,” and the Price (like all firms) is definite by that congressional choice. It can’t promulgate a regulation decoding one statutory provision as a backdoor method of accelerating totally different provisions previous their textual content material.
Third, the proposed amendments are unconstitutionally imprecise. The amendments sow confusion regarding the supposed scope of “commerce” by altering the current rule’s clear parameters with ones that are nebulous and poorly outlined. As an example:● They provide no method for market members to know whether or not or not their actions contribute to the efforts of potential shoppers and sellers to transact, or to ponder a doable future transaction.● They do not specify the extent of causation essential for a gaggle to be “making on the market” a longtime, non-discretionary methodology for purchasing and promoting.● They do not specify the extent of scienter required for anyone to change into a part of a “group of people” that is making such methods on the market.● They do not make clear the extent to which they apply to platforms and members that reside partially, significantly, and even completely in abroad jurisdictions.● They do not even make clear what constitutes a “communication protocol” throughout the first place.
With these and totally different questions unresolved, the proposed amendments are riddled with “phrases so imprecise that males of widespread intelligence ought to primarily guess at [their] which means.” This draw back leaves everyone who guesses incorrect—ranging from companies like Consensys to the individual software program program builders and clients who rely on our decisions of their work and personal affairs, and who often shouldn’t refined securities-law consultants—to face hefty penalties after the actual fact. That form of retroactive punishment on the concept of hopelessly imprecise tips is strictly what the Due Course of Clause forbids.
Fourth, the cost-benefit analysis underlying the proposed amendments is woefully poor. Companies may not promulgate guidelines “based on arbitrary and capricious cost-benefit analyses.” A regulation is “extraordinarily capricious” if it purports to resolve a problem that does not really exist, however in saying the amendments, the Proposing Launch did not decide any proof of real-world damage necessitating the amendments or to supply even a non-conclusory justification for why they’d be useful. Likewise, a regulation is irrational if the corporate fails to current due consideration to the accompanying costs and the best way they weigh in opposition to any benefits. Proper right here, the Launch’s failure to conduct any vital benefits analysis underscores the irrationality of constant with a rule that the Price admits would impose (a minimal of) plenty of million {{dollars}} in costs yearly; for which it fails to estimate, even merely qualitatively, the value of any countervailing benefits; and as to which it neglects to elucidate how the amendments fulfill cost-benefit analysis. Moreover, the Launch takes an improper catch-all methodology that fails to distinguish between very utterly totally different courses of blockchain members and utilized sciences, whereas moreover failing to supply any vital analysis of the costs and benefits to effectivity and capital formation—requirements that Congress has significantly directed the Price to weigh in every rulemaking.
Lastly, the proposed amendments would infringe on protected speech in violation of the First Modification. Beneath the amendments, whether or not or not a system qualifies as an “commerce” prompts the content material materials of the speech it facilitates. Strategies that help of us discuss their curiosity in looking for or selling securities would rely as exchanges, whereas packages that facilitate communication about totally different issues would not. Nevertheless the Construction nearly on a regular basis forbids the federal authorities from “purpose[ing] speech based on its communicative content material materials.” For such content-based specializing in to be permissible, the SEC ought to current that it is advancing sufficiently important ends and doing so through sufficiently tailored means.
The Proposing Launch did not even acknowledge that the amendments implicate the First Modification, so much a lot much less make clear how they’d survive any stage of First Modification scrutiny. And as at current formulated, the amendments would fail such scrutiny, given the Price’s failure to elucidate the need for its proposal or to find out clear boundaries for the scope of its redefinition and thus present that the amendments are fastidiously tailored to securing important pursuits.
II. The Reopening Launch Reinforces and Exacerbates the Problems with the Distinctive Proposal.
We’re disillusioned that the Reopening Launch has not reconsidered the broader analysis equipped throughout the Proposing Launch, as that sweeping analysis cannot be squared with the SEC’s authorizing statute, its constitutional obligations, or elementary concepts of administrative regulation. Instead, the Reopening Launch appears to double down on these elementary flaws.
A. The Reopening Launch Overreads the Time interval “Change” throughout the ’34 Act. To start out out, the Reopening Launch is equally insistent on growing the time interval “commerce” previous what the ’34 Act can bear. Together with the problems described in Half I, the Reopening Launch fails to appropriately ponder each what an commerce does beneath the ’34 Act, or who is also thought-about part of an commerce.
- The ’34 Act is clear regarding the options essential for an commerce to exist. It asks whether or not or not a gaggle “constitutes, maintains, or provides a market or providers for bringing collectively purchasers and sellers of securities or for in another case performing with respect to securities the options typically carried out by a stock commerce.” In the middle of the distinctive comment interval, Consensys and totally different commenters outlined that New Rule 3b-16(a) Strategies do not qualify on account of they do not “perform[] with respect to securities the options typically carried out by a stock commerce.”The Reopening Launch tacitly admits the premise of the aim: fairly than make clear how New Rule 3b-16(a) Strategies do perform options typically carried out by stock exchanges, it professes solely that the SEC simply is not required to level out that they do. The Launch reads half 3(a)(1) of the ’34 Act to perform throughout the disjunctive: a gaggle qualifies as an commerce if its market place or providers (1) “convey[] collectively purchasers and sellers of securities” or (2) “perform[] … the options typically carried out by a stock commerce.” And it asserts that New Rule 3b-16(a) Strategies fulfill risk (1). This interpretation principally distorts the statute. Half 3(a)(1) does not say {{that a}} facility is an commerce if it does “A” or “B”—as a disjunctive requirement would. It instead explains that, to qualify as an commerce, a facility ought to do “A” or “in another case” “B.” And it is a “cardinal principle of statutory growth” that statutory provisions must be study, wherever doable, to “give affect … to every clause and phrase of [the] statute.” The phrase “in another case” is an important statutory time interval that the Price merely ignores.Study appropriately, the statute creates a single path to turning into an commerce, not two separate ones. The phrase “in another case” specifies that the second clause simply is not some distinct mode of qualifying as an commerce. It is, fairly, a residual clause that fills any gaps throughout the explicit examples half 3(a)(1) enumerates.The phrase “in another case” means “[i]n one different method” or “[b]y one different means,” and thus conveys that the “A” and “B” clauses need to be study in conjunction. Particularly, “in another case” “operates as a catchall: the exact devices that precede it are purported to be subsumed by what comes after the ‘or in another case.’” So, throughout the context of half 3(a)(1), the inclusion of “in another case” implies that the statute is fearful with “market place[s] or providers for bringing collectively purchasers and sellers of securities” solely insofar as they’re performing “options typically carried out by a stock commerce.”New Rule 3b-16(a) Strategies do not perform options typically carried out by stock exchanges, as a result of the Reopening Launch all nevertheless admits. They thus do not “convey[] collectively purchasers and sellers of securities” contained in the which means of half 3(a)(1), and so shouldn’t exchanges beneath the ’34 Act.This elementary statutory prohibit not solely precludes the proposed rule however moreover underscores why the Reopening Launch’s broader effort to make use of present commerce requirements to blockchain-based packages exceeds the Price’s statutory authority. In clarifying that the SEC interprets the proposed amendments to realize the blockchain, the Launch declares that the prevailing regulation already applies to many blockchain packages. Which may be a remarkably broad assertion to casually make in a rulemaking, and it is one which every requires further in depth justification and underscores the capriciousness of the Launch’s rulemaking methodology. Nevertheless larger than that, it’s often incorrect as a matter of regulation.Most blockchain-based packages are partially or completely decentralized and thus do not perform the options of a stock commerce as that concept was understood on the time of the ’34 Act. As an example, “automated market makers”—which the Reopening Launch contemplates is perhaps part of an commerce—perform through decentralized processes. Nevertheless as talked about above and as outlined at dimension in our earlier comment, the distinctive understanding of “commerce” extended solely to centralized entities on account of their market-setting capabilities. The ’34 Act is dominated by the “atypical which means on the time Congress enacted” it, and thus precludes any belated attempt by the SEC to broaden its authority. Thus, any rulemaking that is dedicated to the statute would exclude decentralized packages, along with these on the blockchain.
- Together with mangling what constitutes an commerce, the Reopening Launch misunderstands who is also part of an commerce. The time interval “commerce” means any “group,” “affiliation,” or “group of people” that “constitutes, maintains, or provides a market place or providers” for the wants talked about above. Often, determining the pertinent “group,” “affiliation,” or “group of people” is easy; typical exchanges often have clear organizational constructions. Nevertheless blockchain protocols and the networks on which they perform often do not, and the Launch has no satisfactory reply for discern the “group of people” answerable for a blockchain-based system. Moderately than current a clear definition or regular, it advances a few “important parts” of indeterminate weight.In accordance with the Launch, “important parts” in determining whether or not or not a person is part of the associated “group of people” that will signify an “commerce” “would often embody whether or not or not the people act in reside efficiency in establishing, sustaining, or providing” the obligatory market or providers, or whether or not or not they “practice administration, or share administration, over options of such market or providers or the effectivity of options typically carried out by a stock commerce.”These parts elevate quite a few questions as one digs deeper into what all this really means for anyone collaborating throughout the blockchain ecosystem. As an example, the Launch states {{that a}} group of people might share a working settlement, nevertheless that is perhaps merely “one difficulty to ponder, counting on totally different info and circumstances.” Nevertheless the Launch leaves hopelessly unclear what else it considers associated, or how important an exact settlement is to the group analysis. Can people unwittingly engage in concerted train ample to signify a “group of people,” absent a longtime meeting of the minds? The scant dialogue leaves one to guess. As for administration, the Launch provides a few examples of when administration over market place or commerce options is alone ample to create accountability over an “commerce.” Nevertheless what stage of administration is unquestionably ample is left unsaid. Particularly, the Launch does not make clear the sting of “vital” token possession at which blockchain clients out of the blue purchase ample administration over the system to think about regulatory duties. Nor does it deal with the circumstances when a service provider or third-party vendor begins exercising ample administration to change into accountable—alongside its purchasers—for registering the “commerce.” Absent clarification about these and totally different questions, regulated occasions will not have trustworthy uncover of their obligations beneath the regulation. Nevertheless even keeping apart the fundamental ambiguities throughout the listed “parts,” it is clear that they sweep too broadly. Beneath the textual content material of half 3(a)(1), “[w]hether two or further people is also performing in reside efficiency” is the important prerequisite for membership in a qualifying “group of people”—not merely thought of one in all plenty of parts. And “performing in reside efficiency” requires making a acutely conscious choice—i.e., coming into an settlement to hitch collectively in furtherance of a typical purpose. This requirement follows from the textual content material of half 3(a)(1). The statutory phrase “group of people” that constitutes, maintains, or provides “a market place or providers” clearly connotes a bona fide group of people that has agreed to return collectively to form, protect, or current an commerce. And even when that weren’t clear from the statutory textual content material, due course of concepts require learning this provision narrowly, to ensure that it is “ample[ly] explicit[] that atypical of us can understand” their regulatory obligations and to limit the prospect that the SEC might implement these obligations in “arbitrary” or “discriminatory” strategies. The statute thus precludes along with inside an commerce people who shouldn’t exercising their purported administration in reside efficiency with others. The Reopening Launch’s reverse interpretation is very troubling as utilized to blockchain-based packages. Whereas it does acknowledge, albeit vaguely, some limits on what constitutes a “group” usually, it fails to current ample weight to independence throughout the blockchain context. Moderately than meaningfully deal with that problem, the Launch glosses over points beforehand raised by commenters about how people or clients involved with “‘DeFi’ protocols . . . act independently of each other.” It instead suggests that every one methodology of disparate actors—along with “validators,” “miners,” and “holders of governance or totally different tokens”—is perhaps deemed part of an commerce. Supplied that these wide-ranging actors are invariably and utterly unbiased from each other, in relation to every options and incentives, amongst totally different points, the Launch’s regular for blockchain-based packages—and blockchain-based packages alone— appears to be that people might be lumped collectively in a “group” each time they interact in “related” actions. Not solely would that sweeping verify battle with the ’34 Act for the reasons detailed above, nevertheless it moreover would end in a perverse final result the place blockchain clients who’re working at cross-purposes—like validators competing with each other to earn a restricted number of block rewards—might nonetheless be deemed part of a unified group that shares regulatory duties. Importantly, the Reopening Launch moreover fails to grapple with the reality that—notably throughout the blockchain context—a “group of people” working a so-called commerce will often if not on a regular basis embody people based outside the USA. That points on account of the ’34 Act often does not apply extraterritorial. However previous acknowledging that “some amount of train accessible available in the market for crypto belongings talked about on this Reopening Launch is carried out outside the U.S.,” the Launch provides no analysis of how the SEC intends for its proposed amendments to impact groups that embody worldwide actors. It’s a extreme problem that enormously impacts blockchain members across the globe, and the Reopening Launch is actually poor for failing to meaningfully deal with it the least bit. These superior issues with extraterritoriality further underscore the need for warning in growing the scope of “commerce.” And larger than that, they require a fuller clarification from the SEC about how these tips will perform throughout the context of blockchain protocols and the worldwide, permissionless laptop computer networks on which they perform, adopted by a risk for comment from most of the people, which has not however had even a “first different … to produce suggestions” on this important problem.Briefly, the Reopening Launch adheres to and extends positions that are irreconcilable with the ’34 Act and that exceed the Price’s “statutory jurisdiction, authority, or limitations.” The analysis underlying these positions likewise conflicts with the APA and its prohibition on arbitrary and capricious firm movement. Should the Price insist on transferring forward with the proposed amendments, it ought to thus significantly slender them to stay contained in the bounds of what the statute will permit and the proof will assist. And since such a substantial overhaul would require revisions that take the final word rule far afield from the current proposal, the SEC ought to further allow for public contact upon any revised proposal.
B. The Reopening Launch Underscores the Improper Objectives of the Proposed Amendments.To the extent the Proposing Launch left any doubt regarding the purpose of the proposed amendments, the Reopening Launch confirms that the SEC is using the amendments as a backdoor to broaden the applicability of broker-dealer registration requirements. The model new Launch depends on the concept that no New Rule 3b-16(a) Strategies will really register as exchanges, and that they’re going to instead register as broker-dealers beneath the Regulation ATS risk. Most tellingly, although a significant purpose of the Reopening Launch is to flesh out the SEC’s monetary analysis of the proposed amendments49—amendments written to broaden the regulatory definition of commerce—the Launch does not add any analysis regarding the costs or benefits of commerce registration in its pages and pages of supplemental analysis. It, too, addresses solely the purported costs and benefits of broker-dealer registration and compliance with Regulation ATS requirements. Nevertheless as talked about above, Congress intentionally outlined “exchanges” and “broker-dealers” as separate statutory courses, and the Price may not regulate spherical Congress’s choice. If the Price believes the regulatory definition of “broker-dealer” or the scope of Regulation ATS to be inadequate, it must amend these tips—to the extent it might truly obtain this in keeping with the ’34 Act.
Moreover, the proposed amendments would inevitably chill the occasion and continuation of New Rule 3b-16(a) Strategies and of blockchain-based packages further often. Whereas we, as a U.S.-based experience provider that employs nearly 900 of us, hope that the SEC does not intend this final result, we’re in a position to see how others might infer in another case, notably in opposition to the backdrop of SEC administration’s public hostility within the path of the blockchain ecosystem. Merely last week, for example, Chairman Gensler asserted that “we don’t need further digital overseas cash.” So too, the Launch brusquely dismisses commenters’ points, along with ours, that blockchain-based packages may not have the power to regulate to commerce regulatory requirements usually, and with the broker-dealer and Regulation ATS requirements significantly. The Launch likewise makes clear the SEC’s indifference to the reality that the proposed amendments may deter innovation and drive market members each to maneuver outside the USA or to shut down completely. And ultimately, provided that the proposed amendments are replete with imprecise interpretations, requirements, and necessities, they solely improve regulatory confusion.This confusion is further compounded by the SEC’s apparent use of the Reopening Launch as a automotive to make extraordinarily contestable pronouncements regarding the scope of its current regulation—particularly, how the current definition of “commerce” in Price guidelines already applies to blockchain protocols. This nearly off-handed pronouncement raises elementary questions for stakeholders as as to if and the best way they’re already regulated, or just vulnerable to future regulation, or someplace in between. As Commissioner Peirce aptly put it, the result is a proposal that “embrace[s] stagnation, … urge[s] expatriation, and welcome[s] extinction of latest experience.” The Price must make clear that this is not its goal by< withdrawing its proposal and along with relevant safeguards in any revised effort.We wish to think about that broadly chilling blockchain innovation simply is not really the Price’s goal, on account of that is clearly not a legally permissible basis for the proposed amendments. Companies may not undertake guidelines for pretextual or predetermined causes. Nor, as talked about above, may an firm ponder “parts which Congress has not supposed it to ponder.” And the ’34 Act Congress—which enacted half 3(a)(1) to create guardrails throughout the operation of centralized packages—could not have supposed for the SEC to elaborate on that provision for the goal of specializing in primarily decentralized entities, quite a lot of which have a better footprint overseas than throughout the U.S. Thus, if the Price believes that positive blockchain-based packages, as at current constituted, should not be permitted to perform, then the proper course is to counsel that change straight fairly than marshaling the commerce tips as a conduit for doing so.C. The Reopening Launch Exacerbates the Vagueness of the Distinctive Proposal.
The Proposing Launch was impermissibly imprecise, and the Reopening Launch solely makes the difficulty worse. Because the model new Launch acknowledges, fairly just a few commenters beforehand warned that the boundaries of the proposed amendments have been too not sure. The Reopening Launch gestures at addressing this draw back, paying homage to by proposing the chance of revising the proposed amendments to cowl “negotiation protocols” instead of “communication protocols.” Nevertheless that marginal change would solely nibble on the perimeters. To craft a proposal that is not impermissibly imprecise, the SEC ought to revisit all of its proposed changes, and provide exact definitions (or a minimal of concrete examples) of the model new phrases it seeks to undertake so that commenters like Consensys can understand what they suggest in comply with. The Reopening Launch does not do any of this. While to “negotiation protocols,” it can’t stage to explicit examples of what types of packages it has in ideas. Instead, the Launch merely repeats that the proposed amendments’ software program will rely on “info and circumstances”—a phrase it makes use of completely a dozen events.Nevertheless the Launch’s dialogue of doable “info and circumstances” solely heightens the uncertainty about how broadly the proposed amendments will apply. First, the Launch repeatedly makes clear the SEC’s view that questions of software program will activate info and circumstances throughout the plural. As an example, as talked about above, it describes the existence of an underlying settlement as “one difficulty to ponder, counting on totally different info and circumstances,“in assessing whether or not or not a person could be performing in reside efficiency with a gaggle of people.” Nevertheless hereand elsewhere, it provides no hint as to how this difficulty must be weighed alongside the alternative info and circumstances. In what circumstances does the SEC suppose folks can act in reside efficiency with out having agreed to take motion? Can concerted movement ever be absent even when there’s an underlying settlement? The Launch does not say.
Likewise, the Launch refuses to find out circumstances that definitively fall outside the proposed amendments’ scope, leaving commenters guessing as to the place the outer perimeter of these amendments is to be found. As an example, while to a software program program developer who publishes or republishes code on his private unbiased volition—i.e., a developer who clearly simply is not establishing an commerce—most likely essentially the most the Launch can say is that the developer “is also a lot much less probably” to face registration obligations if the code is subsequently repurposed for use by a supposed commerce. It’s a essential stage to a corporation like Consensys, which amongst totally different points develops free, open-source software program program for every kind of capabilities. The Launch leaves totally unclear to us the circumstances whereby our software program program enchancment might inadvertently enterprise from “a lot much less probably” (which isn’t any precise comfort to start out with) to “further probably” to face registration obligations. Any good-faith attempt to stay on the suitable side of the proposed amendments on this regard could be nothing larger than a stab at nighttime.
And it is rather more disconcerting that the Launch does not deny that the numerous entities commenters concern “is maybe inadvertently captured by the definition”—paying homage to social-networking web sites, messaging functions, and smart-contracting platforms—might, in actuality, fall contained in the scope of the proposed amendments.64 Instead, the Launch makes an try and cross the obligation of resolving the proposal’s ambiguities onto commenters, making myriad requests for comment regarding the right scope of the rule. As an example, the Launch asks whether or not or not the phrase “straight or circuitously”—which it is looking for in order so as to add to Rule 3b-16(a)—must be interpreted to have limiting concepts and, in that case, what they must be. These questions further affirm that the language throughout the proposed amendments is open-ended and ambiguous fairly than self-defining and clear.
To the extent the SEC leaves gaps like these unresolved in any remaining rule, it will likely be unlawful for a bunch of causes. Such ambiguity is impermissibly arbitrary on account of it permits the Price to make use of the amendments with out vital constraint.It moreover deprives regulated occasions of trustworthy uncover on account of the proposed amendments are “not sufficiently clear to warn [regulated parties] what’s predicted of [them].”And, merely as troublesome, the proposed amendments would unduly burden market members who shouldn’t regulated occasions by making them understandably fearful that they is maybe. Moreover, if and when the SEC provides much-needed regulatory readability through definitions and examples, it ought to moreover current a specific different for public contact upon that new analysis, which like totally different substantial changes must be “examined by publicity to quite a few public comment.”
D. The Reopening Launch’s Monetary Analysis Is Deeply Flawed.The Reopening Launch’s deficiencies moreover persist in its monetary analysis. The Price devotes quite a lot of the Launch to supplementing the analysis of costs and benefits throughout the Proposing Launch. However the model new Launch solely repeats and even worsens the problems in that distinctive analysis.
- To start out out, the Reopening Launch nonetheless makes no effort to level out that the benefits of the proposed amendments outweigh their costs—a elementary prerequisite to rational firm movement.70 Instead, the Launch appears to advocate that the SEC may impose tips with out regard to the proportionality of their penalties, reassuring commenters at one stage that “the Price believes that the[] costs [of the proposed amendments] shouldn’t unattainable to pay.” Nevertheless the associated question is whether or not or not a proposal would do “further good than damage,” and an firm thus may not promulgate tips whose costs “far outweigh any benefits.” And provided that the Launch is solely silent on this proportionality question, it is inexpensive to infer that each the Price can’t really foresee the outcomes of its proposal, or it has concluded that such an analysis would not assist the amendments.Definitely, even when the Price had wished to supply a troublesome weighing analysis, the breadth and ambiguity of the amendments would make doing so unattainable. Beneath the current Launch, it’s very unclear what differ of members may or is not going to be swept up on this proposed regime. We see this uncertainty in considering the amendments’ software program to Consensys’s private merchandise. For example, Consensys provides MetaMask, a client-side, unhosted pockets software program program program that permits clients to maintain up secure and distinctive entry to their funds, study blockchain info, and ship transactions on their very personal behalf, along with ones that leverage the computational logic of DeFi smart contract protocols; Infura, a blockchain node service that processes billions of client and developer queries a day, as of us study and write to the blockchain; and Diligence, a smart contract security auditing service often utilized by DeFi duties to verify and improve their code. These purposes, and associated ones equipped by others positioned across the globe, all perform essential options throughout the peer-to-peer blockchain home, nevertheless the Launch leaves unclear the extent to which these purposes—and affiliated builders or clients—is also implicated by an amended Rule 3b-16(a). And the Launch truly makes no attempt to weigh the costs, benefits, or proportional price of ensnaring these purposes.
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Even when the Reopening Launch might justify the proposed amendments by reference to benefits alone, the benefits it identifies are illusory. The model new Launch, identical to the Proposing Launch, does not decide even a single real-world occasion of why the proposed amendments are essential—as an illustration, it provides no proof that anyone has been harmed by the absence of the foundations it seeks to impose. The Reopening Launch instead provides solely a conclusory analysis of the proposal’s purported benefits: it makes the unsupported assertion, for example, that the expansion of regulatory oversight is basically useful. Nevertheless the SEC may not promulgate a regulation to deal with a problem that does not in actuality exist after which cite the proposed regulation’s enhanced software program to that non-existent draw back as a basis for its legality.Moreover, to the extent the proposed amendments may generate any meager benefits, the Reopening Launch fails to ponder how these benefits will vary counting on the character of the regulated entity. It elides the reality that blockchain-based packages perform very in one other method from their “TradFi” counterparts, and that the blockchain ecosystem is itself divided between “CeFi” and “DeFi” packages, with solely the latter being organized spherical concepts of decentralization. These variations suggest that the cost-benefit analysis need to be category-specific. As an example, the Launch touts one benefit of the proposed amendments as their enhancement of investor security. Nevertheless the need for such typical protections in that regard is meaningfully diminished throughout the DeFi context and varies amongst utterly totally different protocols, given the sturdy investor protections underlying blockchain experience and the variability in how smart contract protocols are composed and efficiency. DeFi platforms are often noncustodial (i.e., the platforms certainly not take possession of shoppers’ funds) and atomic (i.e., the platforms facilitate transactions address-to- deal with, with out menace of error, as deal with owners each see their transaction processed or simply retain the belongings they started with). Nevertheless some may need utterly totally different traits and efficiency. These distinctions matter to a cost-benefit analysis, and on their face, the Launch’s summary assertion that the benefits of its proposed amendments will seemingly be associated for every blockchain-based and further typical packages makes little sense. Companies may not ignore doubtlessly dispositive factual distinctions.
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In any event, the Reopening Launch moreover desires to ponder costs, and its consideration proper right here fares no increased. By recognizing that blockchain-based packages often—and notably decentralized packages, paying homage to those that use smart contracts—are likelier to face elevated costs than totally different New Rule 3b-16(a) Strategies, the Launch tacitly acknowledges that the related price side of the cost-benefit equation is very important proper right here.80 Nevertheless the Launch makes no attempt to provide a specific estimate, instead admitting that the SEC has no understanding of merely how extreme the costs might rise for each class.Definitely, to the extent the Reopening Launch does discuss costs, it underestimates the probably harms in important strategies. For one issue, the Launch significantly undercounts the number of entities that may seemingly be affected by the proposed amendments. It estimates that there are between 35 and 46 New Rule 3b-16(a) Strategies, between 15 and 20 of which commerce digital belongings. Nevertheless based on Consensys’s experience throughout the blockchain commerce, every of those estimates are far too low, and neither estimate even makes an try and account for the assorted new entrants susceptible to be a part of that fast-growing ecosystem throughout the coming months and years. By way of comparability, one blockchain evaluation and knowledge company, which is broadly relied on inside the home, has reported that there are many of protocols that function as “Decentralized Exchanges,” and many further “lending protocols”—all of which ought to now ponder whether or not they now fall beneath the Price’s new interpretation of its authority, beneath each the prevailing Rule 3b-16(a) or the proposed amendments.Previous this underestimation of the measurement of costs, the Reopening Launch takes a too-cramped view of the differ of associated costs. As an example, the Launch largely ignores the following important costs:● The costs of slowing innovation. The Launch admits that adoption of the proposed amendments might correctly set off “market members [to] decrease and decelerate the occasion of latest merchandise and utilized sciences,” push packages away from working through decentralized mechanisms, elevate boundaries to entry throughout the blockchain home, and even drive some entities out of the blockchain market. Nevertheless it certainly makes no systematic attempt to estimate the costs of diminished innovation, whatever the disproportionate worth of monetary growth and innovation occurring until now throughout the blockchain ecosystem, which all accrues to the advantage of clients, retailers, and most of the people further broadly. Nor does it ponder the reality that this stifling of innovation may affirmatively downside the USA by driving innovation overseas.● The costs of regulatory uncertainty. As this letter makes clear, the regulatory uncertainty wrought by the proposed amendments is substantial. Actors throughout the blockchain sphere ought to battle to decipher whether or not or not they fall inside the brand new Rule 3b- 16(a), whether or not or not they will come into compliance, and what (if one thing) they will do if not. However the Reopening Launch acknowledges the actual fact of regulatory uncertainty solely in passing, with no attempt to measure the extent to which such uncertainty will damage these doubtlessly regulated occasions and the broader monetary system.● The outsized costs the proposed amendments would impose on smaller or a lot much less refined market members. Whereas even established companies like Consensys will seemingly be significantly burdened by the proposed amendments, these burdens are magnified for the atypical individuals who participate throughout the blockchain ecosystem—paying homage to validators, DAO members, and liquidity suppliers—who may now be coping with demanding regulatory obligations.88 It is arduous to see how less-sophisticated members might feasibly regulate to the regulatory regime to guard in opposition to personal obligation, each individually or with totally different members of a so-called “group of people” which may invariably embody others who’re pseudonymous and positioned in far-flung areas across the globe. However the Reopening Launch makes no effort to meaningfully assess these costs each.Moreover, as talked about above, the Launch ignores the exact costs of commerce registration, considering solely the costs of broker-dealer and ATS registration. Nevertheless even whether or not it’s correct that entities are susceptible to avail themselves of the Regulation ATS exception if on the market, the SEC may not pretty broaden the regulatory definition of “commerce” with out contemplating the costs of actually registering as an commerce, significantly when commenters have warned the SEC that many New Rule 3b-16(a) packages would not be eligible for the ATS exception. This analysis is very essential on account of the Launch acknowledges that the burdens of commerce registration and ATS registration shouldn’t interchangeable: the costs of the earlier are “often significantly elevated.” So the Launch’s analysis of the proposed amendments’ costs—like its analysis of benefits—contains “extreme flaw[s]” that render it “unreasonable.”
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In sum, the cost-benefit analysis throughout the Reopening Launch is untenable on account of it “inconsistently and opportunistically physique[s] the costs and benefits of the [proposed] rule,“neglect[s] to assist [the SEC’s] predictive judgments,” and ignores “substantial points.”These flaws are notably acute on account of they delay to points the SEC is statutorily required to ponder. Notably, the SEC ought to on a regular basis ponder whether or not or not a rulemaking “will promote effectivity, opponents, and capital formation.” Nevertheless the Reopening Launch provides solely equivocal and barebones assertions on these grounds, stating that the amendments “might” promote effectivity, opponents, and capital formation, whereas moreover acknowledging quite a few costs. For any new regulatory burden to be rational, the APA requires further substantiation of benefits than this, and requires that the SEC really make a predictive judgment a few new rule’s outcomes. It is merely not a legally tenable place that the amendments are too far reaching, versatile, and complex to make such a predictive judgment. And the Price’s reluctance to make a major prediction implies that—as to effectivity, opponents, and capital formation, as further often—the current doc compels a discovering that the proposed amendments on steadiness do further damage than good.Definitely, the Reopening Launch provides every goal to suppose that the proposed amendments might have critically unfavorable penalties for each of effectivity, opponents, and capital formation. The amendments nearly truly would in the reduction of price effectivity by reducing the provision of revolutionary devices that make digital-asset transactions and totally different actions on the blockchain ecosystem further price-efficient. The SEC itself has acknowledged that the proposed amendments may correctly in the reduction of opponents by driving blockchain-based entities offshore or forcing them to shut down completely. Likewise, the innovation-stifling and regulatory uncertainty talked about above inevitably will in the reduction of new capital formation, as consumers in another case centered on backing further enchancment of blockchain-based and totally different New Rule 3b-16(a) Strategies increasingly more decline to take motion on account of these regulatory hurdles are unattainable to clear.Briefly, the proposed amendments fail to appropriately weigh costs and benefits to ensure that the benefits outweigh costs—each often or as to effectivity, opponents, and capital formation significantly. And to the extent the costs and benefits might be acknowledged, the sizable costs of the proposed amendments appear to outweigh their minimal-to-nonexistent benefits. Given all this, it is unclear why the Price is insistent on pushing forward with its proposal. In doing so, the Price ignores inexpensive choices accessible to it— actually, perhaps the one inexpensive plan of motion: it might truly merely retain the current and well- tailor-made Rule 3b-16(a), and stop making an attempt to extend the Rule to blockchain-based and totally different beforehand uncovered entities, as Commissioner Peirce has acknowledged. That choice marks however one other excuse why the Reopening Launch can’t cross muster.
E. The Reopening Launch Nonetheless Fails to Grapple with the Proposed Amendments’ Encroachment on the First Modification
Lastly, the Reopening Launch nonetheless does not acknowledge that the proposed amendments run headlong into the First Modification. Its suggestion that the SEC might alternate the time interval “communication protocol” throughout the amended Rule 3b-16(a) with “negotiation protocol” would not eradicate this draw back, as a result of the Launch simply is not proposing to slender the substantive scope of what that point interval covers, and it nonetheless has not acknowledged any concrete pursuits that might render the amendments of compelling and even substantial significance.If one thing, the model new Launch solely worsens the First Modification violation. By expressly suggesting that software program program builders is also liable beneath the amendments, along with people who develop software program program for non-business, purely expressive, and pretty typically explicitly political causes, the Launch provides rise to a clear chilling affect, given the long-established indisputable fact that laptop computer code is speech.And further often, the Launch exacerbates the First Modification draw back by fostering uncertainty regarding the scope of the amendments’ attain—as an illustration, whether or not or not they apply to positive people upon electing to participate in a DAO vote—making the amendments even a lot much less narrowly drawn. Supplied that the SEC ought to current an in depth match between means and ends beneath any stage of First Modification scrutiny, the Launch underscores the incompatibility of the Price’s proposed changes with the First Modification.
III. The Reopening Launch’s Analysis of the Proposed Amendments’ Software program to Blockchain-Based Strategies Rests on Fundamental Misunderstandings of Blockchain.
Together with repeating the errors of the Proposing Launch, the Reopening Launch introduces completely new errors in its blockchain-specific supplemental analysis. These errors elevate extreme questions regarding the extent to which the SEC understands nascent and fast evolving blockchain experience, and underscore why any amendments to Rule 3b-16(a) mustn’t attain blockchain-based packages—each often or, on the very least, for the foreseeable future.
A. The Reopening Launch Relies upon upon Flawed Assumptions Regarding the Extent to Which Digital Property are Securities.
The SEC’s attempt to management blockchain-based packages beneath Rule 3b-16(a) depends upon the sting premise that, as Chairman Gensler has pronounced in public fora, nearly the whole digital belongings used and traded on such packages are securities. In any case, the SEC’s jurisdiction spans solely the sphere of securities regulation, and every the statutory and regulatory definitions of commerce—along with beneath the proposed amendments—are concerned solely with providers that help facilitate securities transactions. Blockchain-based packages thus fall contained in the Rule’s ambit supplied that the belongings whose commerce they help facilitate are actually securities beneath federal regulation.
The Reopening Launch makes clear that the SEC is continuous from this assumption, nevertheless it provides no vital analysis of why the SEC believes that many or most digital belongings are securities. As an example, the SEC asserts, with out clarification, that the probability of digital belongings being securities is sufficiently extreme that “it is unlikely that packages shopping for and promoting quite a few utterly totally different crypto belongings shouldn’t shopping for and promoting any crypto belongings that are securities,” such that the SEC finds it inexpensive to think about that the majority such packages probably fall inside the current Rule 3b-16(a) and are already liable beneath the current Rule. And one in all many SEC’s private commissioners has interpreted the Reopening Launch as an apparent “paper practice” to finalize the Price’s pre-determined view that “nearly all crypto belongings are securities and are subject to the
Price’s jurisdiction.” Nevertheless an firm may not engage in such skilled forma maneuvering; it ought to instead proceed through the rulemaking course of with an open ideas and “current[] a reasoned clarification for [its] protection assumptions and conclusions.” Any remaining rule will seemingly be arbitrary and capricious till the SEC provides a thought-about antecedent clarification for its assertion of jurisdiction to regulate blockchain-based packages.Any remaining rule will even be arbitrary and capricious if the corporate is relying on incorrect assumptions. Proper right here, there’s good goal to suppose the Reopening Launch significantly overestimates the extent to which digital belongings are securities. Whether or not or not a digital asset is a security prompts whether or not or not it is an funding contract, and loads of, if not most, digital belongings function purely as belongings fairly than as binding contracts for an funding scheme. Most simply, the time interval “funding contract” requires a binding obligation (a “contract”). Nevertheless for practically every digital asset traded on the secondary market by the sorts of packages implicated by the commerce guidelines, there usually are not any implied or written contracts. The builders who initially created these secondarily traded tokens don’t have any obligations to those exchanging them in secondary markets. And there is thus no “funding contract” or underlying security.Moreover, that threshold stage is way from the one issue that distinguishes the overwhelming majority of digital belongings from federal securities. As an example, many digital belongings function as utility tokens—allowing for use on a platform, fairly than accrual as an funding—and so often cannot be funding contracts. Totally different tokens, like most likely essentially the most broadly accessible and used tokens, have been created and are actually technologically vital on account of their networks do not course of transactions till a transaction sender pays a worth in that native token. Likewise, many tokens accrue price primarily from the vagaries of market forces fairly than any express managerial efforts from the builders or promoters of the token, which likewise prevents them from being thought-about funding contracts. There’s far more that is perhaps talked about regarding the distinctions between digital-asset tokens and funding contracts, nevertheless for present capabilities it is
ample to say {{that a}} lawful justification of SEC regulation of blockchain-based packages would require rigorous analysis of why that regulation does not sweep previous bona fide securities.
Given the complexity of assessing the regulatory standing of digital belongings, the SEC must at minimal desk any software program of Rule 3b-16(a) to blockchain-based packages—every beneath the current Rule and via the proposed amendments—until these antecedent jurisdictional questions are settled. And as talked about above, express warning is required on account of Congress— the acceptable physique for resolving foremost questions of regulation—is engaged on legal guidelines clarifying the jurisdictional standing of digital belongings. Nevertheless cautious resolution of this problem would require the SEC in some unspecified time sooner or later to impress a separate rulemaking on the matter, given the magnitude and salience of the underlying factors, to not level out the massive confusion the SEC has fostered on this problem in latest instances. Solely then can the SEC give this problem—along with the assorted follow-on questions that it implicates—the obligatory consideration, priority, and public enter.B. The Reopening Launch Includes Essential Misconceptions About Blockchain Know-how and the Blockchain Commerce.The proposed amendments are further premature on account of the blockchain-specific analysis throughout the Reopening Launch reveals little comprehension of how blockchain experience and the blockchain ecosystem really work. The Launch admits that the SEC has restricted notion into how blockchain-based packages perform. Possibly unsurprisingly, then, the outcomes of the Price’s guesswork leaves so much to be desired. The Launch contains vital errors about blockchain, as mirrored throughout the foregoing dialogue regarding the SEC’s undercounting of protocols, and the helpful and geographic vary of members doubtlessly affected by these amendments. And as detailed beneath, the errors do not end there. Environment friendly regulation requires that the regulator understand what it is regulating.
Most importantly, the Reopening Launch provides a poor analysis of the ability of decentralized blockchain-based packages to regulate to the SEC’s envisioned registration requirements. Although it acknowledges that the requirements’ burdens may stress some New Rule 3b-16(a) Strategies to exit the market, the Launch insists that every one blockchain-based packages would have the power to regulate to the requirements in the event that they wish to take motion, regardless of their technological nuances. Nevertheless this assertion completely ignores how “DeFi” platforms really perform, shrugging off commenters’ identifications of packages that might not most likely come into compliance, in no small half on account of pseudonymity and enormous geographic dispersion of platform members and the low boundaries of entry and exit on these platforms. Proper right here too, the Launch’s reliance on incorrect assumptions would render any remaining rule arbitrary and capricious.
For one issue, the Reopening Launch fails to acknowledge that many decentralized packages shouldn’t managed by any “group, affiliation, or group of people” and so can’t qualify as exchanges beneath the ’34 Act. Beneath half 3(a)(1), it is not ample that there be a market place or facility that performs the options of an commerce; the provision is triggered solely by the persevering with existence of an “group, affiliation, or group of people . . . which constitutes,maintains, or provides” the market place or facility—i.e., present tense. Because of decentralized protocols often run autonomously after being created by builders who relinquish administration over their creations, many protocols shouldn’t being constituted, maintained, or provided by any particular person or group of people.
Moderately than acknowledging that such autonomously working packages shouldn’t exchanges, the Launch makes an try and ensnare tangentially related people into doable “groups of people” that is perhaps ascribed regulatory accountability for these faux-exchanges. It implies that software program program builders might bear indefinite obligation for the protocols they create, nevertheless their current lack of working administration and regardless of the intent with which the protocol was designed. This extension every contravenes the ’34 Act’s present-tense wording and could be arbitrary and capricious regardless. The SEC may not impose retroactive obligation on builders who’ve relinquished administration over their creations with out significantly considering “whether or not or to not make [its] new protection potential or retroactive.” And further often, this side of the Launch—like its broader analysis—is unsupportable as a matter of weighing costs and benefits. If adopted, it would have outsized costs, as a result of the Price’s environment friendly rejection of the concept of decentralization would deter growth and innovation whereas rising regulatory uncertainty, all for little-to-no evident revenue.Nor can the SEC undertake its numerous suggestion that totally different people, paying homage to miners,validators, and token holders in a decentralized autonomous group, might all bear regulatory accountability. Along with such minor market members in an commerce group defies the ’34 Act’s scope for the reasons outlined above, and it moreover would have the perverse affect of foisting approved menace on the least refined market members, who don’t have any sensible strategy of complying with superior regulatory requirements. Moreover, the Reopening Launch’s proposal to assign regulatory accountability to miners and validators shows a elementary misunderstanding of what these folks can do. The Launch premises its rosy view of market members’ functionality to regulate to its guidelines on the concept that even immutable smart contracts shouldn’t truly immutable: miners or validators can on a regular basis “affect a change to a blockchain through, for example, a fork which may affect interactions with the immutable smart contract.” Separating that many if not most miners and validators shouldn’t positioned within the USA, and even assuming such forking is on a regular basis doable, forking serves solely to create a model new blockchain; it does not shut down the sooner system. As an example, the Launch cites the occasion of a earlier Ethereum fork, nevertheless its private cited provide explains that the result is that “[t]proper right here are literally two variations of the Ethereum blockchain rising in tandem.” This analysis provides no readability as as to if miners, validators, or totally different folks would nonetheless be answerable for the distinctive system. Nevertheless provided that the SEC often enforces securities-law requirements on a strict-liability basis, not even following the SEC’s current opinions about compliance would provide an entire safe harbor later.
Nor are the Launch’s misunderstandings restricted to the direct question of compliance. As an example, it asserts that “practically all of [blockchain] platforms typically require crypto belongings and fiat overseas cash to be provided to the platform upfront of any shopping for and promoting train.” Nevertheless this assertion ignores the norm in DeFi packages, which, as talked about above, often do not take custody of shoppers’ funds or in another case require a earlier deposit. Likewise, the Launch identifies as one draw again of blockchain-based packages that “messages to be appended to a blockchain often end up in a queue that is publicly viewable, which then exposes {{the marketplace}} to information leakage.” Nevertheless this view shows an outdated understanding of the blockchain ecosystem, overlooking enhancements that enormously mitigate the information-leakage problem. These examples shouldn’t exhaustive of the Launch’s technical errors, nevertheless they exemplify how the SEC’s place on the academic curve has hampered the proper analysis of costs, benefits, and totally different points throughout the Reopening Launch. Briefly, when an firm does not even understand the contours of an issue, it has no method to meet its obligation to guage all “important options” of the issue. The Price thus has so much work to do sooner than it might truly engage in any sort of reasoned regulation, which includes reengaging with the blockchain ecosystem that has been understandably reluctant to further educate the Staff about cutting-edge technological developments given the frequency with which good-faith interaction has been leveraged solely for enforcement capabilities.
CONCLUSION
Given the differ of shortcomings throughout the proposed amendments and the Reopening Launch, we respectfully urge the Price to withdraw its proposal in full. For the reasons talked about on this letter and in our earlier comment, the Price can’t lawfully promulgate the amendments as at current formulated. And given the absence of any demonstrable damage attributable to the scope of the current Rule 3b-16(a), the SEC needn’t take any movement previous withdrawing the proposed amendments. If it believes that revisions to the Rule keep essential, though, it ought to a minimal of problem a model new proposal with substantial alterations, subject to further public comment.Lastly, nonetheless the Price proceeds, it must carve blockchain-based packages out of the Rule. For the reasons talked about, such packages fall outside an accurate understanding of “commerce” throughout the ’34 Act and so cannot be regulated beneath it. And SEC regulation throughout the broader blockchain context is further inappropriate given (1) the unresolved antecedent questions regarding the extent to which the SEC has jurisdiction at all through blockchain-based packages, and (2) the SEC’s restricted understanding of blockchain experience and the dynamics of the blockchain ecosystem. Considerably given Congress’s ongoing efforts to enact an entire regulatory framework on this area, which is ready to embody explicit provisions pertaining to the proper place of the securities authorized tips and the SEC, the Price mustn’t upend this huge and rising monetary sector with hasty and ill-conceived guidelines that rely on a conclusory assertion of jurisdiction.
Respectfully Submitted,
CONSENSYS SOFTWARE INC.
by:
William C. Hughes
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