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450545/2019
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SUPREME COU RT OF TH E STATE OF NEW YORK

COUNTY OF NEW YORK
-- - -- ------ -- - --- ---- -- ------ - - ------ - X
In the Matter of the Inquiry by LETITIA JAMES.
Attorney Genera l of the State of New York.

Petit ioner.

Pursuant to Article 23-A of the New York General

Business Law in rega rd to the acts and practices of Index No.:

iF INEX INC .. BFXNA INC., BFXWW INC..

TETH ER HOLDINGS LIM ITED. TETHER
OPERATIONS LIMITED, T ET HER LI MITED.
TETHER INTERNATIONAL LIM IT ED.

Respondents,
in promoting the issuance. distribution. exchange,
advertisement. negotiation. purchase. investment advice
or sale of securities or commod ities in or from New
York State.
- - - - - - - - - - - -- -- - - - - - - - - - - - - - - - - - - - - - - - X

AFFIRMATION OF BRIAN M. WHITEHURST IN SU PPORT OF

OAG's EX PA RT£ APPLICATION FOR AN ORDER PURSUANT TO
GENERAL BUS INESS LAW§ 354

BR IAN M. WHITEH URST. hereby affirm s. under penalty of pe1:jury. as fo llows:

I. I am an Assistant Attorney General in the Office of Letitia .lames. Attorney

Genera l of the State of New York ("'OAG" or ··Attorney General""). and am an attorney ad milled

to practice before the courts of this State. I am familiar with the facts and circumstances or

OAG" s investi gation o f iFinex Inc .. BFXNA Inc .. BFXWW Inc. (collective ly. ··Bitfi ncx··).

Tether Ho ldings Limited, Tether Operations Limited. Tether Limited. and Tether International

Limited (collective ly, ·Tether," and together with Bitfi nex. ·' Respondents··).

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2. I submit this affirmati on. along with ex hibits. based on personal knowledge. the

examination of records and documents contai ned in the files of OAG. and in certain mailers upon

in form ation and belief.

3. This affi rmation is subm itted in support of OAG ·s ex parte application for reli ef

pursuant to Genera l Business Law ("'G BL'") § 354.

4. OAG has determined to commence an action against Respondents pursuant to the

Martin Act. GBL § 352 et seq.

5. OAG seeks an Order pursuant to GB L § 354 directing Respondents to produce

documents. records and in formation which are materia l and necessary to O/\G·s ongo ing

investigation.

6. Additionally. OAG seeks an Order granting preliminary injunctive relief pursuant

to GBL § 354 pending the compl etion of OAG "s investigation. in order to mai ntain the stat11s

quo and avo id continuing and future harm to New York investors.

Respondents

7. Respondent iFinex Inc. is incorporated in the British Virgin Islands. with onices

or operations in London, Hong Kong and Taipei. and other locations worldwide.

8. Respondents BFXNA In c. and BFXWW Inc. are wholly-owned subsidiaries of

iFinex Inc .. and are also incorporated in the Briti sh Virgin Islands. Based on information

provided by counsel fo r Respondents. BFXNA contracts with cl ients based in the United States.

including New York. Based on in formation provided by counsel for Respondents. BFXWW

contracts with non- U.S. clients.

9. BFXNA is registered with th e United States Department of the Treasury Financial

Crimes Enforcement Network as a money transmitter.

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I0. Based on in formati on prov ided to OAG by Respondents. iFi nex. 8FXNA. and

BFXWW are operated by the same small group of executi ves and employees. Together. the

entities operate an on line platform called ·'Bitfinex·· fo r exchanging and trading vi11ual currency.

For ease of reference. and unless otherwise noted, thi s Affi rmation wi ll refer to if-'inex. BFXNA.

and BFXWW co llectively as "Bitfinex."

11 . Bitfinex is not licensed by the New York Department of Financ ial Services to

engage in vi rtual currency business activity in New York.

12. In 20 16. BFXNA consented to entry of an Order Instituting Proceed ings with the

Commod ity Futures Tradi ng Commission. reso lving an in vest igation into BFXNA (and with to

respect activiti es prior to Jan uary 201 5, iFinex) in connect ion wi th its operation of the Bitfinex

trading platform. concerning vio lations of Sections 6(c) and 6(d) of the Commod ity Exchange

Act. A copy of that Order is attached hereto as Exhi bit A.

13. Based on in formation prov ided to OAG by Respondents. Tether Holdings

Li mited, incorporated in the British Virgin Islands, is the holding company of Tether Lim ited.

Tether Operations Lim ited and Tether International Limited. all or which are be lieved to be

incorporated in Hong Kong. Based on information provided to OAG by Respondents. Tether

Operations Limited is responsible for processing Tether·s U.S.-based investors. Based on

in formation prov ided to OAG by Respondents. Tether Internationa l Limited is responsible fo r

processing Tether"s non-U.S. based investors. For ease of reference. and unl ess otherwise noted.

th is Affirmation will refer to Tether Holdings Limited. Tether Limited. Tether Operations

Limited and Tether Internati onal Li mited as ·'Tether:·

14. Tether is not licensed by the New York Department of Financ ial Services to

engage in vi1tual currency business activity in New York

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15. Based on information prov ided to OAG by Respondents. the Tether entities arc

owned and operated by the same small group of executives and employees who operate Bitfi nex.

Bittinex and Tether have several dozen additional employees around the world . OAG has reason

to believe that certain of those indi viduals are. or have been. located in New York.

16. Based on information provided to OAG by Respondents. Tether is majority-

owned by an entity named DigFinex Inc .. whi ch is also the majority owner of ir incx .

17. Accordin g to documents and information prov ided to O/\G by Respondents. at

various times in 20 17 and 20 18 both Bitfinex and Tether maintained accounts at two New York-

based commercial banks. Signature Bank and Metropolitan Commercial Bank.

The Bitfinex Trading Platform

18. '' Virtual currencies: · also commonly referred to as ··cryptocurrcncies: · are digital

units that are used as a medium of exchange or form of di gitally-stored va lue. To date. nearly

two thousand virtual currencies have been created and are traded around the world. The most-

we lI known virtual currency is bitcoin, which is also the most widely-traded and highly va lued

virtual currency.

19. Virtual currencies are widely traded and exchanged online through various tradi ng

platforms. which often refer to themselves as "exc hanges ... These trad ing platforms perform a

function akin to traditi onal stock or commod ities exchanges by matching buyers and se llers of

virtual currency. The platforms also perform runctions akin to trad it iona l broker-dea lers. transfer

agents. or clearing firm s. and many pl atfo rms also hold client cash deposits. There are now at

least 130 different trading platform s available to exchange virtual currencies worldwide. Unlike

traditional stock and commoditi es exchanges. virtual currency trading platforms now in

operati on have not registered under state or federal securities or commodities la"vs. Nor arc there

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generally applied standards for operations. di sclosures. surveillance. or other investor

protections.

20. The New York Department of Financial Services has promulgated regulati ons

regarding the co nducting of virtual currency business activity in New York.

2 1. Bitfinex operates a virtual currency trad ing platform . Investors access the

Bitfinex trading platform and place orders through its website. avail able at www.bitfinex.com.

22. Over ninety virtual currencies are listed for trading on the Bitfi nex pl atform .

including prominent virtual currencies li ke bitcoin and ether. as well as a host or other less-

prominent and thinly-traded symbo ls. Bitfinex earns money by. among other things. charg ing

investors a fee fo r trades made on its platform . Bitfinex also prov ides users with the ability to

store their virtual currency and transfer their holdings to a different trading platform.

23. Bitfi nex is one of the relati vely few virtual currency trad ing platform s that al lows

traders to deposit and withdraw so-cal led ·'fi at.. currency. including U.S. do llars. euros. pounds.

and yen. Traders using the Bitfinex platform can deposit doll ars with Bitfinex, convert them to

virtual currency at the rates offered by Bitfinex, trade the vi rtual currency they have purchased.

convert their virtual currency holdings back into dollars, and withdraw the fu nds. It is important

that Bitfinex has suffi cient U.S. dollar deposits on hand to fill withdrawal orders submitted by

traders.

24. OAG's investigation has determined that, prior to August 201 7. Bitfinex had few

or no restricti ons on who could access their trading platfo rm. meaning that New York-based

investors were able to create accounts, fund them with U.S. dollars. convert into virtual currency.

trade, and withdraw fund s. In August 20 17. Bitfinex announced it would no longer permit U.S.-

based individual investors to access the trading pl atform. but U.S.-based business entities were

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sti ll permitted to trade. In August 20 18, Bitfinex·s ostensible exclusion of U.S.-based indi vidual

investors expanded to include all U.S.-based entiti es, except those enti ties or organizations that

mainta ined an incorporation address outside of the United States. Those in vestors are known as

Eli gible Contract Participants. or '' EC Ps:· OAG has reason to believe that several U.S. and New

York-based ECPs continue to transact on the Bitfinex trad ing platform .

25. OAG has reason to believe that Bitfinex st ill all ows New York-based indi vidual

investors to deposit, trade, and withdraw vi1tual currencies. and engage in other transactions. on

the Bitfinex trading platform.

Tether

26. The primary function of Tether the company is as the issuer of a virtual currency

also ca lled ··tether.''

27. Tether is listed on at least several dozen virtual currency trading platforms around

the world, trading under the symbol ·'USDT.''

28. Unlike most virtual currencies. the market pri ce of which flu ctuates as they are
'
exchanged on trading platforms around the world, ·'tether.. is a so-called ·'stablcco in:· a term that

is used to descri be a virtual currency that is always supposed lo have the same rea l-dollar value.

"Stablecoins·· have characteristi cs of securities and commodities. In the case of tethers. one

tether is always supposed lo be valued at one U.S. do llar.

29. Accord ing to public statements made by Tether. one use for tethers is lo allow

traders lo qui ckl y enter and ex it positions in other virtual currencies. at a stable and pred ictable

price. Since one tether is always (supposed to be) equal to one U.S. doll ar. traders can use

tethers lo trade between different vi,tual currencies. or across different trad ing platforms. with

minimal sho1t -lerm price ri sk.

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30. In order to signal to the market that each tether held by investors is equa l to one

U.S. dollar. Tether has long represented that for every outstanding tether issued and trad ing in

the market, the company itself holds one U.S. dollar in reserve.

3 1. Prior lo late February 20 19, Tether represented that every outstandi ng tether was

" backed.. by. and thus should be valued at, one U.S. dollar. Tether represented to investors that

"Every tether is always backed I-to-I . by traditional currency held in our reserves. So I USDT

is always equivalent to I uso:· An archived copy of Tether' s website. www.tethcr.to. from

February I9. 20 19 is attached hereto as Ex hibit B.

32. By March 4, 20 19, Tether changed its disclosure. representing that ··re Ive ry tether

is always I00% backed by our reserves, which inc lude trad itional currency and cash equ ivalents

and. from time to time. may include other assets and receivables fro m loans made by Tether to

third parties. which may include affili ated entities (collecti vely. ·reserves ' ). Every tether is also

I-to- I pegged to the dollar, so I USDT is always valued by Tether at I uso:· An arch ived copy
of Tether·s website, www.tether.to, from March 4, 20 19 is attached hereto as Ex hi bit C.

33. Tether represents to investors that any holder of tethers can redeem them from

Tether the company at the rate of one U.S . doll ar.

34. Tether maintains complete contro l over the issuance of new tethers. Coun se l for

Respondents has represented to OAG that issuances of new tether occur when an investor ha s

requested to purchase tethers by depositing U.S . dollars with Tether the company. or by

depositing U.S. dollars with a trading platform that is authori zed to accept dollar deposits in

exchange fo r tethers.

35 . Tether are one of the most prominent and widely-traded virtual currencies.

According to Tether" s webs ite. over 2.6 billion tethers are outstanding and traded in the market.

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36. Until November 20 17. tethers were availab le for purchase directl y from the

Tether website by New York investors.

37. From November 20 17 to December 20 18. purchases of tether cou ld be made on ly

via the Bitfinex trading platform . OAG has reason to believe that. during thi s time. New York

investors could and did use the Bitfinex trading platform to purchase, sell. and exchange tethers

on the Bitfinex platform.

38. Accord ing to counse l the Respondents. as of December 2018. investors were once

again able to purchase tethers directl y from the Tether website.

39. New York investors may still trade tethers on severa l virtual currency trading

platform s that are licensed to do business in New York. OAG has reason to beli eve that certain

ECPs with operat ions in New York can redeem tether fo r dollars directly from Tether.

Commencement of OAG's Investigation

40. OAG commenced an investi gation of Bitfinex and Tether in 20 18.

41. As part of its investigation, OAG sought documents and in fo rmation from thi rd-

party entities (for example. banks and audit firm s) that were believed to have previously

performed services for Bitfinex and Tether.

42. Having learn ed of OAG·s communication with those entiti es. counsel for Bitfinex

and Tether affirmat ively contacted OAG on November 3, 20 18 to discuss the invest igation.

Co unse l - the law fi rms Morgan, Lewis & Bockius LLP. located in New York. and Steptoe &

Johnson LLP, located in Washington, D.C. -- in formed OAG that they represented Bitfinex and

Tether jointly.

43. On November 2 1. 2018 counsel for Bitfinex and Tether. and attorneys for OAG.

discussed the investigation. Counse l indicated that Bitfinex and Tether would prov ide

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documents and information to OAG. Subsequently. counsel requested that OAG issue

subpoenas for sought-after material. Neither Bitfinex nor Tether are reg istered for service of

process in New York. Coun se l agreed to accept service of the subpoenas. via email. on beha lf of

their clients.

44. On November 27, 20 18. OAG served subpoenas pursuant to Article 23-A of the

General Business Law (the Martin Act). Executive Law§ 63( 12). and Civi l Practi ce Law and

Rules §2302(a) on Bitfinex and Tether. seeking documents and in formation. Counsel accepted

service of the subpoenas via email.

45. A copy of OAG 's subpoena to Bitfinex is attached hereto as Exhi bit D. A copy or

OAG' s subpoena to Tether is attached hereto as Ex hibit E. The requests in the subpoenas arc

identical.

46. On November 30, 20 18. counsel for Bitfinex and Tether accepted services of the

subpoenas via email , and shoti ly therea fter began producing certain documents in response

thereto.

47. On December 2 1, 2018. OAG requested a meeting with coun sel fo r Bitfi nex and

Tether to take place in early-to-m id January 20 19. to discuss various issues related to the

investigation. Counse l counter-proposed a meeting in February 20 19 - al most two months later.

To accommodate them, a meeting was held on February 2 1. the detai ls of which will be

discussed below.

Bitfinex and Tether's Troubled Banking Relationships

48. Because Bitfinex and Tether allow clients to deposit and withdraw U.S. dollars in

exchange for virtual currency, the companies hold large sums of U.S . do llars. and must maintain

relationshi ps with banks that can reli ably hold the fu nds and process client deposits and

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withdrawals. including banks that can operate in the Un ited States and ,,vii i service U.S.

individua ls.

49. As explained to OAG attorneys by Respondents· counsel. many U.S . banks and

other fi nancial institutions will not do business with unregu lated or off-shore companies that dea l

in virtual currencies.

50. Accord ing to documents provided to OAG by Respondents. and as explained to

OAG attorneys by Respondents· counse l. Bitfinex and Tether have had a succession of

unsuccessfu l banking relationships around the world over the past several years. Prior to 20 17.

Bitfinex and Tether had used several Taiwan-based banks to make and recei ve wire transfers to

fu lfi ll client orders for U.S. do llars. and for other purposes. Well s Fargo acted as the

correspondent bank. In March 20 17. Wells Fargo elected to no longer process U.S. do llar wire

transfers from Bitfinex and Tether accounts, forcing the compan ies to qu ickly find alternati ve

arrangements.

51. In a subsequent lawsuit, Bitfinex and Tether alleged that Well s Fargo·s dec ision

·'presented an existential threat to their business:· and that if Bitfinex and Tether .. could not rem it

to customers U.S. dollars that belong to their customers. !_their] business would be crippled.·· A

copy of the Bitfinex·s complaint against Wells Fargo is attached hereto as Exhibit F.

52. The lawsuit was withdrawn shortly after fi ling.

53. According to documents prov ided to OAG by Respondents. and as explained to

OAG attorneys by Respondents· counsel. by September 20 17 Bitfinex and Tether were using a

Puerto Rico-based entity named Noble Bank International ("Noble.. ) to handle their accounts.

Noble Bank International was a subsidiary of a New York-based ent ity named Noble Markets

LLC.

10

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54. According to documents prov ided to OAG. Respondents ended their banki ng

relationshi p with Noble in October 2018. As ex plained to OAG attorneys by Respondents·

counse l, Bitfi nex and Tether closed their accounts with No ble due to low-i nterest rates and a lack

of capac ity to process a high vo lume of wire transfers to clients. among other reasons.

55 . As of early 20 19, Noble appears to no longer be in operation.

56. In November 20 18, Tether announced publi cly that it had ··established a banking

relationship with Deltec Bank & Trust Limited:· with headquarters in the Bahamas. In that

announcement, Tether also represented that ·'USDT in the market are fu lly backed by US dol lars

that are safely deposited in our bank accounts.'' A copy of Tether"s announce ment is attached

hereto as Ex hibit G.

57. However, at no point known to OAG has Bitfinex or Tether disclosed to clients

that they have used third party ·'payment processors'· to handle client withdrawa ls, nor have they

disclosed who those ··payment processors·· are.

58. According to counse l fo r Bitfinex and Tether, in 20 14 Bitfi ncx began a

relationship with a (believed to be) Panamanian entity ca lled Crypto Capital Corp. (Crypto

Capital'") to act as one of their ·'payment processors:· Accordi ng to documents prov ided to OAG

by Respondents. by 20 I 8 Bitti nex had placed over one bi 11 ion dollars of co-mingled customer

and corporate fund s with Crypto Capi ta l.

59. As ex plained to OAG attorneys by Respondents· counse l. no contract or sim ilar

written agreement was ever entered into between Crypto Capital and Bi tfi nex or Tether.

60. As ex plained to OAG attorneys by Respondents' counse l. Bittinex and Tether

have also used a number of other thi rd pa11y ··payment processors·· to handle client withd rawal

requests. includ ing various companies owned by Bitfinex/Tether executi ves. as well as other

11

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'" fri ends'" of Bitfinex - meaning. human being fri ends of Bitfinex employees that were willi ng to

use their bank accounts to transfer money to Bittinex clients who had requested withdrawa ls.

6 1. OAG believes that Bitfinex required the serv ices of thi rd-party payment

processors like Crypto Capital because, at the time, Bitfi nex had no reliable bank that could or

would work with it.

Bitfinex Struggles to Fill Clie nt Withdrawal Requests Due to Cry pto Ca pital 's Loss or
Theft of Approximately $850 Million

62. Documents provided to OAG demonstrate that by mid-20 18. Bifinex was having

extreme diffi culty honoring its clients' req uests to withrdaw their money fro m the tradi ng

platform. because Crypto Capital. which held all or almost all of Bitfinex·s fund s. refused to

process customer withdrawa l requests. and refused or was unable to return any fund s to Bit fi nex.

63. In communi cation logs produced to OAG covering the period or April 20 18 to

early 20 19, a senior Bitfinex executive (" Merli n··) repeated ly beseeched an individual at Crypto

Capital ("'Oz"') to return Bitfinex ·s funds. For example. in August 20 18, the senior Bit fin ex

executive made clear that lack of access to the money held by Crypto Cap ital made it impossible

fo r Bitfinex to honor its client"s withdrawal req uests:

hlcrlin. I 15.08.18 l lA6J

Hey 01_ sorry to bother vou ev,,-y day. is there any way to 1110\'c al kast 1001\I to either- \\"\: arc ~ocing massirc withJra11 als and 11t.:
m : not able to fo~,.; lht.:111 anymor.: unh..-;s 11c ~an trauskT ~omc money out nf<'ryplocapilal
l\lcrlin.1 15.08. 18 11:-17]
I undcr~tand some of the hmd~ arc hcing hdd by- hut 11ha1 .,bout the re!'.t''
l\lc.:rlin. I 15.08. 18 I 1:-181
under nu1111:1l rncumstan.:c.:s l woulun'I both1-1 you ( I ncr~,- tlitl so far) bul thi, is a quik ,pcml situalmn and I need your help. thank,

64. In early October 20 18. ru mors began circulating on line that Bitfinex was close to

insolvency, as num erous cl ients reported that they had been unable to withdraw their money

from the Bitfinex trading platfo rm. On October 7.20 18. Bitfinex published a notice to investors

ensuring them that the company was not inso lvent. and that rumors to that effect were '"a targeted

campaign based on nothing but fi ction:· The notice continued:

12

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[ W]e do not entirely understand the arguments that purpo11 to show

us to be insolvent without prov iding any exp lanation about why ...
[Y] erified Bitfinex users can free ly withdraw ELrros. Japanese Ye n,
Pounds Sterl ing, and U.S. Dollars. Complications continue to exist
for us in the domain of fi at transactions as they do fo r most crypto-
currency related organizations ...

Stories and all egations currently circulating mentioning an ent ity

called Noble Bank have no impact on our operations. survivabi li ty.
or solvency.

A copy of Bitfinex's October 7.20 18 notice to investors is attached hereto as Exhibit H.

65. Similarl y, on October 15. 20 18, Bitfi nex pubIished a notice to the market slating

that ''it is important for us to clari fy that: All cryptocurre ncy and fiat withdrawals are. and

have been. processing as usual without the sli ghtest interference ... A ll fiat (USO. GB P. .I PY.

EU R) withdrawals are processi ng. and have been. as usual:· (emphasis in original). A copy of

Bitfinex ·s October 15. 201 8 noti ce is attached hereto as Exhibit I.

66. That was untrue. Docum ents prov ided to OAG by Respondents show that during

this time, Bitfinex was having severe problems processing cli ent withdrawals. The very same

day as the noti ce to the market set forth above, October 15. 20 18. the seni or Bitfinex executive

(''Merlin .. ) wrote the fo llowing to his contact at Crypto Cap ital (..CCC"):

\(erlin. 115.10.18 09:53 I

I ha\'C been telling rou siucc a 11hil,
\l~rlin. !1510. IS09j,j
tuu rna11y 11iU1J1a11ab 11Jiling for a !on~ hm~
\krlin. j I~. l0.18 OC) 5-11
1~ lhcrt ,m~ "·i "t (an get mtm1;y !rum you'! r1;lhcr ur an~· u!hcr form'! ..\pa,, 11 tlh plu,ap11.1I "c arc runmng lo" m ,:;1,h m,t:r1 ,s
\lerlin. j 15.1IJ 18 01h l l
ple.1se help
Cl'l'.1 15. IV. 18 09:541
I know. \re are following the banl;s we post ~ many a, we can and let them proce:;s as mu.:h a,; possible ac.:or<lingto 1hcm . l·.ren11me 11~ p11,h !hem
lhcy push bacl with accow1l dosurc w1lhout rCJso11
\ lalin. I 15.10 1809·551
uuo:ns of prupk ar~ 11\111 11ailtng for a " t1hura11 di llU! uf ~r~ptu-Jpilal

***

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l\k:rlin. 11 5. 10. 18 1():(11 I

I 111,;cd to p rov1d1: .:ustonH..T~ with prcci.~c ans\\Cl"li at th is point. can'I ju,;t kick th..: can a littll: more
Mcrlin.[ 15. 10. 18 10:021
tht: inh;mational I mean
CCC. I l.S. 10. 18 10:02]
I will keep you pnskd here
CCC'. [ 15. 10. 18 I0 :02J
On the process of all mh:mational paym<:nb .
l\lcrlin. [l 5. I0. 1810:0 2)
plt!.lst: un,ierstand all this could bt: t:xtrt:mdy dangt:rous for t:1·1:.,-rybody, tht: 1:ntirl! cryptn comm unit~·
l\kdin. 11 5. 10. 18 10:03}
13TC e<1ul<l lank lo bdo,~ lk if we clon'I acl quickly

67. Documents provided to OAG by Respondents also demonstrate that the loss of

funds continued to threaten Bitfi nex·s abi li ty to uphold its obligation s to its investors through the

end of 20 18. Over the course of severa l months in late 2018. the senior executive at Bitfinex

wrote the fo llowing to his contact at Crypto Capital:

l\lt:rlin. [ I 7. IO. l8 22:28 ]

Oz I need urgently some funds
l\ krli11_ l 17. 10. 18 22:28 J
cithcr ktlu..-r.; or l ·so. \\ C need at lea.~t 100\1 with in the nc:xt \\ C.Ck
l\lt..Tlin. l l 7. I0.18 22:29)
the siluation looks bad. "c havc morc than 500 \\ ithdrrn ab pcndi.ng and they keep ..-omi.ng in

t-.krhn. [18. I0.18 08:3-t]

sorry to l'C p1L~hy hut ,JO ~·ou try sendig somcthmg :ilrcady toda y
t-.lt:rlin. 118.10. I~vlU5J
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, th1.m
- out qu1JJy. pcl•plc arc 1.11rngcd

l\krlin. [ I 8. I 0 . 18 08:38 I
luu mud11110111.·y i~ trapped "ith you ;u11..I " i.; an.: .;um..,111) \\ a U,ing on a n.:~ thin c rll~t of 1-;c

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hlcrlin. [ 15.11. 1!! 16:1~1

I hop.: w u 11 ill b.: abk !(1 s..:n<l ~u rm:thing big pretty soon. lhc situalion i, nut looking gou<l
CT'C. [ 15. 11.1 8 16: l 71
\\c an: p~lung c1·.,1y<lay. ·111c prc1 1ous K'.'-11· from Poland JUst r~ 1gnctl o\'ti · s~anJal of ~hak111g Jm1n bank, ..
CCC. f 15.11.1 8 lf!.I 71
So it's\ c0· good for us to gd fonds l\:ka,.: asap
CCC. I l:UI.LS 16:111
http~: . busim:~~rnsi<l,:u;nrn.pl 11·1atfonmsc1marcrn-pac;h u,;l 1-0011 1rn-po-~1cfa-
knf 11x~1·lnS':'pushmcd1~- <>a5a6flJi.;3b75dcl:& utrn _\Uurw··push~our~c&:.utm _campaign· pu,hCampai~n&utm_rncd1urn puslt\ lul1urn
hlerlin. [ 15 11. 1816:191
am· realistic estimate about Pul:lml"'
hferlin, I 15 11. 1816:201
it \\as july "hen m u told me for th.c lir~t time 11 11 as lo be cxpcd.:J :u11 time
1'!crlin. I 15. l 1. 18 l<i:20]

tcrlin. [ 21.11.18 09:27]

pl~,c updalc m.: ahnut the ,itu;1tion. 11 c h:in: ~criot1, prohkms 1f 11 .: don't gd , nmc: fond, from ~·ou 11 ilhm thi, 11 cd,
t\fcrlin. [27. 11. 18 IS: IRl
I wi~h 111.: had :,omc cbrit~ . 1!\ a1'Hy:; 1·1,-r~· <lilfo:ult lo tdl our cu~lom~5 somcthmg real and this fuds the: unct.:rlamt,·

h{~rlm. [28. 11. 18 10.521

we arc JI the end of the month and ynu ha,·cn't been , ending <lut <lnc 11 ire. e,·cn I u,d for lhc whole month
h(crlin. [28. I I.I!! l0.541
I Photn l
htcrlin. [28. 1LIX 10:551
I think you ~hould stop playing and tdl me: the: truth about 11 hat i:; gomg on
hkrlm. 128.11. 1810:561
I am nut yow- .:ncn11·. I am h1::r1:: tn hd p ,uu and ha,·,; bl!<;!n, .:ry paticnb n far. but ~ou to ~ut the: ~rap and t..:11111~ 1d1at i~going on

68. Accord ing to documents prov ided to OAG by Respondents, and based on

statements made by counse l fo r Respondents to OAG attorneys. an individual at Crypto Capi tal

told the senior Bitfinex executive the reason that funds total ing $851 mil lion cou ld not be

returned to Bitfinex was because the funds were seized by governmental authorities in Portugal.

Poland. and the Un ited States. Based on statements made by counsel for Respondents to O/\G

attorneys. Respondents do not believe Crypto Capital's representations that the funds have been

seized.

69. Accord ing to documents prov ided to OAG by Respondents. and based on

statements made by counse l fo r Respondents to OAG attorneys. the $851 mi llion remains

inaccessible to Bitfinex.

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70. Bitfinex has not public ly disc losed the loss of fund s.

7 1. According to Respondents, the funds placed with Crypto Ca pital include co-

mingled client and Bitfinex corporate funds. For exam ple. documents produced to O/\G by the

Respondents show at least $23 million of those fund s appear to be from just one New York-

based Bitfinex cli ent.

Bitfinex and Tether Have Engaged in Undisclosed, Conflicted Transactions

to Cover Bitfinex's Losses by Transferring Money Out of Tether's Reserve Funds

72. In an in-person meeting on February 2 1, 20 19. counsel for Bittincx and Tether

ex plained that, in order to make up for the apparent loss of $851 mil lion to Crypto Capital.

Bitfinex and Tether were in the process of contemplating a transaction that would permit

Bitfinex to draw upon Tether's cash reserves on an as-needed basis.

73. As described by counsel. Bitfinex would take a ·'line of cred it"' of$600 to $700

million on the reserve funds backing tethers. Counse l did not suggest what. ii' any. benefit would

accru e to Tether. or ho lders of tethers, from this transaction. Nor did counsel suggest that this

transaction wo uld be di sclosed to the public. including investors trading on the Bitfincx platfo rm

or holders of tether.

74. When asked by attorneys for OAG whether the co ntemplated transaction would

constitute a conflict of interest (given that Bitfinex and Tether arc owned and operated by the

same people), counsel characterized the im pending transaction as --arm ·s length:· without

prov iding justifi cation fo r how that could be the case.

75. At that meeting. counse l did not in fo rm OAG of the terms or schedul e of any

repayment fo r when Bitfinex planned to draw on the Tether funds. nor did cou nse l pro vide any

in fo rm ation regarding terms for repayment of any drawn amounts.

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76. Counsel' s disc losures at the February 2 1 meeting raised serious questions about

the viabi lity of Bitfinex as an ongoing concern. the possib ility that Tether's cash reserves would

be dissipated and unrecoverab le, and whether Bitfinex and Tether have misled their c lients

(i ncluding both clients of the Bitfinex trad ing platform. and holders of teth ers) regard ing the

matters described above.

77. During the February 2 1 meet ing. OAG asked counsel for the Respondents to

provide more in formation about the circumstances surrounding the loss of fund s to Crypto

Capi tal, and the imminent ·'line of credit". transaction to cover Bitfinex·s losses.

78. On February 26.20 19, OAG sent a letter to counse l fo r Bitfinex and Tether

seeking the fo llowing material, to be provided no later than March 7.20 19:

• Add itional information. inc luding production of documents. regarding how tethers
are issued and propagated into the market. as well as additional information
evidencing the "demand.. or purchase orders for tethers that counse l for Bi tfi nex
and Tether indi cated underlie the creation and issuance of blocks o r tether;

• Production in response to OAG 's subpoenas cal ling fo r documents and

communications regarding issuances/redemptions of tether in October and
November 20 18;

• Informat ion and materials relevant to the August-October 20 18 time period.

during which OAG beli eved that approx imate ly $400 milli on in tethers were
·'redeemed .. via Bitfinex;

• A full written descripti on of. and any documentati on and in formation ev idencing.
the events concerning the loss of approxi mately $850 million of 8itfi ncx client
funds to Crypto Capital;

• Production of documents and informati on regard ing any co-mingled cli ent funds
that were placed with Crypto Capital. as well as any contracts or other similar
docum entation between Bitfinex and Crypto Capital;

• Compensation structure fo r Bitfi nex/Tether executi ves and investors.

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79. OAG ·s letter also sought specific written responses to questions concern in g the

number of New York traders using the Bitfincx trading platform and New York holders or

tethers.

80. A copy of the letter to co unsel fo r the Respondents. dated February 26.2019. is

attached hereto as Exhibit J.

81. On March 4.2019 counsel for Bitfinex and Tether responded to OAG ·s letter with

an email stating, •'it is not possible to get this in formation by March 1:· Counsel did not provide

an alternati ve production date to OAG.

82. On March 11 , 20 19. Respondents made a production of documents to OAC whi ch

primarily consistent of, in the words of counse l fo r Respondents, ·'tweets by Bitfinex and bl og

posts by Bitfinex and Tether; · all of which were already in the public domain. Nothing was

produced concerning the impending .. line of credit"' transaction.

83. On March 13, 20 19. OAG again sought in formation from Bitfinex and Tether

regarding the imminent " line of credit .. transaction, clue to growi ng concern that responses to

OAG request fo r docume nts and informati on were being wi thheld until after the --Jine of credit..

transaction closed.

84. On March 19, 20 19, Respondents made a production largely consisting of

screenshots and picture fi les of previously-produced materials. none of which appeared relevant

or even responsive to OAG·s requests. most especially OAG requests concerning the imminent

'• line of credit.. tran saction.

85. On March 29. 20 19, OAG received a letter from counsel for Respondents wh ich

disclosed. for the first time, that the imm inent --Jine of credit'" transaction had already closed. two

days before. The description of the transaction diffe red significant ly from what OAG was told

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just weeks earlier in the February 2 1. 20 19 meeting. and inc luded new information about a

prev ious, undi sclosed tran sfer of $625 million from Tether·s reserves to Bitfinex. J\ s set forth in

that letter:

During November 20 18, Tether transferred $625 million held in its account at
Deltec to Bitfinex·s account at Deltec. Bitfinex, in turn, caused a tota l or $625
million to be transferred from Bitfinex's account at Crypto Capital to Tether·s
account at Crypto Capital. through a ledger entry at Crypto Cap ita l crediting
Tether·s account in the amount of $625 million and debiting Bitfinex ·s account by
a correspondin g amou nt. The purpose of th is exchange wa s to allow Bitfinex to
address liquidity issues unrelated to tethers.

In or about late December 2018. the Companies and their counsel deve loped
concerns about the ava ilabi Iity of some of the funds al Crypto Capita l. totali ng over
$850 million. While Crypto Capita l' s principa ls have represented that the
unavailable fund s have been seized or otherwise restrained by governmental
authorities in Po land, Portuga l. and the United States. the Companies grew
concerned that Crypto Capital' s principals may be engaged in a fraud .. .

Bitfinex immediately undertook negoti ations with Tether on an agreement under

which Tether extended a secured, revo lving line of cred it of up to $900 million on
commerciall y reasonable terms (inc luding a term of three years and an interest rate
of 6.5% in outstanding loans under the fac ility). documented in a loan facility
negotiated between the two companies at arm ·s length with the benefit of separate
counsel and approved as required by each company's corporate governance
processes. Under this transaction, the line of credit is sec ured by a share charge
over 60,000,000 iFinex Inc. shares owned by DigFinex. which DigFin ex agreed not
to otherwise encumber. That transaction closed on or abou t March 19.20 19. The
total accessed under the loan faci lity as of today's date is equal to $700 milli on.

On March 27, 20 19, Bitfinex and Tether initiated a transaction debiting $625
million previously credited to Tether's account at Crypto Capital. and transl'e rring
those funds to Bitfinex·s account at Crypto Capital. This transaction was made
because the prior exchange or assets was converted into a line or credit sec ured by
the DigFinex shares.

86. The transaction documents were signed on beha lf of Bitfi nex and Tether by the

same two indi vidua ls. Those two indiv iduals are also directors and owners of Dig fin ex. 13itfinex

and Tether.

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87. According to counsel fo r Bitfinex and Tether. and confirm ed by transaction

documents, the shares ·'securing"' the ·'line of cred it" are shares of iFinex that are owned by

Digfi nex.

88. Digfinex is owned and operated by the same individuals that own and operate

Bitfinex and Tether.

89. A relevant excerpt of the iFinex and Digfi nex corporate registrati on documents in

the British Vi rgin Islands. specificall y the Register of Directors for Digfin ex and iFinex. and

prov ided to OAG by Respondents. is attached hereto as Exhibit K.

90. Relevant excerpts of written resolutions of the loan agreement for Di gfin ex and

iFinex. inc luding signature pages. dated March 15.20 19. and pro vided to OAG by Respondents.

are attached hereto as Exhibit L.

9 1. Relevant excerpts of a Facility Agreement. including the signature pages. dated

March 19. 20 19, and provided to OAG by Respondents. are attached hereto as Exh ibit M.

92. OAG believes that nei ther the November 20 19, $625 mill ion transfer of Tether

reserves. nor the $900 million .. line of credit'· on Tether" s reserves have been disclosed to

investors.

93. Respondents have only produced limited relevant in fo rmation regarding the fact s

and circumstances of the $625 mi ll ion tran sfer and the subsequent •'line of credit'" transacti on.

OAG's Requested Relief

94. OAG's ongoing investigation seeks to determine, among other things, the extent

to which New York investors are exposed to ongoing fraud being carried out by Bitfinex and

Tether.

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95. The Proposed Order accompanying thi s application requires production of the

fo llowing documents and in formation:

1. All documents and information requested in the Subpoenas issued by the Attorney
General to Respondents dated November 27.2018:

11 . All documents and information req uired by the Attorney General in a letter to
Respondents dated February 26.20 19;

111. A 11 documents concerning Bitfinex users. accounts. c Iients .or customers that
reside or are believed to reside, do bus iness. or arc believed to do bu iness, in
New York;

iv. A ll documents concerning holders of tether that reside. or are be lieved to reside.
in New York ;

v. All documents and com munications concerning any business relationship with
any New York-based, or New York licensed, company. in whatever regard:

v1. Al I documents and com munications regarding any transaction. of whatever

nature, to loan, extend credit. encumber. pledge. or make any other claim, of any
variety or description. on the U.S. do llar reserves underlying tethers. to Bitfi nex
or any other entity;

v11. Al l documents and communications regardin g any transaction. of whatever

nature. to purchase, borrow. di sperse, or loan tethers to or from third parties.
including between Tether and Bitfinex. wherever located;

viii. All documents evidencing all requests. orders. or demands for U.S. dollar
withdrawals from the Bitfinex trading platform. including the amount requested ,
date the request was rece ived, date the request was fu lfilled. date the request was
cance lled. and status of still-pending requests. since January 2018:

1x. All documents ev idenc ing each order or request for purchase. issuance. or
redemption o f tethers since January I. 20 17, and which inc lude the date of the
order/request. the date on which it was executed. the amount of tether
purchased/ issued/redeemed, the name and wa llet address of the
purchasing/ordering/requesting person or entity, date any such
purchase/order/req uest was cancelled. and status of any sti II-pend ing
purchases/orders/requests:

x. A current accounting of all Bitfinex and Tether corporate, banking. trading. and
client accounts, inc luding but not limited to those holding U.S. or fo reign
currency, or virtua l currency. wherever located:

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x1. Identification of all New York and United States customers of Bitfinex whose
funds were provided to Crypto Cap ital and the amount of any such outstanding
fund s;

xii. Respondents' tax fi Ii ngs fo r the years 20 17 and 20 18;

x11 1. A report, no less often than week ly, with supporting documents and
communications. evidencing any issuances or redemptions of tethers to or from
Tether or Bitfinex, which shalI inc lude identification of' the purchaser or redeemer
of tether. the amount of tethers purchased or redeemed. how long the purchase or
redemption req uest took to fu lfit I. the wallet address the tethers were sent to/came
from, and how the tethers were paid for/paid out:

xiv. Identificat ion of all Eli gible Contract Participants ("ECPs.. ) control led by U.S.
persons trad ing, past or present, on the Bittinex trading platform or invested in
tether:

xv. All documents and communications concerning any decision to permit any ECP
to trade on the Bitfinex platform or to invest in tether. including. but not li mited
to, all copies of any ECP certi Fi cation and ev idence provided to Respondents by
ECPs: and

xv i. All other documents that may be requested by the Attorney General or a

designated assistant during the course of this investigation.

96. OAG does not seek lo enjoin or interfere with the orderly operation of Bitfinex or

Tether' s legitimate businesses. if any. including orders by legitimate traders on the Bitfinex

platform, or legitimate tether holders, to redeem their tethers for dollars. Indeed. protecting

legitimate traders using the Bitfinex platform. and legitimate holders of tether. primaril y those

residin g in New York, is why a preli minary injunct ion is necessary now to preserve the stotu.1·

quo pending the completion of OAG's in vesti gation.

97. However, OAG does seek lo enjoin Respondents from taking any fu rther action

to access. loan. extend credit, encumber. pledge, or make any other simi lar transfer or cla im

between Bitfinex and Tether in order to preserve the status quo and protect the interests of New

York tether holders and Bitfinex clients.

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98. Beca use of the potential fo r Respondents to immed iately in itiate a further loan.

line of credit, transfer additi onal fund s if given advance notice of the Proposed Order. or take

other steps that may jeopardi ze the interests of investors. Respondents have not been given

notice of this appli cation.

99. No previous applicati on for the relie f requested in the Proposed Order has been

made by OAG to this or any other court.

Dated: Apri I 24, 20 19

New York , New York

llm~
Brian M . ~ "'---

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