Bitfinex responds to $850M loss and cover-up charges from New York Attorney General

On Friday of this week, New York State Attorney General Letitia James announced that her office obtained a court order enjoining iFinex Inc., operator of the Bitfinex virtual asset trading platform, and Tether Limited, issuer of the “tether” virtual currency, and their related entities, from further violations of New York law in connection with an ongoing activities that may have defrauded New York investors that trade in virtual or “crypto” currency.

“Our investigation has determined that the operators of the ‘Bitfinex’ trading platform, who also control the ‘tether’ virtual currency, have engaged in a cover-up to hide the apparent loss of $850 million dollars of co-mingled client and corporate funds. New York state has led the way in requiring virtual currency businesses to operate according to the law.  And we will continue to stand-up for investors and seek justice on their behalf when misled or cheated by any of these companies.”

In papers filed with the Manhattan Supreme Court, the Office set forth certain findings of its ongoing investigation into Bitfinex and Tether.  Today’s court order requires that the operators of the companies immediately cease further dissipation of the U.S. dollar assets which back “tether” tokens while the Office’s investigation continues, and produce documents and information, including material called for by the Office’s previously-issued investigative subpoenas.  The companies are also barred from destroying, deleting, or permitting others to delete, potentially relevant documents and communications, including documents and communications stored on any self-deleting or “ephemeral” computer applications.

In September 2018, the Office of the Attorney General issued its Virtual Markets Integrity Initiative Report, which set forth the findings by the office about the practices of “virtual asset trading platforms” that operate, or were believed to operate, in New York.  Among the findings set forth in that Report, the Office highlighted the “substantial potential for conflicts between the interests of the platform, platform insiders, and platform customers.”

In November 2018, the Attorney General issued subpoenas to Bitfinex and Tether, which are owned and operated by the same small group of individuals, and claim not to do business in New York.  As alleged in court papers filed by the Attorney General’s office, the Bitfinex trading platform allows New Yorkers to purchase and trade virtual currencies, including the so-called “tether” stablecoin, a virtual currency the companies long claimed was “backed 1-to-1” by U.S. dollars held in cash reserve.

The filings explain how Bitfinex no longer has access to over $850 million dollars of co-mingled client and corporate funds that it handed over, without any written contract or assurance, to a Panamanian entity called “Crypto Capital Corp.,” a loss Bitfinex never disclosed to investors.  In order to fill the gap, executives of Bitfinex and Tether engaged in a series of conflicted corporate transactions whereby Bitfinex gave itself access to up to $900 million of Tether’s cash reserves, which Tether for years repeatedly told investors fully backed the tether virtual currency “1-to-1.”

According to the filings, Bitfinex has already taken at least $700 million from Tether’s reserves.  Those transactions – which also have not been disclosed to investors – treat Tether’s cash reserves as Bitfinex’s corporate slush fund, and are being used to hide Bitfinex’s massive, undisclosed losses and inability to handle customer withdrawals.  The Office’s filings further detail how the companies obfuscated the extent and timing of these corporate transactions during the Office’s investigation.

Issued pursuant to General Business Law section 354, a provision of New York’s Martin Act that confers broad powers on the Attorney General to investigate and halt fraud in connection with securities or commodities, the court order bars the operators of Bitfinex from further draining the cash reserves of Tether, or taking personal distributions or dividends from the reserves.  The order also compels the companies to produce relevant documents and information which, to date, they have failed to produce to the Office of the Attorney General.  A copy of the court order can be viewed here.

The Attorney General’s Virtual Markets Integrity Initiative Report provides information about virtual asset trading platforms, and the risks to retail investors in these products.

This investigation is being handled by Senior Enforcement Counsel John D. Castiglione and Assistant Attorney General Brian M. Whitehurst of the Investor Protection Bureau, and Assistant Attorney General Johanna Skrzypczyk of the Bureau of Internet and Technology, supervised by Chief Deputy Attorney General for Economic Justice Christopher D’Angelo, Investor Protection Bureau Chief Kevin Wallace, and Bureau of Internet and Technology Chief Kim Berger.  Legal Assistant Charmaine Blake is assisting in the investigation and Data Analyst William Greenlaw in the Research and Analytics Department supervised by Director Jonathan Werberg.

Bitfinex Response

Earlier today, the New York Attorney General’s office released an order it obtained – without notice or a hearing – in an attempt to compel Bitfinex and Tether to provide certain documents and seeking certain injunctive relief.

The New York Attorney General’s court filings were written in bad faith and are riddled with false assertions, including as to a purported $850 million “loss” at Crypto Capital. On the contrary, we have been informed that these Crypto Capital amounts are not lost but have been, in fact, seized and safeguarded. We are and have been actively working to exercise our rights and remedies and get those funds released. Sadly, the New York Attorney General’s office seems to be intent on undermining those efforts to the detriment of our customers.

Bitfinex and Tether have been fully cooperative with the New York Attorney General’s office, as both companies are with all regulators. The New York Attorney General’s office should focus its efforts on trying to aid and support our recovery efforts.

Both Bitfinex and Tether are financially strong – full stop. And both Bitfinex and Tether are committed to fighting this gross overreach by the New York Attorney General’s office against companies that are good corporate citizens and strong supporters of law enforcement. Bitfinex and Tether will vigorously challenge this, and any and all other actions, by the New York Attorney General’s office.