A few days ago it was revealed that Adam Moskowitz’s Moskowitz Law Firm filed a lawsuit against Ben Armstrong, aka Bitboy, Changpeng Zhao, aka CZ, and other crypto influencers for promoting unregistered securities through Binance’s affiliate program.
The crypto lawsuit against Bitboy and Binance
The complaint was filed on 31 March, along with the Boies Schiller Flexner firm of “super lawyer” David Boies, against Binance, its founder CZ, and basketball star Jimmy Butler of the Miami Heat. Moskowitz Law Firm is based precisely in Miami.
Adam Moskowitz later revealed some of the details of this lawsuit.
The allegation would be that Binance allowed exchanges of cryptocurrencies that are actually unregistered securities, including BNB, and then influencers paid by the exchange would promote these financial products illegally.
Moskowitz stated that this is a classic example of a centralized exchange promoting the sale of unregistered securities, so the plaintiffs are seeking more than $1 billion in damages in total. Moskowitz also revealed that they investigated the matter for over a year before filing this complaint.
Among the influencers being sued is Bitboy, who has 1 million Twitter followers, and nearly 1.5 million on YouTube.
A couple of days ago Armstrong called Adam Moskowitz “dumb” on Twitter.
This is how dumb Adam Moskowitz is:
He’s suing me for promoting unregistered securities through affiliate program at Binance
What evidence does he use?
— Bitboy Crypto (@Bitboy_Crypto) April 3, 2023
According to Bitboy, the evidence cited by Moskowitz to support the complaint is flimsy.
He says the complaint is based on the CFTC’s lawsuit against Binance, in which Bitcoin, Ethereum, Litecoin and BUSD are defined as commodities and not securities.
However, that lawsuit does not refer to cryptocurrency trading on the spot market, but to derivatives trading on the platform.
Indeed, in the US, in order to host derivatives trades, and in particular futures, on a platform, it is necessary to actually obtain authorization through mandatory registration. Binance is not among the operators registered in this way, so legally it cannot offer derivatives trading in the US.
However, according to the Commodity Futures Trading Commission (CFTC), not only would it be possible for US persons to access futures trading on Binance, but it would also appear that the company knew this and turned a blind eye by allowing customers from the US to trade in this way.
The issue of security
In the case of Moskowitz’s lawsuit against Bitboy the issue is a different one, namely the trading of unregistered securities.
However, in the text of the CFTC complaint, some cryptocurrencies, as reported by Bitboy itself, are explicitly considered commodities and not securities. The problem is that among these, the CFTC does not mention BNB, which is Binance Coin.
Indeed, Bitboy himself does not mention BNB in his tweet protesting Moskowitz.
The other US agency that oversees financial markets, the Securities and Exchange Commission (SEC), tends to consider anything other than Bitcoin potentially a security, including even Ethereum.
So Bitcoin is considered a commodity by both agencies, while Ethereum is considered a security by the SEC and a commodity by the CFTC. There is still no final legal verdict on this definition.
However, regarding BNB, the CFTC has not ruled in favor of considering it a commodity, while the SEC does indeed consider it a security.
As for Bitboy, the question should be whether he also promoted the purchase of BNB, or was limited to the cryptocurrencies he mentions in his tweet.
The problem is that securities in the US, in order to be legally offered for sale on a public platform, must actually receive SEC approval through mandatory registration.
BNB is not a registered security, so it is either a commodity or an unregistered security. The SEC considers it for all intents and purposes to be an unregistered security, while the CFTC has not yet made a plausible ruling to that effect (but neither has it made a ruling to the contrary).
Should BNB be considered a security, and should it be proven that Bitboy promoted its purchase, he could be indicted for promoting the purchase of an unregistered security. The same thing also applies to CZ and Jimmy Butler.