Professional Documents
Culture Documents
Plaintiffs,
Case No. __________
v.
Defendant.
COMPLAINT
attorneys, for their Complaint against Defendant United States Securities and Exchange
SUMMARY OF ACTION
1. This is a lawsuit under the Due Process Clause of the Fourteenth Amendment, the
Securities Exchange Act of 1934, 15 U.S.C. § 78a et seq
Procedure Act, 5 U.S.C. § 500 et seq.
PARTIES
Singapore 048624, and is engaged in software development, computer programming, and related
Case 1:21-cv-08701 Document 1 Filed 10/22/21 Page 2 of 12
activities. TFL designs, develops, and builds infrastructure for the next generation of decentralized
financial applications.
3. Mr. Kwon is a citizen and resident of the Republic of Korea and is domiciled in the
Republic of Korea.1 Mr. Kwon is the co-founder and Chief Executive Officer of TFL. Before co-
founding TFL, Mr. Kwon received a Computer Science degree from Stanford University, was a
wireless mesh network startup that built one of the most sophisticated decentralized applications
in real- - Finance and
4. Defendant SEC is (and was at all relevant times) an agency of the U.S. government
subject to the Administrative Procedure Act. See
5. This action arises under the Due
Jurisdiction therefore lies in this Court under 28 U.S.C. § 1331. See also 5 U.S.C. § 704.
6. Venue is proper in this Court under 28 U.S.C. § 1391(e) because this is an action
against an agency of the United States that resides in this judicial district and a substantial part of
the events or omissions giving rise to this action occurred in this judicial district.
1
By bringing this complaint to contest improper actions by the SEC, neither TFL nor Mr.
Kwon are submitting to the jurisdiction of the SEC or to jurisdiction of United States courts for
any purpose other than the adjudication of this case.
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Case 1:21-cv-08701 Document 1 Filed 10/22/21 Page 3 of 12
BACKGROUND
network, and the Mirror Protocol, a decentralized finance protocol built on Terra that is governed
8.
Mr. Kwon seeking his voluntary cooperation in connection with a formal order of investigation
styled In the Matter of Mirror Protocol, HO-
or TFL, as it could not secure personal jurisdiction over Mr. Kwon or TFL consistent with the Due
Process Clause.
9. TFL and Mr. Kwon retained Dentons US LLP to represent them in connection with
s notified the SEC
attorneys who had contacted Mr. Kwon that it represented TFL and Mr. Kwon and provided
10. Dentons thereafter had multiple conversations with the SEC attorneys regarding the
st, eventually leading to a negotiated agreement whereby Mr. Kwon would be
could not directly be used against him or TFL in a subsequent case. The agreement specifically
11. The interview took place by Webex on Thursday, July 8, 2021, and lasted
approximately 5 hours. Mr. Kwon and two Dentons partners attended the call, and the two SEC
attorneys who had contacted Mr. Kwon (and their supervisor) attended for the SEC.
12. Subsequent to the interview of Mr. Kwon, the SEC requested that Mr. Kwon and
TFL voluntarily produce documents. The request (1) in part sought records that were not available
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and (2) was otherwise so broad and/or defective that, to the extent responsive documents might
exist, the requests had to be narrowed and clarified; among other things, the requests evidenced
-
hour voluntary interview. Communications between the SEC and Dentons lawyers ensued for the
purpose of reaching common ground for the voluntary production of information responsive to the
13. During the course of these discussions, the Dentons lawyers also requested that the
SEC advise how the SEC viewed TFL and Mr. Kwon in connection with its investigation. In a
conversation on September 15, 2021, the SEC attorneys advised that they believed that some sort
of enforcement action was warranted against TFL and that any cooperation, and implementation
of remedial actions as to the Mirror Protocol, would result in a reduced financial sanction as part
of any consent agreement. The SEC lawyers were unwilling to specify anything about what they
expected regarding the amount of any financial sanction or any potential remedial actions or other
cooperation.
14. On the afternoon of September 17, Dentons contacted one of the SEC attorneys
lieved TFL could do to
nature of any disposition (whether or not it might involve enforcement proceedings) be put to the
side to allow evaluation of what the SEC might be seeking as remediation for its concerns and to
determine if TFL was even capable of implementing or otherwise effectuating the type of
remediation that the SEC might be seeking, due to the decentralized nature of the Mirror Protocol.
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15. Attorney 1 advised Dentons that he would discuss the matter with his colleagues
and get back to Dentons. Unbeknownst to Dentons, TFL, or Mr. Kwon, Attorney 1 had earlier
that morning signed subpoenas for TFL and Mr. Kwon, who was visiting the United States.
16. On Septem
cryptocurrency summit, Mr. Kwon was personally served by an SEC-hired private process service
aforementioned subpoenas, seeking production of documents by TFL and Mr. Kwon and in-person
SEC subsequently sent copies of the subpoenas to Dentons as counsel for Mr. Kwon and TFL,
st
17. The subpoenas were served on Mr. Kwon in public: Mr. Kwon was approached
by the process server as he exited an escalator at the Mainnet summit while on his way to make a
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Case 1:21-cv-08701 Document 1 Filed 10/22/21 Page 6 of 12
18.
the Due Process Clause, and was intended to impermissibly secure
personal jurisdiction over Mr. Kwon and TFL in a way that was not legally available to the SEC.
19. SEC Rule of Practice 150(b) provides that
upon a perso
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2 Cherokee
Nation of Oklahoma v. Babbitt, 117 F.3d 1489, 1499 (D.C. Cir. 1997).
20. After the SEC served plaintiffs, Dentons asked the SEC multiple times to provide
proof that the subpoenas were served in accordance with Rule of Practice 150(b), i.e., that the
Commission had issued an order permitting service upon Mr. Kwon, as required by its rules
applicable to persons represented by counsel. The SEC has provided no such proof.
21. Upon information and belief, the purpose of the SEC serving a subpoena upon Mr.
Kwon personally was, in violation of Rule 150(b), an unauthorized attempt to get personal
jurisdiction over him. In so doing, the SEC enforcement lawyers failed to follow their own rules
of practice and therefore the service upon Mr. Kwon is void ab initio. The mere fact that counsel
has been retained does not make counsel an agent for service of process on its client. See generally
Weston Funding, LLC v. Consorcio G Grupo Dina, S.A. de C.V., 451 F. Supp. 2d 585, 589 n.1
(S.D.N.Y. 2006).
22. Indeed, if the SEC lawyers thought otherwise they would have tried to serve
subpoenas through Dentons months ago. The SEC attorneys were well aware that TFL and Mr.
Kwon, and at no time asked Dentons lawyers whether it was authorized to accept service of
subpoenas. The unsolicited receipt of copies of subpoenas the SEC asserted it had served
sdiction over TFL
and Mr. Kwon in connection with the SEC proceeding. Cf. Santos v. State Farm Fire and Cas.
2
As noted above, the SEC itself acknowledged, in a letter it wrote, that Dentons is counsel
for TFL and Mr. Kwon.
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Co., 902 F.2d 1092, 1094 (2d Cir. 1990)
Farm had authorized its attorneys to accept servic
23.
above, the subpoenas here were not issued and served as authorized by law, and they are thus
or similar process or demand to the extent that it is found to be in accordance with law
added). Thus, on this challenge, the Court cannot find the subpoenas valid because they were not
24. The subpoenas are also invalid as a means of securing jurisdiction over TFL.
jurisdiction over a corporation cannot be secured by serving a transiting officer or director. See,
e.g., Daimler AG v. Baumann, 571 U.S. 117 (2014); Martinez v. Aero Caribbean, 764 F.3d 1062
25.
herwise ordered by the Commission, all
formal investigative proceedings shall be non-
-
ch Mr. Kwon in public, and announce the purpose of his
approach, at a summit attended by more than 2,000 people was, at worst, an intentionally brazen
display meant to publicly intimidate and embarrass, and at best reckless, creating social media and
press speculation about the incident within minutes of the attempted service of process.
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COUNT I
(Arbitrary and Capricious Agency Action in Disregarding and Violating the APA and the
SEC’s Rules Regarding Service of Subpoenas)
26. TFL and Mr. Kwon repeat and reallege the allegations in paragraphs 1 through 25
27.
28.
provisions of this paragraph (c) shall apply to the issuance of subpoenas for purposes of
e made pursuant to the provisions of § 201.150(b)
29.
represented by counsel who has filed a notice of appearance pursuant to § 201.102, service shall
be made pursuant to paragraph (c) of this section upon counsel, unless service upon the person
30. As the SEC has acknowledged, Dentons lawyers provided them the information
not
ordered by the Commission, SEC attorneys proceeded, in disregard of SEC rules, to serve the
subpoenas upon Mr. Kwon personally. TFL and Mr. Kwon have been, and will continue to be,
adversely affected and aggrieved by the SEC conduct set forth herein.
31.
regarding service of process, and was therefore
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32. TFL and Mr. Kwon are therefore entitled to relief under 5 U.S.C. §§ 702 and
COUNT II
(Arbitrary and Capricious Agency Action in Disregarding and Violating the SEC’s
Rules Regarding the Confidentiality of Formal Orders of Investigation)
33. TFL and Mr. Kwon repeat and reallege the allegations in paragraphs 1 through 25
34. TFL and Mr. Kwon have been, and will continue to be, adversely affected and
35.
36. TFL and Mr. Kwon are therefore entitled to relief under 5 U.S.C. §§ 702 and
COUNT III
(Violation of the Due Process Clause of the Fourteenth Amendment)
37. TFL and Mr. Kwon repeat and reallege the allegations in paragraphs 1 through 25
38. Due Process requires that an agency follow its own regulations and procedures,
particularly when those regulations themselves delineate a specific process for exceptions
, including
the specifically prescribed process for setting those safeguards aside, the SEC deprived TFL and
39. TFL and Mr. Kwon have been, and will continue to be, adversely affected and
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40. conduct was in violation of the Due Process Clause of the Fourteenth
Amendment.
41. TFL and Mr. Kwon are therefore entitled to relief under 5 U.S.C. §§ 702 and
706(2)(B).
a) Declaring that the Subpoenas were issued and served in violation of the APA
null, void, and with no force or effect,
and in particular were not effective in securing jurisdiction over TFL or Mr.
Kwon;
b) Declaring that the SEC acted arbitrarily and capriciously within the meaning of
d) Declaring that the SEC acted arbitrarily and capriciously within the meaning of
e) Issuing all orders necessary and appropriate to adjourn the compliance dates of
the Subpoenas in their entirety and to maintain the status quo pending the
g) Awarding Plaintiffs such other and further relief as this Court deems just and
appropriate.
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Douglas W. Henkin
DENTONS US LLP
1221 Avenue of the Americas
New York, New York 10020-1089
Tel: (212) 768-6700
Fax: (212) 768-6800
douglas.henkin@dentons.com
Stephen J. Senderowitz
DENTONS US LLP
233 S. Wacker Drive
Chicago, Illinois 60606
Tel: (312) 876-8141
Fax: (312) 876-7934
stephen.senderowitz@dentons.com
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