WASHINGTON – The Securities and Exchange Commission (SEC) has disclosed that its Office of Inspector General (OIG) is nearing the end of an investigation related to financial conflict of interest issues identified and referred to the OIG by Empower Oversight in May 2022. It’s the first acknowledgment of an open probe on the matter by the agency’s internal watchdog.
According to the SEC, “OIG has authorized us to inform you that OIG has an open investigation into the matter that they are in the final stages of completing.” Empower Oversight’s referral cited records it obtained through the Freedom of Information Act (FOIA) raising serious questions about the failures of SEC’s Ethics Office and a senior SEC official, William Hinman, to ensure that he avoided participating in matters where he had a financial interest—including a controversial speech declaring that certain digital assets were not securities subject to SEC enforcement.
The SEC’s disclosure of the OIG inquiry follows Empower Oversight informing the SEC that it intended to file suit to enforce its May 15, 2023, FOIA request for records related its OIG referral. Although that request was filed nine months ago, the SEC has failed to produce a single page of responsive documents.
“The silver lining is that now we know one reason for the stonewalling is that there actually is an active inquiry by the inspector general, which is almost done,” said Tristan Leavitt, president of Empower Oversight. “However, whether the OIG report thoroughly addresses all the issues we raised remains to be seen because we don’t know the exact scope of the inquiry. The SEC’s OIG needs to get this right and help prevent similar conflicts of interest from undermining public faith in the SEC’s work in the future.”
Empower Oversight still intends to bring its FOIA enforcement lawsuit if the SEC refuses to begin producing documents in responses to the May 15, 2023, request by February 23, 2024.
The following is a timeline summarizing interactions with the SEC:
- May 15, 2023 – Request submitted.
- May 18, 2023 – The SEC cited unusual circumstances to justify adding an additional ten working days to the statutory twenty working day deadline.
- August 3, 2023 – The SEC asked for clarification on various issues with the request, which Empower Oversight subsequently provided.
Several months passed with only silence from the SEC. Empower Oversight prepared to sue to enforce the FOIA.
- December 18, 2023 – The SEC responded with additional matters to clarify and confirm.
- December 20, 2023 – Empower responded to issues raised by the SEC. Empower also notified the SEC that it had already begun drafting a complaint to file in the district court.
- January 8, 2024 – The SEC provided update that it was still in the process of identifying custodians. The SEC also conferred with Empower about various search terms to use.
- January 10, 2024 – Empower responded to the SEC’s January 8, 2024 questions about search terms and asked when the SEC will begin producing records.
- January 18, 2024 – The SEC responded, asking for additional information about search terms, confirming agreed search parameters, and proposing an update by February 12, 2024.
- January 22, 2024 – Empower responded with clarification and proposed a regular update schedule on processing.
- January 24, 2024 – The SEC confirmed it will provide monthly updates.
- January 25, 2024 – Empower agreed to the SEC proposals, but stated that its willingness to delay filing a district court complaint is contingent on the SEC beginning production of documents by February 23, 2024.
To date, the SEC has still produced no documents and has refused to indicate when it will begin producing documents.
Background
Since August 2021, Empower Oversight has pressed the SEC for more transparency about the decision making on cryptocurrency issues at the SEC. The agency slow-walking and bad faith over nearly three years has forced litigation to pry documents loose from the agency.
In August 2021, Empower Oversight submitted a detailed FOIA request to the SEC seeking all communications between senior SEC officials, their former and future employers, and related entities regarding cryptocurrencies. Since then, Empower Oversight has been at the forefront of the battle for SEC transparency. In December 2021, Empower Oversight filed a lawsuit against the SEC in the Eastern District of Virginia seeking to compel the agency to provide responsive documents to the FOIA requests.
In May 2022, Empower Oversight sent a referral to the SEC OIG based on documents that raised questions about the failure of the SEC and its Ethics Office to properly manage Hinman’s conflicts of interest regarding cryptocurrency issues, contacts with his former law firm Simpson Thacher, and that firm’s interest in promoting one cryptocurrency over others.
In October 2022, Empower Oversight filed its opposition to the SEC’s motion for summary judgment in the ongoing FOIA lawsuit over documents related to conflicts of interest and selective enforcement in cryptocurrency cases.
The SEC had initially agreed to search for records of communications between SEC officials and promoters of certain cryptocurrencies using a specific list of names that the SEC asked Empower Oversight to provide. However, the SEC then promptly reversed course and had refused to search for those records for nearly two years since the August 2021 request, which is still the subject of ongoing Freedom of Information Act (FOIA) lawsuit against the SEC.
In Dec. 2022, Empower Oversight filed a new FOIA request regarding conflicts of interest and selective enforcement by former high-level officials regarding cryptocurrencies. The December 2022 request was an effort to counter the SEC’s bad faith gamesmanship in refusing to conduct searches using the search terms it solicited from Empower Oversight more than a year earlier. The December 2022 FOIA requests to the SEC sought communications between senior SEC officials and their former and future employers and related entities regarding cryptocurrencies by name.
Former senior SEC official William Hinman received millions of dollars in compensation from his former employer, Simpson Thacher, while helping guide the SEC’s enforcement decisions on cryptocurrencies. Simpson Thacher was part of a group that promoted the native cryptocurrency on the Ethereum network, Ether. Of particular interest is a June 14, 2018 speech where Hinman publicly declared that Ether was not a security while the SEC has claimed in enforcement actions that other similar cryptocurrencies were unregistered securities.
In May 2023, Empower Oversight filed a new complaint against the SEC in the United States District Court for the District of Columbia seeking to compel the SEC to comply with the December 2022 FOIA request.
The SEC turned over the most recent batch of documents following the May FOIA lawsuit brought by Empower Oversight in the District of Columbia from a December 2022 FOIA request to the SEC. Pursuant to the FOIA request and the lawsuit, the SEC produced 324 pages of additional documents.
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