EXHIBIT 21

Case 1:20-cv-21254-BB Document 47-22 Entered on FLSD Docket 07/02/2021 Page 1 of 5
 

UNITED STATES 

SECURITIES AND EXCHANGE COMMISSION 

DIVISION OF ENFORCEMENT 

100 F Street, N.E. 

WASHINGTON, D.C. 20549-1004 

 Joshua Braunstein 

DIVISION OF Senior Trial Counsel 

ENFORCEMENT Telephone : (202) 551-8470 

 BraunsteinJ@sec.gov 

May 6, 2021 

VIA EMAIL 

Veena Viswanatha, Esq. 

Christopher F. Regan, Esq. 

Buckley Sandler LLP 

1250 24th Street NW, Suite 700 

Washington, DC 20037 

Re: SEC v. Justin W. Keener d/b/a JMJ Financial, No. 20-cv-21254 (S.D. Fla.) 

Dear Veena and Chris: 

We write in response to JMJ’s Monday May 3 and Wednesday May 5, 2021 emails. We 

appreciate your offer in both emails to help us narrow any search and thereby reduce the potential 

burden of searching, compiling and producing any documents that may be responsive to this 

request. As we have explained, your request for every document concerning questions the Office of 

Interpretation and Guidance (OIG) received (and its responses) over an eight-year period relating to 

every dealer registration question that has arisen under the Guide to Broker-Dealer Registration 

(Guide) is exceptionally broad and not proportional to the needs of the case. 

As you know, we have already conducted a search for any communications between the 

OIG and the Defendant for the time period covered in your requests. Such information might be 

relevant to the charges and defenses in this case. Similarly, we believe that the search was 

proportional to the needs of the case. As we told you last week, we have not found any responsive 

documents. As far as we can tell, the Defendant never contacted the OIG with questions, nor did 

the OIG provide any information to him with regard to his (or his employees’) specific conduct and 

whether he fell within the statutory definition of a dealer. Given that Mr. Keener has refused to 

indicate whether he ever contacted the OIG, our conclusions appear to be correct. As we also 

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Veena Viswanatha, Esq. 

Christopher Regan, Esq. 

May 6, 2021 

Page 2 

noted, this makes sense in light of his FINRA bar, which would have precluded him from 

registering as a dealer in any event. 

With respect to your broader request, we note that neither of your email responses 

meaningfully addresses our relevance objection. Nor do they explain why any additional burden 

would be proportional to the needs of the case in light of our relevance concerns. As of your May 5 

email, JMJ has provided us with a very limited explanation about why the documents might be 

relevant. Our understanding is that your relevance argument relies on an ostensible Due Process 

fair notice (hereinafter “Due Process”) defense based upon: 

 Mr. Regan’s explanation in his March 18, 2021 email that the “issue [relating to potentially 

responsive documents] is directly relevant to the due process and fair notice arguments 

we intend to pursue which concern not just what Mr. Keener saw but also the general 

industry understanding of the applicable requirements[,]” (emphasis added); 

 

 The SEC v. Ripple Labs April 6, 2021 Hearing Transcript (which Mr. Regan attached to his 

April 20, 2021 email), during which the Magistrate Judge ruled from the bench that the SEC 

was required to produce certain documents; and 

 Ms. Viswanatha’s May 5, 2021 email citing, without explanation, the “recent ruling in 

Ripple Labs,” and stating that: “such communications are relevant because they will shed 

light on the general industry understanding of the dealer registration requirements, which is 

a topic that is appropriate for expert witnesses. These communications will also be relevant 

to assessing the reasonableness of the SEC’s current interpretation of the dealer registration 

requirements.” 

We are not persuaded. As we have said several times, in writing and orally, your client 

lacks a cognizable Due Process argument in this case. In her August 14, 2020 Order denying JMJ’s 

motion to dismiss Judge Bloom squarely considered and rejected JMJ’s claim that Mr. Keener was 

engaged in business activities he “‘had no way of knowing could be unlawful.’” See August 14, 

2020 Order at 10. In denying JMJ’s motion to dismiss, Judge Bloom reasoned that JMJ’s Due 

Process argument “overlooks the express language of the Exchange Act, decisions from this circuit 

applying the definition of ‘dealer,’ and the SEC Guide itself, which sets forth instances in which a 

party can be deemed a dealer.” Id. at 10-11. Moreover, Judge Bloom also noted that JMJ’s Due 

Process argument “fails to point to any particular aspect of the Exchange Act that is ambiguous.” 

Id. at 11. 

We understand that your client’s Due Process argument rests, at least in part, on your view 

that the factors cited in the Guide, or the manner in which the OIG answered third-party questions 

about it, somehow prevented your client from having fair notice of the law. But Judge Bloom 

specifically rejected this position, stating: 

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Veena Viswanatha, Esq. 

Christopher Regan, Esq. 

May 6, 2021 

Page 3 

The Eleventh Circuit has examined the explicit statutory language defining a ‘dealer’ 

without referencing factors when evaluating whether a party is subject to securities 

registration requirements. See SEC v. Big Apple Consulting USA, Inc., 783 F.3d 786, 809-

10 (11th Cir. 2015) (explaining that the “centerpiece” of the definition of a “dealer” is the 

word “business,” and noting that defendants were dealers where their “entire business model 

was predicated on the purchase and sale of securities” and where they bought “stocks at 

deep discounts” by contractual agreement and “then resold those stocks for profit”) 

(emphasis in original). 

Id. at 9-10. Your client had notice of the dealer registration requirement not only from the plain 

language of the statute, the Guide, and the Eleventh Circuit’s decision in Big Apple, which came 

within two months of the start of the Relevant Period in the Complaint, but also from the Big Apple

decision in the Middle District of Florida in 2011. See SEC v. Big Apple Consulting USA, Inc., et 

al., 2011 WL 3753581, *8-10 (M.D. Fla. Aug. 25, 2011). 

Because this Court has already forcefully rejected your client’s Due Process arguments—

following the controlling precedent in the 11th Circuit—we do not see how the OIG documents you 

seek are possibly relevant to the case here. And the many hours of SEC resources it would require 

to conduct a search for documents relating to dealer registration that never reached your client 

would clearly not be proportional to any genuine needs of this case. There is no question that 

Defendant should have been on notice that his business (which was plainly focused on buying and 

selling high volumes of securities) met the definition of “dealer” from the plain language of the 

statute, the two Big Apple decisions, and the Guide. 

Finally, neither Judge Bloom’s August 14, 2020 Order nor other Due Process jurisprudence 

supports your assertion that any responsive documents would be relevant to “the general industry 

understanding of the dealer registration requirements, which is a topic that is appropriate for expert 

witnesses.” In fact, the standard for determining whether civil statutes that regulate economic 

activities provide “fair notice” is whether the law is sufficiently clear that its prohibitions would be 

understood by an ordinary person operating a profit-driven business. Fair notice is not what a hired 

expert is prepared to testify regarding the extent to which “the industry” understands the law or 

what the law means. In any event, Judge Bloom’s August 14, 2020 Order renders this position 

wholly unavailing. 

Consistent with this explanation, the SEC’s current position is that, based on the objections 

we have posed, we do not intend to search for any OIG documents beyond the reasonable search we 

already conducted relating to JMJ. But in the interest of ensuring that we fully understand the scope 

of your request and proposal to make your offer more proportional to the needs of this case, please 

share: (1) JMJ’s proposal for a small list of search terms that would narrowly target potential OIG 

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Veena Viswanatha, Esq. 

Christopher Regan, Esq. 

May 6, 2021 

Page 4 

documents, and (2) your position on our above discussion. We will consider both and evaluate how 

they may alter the burden and proportionality requirement consistent with the Federal Rules of Civil 

Procedure. 

 Sincerely, 

s/ 

Joshua E. Braunstein 

Antony Richard Petrilla 

cc: 

Ben Greenberg, Esq. 

 Oliva Rauh, Esq. 

 

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