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6D Global Technologies, Inc. Administrative Proceeding File No 1 Stradley Ronon Stevens & Young, LLP 2005 Market Street, Suite 2600 STRADLEY Philadelphia, PA 19103 Telephone 215.564.8000 IRON ON Fax 215.564.8120 www.stradley.com Paula D. Shaffner [email protected] 215.564.8761 June 21, 2017 via liand delivery RECEIVED Brent J. Fields, Esq. JUN 22 2017 Secretary i(WFlCE OF THE SECRETARY United States Securities and Exchange Commission 100 F Street, N .E. Washington, D.C. 20549 Re: In the Matter of 6D Global Technologies, Inc. Administrative Proceeding File No. 3-17908 Dear Mr. Fields: Our firm represents 6D Global Technologies, Inc. ("6D") in the above-captioned matter. I am writing to inform the Securities and Exchange Commission (the "Commission") of recent authority that is material in further supporting 6D's Opposition Brief to the Motion to Dismiss the Application for Review of the Nasdaq Stock Market, LLC ("Nasdaq"), as well as the issues identified in its Application for Review, and which the Commission should consider pursuant to 17 C.F.R. § 201.42l(b). By way of background, Nasdaq filed a motion to dismiss 6D's Application for Review on April 12, 2017, which argued that 6D's application was untimely (the "Motion"). On April 28, 2017, 6D filed its Opposition Briefto the Motion (the "Opposition Brief'), explaining that the Commission should review its application pursuant to 17 C.F.R. § 201.420(b). As described in the Opposition Brief, Nasdaq had previously lost an appeal of delisting filed by 6D's predecessor company, CleanTech Innovations, Inc. ("CleanTech"). That delisting had revolved around nefarious allegations about Chinese-born Benjamin Wey and much innuendo about Chinese reverse mergers. Having lost that appeal, it appears that when Wey was indicted more recently, Nasdaq improperly seized on the unproven allegations in that indictment to delist the successor entity of CleanTech, 6D, despite the lack of any connection Philadelphia, PA• Harrisburg, PA• Malvern, PA• Cherry Hill, NJ• Wilmington, DE• Washington, DC• New York, NY• Chicago, IL A P~nns)'IYania Umllrd l.iability Partnenhip .......... iii MERITAS LAW FIRMS WORLDWIDE '- 1 Brent J. Fields June 21, 2017 Page2 between the two distinct businesses. Indeed, Nasdaq's sole basis for halting trading on September 10, 2015 was apparently based upon allegations of securities fraud levied against Wey in two actions against Wey (and not 6D) that came to light on that same day: (1) a federal criminal indictment against Wey (the "Indictment');' and (2) a civil action by the SEC against Wey and others (the "SEC's Complaint").2 The hostility to Wey is palpable and difficult to deny but, again, 6D is an independent business entitled to be judged on its own merit. Instead, Nasdaq continues to try to tar 6D with the same brush. Nasdaq's initial reasons for taking action against 6D-its troubling fixation on the unproven allegations against Wey, which Nasdaq relied on heavily throughout the proceedings before both the Nasdaq Listing Qualifications Hearing Panel (the "Hearing Panel") and the Nasdaq Listing and Hearing Review Council (the "Review Council") - triggered a cascading effect on 6D that poisoned the entire Nasdaq review process. The allegations as against 6D have been proven to be untrue as found in the recent class action dismissal3 described in the Opposition Brief. A recent decision in the federal criminal matter against Wey graphically demonstrates the seriousness and harmful impact ofNasdaq's reliance on the unproven allegations against Wey. On June 13, 2017, the United States District Court for the Southern District of New York issued a decision suppressing all of the evidence that the Government seized during searches ofWey's residence and the offices ofNew York Global Group, Inc. (''NYGG"), both of which occurred on a single day in January 2012. See U.S. v. Wey, No. 15- cr-00611, Opinion & Order (SDNY June 13, 2017), attached hereto as Exhibit 1. The Court explained that the search warrants for Wey's residence and the offices ofNYGG were "facially lacking in particularity and sweepingly broad in the scope of their proposed authorization as to exceed the probable cause showing submitted to the Magistrate Judge." Id. at 90. The Court further found that the manner in which the searching agents executed the warrants was similarly "expansive and unconstrained." Id. at 90-91. As a result, the Court held that the conduct violated the Fourth Amendment, resulting in a "blanket suppression" of all evidence gathered in the searches. Id. at 91. The Court harshly rebuked the Government, finding that "[t]he searching agents, interpreting that authority expansively and unconstrained (the Court has found) by the superficial extra-Warrant safeguards the Government trumpets as evidence of good faith, proceeded to execute the Warrants as though they were functional equivalents of general warrants, in both their indiscriminate physical seizures and, later, their expanded mining of the retained electronic take for evidence related to new persons and new crimes. This conduct reflects, at least, grossly negligent or reckless disregard of the strictures of the Fourth Amendment, and that is sufficient to infer a lack of good faith." Id. at 90-91. This troubling instance of the Government trampling U.S. v. Wey, No. 15-cr-00611, Indictment (SDNY Sept. 8, 2015), which was unsealed on September 10, 2015, attached to 6D's Opposition Brief as Exhibit 2. 2 SEC v. Wey. et al., Civ. A. No. 15-cv-7116, Complaint (SONY Sept. IO, 2015), attached to 6D's Opposition Brief as Exhibit 3. Puddu v. 6D Global Tech .. Inc., et al., No. 15-Civ.-8061, 2017 WL 991866 (S.D.N.Y. Mar. 6, 2017). 1 -' Brent J. Fields June 21, 2017 Page3 on rights is eerily similar. Nasdaq as well acted precipitously and without regard to the rights of 6D. Nasdaq created chaos then used some of the reverberations of that chaos to belatedly justify a delisting, much as the Government indiscriminately searched for evidence of other potential crimes or possible wrongdoing by others in the Wey matter. Furthermore, not only has Wey prevailed in obtaining a blanket suppression of the evidence in the criminal action against him, but he has also prevailed in the same action by obtaining an Order from the Court requiring Nasdaq to produce documents to Wey related to Nasdaq's requirement as to the number of shareholders required for the initial listing of certain entities, including CleanTech. See U.S. v. Wey, No. 15-cr-00611, Memorandum & Order (SDNY May l, 2017), attached hereto as Exhibit 2. Nasdaq's objection to Wey's subpoena primarily centered upon Wey's request for documents relating to certain Nasdaq staff member's communications "relating to, interpreting or applying Nasdaq's 300 round-lot shareholder requirement." Id. at 4. That requirement-and Wey's alleged violation of that requirement with respect to certain entities including 6D's predecessor- had been the basis for several charges against him in the criminal action. Id. at 1-2. Wey's supposed violation of this requirement as to CleanTech also was the basis ofNasdaq's initial delisting determination. The Court rejected Nasdaq's argument that Nasdaq had absolute immunity and did not have to produce the documents or that the documents were subject to any sort of privilege, and in doing so, the Court denied Nasdaq's motion to quash the subpoena. Id. at 5-21. Importantly, in reaching its decision, the Court validated Wey's argument that the documents were of importance because, it explained, "Wey seeks to counter at least one substantive component of the Government's case with evidence that Nasdaq was not 'deceived' by a 'ruse' on the part of Wey to secure listings for the Issuers by artificially inflating their investor bases through share transfers and gifts, but rather had actual knowledge ofWey's activities and approved the listings in any event. He has made a preliminary ex parte showing to the Court that such evidence may well exist[.]" Id. at 10. The Court further admonished Nasdaq, stating that ''Nasdaq would have the Court frustrate the vindication of Wey's constitutional rights to pursue that evidence by endorsing a sweeping immunity claim," which the Court refused to do. Id. The Court also found that the materials Wey sought were both relevant and admissible, explaining that "[t]he Court has no difficulty concluding that evidence potentially suggesting that Nasdaq had actual knowledge that Wey was facilitating satisfaction of listing standards in this manner could be 'of consequence' to a determination as to whether Wey engaged in deceptive conduct and thus whether he may be guilty of, for example, securities fraud." Id. at 21-23. Thus, despite Nasdaq' s attempts to stonewall Wey in the criminal action and even attempting to subvert his constitutional rights- further demonstrating Nasdaq's bias against Wey, which carried over into Nasdaq's delisting efforts against 6D generally as well as with respect to the round-lot shareholder requirement-the Court has ordered that Nasdaq must produce the documents. While it is not yet apparent what the final result will be in the criminal proceedings, it is clear that a great deal of the evidence supposedly supporting the Government's charges is now subject to blanket suppression. Indeed, it is entirely possible that the suppression order will result in a dismissal of some or all of the charges against Wey. It is also possible that t. Brent J. Fields June 21, 2017 Page4 Wey may obtain evidence from Nasdaq itself to support his exoneration as the Court pointed out. These possibilities demonstrate precisely why Nasdaq should never have used unproven allegations in halting 6D's trading and in its delisting determination.
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