Ripple offered new chance to argue for SEC documents on XRP, ETH, BTC

Rick Steves

The SEC has claimed its internal documents, which include the agency’s discussions over the nature of XRP and ETH, are protected by DPP (Deliberative Process Privilege).

Magistrate Judge Sarah Netburn has ordered both parties in the SEC v. Ripple lawsuit to review and supplement their arguments regarding the deliberative process privilege (DPP).

For months, the Securities and Exchange Commission has refused to hand over documents regarding the agency’s thoughts and discussions over XRP, ETH, BTC, on the grounds of being privileged information.

Judge orders re-brief on DPP

In August 31, and facing Ripple and co-defendants’ motion to compel the SEC to deliver the information, Judge Sarah Netburn decided to perform an in camera review of those documents.

It seems, however, that a Second Circuit case has recently issued an opinion on deliberative process privilege that changed the law on what is protected by DPP. Judge Netburn is allowing the SEC and Ripple to re-brief for that reason.

“On November 29, 2021, the Court of Appeals issued a decision in Nat. Res. Def. Council v. U.S. Env’t Prot. Agency, No. 20-cv-422, 2021 WL 5549405 (2d Cir. Nov. 29, 2021), addressing the scope of the deliberative process privilege.

“In light of this decision, by December 8, 2021, the parties shall simultaneously file letter briefs no longer than three pages to supplement their arguments concerning Defendants’ motion to compel, ECF No. 289. SO ORDERED.”

SEC documents may support Ripple’s fair notice defense

The SEC has argued its internal documents, which include the agency’s discussions over the nature of XRP and ETH, are protected by DPP (Deliberative Process Privilege).

The defendants have recently explained those documents will expose the agency’s contradictions in its decision-making throughout the years, which proves the SEC didn’t provide fair notice that XRP could be considered a security.

William Hinman’s deposition has already provided a general feel that regulatory clarity is something lacking in the SEC’s communications. Jeremy Hogan, an attorney friendly with the XRP community, has pointed out two bombshells in that deposition that could strengthen the fair notice defense.

There are also the Ripple counsel’s findings that may reveal the SEC lied to the court on Hinman’s “personal views”. Firstly, the document could explicitly prove Hinman’s speech was not merely a personal opinion, but the SEC’s official policy. This has been a key issue in the lawsuit.

“The SEC sent an email to a third party telling them to analyze a digital asset using the factors in the Hinman speech; which speech was just his personal opinion. I understand now – it’s the SEC that needs clarity!”, attorney Jeremy Hogan commented, pointing out the agency’s contradictions.

Secondly, the guidance provided to the ‘third party’ might also be relevant to show the SEC’s inconsistency in terms of regulatory clarity. This can be used to support Ripple’s fair notice defense, which claims the SEC failed to explain the firm and the broad digital asset space that XRP could be considered a security.

Those documents were sealed by the court and added to the in camera review.

 

 

Read this next

Executive Moves

Genesis Global snatches CMO Jason Jhonson from metaverse company

The hire of Jhonson follows the announcement that Genesis raised $20 million in fresh funding from US banking giants, Bank of America, BNY Mellon and Citi.

Digital Assets

Celsius subsidiary GK8 integrates with Polygon while looking for new owner

“This integration affords our customers more agility in managing their crypto assets, which is key to creating new revenue streams.”

Digital Assets

BDO Italia audits Tether reserves to release monthly attestation

World’s largest stablecoin issuer, Tether has switched the accounting firm that audits the massive reserves that back its USDT token to BDO Italia, the 5th largest accounting firm in the world.

Retail FX

Libertex bags multi-year sponsorship deal with FC Bayern

Indication Investments Ltd, the operator of FX retail brand Libertex, has secured a lucrative sponsorship deal with German soccer giant FC Bayern.

Institutional FX

PrimeXM reports lower volumes for July as summer lull bites

PrimeXM has reported weaker trading volumes for July 2022, in line with other institutional and retail platforms that saw the activity of their clients dropped compared to a month earlier.

Retail FX

FCA warns of ATFX Global Trading / ATFXcoin

In its latest clampdown against the specific type of ‘clone fraud’, the Financial Conduct Authority (FCA) has warned local investors to watch out for a company called ATFX Global Trading / ATFXcoin.

Digital Assets

CME Group to roll out options on Ether futures next month

Derivatives exchange CME Group is set to roll out options on Ether futures on September 12 in a move to bring another level of diversification to cryptocurrency traders.

Industry News, Podcasts

Finance Feeds launches Podcasts: Listen to Ep. #1 feat. Dmitri Galinov of 24 Exchange

The team at Finance Feeds are happy to announce the launch of our Podcast series, available on Spotify and other audio services and hosted by our Editor-in-Chief Nikolai Isayev.

Digital Assets

Madfish launches Yupana.Finance, the first lending protocol on Tezos

Yupana, which aims to provide a similar experience to Aave or Compound, currently supports TEZ, cTEZ, kUSD, tzBTC, uUSD, and uBTC.

<