Ripple pushes SEC up against the wall: “If personal opinions, then no privilege”

Rick Steves

This is the SEC’s last chance and it looks quite bleak for the Plaintiff. 

Ripple has filed a revised response to the SEC’s brief regarding the allegedly privileged documents that will soon be reviewed by Judge Sarah Netburn in order to rule whether it is privileged material or not.

The Defendants, led by attorney Matthew C. Solomon, are making the point that no Deliberative Process Privilege (DPP) exists because the Securities and Exchange Commission has never deliberated about policy regarding digital assets.

The argument is being made in response to the agency’s insistence that its officials, namely ex-SEC Director William Hinman, only offered their personal opinions rather than representing the SEC in any deliberation.

The revised response was filed a week after Ripple requested the addition of three documents the Defense found to be highly relevant, particularly the third one, which is an email chain concerning discussions with a third party whom Defendants understand received guidance from the SEC to analyze its digital asset under the framework set forth in Director William Hinman’s June 14, 2018 speech.

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.

The abovementioned document may be the evidence Ripple was looking for if it aims to prove the SEC lied about the nature of its deliberations.

Ripple’s attorneys are placing the SEC between two options:
– Its officials’ views on digital assets – including Hinman’s speech – are only personal opinions, which means there is no Deliberative Process Privilege case to be made;
– Its officials’ views were policy, there is a DPP case to be made, but Hinman’s speech and other officials’ views can be used as evidence against the SEC in the lawsuit.

It also seems that a memorandum by the SEC’s Division of Corporation Finance relating to a “legal analysis of XRP” circulated amongst certain SEC individuals on June 13th, the day before Hinman’s speech.

Attorney Jeremy Hogan commented on the “legal analysis” and said that there can be only one of three things:

1. “XRP is NOT a security.” Nuff said.
2. “XRP is MAYBE a security.” This is “Fair Notice” gold.
3. “XRP IS a security.” If so, why try so hard to hide the analysis?

Judge Sarah Netburn will be the one making the ruling regarding the privilege issue, but the SEC has already been ordered to hand over many of those documents to Ripple’s attorney and despite the Judge’s orders, the agency refused to do so.

This is the SEC’s last chance and it looks quite bleak for the Plaintiff.

There’s more on Ripple:

Ripple buries SEC in paperwork in XRP lawsuit: Nearly 30,000 requests

Ripple running out of time as BIS ‘conspires’ to end cryptos’ threat to financial system

Ripple responds to Senator Toomey on XRP, the SEC, and how to do better

SEC v. Ripple: XRP’s utility and currency value backed by former U.S. Treasurer

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