Ripple replies to SEC’s last attempt and “shoves it down their throats pretty hard”

Rick Steves

“The SEC really messed that up. How can Hinman receive legal advice from SEC lawyers for a personal opinion?”, attorney Hogan commented.

The defendants in the SEC v. Ripple case have responded to the attorney-client privilege claims made by the SEC in its latest attempt to stop the Hinman speech-related notes and emails to be handed over to Ripple.

The counsel team led by Matthew C. Solomon summed up the fight over the documents over the last year as the SEC resisted by claiming deliberative process privilege, an argument rejected by the court.

Not within the scope of any such attorney-client relationship

“Now, the SEC has doubled back to a theory it has not raised in several briefing rounds: that they are all protected, attorney-client communications because Mr. Hinman shared drafts of the speech with other SEC staff, including some lawyers, for the primary purpose of seeking legal advice. This is wrong for four reasons”, said the defendants, according to court documents.

“First, the record in this case demonstrates that Mr. Hinman delivered his speech in his personal capacity. He sought input from SEC colleagues as to how best to package his remarks. That certain colleagues discussed legal concepts in some of their responses does not imbue them (or the other communications) with any attorney-client privilege.

“Second Circuit law makes clear that advice on policy or messaging issues, even from lawyers, is not protected by the attorney-client privilege. Second, while Mr. Hinman was entitled to communicate with SEC lawyers and to receive privileged legal advice when discharging his role as the Director of Corporation Finance, communications about the substance of his personal remarks are not within the scope of any such attorney-client relationship.

“Third, the communications at issue involve no confidential information concerning the agency that would be protected by the attorneyclient privilege.

“Finally, even if the SEC could establish the elements of the privilege—which it does not—the SEC at most would have identified a privilege claim that it lacks standing to assert because the privilege would belong to Mr. Hinman”.

“The SEC really messed that up”

“Solomon continues to amaze”, said attorney Jeremy Hogan, Partner at Orlando-based Hogan & Hogan law firm and a regular commentator of the lawsuit. “He takes the finding that the speech was Hinman’s personal opinion and shoves it down their throats pretty hard. The SEC really messed that up. How can Hinman receive legal advice from SEC lawyers for a personal opinion?”

“Solomon also plays a veteran move in responding to the SEC and argues that ONLY Hinman has the standing to even raise the privilege (and not the SEC). It’s good legal work to take an issue down to a basic premise – is this even the proper party to object?”

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