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SEC vs Ripple: Key Upcoming Deadlines in the XRP-Related Lawsuit

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Jeremy Hogan, a partner at the law firm Hogan & Hogan, says that lawsuit brought by the U.S. Securities and Exchange Commission (SEC) against Ripple Labs over the sale of XRP tokens could continue into early 2022.

On 22 December 2020, the SEC announced that it had “filed an action against Ripple Labs Inc. and two of its executives, who are also significant security holders, alleging that they raised over $1.3 billion through an unregistered, ongoing digital asset securities offering.”

Well, on June 17, in a video released on the YouTube channel “Legal Briefs”, Hogan discussed this case.

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According to a report by The Daily Hodl, he said:

No settlement will happen until after the close of discovery. Could it settle before then? Yes, I just don’t think it’s likely. So any settlement is likely to be after at least the close of fact discovery, and that is now early September and even more likely to be after October 16th. And if it doesn’t settle, then I believe that two main issues will be decided by Judge Torres as summary judgment. 

Looking at the summary judgment rule briefly, you can see there that motions for summary judgments must be filed within 30 days of the close of discovery. So that puts the parties competing for motions for summary judgment due no later than 30 days of the close of all the discovery and that is November 16th for us... I don’t see the case being decided at summary judgment until early 2022, maybe January...

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I don’t see any reason why the SEC is going to be in any rush on this case. The more time goes by, the better the SEC’s settlement position because the more pain for Ripple. I see it every day in my firm as most of my clients are fighting large insurance companies and there’s nothing they like better than to kill my clients with time. It’s a very common tactic.

On June 18, American Lawyer James Filan, who “served as a federal prosecutor for nine years in the United States Attorney’s Office for the District of Connecticut”, highlighted all the important upcoming deadlines in one tweet:

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XRP Lawsuit: Ripple appeals the Court to Disclose SEC’s in-camera review documents

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The latest update in the XRP lawsuit saw Ripple respond to SEC’s letter with the explanation for its privilege assertions along with a redacted version of the three additional documents requested by the defendants for in-camera review. Ripple has requested the court to disclose these documents to the defense and has further continued to argue against the plaintiff’s repetitive “privileged” stance.

Ripple objects to SEC’s entitlement to keeping secrets under DPP

Ripple has contended SEC’s “pre-decisional” or “deliberative” argument for the three additional documents, noting that the commission has failed yet again to identify any specific policy process related to these or other documents, as it is required to when seeking protection under DPP. Ripple argued that the SEC claims against disclosure of discussions are weak and do not stand any legal relevance.

SEC asserts that “how to structure a forum the SEC intends to use to communicate with industry participants” is deliberative or would reveal its “mode of formulating or exercising policy-implicating judgment,”. However, the defense objects to the plaintiff’s assertions’ insufficiency to invoke DPP and states that if this argument is considered valid in the court, then that would extend the invalid privilege to virtually every document or communication in a federal agency.

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“The fundamental problem with the SEC’s approach is that the agency apparently believes that it is entitled to operate in secret, and to withhold from actual litigants, whose reputations and livelihoods are at stake due to its own affirmative litigation choices (as opposed to the general public pursuant to FOIA), any internal documents that relate to its mission, broadly defined. This approach finds no basis in law because it turns on its head Congress’ lawfully enacted presumption of openness in government documents, subject to circumscribed, narrow exceptions.”

While the Court granted Ripple’s September 24 appeal, seeking the addition of three documents by the SEC for in-camera review, it still has not permitted disclosure of mentioned data to the defendants. These documents include the two documents related to the SEC’s meetings with law firms, along the email trail concerning discussions with a third party who received guidance from the SEC to analyze its digital asset under the framework set forth in Hinman’s June 14, 2018, speech.

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Ripple (XRP) Committed to the Crypto Climate Accord (CCA) To Provide for Sustainability

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With cryptocurrency becoming mainstream, to provide for a long-term future together sustainability practices are very important.  Major Fintech companies like PayPal, Visa, Tesla, and several others leverage this technology.  This in turn has led to increased energy consumption to already unsustainable levels. To break even, the industry has a choice to make.  Either continue down the unsustainable path to be doomed or work together and reduce the collective environmental impact.

Decarbonizing public blockchains is about bringing down the carbon footprint.  In2020, Ripple partnered with Energy Web (EW) and the Rocky Mountain Institute (RMI) in their efforts to decarbonize public blockchains beginning with the XRP ledger. Further, Ripple has pledged to achieve carbon net-zero by 2030 or sooner.

Ripple is committed to the Crypto Climate Accord (CCA), which is a new initiative organized by EW, RMI, and the Alliance for Innovation Regulation (AIR) to ensure that the cryptocurrency industry is 100% renewable.

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Ripple will also be joining more than 20 supporters from different industries and blockchains, which consists of the United Nations, CoinShares, Compass Mining, the XRP Ledger Foundation, and ConsenSys to provide for sustainability and scalability, thus creating value for all.

The cryptocurrency market cap is at $2 trillion, which is twice the previous all-time high that was reached about three months ago, thus underscoring how quickly this industry is growing.

The growth of the cryptocurrency industry comes at a cost.  The damages caused by climate change cover for nearly 3% of GDP by 2060. The challenge to sustain global financial prosperity without compromising on the environment is a thing to be considered.

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Emissions reduction and renewable energy use are steps to ensure progress in the right direction.

The Paris Climate Accord, fintech, and crypto industry leaders have partnered to set the objectives to ensure sustainability.

Key objectives include: “Enable all of the world’s blockchains to be powered by 100% renewables by the 2025 UNFCCC COP Conference; Develop an open-source accounting standard for measuring emissions from the cryptocurrency industry; Achieve net-zero emissions for the entire crypto industry, including all business operations beyond blockchain and retroactive emissions by 2040.”

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Ripple’s journey in ensuring sustainability consists of recognition of financial technologies like blockchain and cryptocurrency to position financial empowerment without compromising on the sustainable future. Thus, providing for the critical years of commitment in the process of cryptocurrency adoption. Reverse engineering the characteristic of the technology after progress has been achieved can be tricking and sustainability will, in turn, have to wait longer.  Therefore, Ripple is leading the effort and they feel it is time to solve the problem now.

Ripple is committed to progressing this effort by a strategic partnership with organizations like Rocky Mountain Institute, Energy Web, and AIR, eventually contributing to policy ideas and financing for innovations to help achieve the long-term objectives of Accord.

The attempt is expected to save the global economy an estimated $26 trillion by 2030, contributing to a robust and sustainable global financial system leading to a sustainable world.

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SEC v. Ripple – Court orders plaintiff to ‘answer Ripple’s interrogatories’

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Within 24 hours of the court approving the Securities and Exchange Commission’s request to postpone the discovery deadline to January 2022, Judge Sarah Netburn has responded to two pending motions in the SEC v. Ripple Labs lawsuit.

One of the motions was from defendants Ripple Labs and Chris Larsen to compel the SEC to supplement its responses to eleven of its interrogatories and two of Larsen’s. Meanwhile, the other motion from the SEC sought a protective order to relieve it of the obligation to respond to 29,947 separate requests for admission, as per the filing.

Judge Netburn has now granted and denied both motions in part.

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The judge ordered the SEC to answer Ripple’s interrogatories and identify the specific terms of the “investment contract” from XRP sales. The order added,

“Ripple’s interrogatory is relevant (and precise) and will clarify whether the SEC contends that the terms of any contract identified in response to Ripple’s Interrogatory No. 1 created an expectation of profits by the purchaser of XRP.”

“Accordingly, Defendants’ motion regarding Ripple Interrogatory No. 2 is GRANTED, and the SEC must supplement its response to Interrogatory No. 2 to identify any specific contractual terms and not just implicit and explicit promises as previously identified.”

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The SEC must also respond to whether it contends that “efforts by Ripple were necessary to effect any increase in the price of XRP.” The court granted most of the defendants’ motions to compel answers on interrogatories, except one.

This was the motion from Chris Larsen on when XRPL is fully functional. Judge Netburn denied it without prejudice for being “too vague,” with the parties ordered to confer clarity terms.

Meanwhile, the SEC’s motion for protective orders was also partially granted and denied. The judge granted protection on Defendants’ 28,849 RFAs, noting that “it is hard to view this stunt as anything more than theater.” The order added,

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“The motion for a protective order is GRANTED on burden grounds. Having granted the motion to compel a response to Ripple’s Interrogatory No. 2, the protective order is also GRANTED as cumulative and duplicative of another form of admissible evidence.”

As the SEC and Ripple filed their responses, the timeline for the case may extend due to the postponement of the discovery deadline. This deadline was pushed so that the parties could complete the expert depositions and beef up their preparations.

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