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The fight for clarity ‘has to continue’ – Brad Garlinghouse

In a video posted to Twitter, Ripple CEO Brad Garlinghouse opined that the U.S. financial watchdog acted in "bad faith, plain and simple." He warned that it is only the beginning of the battle for "so many other" crypto firms.

Ripple CEO Brad Garlinghouse has warned that as Ripple's case against the United States financial watchdog comes “to a close,” it is only the beginning of the battle for many others in the crypto industry, emphasizing that the fight for clarity “has to continue.’

Following a lengthy back and forth between Ripple and the United States Securities and Exchange Commission (SEC), the Hinman documents were finally unsealed on June 13.

Garlinghouse has long argued for the unsealing of these documents,which pertain to a 2018 speech delivered by Hinman stating that Ethereum (ETH) is not a security – which Garlinghouse believed could bolster his argument that Ripple’s token, XRP (XRP), is not a security too.

In a recent video published on Twitter on June 17, Garlinghouse stated the unsealing of the Hinman documents show that the SEC “knowingly created confusion about the rules, and they used that confusion through enforcement.”

He argued that this is the “definition of putting politics over people […] and the pursuit of power over sound policy.”

Garlinghouse stated that the SEC acted in "bad faith, plain and simple," and reiterated that the timing of the lawsuit being initially filed in December 2020, just days before Christmas, as a “very grinch-like touch.”

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He declared that during all his meetings with the SEC he answered, “every question [the SEC] had, and not once did they suggest to me that XRP was a security.”

Garlinghouse argued that the Hinman speech itself isn’t about “any one token or any one blockchain,” but more so the “relentless” enforcement action by the SEC.

“This is about showing the extent to which the SEC has relentlessly enforced action against crypto players, while professing fake open arms and calls to come in and register, all the while lying about their so-called guidance.”

Garlinghouse further explained that “at best” the documents show that senior officials at the SEC “couldn't agree” on the law and told Bill Hinman directly that “he would confuse the public even more about the rules for crypto.”

Cointelegraph reported on June 13 that notes in the revealed documents suggested that the editors were concerned that Hinman stating Ether is not a security, may make it “difficult for the agency to take a different position on Ether in the future.”

However, Garlinghouse noted that “at worst” the documents showed that Hinman “deliberately ignored the law” and tried to “create new laws,” emphasizing that only Congress has power to do that.

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The Hinman docs: Implications for XRP, SEC credibility and more

The Hinman documents have been available to Ripple for over two years, and their public release has been eagerly awaited by many, but some were disappointed by the lack of any real bombshells.

The Hinman documents were finally unsealed and made publicly available on June 12 after a lengthy back and forth between Ripple and the United States Securities and Exchange Commission (SEC), but what exactly do they reveal?

The documents are extensive, and while they can be found in public resources like the Public Access to Court Electronic Records (PACER) or CourtListener, lawyer James Filan tweeted on June 13, compiling them into two URLs.

Speaking to Cointelegraph soon after the unsealing, pro-XRP lawyer and founder of CryptoLaw John Deaton shared his belief that “the documents themselves don’t impact the judge’s underlying analysis of whether XRP (XRP) was offered/sold by Ripple as an investment contract, or XRP’s status in the secondary markets in the United States.“

This is considered a key defense of Ripple during its legal battle with the SEC. But those keeping a close eye on the case will know that the documents were not expected to do so, despite the then SEC chair Jay Clayton referencing the speech as “the approach we take to evaluate whether a digital asset is a security,” the 2018 speech carried disclaimers that it was the personal views of the then director of corporation finance William Hinman, which “does not necessarily reflect those of the Commission.”

With the Hinman documents being such a hot topic, many other crypto lawyers have also wondered what the documents might mean for XRP and Ether (ETH).

A “nothingburger?”

After the documents were unsealed, many onlookers, such as Gabriel Shapiro, general counsel for crypto firm Delphi Labs, took to Twitter calling them a “nothingburger,” which had no impact on the case between Ripple and the SEC.

Pro-XRP lawyer and Hodl Law founder Fred Rispoli had a different take when appearing on the Thinking Crypto podcast on June 15. He suggests they are “explosive” because although “we all knew there’s a revolving door” between regulators and private firms — and “behind the scenes dealings” — the public rarely gets a chance to see it as clearly as it’s displayed in the emails.

In other words, while the documents might not help Ripple regarding an XRP security determination, it does impact the SEC’s credibility. It sheds further light on why Hinman gave the speech despite protests from other SEC divisions.

The documents also highlight what appears to be an acknowledgment from Laura Jarsulic — an attorney with the SEC’s Office of General Counsel — that tokens on a sufficiently decentralized network might exist in a “regulatory gap” where the tokens are “not a security because there’s no ‘controlling’ group,” but “there may be a need for regulation to protect purchasers” as occurs with credit cards and medication.

Comments from Jarsulic. Source: Hinman documents

This might be significant, as current SEC chair Gary Gensler has repeatedly said that he believes all cryptocurrencies except for Bitcoin (BTC) are securities and that rules for crypto already exist.

A boost to Ripple’s fair notice defense

Ripple’s fair notice defense refers to the argument that the SEC had not provided it with sufficient notice before suing it for committing securities fraud in December 2020.

However, the defense is generally not perceived to be strong, as longstanding court precedent — i.e., the Howey test that determines whether a transaction qualifies as an investment contract or security — is regarded as fair notice.

But in the interview with Cointelegraph, Deaton suggested that the documents support Ripple’s argument that the speech sowed market confusion and hindered the ability of market participants to determine exactly what constitutes a security under the Howey test, saying:

“The documents do assist Ripple (and others) in arguing that the speech caused greater confusion in the markets, causing market participants to lack adequate notice of what was prohibited by existing law.”

The SEC’s credibility

The Hinman documents show the conversations between various SEC members as they sought to get the speech ready for public release.

As pointed out by Ripple’s chief legal officer Stuart Alderoty in a Twitter thread on June 13, the emails also highlight that Hinman had received feedback from other divisions of the SEC, noting that some of the factors he used when determining that Ether was not a security had no legal basis.

Deaton’s CryptoLaw hosted a panel on June 14, joined by fellow crypto lawyer Jeremy Hogan and former SEC securities lawyer Marc Fagel, who worked at the agency for 16 years.

During the panel, Fagel agreed that the email contained no real bombshells relevant to the case, but did highlight some potential conflicts of interest. He said on multiple occasions that he did not want to ascribe motivations to Hinman but added:

“I do try to see both sides of it. So I don’t like to leap to there’s something unethical here, although we can all agree that there’s some conflicted issues here and some really disappointing conduct here.”

Before and after working with the SEC, Hinman worked at a law firm called Simpson Thacher & Bartlett, which was a member of the advocacy organization Enterprise Ethereum Alliance that seeks to drive the use of Ethereum blockchain technology.

According to the watchdog group Empower Oversight Whistleblowers and Research, the group that initially filed the freedom of information request that led to the Hinman documents, Hinman “continued to receive millions of dollars from Simpson Thacher while working at the SEC.”

The implication, as expanded upon by Hogan during the panel, is that Hinman was essentially being paid off to give Ether a free pass and say in his speech that Ether was not a security, which some people have previously referred to as “ETHGate.“

Related: Ripple’s Alderoty calls for probe into Bill Hinman and his infamous speech

Hogan had a similar take, suggesting that the emails did not contain much that Ripple could actively use in the case, but indicated that Hinman should be more concerned about the contents of the emails rather than the SEC, particularly when his earlier drafts of the speech referred to it as the “Ether speech.”

Ether’s bolstered position

Deaton also said that he believes “the speech documents are good for Ethereum” and “could also help ERC-20 tokens like Dragonchain,” which are governed by the Ethereum blockchain:

“If the SEC claimed the network was sufficiently decentralized, then those tokens have even a better fair notice argument than Ripple.”

This was something also referred to in the Office of General Counsel’s comments, with the division sharing that it had “reservations about including a statement directly about Ether in the speech,” as “it would be difficult for the agency to take a different position on Ether in the future.“

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Ripple’s Alderoty calls for probe into Bill Hinman and his infamous speech

Stuart Alderoty is joined by a number of other high profile individuals calling for an investigation into the former SEC official.

Ripple’s chief legal officer Stuart Alderoty has called for an investigation into the motivations that led to former SEC official William Hinman delivering his now-infamous speech in 2018.

Alderoty’s demand for an investigation came as part of a June 13 Twitter thread following the public release of the Hinman documents. The documents revealed that Hinman’s speech was delivered despite warnings from other SEC divisions.

In the 2018 speech, Hinman asserted that Ether (ETH) is not a security as a result of it becoming “sufficiently decentralized,” before elaborating on what factors must be satisfied when making that determination.

Alderoty argued that according to the newly released documents, Hinman had ignored the warnings of other SEC officials suggesting “his speech contained made-up analysis with no basis in law,” and that the speech ended up sending confusing messages to the cryptocurrency industry regarding what constitutes a security.

Alderoty said that unelected bureaucrats should only apply the law rather than trying to create new ones, and added that “Hinman’s speech should never again be invoked in any serious discussion about whether a token is or is not a security.”

Ripple CEO Brad Garlinghouse joined Alderoty in his criticism of the regulator in a June 13 Twitter thread arguing that the decision to go ahead with the speech despite “so much pushback” was “unconscionable.”

Speaking with Cointelegraph, pro-XRP lawyer and CryptoLaw founder John Deaton noted that he also believes an investigation is warranted, adding that the fact that Hinman had referred to the speech as the “Ether Speech” raised questions about what motivated the speech.

Related: Ripple CEO: Hinman docs are ‘well worth the wait’

Deaton and Alderoty’s comments on Hinman’s motivations seem to reference Hinman’s alleged ties to the Enterprise Ethereum Alliance, an advocacy organization which seeks to drive the use of Ethereum blockchain technology.

Before and after working with the SEC, Hinman worked at the law firm Simpson Thacher & Bartlett LLC, which was a member of the Ethereum Enterprise Alliance.

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‘Well worth the fight’ — Ripple counsel confirms Hinman docs are in their hands

The truth will be shameful and shocking for the SEC according to Ripple boss Brad Garlinghouse.

San Francisco-based fintech firm Ripple has inched closer to victory in its ongoing battle with the U.S. Securities and Exchange Commission (SEC).

On Oct. 21, Ripple General Counsel Stuart Alderoty confirmed on Twitter that they finally have the elusive documents after "18 months and 6 court orders," though noted they remain confidential at the SEC’s insistence.

“It was well worth the fight to get them,” he exclaimed, adding: 

“I’ve always felt good about our legal arguments, and I feel even better now. I always felt bad about the SEC’s tactics, and I feel even worse about them now.”

The fought-over documents relate to a 2018 speech by former SEC Division Director William Hinman regarding the status of Ethereum, with the financial regulator seemingly pulling out all the stops to keep the documents under wraps.

In late September, U.S. District Court Judge Analisa Torres overruled the SEC’s second attempt to withhold the documents. 

At the time he stated that ETH was not a security and Ripple considers this a key argument in its case against the regulator which has accused it of conducting an unregistered securities sale of its native token XRP.

Partner at Hogan & Hogan Jeremy Hogan commented that these are the briefs “where we'll really see how strong each position is,” while posturing how the SEC will respond. He added that the briefs will be made public on Oct. 24.

Ripple CEO Brad Garlinghouse vented on Twitter claiming that the SEC's behavior was shameful and shocking.

“The SEC wants you to think that it cares about disclosure, transparency and clarity. Don’t believe them. When the truth eventually comes out, the shamefulness of their behavior here will shock you.”

Related: Ripple boss tips when SEC case will end as Hoskinson hits back at XRP army

XRP prices don’t appear to have reacted to the latest development. Over the past 24 hours, the token has lost 3.2% in a fall to $0.446 at the time of writing according to CoinGecko.

However, Ripple momentum has been strong over the past month or so as the case inches towards closure, but XRP is still down 87% from its January 2018 all-time high of $3.40.

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‘Hypocrisy’: Judge denies SEC motion to keep Hinman docs secret in Ripple case

The SEC has argued that the documents should be protected because Hinman wrote the speech as a “personal errand,” but the judge didn’t buy it.

The Securities and Exchange Commission (SEC) has suffered a blow in its case against Ripple, after a U.S. judge has denied its claims for attorney-client privilege regarding internal documents related to the “Hinman speech”.

In denying the motion on July 12, U.S. Magistrate Judge Sarah Netburn called out the SEC’s hypocrisy in arguing that the speech — in which a former official Bill Hinman suggested ETH was not a security — was a personal matter for Hinman while also claiming it should be protected because he received legal advice from the SEC to confirm the commission’s policies.

“The hypocrisy in arguing to the Court, on the one hand, that the Speech is not relevant to the market’s understanding of how or whether the SEC will regulate cryptocurrency, and on the other hand, that Hinman sought and obtained legal advice from SEC counsel in drafting his Speech, suggests that the SEC is adopting its litigation positions to further its desired goal, and not out of a faithful allegiance to the law.”

The draft of the Hinman speech, which the SEC has fought to keep under wraps, has been seen by many in the XRP community as a pivotal piece of evidence that could work in favor of Ripple Labs.

The SEC sued blockchain firm Ripple in late 2020 on allegations that senior executives Brad Garlinghouse and Christian Larsen sold Ripple’s XRP tokens as unregistered securities.

However, Ripple has argued that the speech made by former director of the Division of Corporation Finance Bill Hinman in 2018 stated that Ether (ETH) did not constitute “securities transactions” — contradicted to the SEC’s stance on the matter.

Barring any further appeals or delays, the ruling states that: “The documents must be produced.”

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Delphi Digital’s general counsel Gabriel Shapiro called it a “big tactical win for Ripple” in a July 12 tweet.

Some believe that an appeal by the SEC is likely. Founder of crypto legal news outlet Crypto-Law John E Deaton told his 205,000 followers on July 12 that the appeal, along with Ripple’s objection, would come within 30 days. He also believes the appeals judge will side with Judge Netburn's recent ruling.

The SEC continues to insist that Hinman’s speech was a “purely personal errand” that was not meant to offer legal advice.

Judge Netburn acknowledged that this could potentially protect the drafts if Hinman were a private citizen. However, Judge Netburn wrote that the commission also argued Hinman would not have had access to the information and resources if he were not already working at the SEC.

“It was only in the context of his employment that he was able to solicit the edits and feedback he did.”

If the contents of the speech documents are compelling enough, it could be a tipping point for Ripple in the case, which has been seen as potentially setting a precedent for other similar crypto token issuers.

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SEC can’t confirm if video of Bill Hinman is actually Bill Hinman in Ripple case

“After reasonable inquiry, the information known and currently available is not sufficient to enable the Commission to admit or deny this request,” the SEC stated in court documents.

The U.S. Securities and Exchange Commission (SEC) is unable to confirm or deny if a video predominately featuring Bill Hinman actually features Bill Hinman.

Bill Hinman, also known as William Hinman, is the former director of the SEC’s Division of Corporation Finance, and he has become a key factor in the long-running legal dispute between SEC vs Ripple Labs over alleged unregistered securities offerings via XRP tokens.

Speaking at the 2018 Fintech Week Conference — while serving at the SEC — Hinman stated that the sale of Ether (ETH) did not constitute “securities transactions.”

But it seems as if the SEC is dragging its feet on admitting the obvious in hopes of slowing the case down.

According to a May 18 motion to compel Requests for Admission (RFAs) submitted by Ripple Labs’ legal team Debevoise & Plimpton, the SEC has “failed to respond in accordance with the applicable rules as to 53 RFAs on important subjects where there is no real dispute.”

Ripple is seeking for the court to order that the RFAs either be admitted or that the SEC provides amended responses. In relation to RFAs focused on Hilman, the SEC has not been able to confirm a series of instances that essentially appear to be undeniable.

For example, despite Hinman being completely visible and audible during a recorded interview at a public event, the SEC has refused to confirm or deny if the recording is authentic, or if the statements made by Hinman were actually him.

Notably, the YouTube video referenced by Ripple’s legal team appears to have been uploaded by the interviewer, Chris Brummer, who is a Georgetown law professor. The account which dates back to 2016, bears his name, profile picture links to all of his professionally affiliated websites.

Despite this the SEC claims to be all at sea as to the identity of the mystery man.

“Subject to all of the foregoing objections, and after reasonable inquiry, the information known and currently available is not sufficient to enable the Commission to admit or deny this request.”

The SEC has also denied a request that it cannot challenge the authenticity of the video, and appears intent on not conceding any information on the matter.

Late last month, after having a request to shield documents relating to Hinman denied, it also filed a letter motion asserting that it had attorney-client privilege relating to internal details about Hinman’s 2018 speech.

Many onlookers have argued that Hinman’s comments could be one of the deciding factors that works against the SEC’s argument that the XRP token should be deemed a security. It has also recently been suggested that Hinman may have had a conflict of interest while working at the SEC which may also affect the outcome of the case.

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On May 11, corruption watchdog Empower Oversight claimed to have documents obtained under a Freedom Of Information request which showed that Hinman had an undisclosed “direct financial interest” with the Simpson Thacher & Bartlett law firm which is a member of the Enterprise Ethereum Alliance (EEA).

Commentators such as John Deaton, founder of legal news outlet Crypto Law, told his 198,000 Twitter followers that, “if Hinman didn’t submit the speech to conflicts screening it is game set & match.”

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