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Hinman Documents

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 vs. SEC: Could newly released documents tip the balance?

The court case between SEC and Ripple Labs has been ongoing for nearly two and a half years, but a summary judgment ruling could be made any day.

The ongoing case of the Securities and Exchange Commission v Ripple Labs could have a significant impact on the future of cryptocurrency regulations. 

Ripple first popped up in 2012 with the promise of providing financial institutions and other entities with faster, more affordable clearance of cross-border fund transfers. To that end, Ripple created the XRP Ledger and a cryptocurrency called XRP (XRP) to function as its native coin and facilitate transactions.

On Dec. 22, 2020, the SEC sued Ripple, alleging that the firm selling XRP represented an unregistered securities offering.

Ripple co-founder and former CEO Chris Larsen and current CEO Brad Garlinghouse were also named in the SEC’s charges.

Most entities on the receiving end of SEC enforcement actions choose to settle. In this case, however, Ripple chose to fight the charges — at great expense — and take the matter to court.

Ripple argued that XRP does not satisfy the Howey test, which is used to determine whether an investment contract exists  — and, therefore, whether a transaction is a security transaction. It also said that if XRP was, in fact, a security, the SEC had failed to give it fair notice under U.S. securities laws.

Enter the Hinman documents

The “Hinman documents” refer to a 2018 speech given by former SEC Director William Hinman and documents associated with writing it.

In the speech, Hinman said that Ether (ETH) should not be considered a security given its decentralized nature, stating:

“Putting aside the fundraising that accompanied the creation of Ether, based on my understanding of the present state of Ether, the Ethereum network and its decentralized structure, current offers and sales of Ether are not securities transactions.”

This was considered a landmark speech, as it signaled to the crypto industry that it could be possible for cryptocurrencies to transition from securities when they are first created to commodities once they are sufficiently decentralized.

This could have an impact on Ripple’s fair notice defense, which comes into play if Judge Analisa Torres finds that Ripple did indeed sell unregistered securities.

Ripple requested the documents in discovery, and the request was granted on Oct. 21, 2022. While the documents could be used as a part of Ripple’s defense, the SEC has attempted to keep them sealed on multiple occasions, arguing that they are irrelevant to the court’s summary judgment decision.

But on May 16, Judge Torres ruled that the Hinman documents are “judicial documents” subject to a strong presumption of public access and denied the SEC’s motion to seal.

Notably, the court did not state whether the documents will be relied upon when it decides on the summary judgment motions of each party; but given the statements of those who have seen the documents, it appears likely they will negatively affect the public image of the SEC.

Additionally, there are questions about whether Hinman had a conflict of interest when making the speech, as he worked at a law firm that is a member of an Ethereum advocacy organization before and after working for the SEC— and the documents may provide additional details around this.

Speaking during a Twitter Space shortly after the ruling, lawyer and CryptoLaw founder John Deaton predicted the documents will be:

“Disturbing, but not as shocking as maybe people think it’s going to be because there’s been, quite frankly, such a big buildup for it. [...] I believe when these emails come out, that the conflicts of interest will be even more highlighted.”

What does the latest ruling mean for the case?

While it’s still too early to tell what the ultimate outcome of the case will be, the court also denied certain motions to seal from Ripple, which included references linking Ripple’s revenues with XRP sales and the amount of compensation offered to trading platforms, among others.

In the Twitter Space, Deaton highlighted these sections as evidence likely to hurt Ripple’s chances of a complete victory, adding:

“I think the chances of Ripple getting a complete victory are much slimmer after reading this than I felt before. I still don’t think the SEC is getting a complete victory either.”

Deaton theorized that the courts could decide to fine Ripple for its early sales of XRP — relating to the initial coin offering and other transactions aimed at boosting the network — but that secondary sales of XRP and the coin itself are not securities.

Deaton’s thoughts on the subject were given further credibility when former SEC securities lawyer Marc Fagel added his voice to the Twitter Space, saying that he generally agreed with everything that had been said but that the SEC’s suit was worded in a way that focused on the tokens issued by Ripple and not secondary market transactions.

Fagel added that he thought Torres “would be overstepping to make a ruling on secondary sales,” but he believed they were helpful in the SEC’s case, as they illustrate how a secondary market would not have been created without Ripple issuing securities while promoting the network.

Could the case finally be reaching its conclusion?

In a May 17 Twitter thread, prominent pro-crypto lawyer Fred Rispoli suggested that the summary judgment ruling is already written and could be issued “any day now,” while also agreeing that a split decision was the most likely.

Deaton noted during the Twitter Space that he believes Judge Torres knows how she will rule but added that guessing how much is written “in its final form” would be pure speculation.

He also agreed that the decision could come down at any time, but he added that it could take another month or longer.

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Ripple case: SEC Hinman docs could become public by June 6, lawyer suggests

The infamous Hinman Speech docs are required to be unsealed by June 6 according to a previous court order, suggests defense attorney James K. Filan.

Defense lawyer and former federal prosecutor, James K. Filan, expects the infamous Hinman Speech documents to be released to the public by June 6, citing a previous court order.

The Hinman documents relate to a 2018 speech from former Securities and Exchange Commission (SEC) corporation finance division director Bill Hinman, who essentially stated that Ether (ETH) was not a security. The documents involve the SEC’s internal discussion and deliberations around this speech.

In a May 17 Twitter thread, Filan, who has been actively following the SEC vs Ripple case over the past couple of years, provided an update on when the documents could be unsealed to the public.

“According to the Court’s 9/12/2022 Order, the parties have 21 days to file public, redacted versions of Summary Judgment documents consistent with the sealing ruling. June 6th is 21 days from yesterday’s ruling,” he wrote.

Some, however, believe the stated timeline could be impacted should the SEC file an appeal or the case goes into a settlement. 

Another lawyer following the case, Jeremy Hogan, partner at Hogan & Hogan, noted the SEC has roughly 10 days to file an appeal to this specific order.

Others in the XRP community, such as @AshleyPROSPER1, believes that the prospect of the documents being unsealed could spur either side to pursue a settlement, as they both may have information that they would not like the public to get their hands on.

A Twitter post by Ripple CEO Brad Garlinghouse on May 16 however suggests they are keen to see the unredacted Hinman emails to be "publicly available soon."

While Ripple Labs already has long had access to the documents, it views this aspect of the case as an important piece of evidence in its defense against the SEC and its assertions that XRP falls under the classification of a security.

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The SEC filed a motion in late December to seal the documents from the public, arguing that the documents hold “no relevance” to the final outcome of the case, along with the SEC's mission outweighing the “public’s right” to access the documents.

Ripple Labs notched a win this week after the motion officialy was denied on May 16.

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