SEC Made a ‘Big Mistake’ That Will Come Back To Haunt Them in XRP Lawsuit, Says Legal Expert Jeremy Hogan

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Could the SEC case against Ripple falter over a conflict of interest?

May 12, 2022 Coin Telegraph

Newly discovered documents suggest a possible conflict of interest from a former SEC official when he made a speech about Ethereum which some claim could jeopardize the SEC’s case against Ripple.

Newly discovered documents could pose a major roadblock for the Securities and Exchange Commission (SEC) in its case against Ripple if they prove a former commission official had a conflict of interest.

The SEC has been embroiled in a legal battle against blockchain company Ripple (XRP) since 2020 in which the crypto company and senior executives Brad Garlinghouse and Christian Larsen were charged with selling XRP tokens as unregistered securities.

In a May 10 announcement, corruption watchdog Empower Oversight claimed that documents obtained under a Freedom Of Information request suggested former SEC Director of Corporate Finance William Hinman had a conflict of interest and should not have made a speech in 2018 in which he stated that Ether (ETH) and its transactions are not securities.

Empower Oversight Requests SEC-OIG Conduct Investigation into the Failure of the SEC’s Ethics Office to Prevent Cryptocurrency Conflicts of Interest by Senior Staffhttps://t.co/fMRPTUN0ov #cryptotrading #crypto #Bitcoin $BTC $ETH $XRP
— Empower Oversight (@EMPOWR_us) May 10, 2022

According to the non-profit watchdog, Hinman should have recused himself from speaking about Ethereum due to his undisclosed “direct financial interest” with the Simpson Thacher & Bartlett law firm that is a member of the Enterprise Ethereum Alliance (EEA).

The EEA promotes the use of blockchain technology on the Ethereum blockchain.

Founder of legal news outlet Crypto Law lawyer John Deaton told his 198,000 Twitter followers on May 11 that Hinman’s potential compliance failure could jeopardize the SEC’s entire case against Ripple. If the conflict exists, Deaton said the case could be “game set and match” for Ripple.

@EMPOWR_us and @JsnFostr retrieved the emails below. If Hinman didn’t submit the speech to conflicts screening it is game set & match. The Ethics Office is going to be pissed and want to throw him under the bus if we force this investigation through letters from Congress. pic.twitter.com/8j9Nwb0OZn
— John E Deaton (@JohnEDeaton1) May 11, 2022

According to Law360, a legal news outlet, Hinman worked at Simpson Thacher before joining the SEC, then rejoined the firm in 2021.

Empower Oversight said that Hinman was receiving $1.5 million in retirement benefits from the law firm annually while he worked at the SEC, and alleged that he “had repeated contact with the law firm’s personnel.” The organization noted that the SEC’s “Ethics Office explicitly told him not to have any contact with Simpson Thacher personnel.”

The organization requested the Office of the Inspector General of the SEC conduct a “comprehensive review of the SEC’s ethics officials” to determine whether Hinman had a conflict of interests. That review would include the following considerations:

“(1) Understand the degree to which the conflict involving this former official exacerbated the perception that the SEC’s enforcement actions have selectively targeted some cryptocurrencies while giving others a free pass;

(2) Explain to the public how the SEC’s Ethics Office failed to effectively ensure compliance with its clear directives; and (3) Evaluate the SEC’s policies and procedures to identify ways to more effectively monitor compliance with ethics guidance.”

(3) Evaluate the SEC’s policies and procedures to identify ways to more effectively monitor compliance with ethics guidance.”

This latest development in the case is an unexpected twist on top of former SEC official Joseph Hall’s February prediction that the commission will lose to Ripple based on the merits of the case.

Many in the crypto industry have been watching this case closely because the outcome will likely have massive implications. If Ripple wins, it would force the SEC to back off from its aggressive stance towards crypto. If the commission wins, it would almost certainly open the field to a bevy of new litigation against crypto companies.

XRP is 19.2% down over the past 24 hours, trading at $0.41 according to CoinGecko data.

Attorney Says Possible ‘Game, Set and Match’ for Ripple and XRP Lawsuit – Here’s Why

May 11, 2022 The Daily Hodl

Judge allows Ripple to depose SEC official who decided ETH is not a security

July 16, 2021 Coin Telegraph

Coin Telegraph

Bill Hinman could be called to testify on his 2018 comments regarding Ethereum’s security status.

San-Francisco-based fintech firm Ripple has notched up another small victory in its ongoing battle with the U.S. Securities and Exchange Commission.

U.S. District Court Judge Sarah Netburn has denied the SEC's motion to suppress the deposition of the former director of the SEC’s Division of Corporation Finance, William Hinman, in a ruling in New York on Thursday.

In June 2018, Hinman said in a speech that based on his understanding of the Ethereum network and its decentralized structure the “current offers and sales of Ether are not securities transactions.”

The deposition may add more weight to Ripple’s claim that the XRP token is not a security. If there is no appeal from the SEC, Ripple can ask Hinman to testify about the reasoning behind his decision on ETH at the time, and then attempt to apply that samrationale to XRP.

Ripple has argued that the SEC cannot regulate XRP as a security because it is a medium of exchange used for international and domestic transactions.

According to Bloomberg, the SEC fought the subpoena, saying the questioning “would subject high-level government officials to depositions regarding every law, regulation, or policy they consulted on or spoke about and that later underlay an enforcement action.”

The financial regulator also argued that it does not speak through its staff or individual commissioners but only through enforcement actions, so anything Hinman ever said is privileged as “deliberative”. The SEC told the Judge the deliberative process privilege also known as “Exemption 5” would be invoked if Hinman was deposed.

Judge Netburn stated that this was not a “run-of-the-mill SEC enforcement case,” adding that Hinman’s deposition wouldn’t “open the flood gates.” She continued to state that the case “involves significant policy decisions in our markets, the amount in controversy is substantial and the public’s interest, in this case, is significant”.

In December 2020, the SEC filed a lawsuit against Ripple alleging the firm, CEO Brad Garlinghouse and co-founder Chris Larsen, had been conducting an “unregistered, ongoing digital asset securities offering” with their XRP token sales.

In late June the SEC accused Ripple aficionados otherwise known as the ‘XRP Army’ of issuing ‘false statements’ against its leadership on social media. The regulator requested the conference to discuss quashing the motion from Ripple to subpoena the Hinman stating at the time that it would set precedence for “a parade of requests for the testimony of high-ranking government officials” and interfere with government operations.

In an outgoing speech in November 2020 just before Hinman left the agency, he cited the SEC’s record as being open to technologies like cryptocurrencies and blockchain without the need for overhauling the existing regulatory framework.

William Hinman

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