XRP Lawsuit: SEC may lose credibility as “just personal opinion” argument becomes invalid

The latest update in the XRP lawsuit saw the defendants file a letter appealing the addition of three documents to be reviewed in camera based on a privilege log provided by the SEC after the August 31, 2021, telephone conference. These documents also include an email chain that potentially discards the SEC’s former “just an opinion” argument regarding the 2018 Hinman speech and furthers Ripple’s “fair notice” stance.

Third Evidence holds an email trail revealing SEC’s confusion

Ripple asserted that the three documents could be highly relevant to this case if they are added to the trail of the belatedly produced privileged log. The first two documents are regarding SEC meetings with law firms, discussing the unprecedented confusion in the market regarding the SEC’s view on the status of digital assets under federal securities laws. The third and last evidence possesses an email chain displaying discussions with a third party that highlights SEC’s confusion regarding the legal structure of securities.

“The third is an email chain concerning discussions with a third party whom Defendants understand received guidance from the SEC to analyze its digital asset under the framework outlined in Director William Hinman’s June 14, 2018 speech.”

The defense also highlighted that if this privilege log had been provided before Ripple filed its first motion to seal the series, then Ripple must have added it to Appendix A. Furthermore, the defendants also asked the plaintiff to voluntarily add the three mentioned documents to the September 14 submission to the Court. Ripple claimed that the SEC ignored the defendants’ request and filed its brief. Later, the SEC denied submission arguing the defendants’ request “absent a specific directive from the Court”.

SEC admits to failure to inform XRP is security

Earlier this month, Ripple strengthened its fair notice argument with the reveal of the first request for admissions (No.99) to the SEC. The document confirmed that the SEC never informed any third parties that XRP was security until the lawsuit was filed. This information was made an official admission in the case.

“Subject to all of the foregoing objections, the Commission admits that before the filing of this case certain third parties inquired about the legal status of XRP. However, the Commission did not state a view one way or the other in response.”, the SEC answered Ripple’s Request for Admission No. 99.