XRP Vs SEC: Why Court May Reject SEC’s Motion Over Hinman’s Speech?

The XRP vs SEC Ripple lawsuit has come to a point from where it will be decided whether ‘XRP’ is a security or not. The recently unsealed memos has played a crucial role in revealing that Ripple took legal recommendations over the nature of the XRP token. Meanwhile, the SEC has filed a motion for reconsideration of Hinman’s June 2018 speech, which was earlier claimed to be a ‘public guidance’ now being called a ‘personal opinion’.

Ripple and Hinman consulted same law firm

As per reports Perkins & Coie, the law firm who wrote the legal memos for Ripple back in 2012 also assisted Hinman to draft his 2018 “Ether is no longer a security speech.”

Attorney Jeremy Hogan has posted that after the Hinman’s speech Perkins & Coie website issued that other senior officials and the Chair of the SEC are in a growing “consensus.”

Perkins & Coie wrote the legal memos for Ripple back in 2012.

Perkins & Coie assisted Hinman draft his 2018 "Ether is no longer a security speech."

The Perkins & Coie website then posts that other senior officials AND the Chair of the SEC are in a growing "consensus." pic.twitter.com/JNMoiY5JVX

— Jeremy Hogan (@attorneyjeremy1) February 21, 2022

The issued blog talks about how ‘the same instrument could transform back into a security if the facts and circumstances changed yet again.’

On the very same day as Hinman’s speech in San Francisco, Valerie Szczepanik, the SEC’s new Senior Advisor for Digital Assets and Innovation and Gary Goldsholle, Senior Advisor to the Director of Trading and Markets, corroborated Director Hinman’s remarks while speaking at a panel event on Capitol Hill. Specifically, Goldsholle reiterated Hinman’s position that something can transform from a security to a non-security.

The blog clearly reads that, On June 21, 2018, SEC Chairman Clayton provided further confirmation that the framework outlined in Hinman’s speech is the “approach [SEC] staff takes to evaluate whether a digital asset is a security” in testimony to the U.S. House of Representatives Financial Services Committee.

Hinman’s own opinion over ETH and BTC

Hinman in his speech has expressed his views that sales of Ether are not securities transactions based on the state of Ether, the Ethereum network, and its decentralized structure.

While, in his view, Bitcoin also is not a security because network participants are not reliant upon the efforts of a central third party.

I do not see a central third party whose efforts are a key determining factor in the enterprise. The network on which Bitcoin functions is operational and appears to have been decentralized for some time, perhaps from inception. Applying the disclosure regime of the federal securities laws to the offer and resale of Bitcoin would seem to add little value. Hinman said on his speech

However, Hinman has also said that the token or coin by itself is not a security, the packaging and sale of such token or coin could bring it within the purview of the securities laws.

The SEC has been giving contradicting statements in the past and arguments in the court over the nature of the tokens. From ‘personal opinion’ now being called a ‘public guidance’, Hinman’s speech is full of contradictions and signals that may be the agency was favoring some tokens over others.