To have it both ways, the SEC accidentally re-evaluated the Hinman speech, which re-evaluated the fair notice defense and put the Hinman speech back into play as "market direction."
This week's SEC v. Ripple hearing, during which Judge Sarah Netburn displayed a growing impatience with the SEC's "inconsistent opinions" about Hinman's statements, has prompted extensive public reaction.
Among them is Jeremy Hogan, an Orlando-based attorney who has been routinely delivering his opinions on the XRP litigation and who, once again, provided a YouTube-hosted video analysis of the conference.
"This hearing was a failure for the SEC. We used to refer to them as "suicide mission hearings" since you were being sent to your death, but it was actually more worse for the SEC than you may realize, as they committed some serious blunders today."
You can find a summary of the hearing here.
“IN TRYING TO WIN A LOSER, THE SEC MIGHT JUST HAVE LOST A WINNER”
The SEC is desperately attempting to prevent Ripple from gaining access to the infamous Hinman emails, according to Hogan, who noted that the plaintiff has already lost the deliberative process privilege argument and is now raising the attorney-client privilege argument.
As attorney Thien-Vu Hogan pointed out in a recent study, the SEC's shifting stances regarding who or what the clients were in this case pose a significant challenge.
The problem with the SEC's claim is that the plaintiff will struggle to explain who the client is because the agency has adopted at least three positions on whose opinion the speech was: initially, it was the SEC's opinion, then Hinman's personal opinion, and now it is the division's perspective.
This is precisely what transpired at the hearing. Judge Netburn requested that the SEC's legal counsel "assist [her] understand what legal guidance Director Hinman received and for what reason." Why was legal counsel sought? Why was he seeking such counsel?"
Another pointed inquiry was, "Do you still maintain that Hinman's speech represented his personal opinion?"
The judge was skeptical by the SEC's responses and "twist[ed] the knife a little bit more" by informing the plaintiff that the SEC's distancing from the speech is problematic since SEC lawyers must have a reason for providing legal advice. "If this is his personal opinion, then the legal counsel serves no use."
Then, Jeremy Hogan commented on the SEC's strategy, calling its position shift a "mistake." "You must persist with that."
By attempting to have it both ways, the SEC has accidentally reintroduced the Hinman speech as "market guidance," bringing it back into play as official guidance on whether XRP is a security and as a fair notice defense.
Mr. Hogan said, "And in trying to win a loser, the SEC may have lost a winner."
