1 year ago
85 Last week, Judge Sarah Netburn ordered a conference call, scheduled for Tuesday, June 7, 2022, at 3:00 p.m., with open lines to the wider public both in the United States and across the globe.
The court decided to schedule the meeting with the legal representatives of the SEC and the defendants with the potential goal of putting an end to what is perceived as constant attempts by the SEC at stalling the production of Hinman’s 2018 speech-related emails and notes.
XRP lawsuit stalled by SEC’s confusing stance on Hinman
The longstanding issue has seen the SEC taking several different positions over the course of the litigation, including claims of deliberative process privilege and attorney-client privilege, as well as Hinman’s personal opinion versus public guidance.
The plaintiff’s back and forths on the matter have caused irritation among those awaiting an end to the XRP lawsuit for a number of reasons, such as regulatory clarity and the re-listing of XRP, one of the most traded digital assets in the world.
In mid-May, the Ripple counsel responded to the attorney-client privilege claims made by the SEC and pointed to four reasons why the claim was without merit, in a brief that was deemed by XRP community pundit Jeremy Hogan as “shoving down their throats pretty hard.”
“First, the record in this case demonstrates that Mr. Hinman delivered his speech in his personal capacity. He sought input from SEC colleagues as to how best to package his remarks. That certain colleagues discussed legal concepts in some of their responses does not imbue them (or the other communications) with any attorney-client privilege.
“Second Circuit law makes clear that advice on policy or messaging issues, even from lawyers, is not protected by the attorney-client privilege. Second, while Mr. Hinman was entitled to communicate with SEC lawyers and to receive privileged legal advice when discharging his role as the Director of Corporation Finance, communications about the substance of his personal remarks are not within the scope of any such attorney-client relationship.
“Third, the communications at issue involve no confidential information concerning the agency that would be protected by the attorneyclient privilege.
“Finally, even if the SEC could establish the elements of the privilege—which it does not—the SEC at most would have identified a privilege claim that it lacks standing to assert because the privilege would belong to Mr. Hinman”.
The SEC replied back reiterating Hinman did not give the speech in his personal capacity and ‘regardless of whether the final Speech contained “personal views,” as opposed to official agency policy, the attorney-client privilege protects the legal advice Director Hinman obtained from SEC counsel during the development of the Speech’.
Raking SEC over “such a s***show of motion practice”
In reaction to the court’s decision to schedule the “unusual hearing setting”, regulatory compliance attorney and XRP community pundit Fred Risponi said he believes Judge Netburn “wants to *politely* rake SEC over the coals for such a s***show of motion practice on this issue.”
The call could also be an opportunity to force the SEC to take positions it cannot waffle on later. On the other hand, Judge Netburn could be open to a “do-over” in the sense that she forces the SEC to choose, once and for all whether Hinman speech was personal or on behalf of SEC.
How to listen to the Hinman-related call
The conference is scheduled for Tuesday, June 7, 2022, at 3:00 p.m.
Members of the public may listen to the proceedings at the following numbers:
USA: (877) 226-8215
International: (409) 207-6982
Access Code: 4713826 # (SN)
Unauthorized recording and rebroadcasting of the conference (e.g., YouTube, Twitch, audioonly streams, etc.) is strictly prohibited. Any unauthorized recordings will be investigated, and anyone found to engage in such behaviors may be subject to criminal sanctions.
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