2 years ago
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The legal battle with the securities regulator also poses an opportunity for investors overseas – where XRP is not seen as a security nor has any pending regulatory issue – who can take advantage of artificially low demand for XRP.
In the last month, XRP saw its price falling by a third, from $0.90 to just below $0.60, where the market may have found a bottom.
The ensuing recovery came at the same time Judge Analisa Torres issued a surprise order, forcing the SEC v. Ripple to move faster than proposed by the parties.
Thien-Vu Hogan says it can be done
Ripple and the SEC had agreed on a timeline that would inevitably put the final case decision well into 2023, but the court made the unusual decision of refusing the proposed schedule, thus knocking over a month off the timeline.
At the time, attorney Jeremy Hogan, Partner at Hogan & Hogan, welcomed the “pleasant surprise” as he interpreted it as a move to force the SEC v. Ripple case to end this year.
“OH! That’s a pleasant surprise. Judge Torres has, sua sponte (fancy Latin for “because she wants to and can”), moved up the schedule for summary judgment briefs to November 15″, said attorney Jeremy Hogan, Partner at Orlando-based Hogan & Hogan law firm. “What do I take from that? She wants the Ripple v. SEC case over before Christmas.”
Thien-Vu Hogan, the “more accurate” partner at Hogan & Hogan, agreed with that view in a recent video, where she added that Judge Torres can and has turned around summary judgment that quickly before.
Still, many issues may come along the way such as a potential need of oral argument or an appeal. What is known for sure is that the court won’t be ruling on the case in September and a judicial ruling could be seeing the late of day by December or possibly early 2023.
SEC likely to fail claim over attorney-client privilege
Attorney Thien-Vu Hogan also commented on the SEC’s “death quest to protect [the Hinman emails] at any cost” amid the recent motion arguing attorney-client privilege.
In response, Ripple requested an unprecedented 7-day extension to respond to the motion. The SEC then took the opportunity to request to file a sur-reply to the intended reply, which made the Ripple counsel seemingly furious.
Thien-Vu Hogan reminded that the SEC took more time and effort to protect these emails than any other issue in this litigation, including fighting over things like whether XRP is a security or not.
As to the novel assertion of attorney-client privilege, “it’s almost like the SEC kept this argument in this back pocket in case the DPP argument didn’t go well, which it didn’t at all.”
“The attorney-client privilege is the oldest and most important privilege in law and is meant to protect communications between you and your lawyer so that what you tell your lawyer can’t be used against you”, she explained, adding that it covers communications between client and lawyer that are confidential and that constitute legal advice.
The issue with the SEC’s claim is that the plaintiff will struggle to explain who the client is as the agency has taken no less than 3 positions on whose opinion the speech was: first it was the SEC’s opinion, then it later became Hinman’s personal opinion, and now it is the division’s opinion.
Now the SEC claims the division itself is the client although the court has already taken a hard position that Hinman’s speech was his personal opinion and even the SEC has admitted that Hinman had a personal attorney who advised on the speech.
As to the third prong of the attorney-client privilege – “legal advice” – attorney Hogan has doubts that the communications constitute legal advice, assuming they include general legal discussions about applying Howie to digital assets. “That’s not legal advice for attorney client privilege. It can’t be stretched that far.”
In the meantime, Ripple will have a hard task at arguing against the SEC’s motion as the defendants have no knowledge of what exactly is in those emails.
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