In order for @chrislarsensf & @bgarlinghouse to lose the individual claims made against them, the judge has to conclude, as a matter of law, the two executives were reckless in not knowing #XRP was a security. Not negligent - but reckless!
Said another way, the judge must find that no reasonable jury could ever conclude that the 2 executives were NOT reckless.
With that in mind, let’s consider some FACTS:
1) SEC enforcement lawyers were allowed to own and trade #XRP until March of 2019;
2) in 2014 the @USGAO classified #XRP “a virtual currency utilized in a decentralized payment system called @Ripple”;
3) in 2015, FinCEN and the DOJ settled w/Ripple declaring #XRP a virtual currency - forcing Ripple to register #XRP sales w/ FinCEN, NOT w/the @SECGov;
4) also in 2015, the @CFTC stated that #Bitcoin and other similar crypto currencies are “properly classified commodities”;
5) in 2018, Hinman declared #BTC & #ETH non-securities and said there were other networks sufficiently decentralized (ie what the GAO said re XRP in 2014);
6) in 2019, the SEC published its Framework for Digital Assets and in that document it clearly states that any crypto asset that can immediately be used for payments and as a substitute for fiat currency “is unlikely to satisfy Howey” (the precise use case for #XRP);
7) also in 2019, the #FSOC Annual Report highlighted #XRP, along w/#BTC , #ETH and #LTC as virtual currencies gaining
in market cap -
TAKE A LOOK AT THESE SIGNATURES 👇
on the 2019 FSOC annual report;
8) in Jan. 2020, companies like Bailard, filed SEC Ethics disclosures informing the SEC not to worry about Bailard trading unregistered securities w/digital tokens b/c Bailard was ONLY going to trade the 3 Crypto Assets GENERALLY ACCEPTED as NOT securities: #XRP, #BTC & #ETH;
9) in 2013 - yes 7 years before the lawsuit - @chrislarsensf gave a presentation to the SEC, CFTC, Federal Reserve & Treasury Department about Ripple’s plans to disrupt the global payment system by utilizing #XRP (SEVEN YEARS BEFORE THE LAWSUIT);
10) in June 2018, SEC enforcement lawyers wrote an #XRP Howey Memo 📝 analyzing if #XRP satisfied the Howey test and at the end of that #XRP Howey analysis - conducted BY SEC ENFORCEMENT LAWYERS (you know, experts in Howey) - they did NOT recommend enforcement or cease & desist;
11) in January 2019 Coinbase and its sophisticated expert lawyers in Howey, met with the SEC informing it that Coinbase’s experienced securities lawyers concluded #XRP was NOT a security (at least, not in 2019) and Coinbase listed #XRP a month later in February 2019.
There are more FACTS that I could recite in this 🧵 but this is off the top of my head as I sit and wait at the dentist 🦷 office.
But I ask you - EVEN IF YOU HATE Ripple:
With the evidence cited above, could a reasonable jury conclude that Brad & Chris were not reckless?
Remember, they can be negligent, but the burden of proof is they must be found RECKLESS - meaning no reasonable person could believe that XRP was NOT a security.
Be honest: you didn’t get through all 11 facts before agreeing the SEC isn’t winning on summary judgment w/this one.
I’ve written (meaning my law firm) and/or argued hundreds of summary judgment motions during the last 20 years, and I can confidently say Garlinghouse and Larsen have a better chance at summary judgment on Recklessness than the SEC does.
(a judge likely lets a jury decide)
Jay Calyton, Hinman and Marc Berger did a HUGE favor to Ripple in suing the 2 executives. There’s no allegations of fraud, misrepresentation or omission alleged against these executives. In a non-fraud case the SEC usually wouldn’t sue the individual executives.
This was personal and it was a stupid decision by the SEC. In March of 2021, I tweeted out that suing the 2 executives would prove to be a dumb decision because it placed a higher burden on the SEC to prove.
Let’s be honest, this was hard ball intimidation tactics by the SEC.
What was the 1st thing the SEC tried to get in discovery? All of Larsen’s & Garlinghouse’s individual banking records. Although they gave the SEC proof of every #XRP transaction ever made by Ripple and these 2 executives, the SEC wanted banking records, credit card statements etc
The SEC was playing the role it plays best: BULLY.
If they didn’t charge the two executives w/ aiding and abetting, the Hinman emails may never have been ordered to be turned over.
Judge Netburn specifically held that the way the SEC treated and evaluated #BTC and #ETH was relevant when considering the objective standard to be applied to the recklessness issue.
Clayton and the SEC made a big. mistake.
Why?
That’s what happens when the SEC enforcement action that you’re filing isn’t just about enforcing securities laws but involves other additional reasons or motives.
If the Ripple #XRP case was strictly about enforcing U.S. securities laws, the case would’ve been over long ago.
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Remember immediately after the @LBRYcom decision what I said. I said it was a total victory for the SEC and that SEC attorneys couldn’t have written a better decision for them. I also said the SEC and many other people would make a BIG deal about it.
I also said that if Judge Torres followed the LBRY Judge’s reasoning, Ripple would outright lose. I said that reasoning would cause a lot of “Ripple will lose” comments. Its expected b/c holding a lot of #LBC was a big deal to the judge and Ripple holds 1/2 the #XRP.
Personally, I believe the SEC snatched defeat from the jaws of victory in this case because it chose to go with an all or nothing theory (unless the judge decides to split the baby).
Let’s place the below comment in proper context w/ something I like to call:
FACTS.
In August 2018 - 2 months after the Hinman speech and 2 months after SEC enforcement lawyers wrote a memo 📝 analyzing XRP under Howey, @bgarlinghouse and @JoelKatz met w/ Clayton & Hinman.
We know exactly what happened during this meeting because the SEC turned over the SEC’s notes 📝 from the meeting even though it didn’t have to because it was privileged work product. So the facts I recite are not self-serving statements by Ripple or it’s executives.
Two months earlier, Hinman declared #BTC & #ETH non-securities. At the time, #XRP was the #3 Crypto by market cap (it was #2 several times in 2018).
Ripple’s CEO frustratingly spoke out and said:
“@Ripple is living in purgatory because #XRP doesn’t have regulatory clarity.”
I understand the point he’s trying to make 👇. He’s saying an appellate decision is a much bigger deal than a district judge’s decision. That’s why I said the @LBRYcom decision wasn’t as big of a deal as some people claimed. He’s looking at it from a legal precedent standpoint.
But Judge Torres’ decision will have a HUGE impact practically and politically speaking. For ex, if the Judge agrees 💯 w/the SEC, @GaryGensler’s Regulation by Enforcement campaign will gain credibility and momentum. To Crypto outsiders, he won’t look like he’s out of line.
If @Ripple outright wins AND the judge criticizes the SEC for pursuing the implausible theory that the token itself, from the beginning of time until the end of the world, even sold in far-away lands, is ALWAYS a security, no matter who sells it, could halt Genlser’s campaign.
The SEC could give a speech - not by Hinman b/c of conflicts - but by someone else (e.g. Valerie S., the Crypto Czar) - stating that the SEC, after much discussion (ie 63 emails and 58 drafts), made a significant determination.
The SEC had determined that #BTC & #ETH were sufficiently decentralized b/c specific bench marks had been established and it specified what those bench marks were.
Imagine if the SEC in 2018 admitted that there existed regulatory uncertainty for the other projects and tokens.
Imagine if Chairman Jay Clayton, with @HesterPeirce and Elad Roisman, after public hearings and public comment, enacted the Safe Harbor Proposal suggested by Hester. Those 3 Commissioners equalled a majority vote.
Every legitimate person supporting blockchain technology, decentralization, and digital assets desperately desires regulation. Had the U.S. implemented regulatory clarity w/specific guidelines in 2018 like it should have - innovation, job creation, tax revenue would have 🚀
Consumer protections could’ve been implemented. Proof of 1:1 reserves for any exchange or platform, the segregation of consumer funds and crypto from being commingled, disallowing the loaning out of consumer funds, protections disallowing bankruptcy from being used as a strategy.
But, as usual, our political leaders only react - they never act. And when you react to a crisis, you usually go too far or do something stupid b/c these politicians want to pretend they’re doing something after the fact. For ex, what was the 1st reaction by some of our leaders?
These are the people that will gaslight the public and legislators. SBF committed fraud and theft. We have regulations and laws that cover what he did. FTX was an OFFSHORE exchange.