Thread by @JohnEDeaton1

Remember, we haven’t seen the the 56.1 statements and counter statements filed by the parties. The 56.1 statements and counter statements is where each party cites indisputable facts and evidence supporting their position for summary judgement.

https://twitter.com/petervas6/status/1659164734242033665

Thus, it is very difficult for anyone, including me, to accurately weigh specific evidence submitted by the SEC and @Ripple. For example, every one knows that Ripple’s Blue Sky argument is that there must be an underlying contract before the Judge can even apply the Howey test.

However, in its summary judgment brief, Ripple admits that there were #XRP sales made by Ripple that did have a written contract as part of the sale. Ripple argues that b/c those contracts did not obligate Ripple to take post-sale actions for the benefit of the #XRPHolder,

and b/c these written contracts did not allow any #XRPHolder to demand anything from Ripple, and these contracts did not allow the buyers to share in Ripple profits or grant any equity of any kind to the #XRPHolders, these contracts cannot be deemed investment contracts.

Personally, I’ve stated that I don’t believe Judge Torres will agree with Ripple’s underlying contract argument, which also means she may also reject the argument that if there is a written contract it must impose post sale obligations on the seller (Ripple).

@attorneyjeremy1 is correct and this is why Ripple’s Fair Notice Defense should be viewed as an insurance policy. If the Judge finds Ripple violated Section 5 b/c these specific sales constituted investment contracts, Ripple argues the jury must decide if Ripple had fair notice.

Since the judge’s decision regarding what can or cannot be sealed (e.g. the Hinman emails), many people are discussing a split decision: Ripple gets tagged for early #XRP sales but ODL and secondary market sales are found to be non-securities (and #XRP itself is not a security).

If the above scenario happens AND the Judge agrees w/Ripple that the jury must then decide whether those early sales should be excused because Ripple lacked fair notice that XRP sales were effectively illegal (unregistered), it can only be described as a TOTAL VICTORY for Ripple.