An order requiring the SEC to produce internal documents related to the 2018 speech on digital assets is not only wrong in law, but likely to have dire implications for policy deliberations across the federal government, the agency said. I’m here.
The U.S. Securities and Exchange Commission is fighting to prevent Ripple Labs from obtaining documents related to a speech by then-head of corporate finance, William Hinman.
Justice of the Peace Sarah Netburn dismissed the agency’s objections on the basis of relevance and judicial privilege in a series of discovery orders this spring. The latest order, dated July 12, dismissed the SEC’s motion to assert attorney-client privilege over the documents.
In a July 27 letter asking U.S. District Judge Annalisa Torres of the United States District Court for the Southern District of New York to reverse Netburn’s order, officials said the speech did not reflect SEC policy and that he It claims that it reflects the advice that the department of
The SEC claims it is not bound by Mr. Hinman’s remarks, but said Mr. Hinman’s remarks provided the public with “meaningful information” about the department’s approach to regulating digital assets. Therefore, it states that the communication surrounding speech should be protected by the prerogative of the deliberative process.
In other words, the agency wants to do it both ways, but Netburn repeatedly points out that it can’t. According to Netburn, the speech was either intended to reflect the agency’s policy or it was not.
In a speech given at the Yahoo Finance All Markets Summit in San Francisco on June 14, 2018, Hinman explained how agencies analyze digital token sales as “investment contracts.” . SEC vs. Howey.
Hinman also said that, in his view, an offer to sell Ether, a digital asset developed by Ripple that he understands to be similar to XRP, a digital token purported to be an unregistered security, would not be available in stock exchanges. said there wasn’t. Their current state” is due in part to Ethereum, the decentralized network in which Ether was traded.
The SEC objection characterized Mr. Hinman’s remarks as a call for industry to consult with SEC staff, rather than an expression of agency policy, although some experts said: Some people don’t see it that way.
According to Pat Daugherty, partner at Foley & Lardner LLP, many securities attorneys find Hinman’s guidance to be relied upon to advise clients, rather than as a framework for approaching agency staff. I was.
Daugherty leads the company’s digital asset practice, but spent time within the SEC while advocating for former SEC Commissioner Edward Fleischman in Washington.
informal procedure
Mr. Hinman said he did not convey official agency policy in his speech because a majority of the commissioners “voted not to approve of its content,” but that was not the business of the agency to communicate on his speech. The SEC argues that it does not mean that
Senior officials at agencies “routinely deliver meaningful and informative speeches to the public about their staff’s approaches to legal and policy issues, even if those approaches do not formally bind the agencies themselves. There are,” the agency claims.
Whether the speech was adopted by the SEC is something Ripple disputes.
When Ripple’s attorneys sought Hinman’s deposition last year, Ripple’s attorneys said that if the speech did in fact reflect the agency’s policy, “that would be the reason for Ripple’s fair notice speech.” It really increases the impact,” he said.
In 2018, those who were practicing on the ground “were desperately seeking some guidance from the SEC or its staff,” Mr. Daugherty told Bloomberg Law.
He told SEC staff the same thing while at Northwestern University’s Ray Garrett Institute about two months before Hinman’s San Francisco speech.
She said he is “working on a statement that he will soon release, just as he did in practice.” I was told there was,’ he said.
After former SEC Chairman Jay Clayton testified on the Capitol a few weeks later and referred to Hinman’s speech “in a way that was clearly intended to endorse”, lawyers on the ground said that “the SEC Chairman had to We can rely on things,” he understood. Say what the director of Corp Fin had to say,” Daugherty said.
“There was no daylight between their views,” he said.
According to Hinman’s deposition testimony, the corporate finance department “generally, but not always,” applied the framework he outlined in his speech, if not the policy of the public agency.
He said, “There are other factors that may be relevant, more derived, that are not included in the framework.” gary plastics For example, to one.
But Gary Plastics itself was also featured in the speech, with Hinman saying, “This instrument tells us that it can be part of an investment contract that is a security.”
Daugherty said Barr “constantly” relies on speeches and other informal communications by SEC officials. “This is something I learned myself while working for the SEC, and it is especially important in areas of law where the terrain is new and there is little precedent, as was the case with digital assets in 2018,” he said. said.
In Daugherty’s view, “the current Commission seems keen to keep the law vague so that it can pursue the policies and practices of regulation by enforcement rather than regulation by regulation.”
This feature is adapted from this week’s Bloomberg Law-Litigation newsletter.Bloomberg Law Subscribers Can Sign Up here.
