Ripple’s next motion to compel could force SEC to admit there was no investment contract on XRP sales

The specific dispute is not mentioned in the letter, but in Q4 2021, the court ordered the SEC to respond to Ripple’s interrogatories seeking to establish the authenticity or genuineness of a document, the ones relating to the fair notice defence, and the ones about Ripple’s extra-territorial defence.

The ones relating to the fair notice defence would be waived if the Judge had granted the SEC’s motion to strike the fair notice defence, which she didn’t.

“Defendants intend to file a letter motion to compel, and the parties have agreed to the following proposed schedule and page limits with respect to the Motion:

• Defendants’ Motion would not exceed seven (7) pages. The SEC’s letter in opposition to Defendants’ Motion would not exceed seven (7) pages and would be filed within ten business days of the Motion.
• Defendants’ reply in further support of the Motion would not exceed four (4) pages and would be filed within seven business days of the SEC’s opposition.
• With respect to page limits, Defendants believe that a combined Motion of seven pages or fewer, which is below the five-page-per-party limit provided by Section II.C of the Court’s Individual Practices in Civil Cases, will permit the Court to fully consider the factual basis and legal issues raised in the Motion and serve the interests of judicial economy and efficiency”, said the letter.

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The SEC is required to file hundreds of answers to Ripple’s RFAs (Requests for Admission) on many fronts, from XRP sales offshore to questions relating to the fair notice defence and whether the XRP ledger was “fully functional” when the sales took place in 2013.

Late last year, the Orlando-based Hogan attorneys, Jeremy and Thien-Vu, provided some key insights into the RFA topic after the Judge found the interrogatories relevant to the case.

This was a clear win for Ripple as the SEC’s case is increasingly viewed as circumstantial. “The SEC is gonna be forced to argue that Ripple marketed to retail purchasers as though there was an investment contract”.

“[The SEC] either has to admit there is nothing in writing that forms an investment contract and therefore admit that the case is circumstantial, or it can go through each and every contract and try and find something in the contract that somehow ties Ripple to people who bought XRP on Coinbase last year”.

The legal expert’s instinct is that the plaintiff won’t go down that road and will concede it is bringing a marketing case. But, much like in a murder case with no hard evidence such as fingerprints or eyewitnesses, “you can win that case, but it isn’t the easiest way to win.”