Lawyer Jeremy Hogan commented on an important point in the trial.
Lawyer Jeremy Hogan on twitter commented on an important point in the trial. He noted:
Why the SEC cannot meet its burden on (at least) one element of the Howey test. In order to win at Summary Judgment, the SEC has to do two things: 1. Prove every element by the greater weight of the evidence AND 2. Prove that there is no genuine dispute of a material fact.
Looking at the “Expectation of profits based on efforts of others” prong what do we see? First, the SEC’s sole evidence is statements from Ripple and a handful of purchasers about Ripple’s involvement in the price of XRP. It abandoned its expert witness on this issue.
Ripple counters the SEC with its own expert witness, who correlates XRP price action with market forces, especially since 2018. AND Ripple apparently also files 3k affidavits from Deaton and XRP holders that they were NOT looking to Ripple to increase XRP price. Burden met?
Seems to me (tell me if you disagree), the SEC has absolutely failed to meet its “greater weight of the evidence” burden. A handful of statements over 8 years vs. expert opinions and 3k affidavits. BUT, even putting that aside, is there a genuine issue of material fact here?
Ripple has submitted direct, hard evidence that a reasonable XRP purchaser was not relying on Ripple to increase price. I don’t see how the Judge ignores that evidence and grants summary judgment on this prong of the test. Not saying the SEC can’t win – but it can’t win here.