The attorney Jeremy Hogan, who is closely followed by the XRP community, has posted a video at the US Securities and Exchanges Commission (SEC) explaining the mainstay against Ripple and why Ripple “dodged cheap” (without legal or financial advice, of course).
Hogan also noted that judges play a critical role in very complex cases.
The Kik Interactive v. SEC case illustrates this very clearly. In October 2020, New York Judge Alvin Hellerstein decided that Kik’s digital currency was a security, and the SEC prevailed. “Ripple is lucky that this is not their judge,” said Hogan. Hellerstein was in his 80s and didn’t know what a blockchain-based token or distributed ledger was, as court transcripts show.
During Ripple’s pre-trial conference, Hogan paid particular attention to the word choice of US District Judge Analisa Torres. The 61-year-old Harvard graduate expressed himself very selectively using the terms “digital asset”, which is the SEC’s preferred term for XRP, and “cryptocurrency” by Ripple, which may mean he understands the difference:
“And the only reason he uses both terms is because he shows neutrality. But it also means that he understands why the terms used are important and what the difference is, even at the beginning of the case. ”
As Hogan revealed, that was not the case with Kik’s judge, so in that case Hellerstein asked SEC lawyers for previous court rulings that he could base his decision on. However, this was a situation the SEC was working on and wasting time to “put together this case mandate” from 2017 to 2019. So when a judge asked about previous judicial decisions, the SEC “was ready for six or seven cases.” This was critical to Kik’s defeat, Hogan said:
“So what I can summarize from my review is that Kik Interactive probably failed. This judge was not capable or flexible enough to give a subtle legal interpretation that an emerging technology case would require, and that’s why I believe Kik lost. ”
As for Ripple’s judge Analisa Torres, Hogan is more optimistic because he is “curious”, as Hogan said, referring to a report from a legal case.
“This judge wonders once to find out the truth of the situation and is willing to think outside the box. This fits with the fact that it is quick enough to understand the nuance between a digital asset and a cryptocurrency in a legal context. But perhaps most importantly, I see a humanism in this judge […] I’m sure Ripple has done his research, knows all about this judge, and at this point he adapts his arguments to show how a securities assignment would hurt thousands of XRP holders. This is the key for me. This judge […] must understand the potential devastating impact on the tens of thousands of people who own XRP. “