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Two Ripple legal briefs are now available to the public. The defense attorney, former federal prosecutor James K. Phelan, says the legal memos prove that Ripple is not a security.
#XRPCommunity #XRP #SECGov v. #Ripple #XRP BREAKING: BELOW ARE THE TWO LEGAL MEMOS THAT HAVE NOW BEEN UNSEALED.https://t.co/I5TsOcAUq6https://t.co/upcQc2Z8pK
— James K. Filan 🇺🇸🇮🇪 (@FilanLaw) February 18, 2022
Phelan believes that the published notes are "favorable" for Ripple.
"Generally favorable for Ripple and individual defendants. Both notes are from Perkins Coie. The first note was prepared in February 2012 and sent to Jed McCaleb and Jesse Powell. It says that if NewCoin is sold as part of what will now look like an ICO (I have not seen the term ICO), it is likely that it will be considered a security."
Phelan emphasizes that the term ICO has never been used here.
"But then Ripple revised its business plan and returned to Perkins Coie, which issued a second memorandum in October 2012. This second memo was sent to Chris Larsen and Jed McCaleb."
He further explains that the October memorandum was more favorable for Ripple, as it shows how carefully Ripple tried to avoid the attention of the SEC from different sides. He said it was to be welcomed that Ripple had the foresight to seek legal advice from a well—known firm in 2012 - in the absence of clear case law and five years before the SEC even started talking about digital assets.
"The October memorandum was more positive, and although it said there was a "small" risk that the SEC might disagree, Perkins Coie concluded that Ripple Credits should not be considered securities. The memo also suggested steps Ripple could take to minimize the risk of the SEC disagreeing with Perkins Coie. The memos cover the full range of legal issues (not just the issue of securities), showing how careful Ripple tried to be. Also, it was five years before the SEC started talking about digital tokens."
The memorandum proved that Ripple was cautious; Ripple never ignored risks and was very active.
"It seems to me that Ripple was very active, which is very important. There is definitely nothing in these notes that would indicate Ripple's recklessness or ignoring any significant risks. The notes say the opposite—that Ripple was careful."
