TheCorporateCounsel.net

Earlier this year, I blogged about the topic of “regulation by enforcement.” At the time, I noted that the SEC denies that it engages in this conduct, but I also pointed out that courts are sometimes sympathetic to defendants’ claims that due process requires them to have adequate notice that they are potentially violating the law.  Claims that the SEC is attempting to regulate by enforcement have featured prominently in its high-profile litigation against crypto heavyweight Ripple Labs, with the company asserting that it had not received “fair notice” that its XRP cryptocurrency was a security.

Ripple scored a win in March when the SDNY issued an order denying the SEC’s motion to strike Ripple’s fair notice defense. This excerpt from a Reuters article on the decision summarizes the ruling:

The SEC claimed that the defendants failed to register transactions in its digital asset, XRP, as “investment contracts” under Section 5 of the Securities Act, while the defendants contended it is not sufficiently clear that the phrase “investment contract” applies to transactions in XRP and thus raised a fair notice defense. The fair notice defense arises under the U.S. Constitution’s Due Process Clause and requires that the language of any criminal statute be sufficiently clear to objectively give fair notice of what is prohibited (See F.C.C. v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012)).

The court denied the SEC’s motion to strike Ripple’s fair notice defense; its opinion represents a significant victory for the defense. This opinion will allow the defense to marshal, on summary judgment, significant and invaluable discovery from the SEC into its own views on how XRP and other digital assets should be classified.

The article also points out that the SEC was successful in its effort to strike the defense in its lawsuit against Kik Interactive. It goes on to say that the ruling is potentially a big deal, because “if future digital asset defendants may successfully bring fair notice defenses under Section 5 based on allegations regarding the SEC’s own conduct, that will open the door in discovery to, at a minimum, requests for the SEC’s notes from meetings with third parties in the digital asset space, draft speeches from SEC leaders on how various digital assets should be categorized, and documents containing the SEC’s formal positions on whether a given digital asset qualifies as a security.”

– John Jenkins