Case 1:20-cv-10832-AT-SN Document 345 Filed 09/08/21 Page 1 of 7
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`September 8, 2021
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`
`
`VIA ECF
`Hon. Sarah Netburn
`United States Magistrate Judge
`Southern District of New York
`
`Re:
`
`SEC v. Ripple Labs, Inc. et al., No. 20-cv-10832 (AT) (SN) (S.D.N.Y.)
`
`Dear Judge Netburn:
`
`The SEC respectfully opposes Defendants Ripple Labs, Inc.’s (“Ripple”) and Christian Larsen’s
`(“Larsen”) (collectively, “Defendants”) motion (D.E. 326, “Motion”) to compel further responses to
`certain contention interrogatories. Defendants waited until the end of fact discovery, more than
`seven weeks after receiving the SEC’s first interrogatory responses, to inform the SEC they
`considered the responses deficient. The SEC then supplemented five of the responses at issue, met
`and conferred, and asked Defendants to identify what specific information they still required.
`Defendants refused, and instead filed the Motion less than three hours before fact discovery closed.1
`
`The SEC has substantively answered the interrogatories at issue as required by the Federal Rules of
`Civil Procedure and this Court’s recent guidance that a party “need not catalog every fact or piece of
`evidence so long as it identifies representative samples and provides…meaningful disclosure.”
`Phillies v. Harrison/Erickson, Inc., No. 19-cv-07239, 2020 WL 6482882, at *2 (S.D.N.Y. Nov. 4, 2020)
`(Netburn, M.J.). Indeed, in using a similar approach to answering the SEC’s interrogatories,
`Defendants repeatedly cited this Court’s Phillies decision to the SEC.
`
`Defendants’ argument here boils down to a complaint that they do not like the answers they
`received to the interrogatories at issue, in large part because the SEC’s and Defendants’
`interpretation of the applicable law differs. But the SEC is not required to answer the
`interrogatories in a way that adopts Defendants’ incorrect reading of the law. The parties’ dispute as
`to the correct application of the controlling legal standards should be resolved by Judge Torres at
`summary judgment, not on a motion to compel interrogatory responses. For these reasons, and
`those described below, the Court should deny the Motion.
`
`I. Defendants’ Delayed Complaints about the SEC’s Interrogatory Responses
`
`On July 1, 2021, the SEC timely responded to Ripple’s first set of interrogatories. D.E. 326-1. On
`July 20, the SEC timely responded to Ripple’s second set of interrogatories and Defendant Larsen’s
`first set of interrogatories. D.E. 326-3, 326-4. One month later, Defendants first informed the SEC
`they considered certain of its interrogatory responses deficient and asked for additional responses by
`August 27. Aug. 20, 2021 Ltr. from R. Figel, attached as Ex. A. On August 27, the SEC provided
`additional responses to each interrogatory at issue and substantive supplemental information for
`many of those interrogatories (“SEC Letter to Defendants”). D.E. 326-2.
`
`
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`1 At 11:48 p.m. on the same night, minutes before fact discovery closed, Defendants also served the SEC with
`more than twenty-eight thousand (28,000) new Rule 36 requests for admission.
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`Case 1:20-cv-10832-AT-SN Document 345 Filed 09/08/21 Page 2 of 7
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`The SEC Letter to Defendants also reminded them that, in responding to the SEC’s own
`interrogatories, Defendants had made objections similar to the ones Defendants contend rendered
`the SEC’s responses evasive and incomplete, even though the SEC had provided substantive
`responses in addition to its objections. D.E. 326-2, at 3. For instance, the SEC Letter to
`Defendants noted that, for certain SEC interrogatories, Ripple had not offered a substantive
`response other than referring the SEC to its own document requests (as opposed to identifying
`documents that answered the interrogatory). Id. For other SEC interrogatories, the SEC Letter to
`Defendants noted that Ripple had failed to provide any substantive response whatsoever. Id. The
`SEC Letter to Defendants also noted that, while Defendants accused the SEC of acting improperly
`by sometimes incorporating its responses to other interrogatories, Defendants had engaged in the
`very same practice in responding to the SEC’s interrogatories. Id.
`
`The SEC Letter to Defendants made repeated offers to meet and confer, D.E. 326-2, and the parties
`conferred telephonically on August 31. At that conference the SEC asked Defendants, in light of
`the supplemental responses in the SEC Letter to Defendants, to provide additional detail about what
`information they still sought. Defendants instead filed their Motion.2
`
`II. This District Does Not Require Detailed Responses to Contention Interrogatories.
`
`Ripple repeatedly invoked Phillies as grounds for limiting its obligation to respond to the SEC’s
`interrogatories. See Ex. C, Ripple’s Resp. to SEC’s 2d Interrogs. (Response Nos. 8, 10, 11, 12, 13).
`In Phillies, this Court evaluated dueling motions to compel responses to contention interrogatories
`and declined to require additional responses to most of the interrogatories at issue. In doing so, the
`Court stated: “courts generally resist efforts to use contention interrogatories as a vehicle to obtain
`every fact and piece of evidence a party may wish to offer concerning a given issue at trial.” Phillies,
`2020 WL 6482882 at *2. For the responses the Court found to require additional disclosure, the
`Court held that a party “need not catalog every fact or piece of evidence so long as it identifies
`representative samples and provides…meaningful disclosure” and “is not required to describe in
`detail the factual basis for its contention.” Id. at *2-3 (emphasis in original).
`
`Phillies is consistent with prior precedent from this District. See, e.g., Ritchie Risk-Linked Strategies
`Trading (Ireland), Ltd. v. Coventry First LLC, 273 F.R.D. 367, 369 (S.D.N.Y. 2010) (“Defendants’
`requests, insofar as they seek every fact, every piece of evidence, every witness, and every application
`of law to fact—rather than, for example, certain principal or material facts, pieces of evidence,
`witnesses and legal applications—supporting the identified allegations, are overly broad and unduly
`burdensome…Plaintiffs should not be ‘required to parse through documents that have already been
`produced to defendants, which defendants are in a position to review themselves, in order to explain
`the obvious.’”) (citations omitted); Pasternak v. Kim, No. 10-cv-5045, 2011 WL 4552389, at *2
`(S.D.N.Y. Sept. 28, 2011) (“Courts have stricken contention interrogatories which asked a party to
`describe ‘all facts’ that supported various allegations of the complaint, finding that to elicit a detailed
`narrative is an improper use of contention interrogatories”) (citations omitted).
`
`
`
`2 At the August 31 meet-and-confer, the SEC observed that the day before, when Ripple had responded to
`the SEC’s most recent interrogatories, Ripple had refused to respond to four interrogatories. See Ex. B,
`Ripple Resp. to SEC Third Set of Interrogatories, Response Nos. 21-24 (“In light of the foregoing objections,
`no response is required.”).
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`III. The SEC Has Appropriately Responded to Defendants’ Interrogatories.
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`As shown below, the SEC’s interrogatory responses satisfy its obligations under Rules 26 and 33.
`And, the SEC’s responses are no more evasive or incomplete than Defendants’ responses to the
`SEC’s interrogatories.
`
`Ripple Interrogatory No. 2 asked the SEC to identify all terms of any “investment contract” the
`SEC contends created an “expectation of profits” by XRP purchasers. In response, the SEC noted
`that “investment contracts” under SEC v. W. J. Howey Co., 328 U.S. 293 (1946), need not contain the
`same written provisions or “terms” as actionable agreements under traditional contract law because
`Howey specifically states that an “investment contract” includes “a contract, transaction, or scheme”
`that meets Howey’s three prongs. D.E. 326-1, at 10-11; Howey, 328 U.S. at 298-99. The SEC Letter
`to Defendants further explained that, under Howey’s progeny, the contours of the investment
`contract may come not just from “contracts” but also from statements made in commerce and the
`very nature or character of the instruments. The SEC supported this position by citing the
`following controlling precedent: Glen-Arden Commodities, Inc. v. Costantino, 493 F.2d 1027, 1034 (2d
`Cir. 1974) (“[T]he test whether a contract constitutes an investment contract within the Securities
`Act is ‘what character the instrument is given in commerce by the terms of the offer, the plan of
`distribution, and the economic inducements held out to the prospect.’”) (quoting SEC v. C.M. Joiner
`Leasing Co., 320 U.S. 344, 352-353 (1943)); Joiner, 320 U.S. at 355 (Proof of whether something is an
`investment contract “[i]n some cases [may] be done by proving the document itself, which on its
`face would be a note, a bond, or a share of stock. In others proof must go outside the instrument
`itself.”); SEC v. Kik Interactive, Inc., 492 F. Supp. 3d 169, 178-79 (S.D.N.Y. 2020) (in applying Howey,
`“courts regularly consider representations and behavior outside the contract”).3
`
`Although Ripple Interrogatory No. 2 is therefore premised on Ripple’s incorrect reading of
`applicable law, the SEC nevertheless provided a substantive response of more than a full page,
`identifying various ways Defendants “made implicit and explicit promises to prospective and actual
`XRP purchasers, or led prospective and actual XRP purchasers to reasonably expect” an increase in
`XRP’s price based on Ripple’s efforts. D.E. 326-1, at 10-11. And, in response to Ripple’s
`Interrogatory No. 1, the SEC provided Defendants with the terms of “contracts” that formed parts
`of the “investment contracts” at issue by pointing Defendants to the many “contracts” in Ripple’s
`possession between Ripple and certain “over-the-counter” institutional buyers of XRP. Id. at 7-8.4
`In other words, the SEC did provide many of the terms of the “contracts” at issue in this litigation—
`even though Defendants’ statement of the law is wrong. The SEC also has introduced numerous
`deposition exhibits and obtained voluminous deposition testimony along these lines.
`
`
`
`3 After Defendants asked the SEC to supplement its response, the SEC reiterated that Defendants’ complaint
`of deficient responses rested on their incorrect defense that an “investment contract” under Howey requires
`the existence of a common law “contract.” D.E. 326-2, at 3-4. The SEC further advised Defendants that, to
`the extent they sought the terms of any common law contract entered by Ripple, those contracts are already
`in Ripple’s possession. Id. at 4.
`
` In response to Ripple’s Interrogatory No. 1, in addition to identifying specific common law “contracts,” the
`SEC stated its position that “every offer, sale and distribution of XRP by [Defendants] during the Relevant
`Period, was the offer, sale, or distribution of an investment contract under Howey.” D.E. 326-1, Resp. No. 1.
`Defendants have not raised any issue with that response.
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`Defendants’ complaint is, in essence, that the SEC did not limit itself to Ripple’s incorrect legal
`standard in responding to Interrogatory No. 2. The SEC’s original response provided Defendants
`with the various types of statements the SEC will rely on at summary judgment and trial, to support
`its claims that Defendants’ XRP sales were “investment contracts” under Howey and its progeny.
`D.E. 326-1, at 10-12. The SEC should not be forced to accept Defendants’ incorrect reading of a
`legal term in answering Ripple’s interrogatory. See Intervet, Inc. v. Merial Ltd., 252 F.R.D. 47, 49
`(D.D.C. 2008) (refusing to compel interrogatory response that required answering party to accept
`definition of a term that was inconsistent with controlling authority).
`
`Ripple Interrogatory No. 6 asked the SEC to declare whether it contends Bitcoin and Ether are
`“securities” within the meaning of the Securities Act. The SEC responded that the interrogatory is
`“is vague and ambiguous, because it is unclear at what point in time Defendant seeks to discover the
`SEC’s position as to the status of offers and sales of Bitcoin or Ether under the Securities Act, and
`because it fails to identify whose or what offers and sales of Bitcoin or Ether the Interrogatory seeks
`to discover information about.” D.E. 326-1, Resp. No. 6. The SEC Letter to Defendants reiterated
`that a request to “affirmatively state whether it considers Bitcoin and Ether to be ‘securities,’ in a
`vacuum, shows a miscomprehension of how the SEC operates as well as the application of the
`Howey test and Section 5 of the Securities Act.” D.E. 326-2, at 4. This is so because “the SEC does
`not typically decide whether any particular financial instrument, without additional context, qualifies
`as a security per se. Rather, the SEC typically determines, inter alia, whether it considers certain offers,
`sales, or transactions of financial instruments to violate the federal securities laws.” Id.
`
`Despite the faulty premise of the interrogatory, the SEC substantively supplemented its response,
`referencing its admissions in response to Defendants’ Rule 36 requests on the very same subject. Id.
`To that end, the SEC has already admitted that the SEC “has not made any public statements, or
`taken any action, as to the legal status of any person’s offers or sales of bitcoin [or ether] under the
`U.S. securities laws.” Ex. D, SEC Resp. to Defs.’ Requests for Admission, Responses 20-23.
`Because the SEC does not typically make independent determinations that financial instruments,
`untethered to any offer or sale, are or are not securities, there is nothing more for the SEC to add.
`
`Again, Ripple seeks to compel the SEC to respond to interrogatories in a way that is inconsistent
`with the manner in which Howey properly applies to the offers and sales of digital assets and instead
`adopt Ripple’s (incorrect) position on Howey. After complaining throughout this litigation that the
`SEC has improperly deemed XRP to be a security per se, see, e.g., D.E. 51 at 1-2, 97-99, Defendants
`now want to “trap” the SEC into answering about the legal status of Bitcoin and Ether as a security
`per se. The SEC should not be required to accept the incorrect premise of Defendants’ interrogatory,
`and no further response should be required. There is no dispute that the SEC has never filed an
`enforcement action against issuers of Bitcoin or Ether contending that they engaged in securities
`transactions at the time of those transactions. That suffices to answer Ripple Interrogatory No. 6.
`
`Ripple Interrogatory No. 11 asked whether the SEC contends any efforts by Ripple were necessary
`to “affect any increase in the price of XRP” and, if so, to identify the factual basis for that
`contention. The SEC objected by observing that, under Howey, the relevant inquiry is whether
`investors reasonably expected to profit based on Ripple’s efforts, not whether Ripple’s efforts were
`necessary to effect XRP price increases. D.E. 326-1, Resp. No. 11. Despite objecting premised on its
`(correct) view of the controlling precedent, the SEC substantively responded by identifying a variety
`of ways in which Ripple’s efforts led XRP purchasers reasonably to expect profits, including by
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`citing specific documents the SEC contends supports its Howey analysis. Id. And, when Ripple
`requested the SEC supplement its response, the SEC obliged. The SEC identified a non-exhaustive
`list of documentary and testimonial evidence reflecting Ripple’s beliefs that its efforts were necessary
`to achieve XRP price increases. D.E. 326-2, at 4-5. The evidence the SEC cited included internal
`Ripple documents and Ripple employee testimony conceding that: 1) increases in XRP’s liquidity
`and volume cause increases in XRP’s price and that “while it is possible for XRP to become a
`universal bridge currency, it absolutely CAN NOT happen without [Ripple’s] assistance”; 2) “Ripple
`aims to distribute XRP is a way that supports a stable or strengthening value of XRP”; 3) Ripple
`implemented an XRP escrow program to prevent Ripple from dumping large amounts of XRP into
`the market and negatively impacting its price; and 4) Ripple likewise intended its escrow
`announcement to “create a second wave of excitement…amongst speculators.” Id.
`
`As Defendants acknowledged in their own interrogatory responses and as this Court recognized in
`Phillies, the SEC is not required to identify every piece of evidence it intends to rely on, so long as it
`“identifies representative samples and provides…meaningful disclosure.” 2020 WL 6482882, at *2-
`3. Here, the SEC provided two substantive responses to Interrogatory No. 11, which detailed the
`bases for its Howey analysis and provided specific evidentiary examples of what Ripple sought,
`despite the incorrect legal premise of the interrogatory. No further response should be required.5
`
`Ripple Interrogatory No. 17 asked the SEC to identify any enterprise or venture in which XRP
`purchasers “acquired a stake…by virtue of” their XRP purchases. The SEC responded that, under
`Howey, the relevant inquiry is whether investors invested money in a common enterprise with each
`other (horizontal commonality) or with the issuer (vertical commonality) and that Howey does not
`require the purchaser to “acquire a stake” in an “enterprise or venture” for that purchaser to have
`purchased an investment contract. D.E. 326-3, Resp. No. 17. The SEC then substantively
`responded by stating its position that 1) “XRP holders were invested in Ripple’s efforts to create a
`use for and demand for XRP” and 2) “XRP holders hoped to profit from a potential increase in the
`value of XRP based on Ripple’s efforts to create a use for XRP and develop the XRP ‘ecosystem,’
`potentially increasing demand for the token.” Id. The SEC then referred to four of its prior
`interrogatory responses (Nos. 2, 8, 10, 11) which identified specific examples of evidence the SEC
`would rely on to support this aspect of its Howey analysis. Id. In other words, the SEC directly
`responded to Ripple’s question and made clear that the “enterprise” at issue is the success of XRP as
`a digital token in Ripple’s “XRP ecosystem.”
`
`Yet again Ripple seeks to compel a further interrogatory response in order to force the SEC to
`adopt Ripple’s incorrect reading of the law before Judge Torres decides the issue on summary
`judgment. Ripple apparently intends to argue that, to establish an investment contract, the SEC must
`show that the investor “acquired” a “stake” (in the property law sense) as to some tangible business
`entity or partnership—a proposition for which the SEC is unaware of even one supporting decision.
`
`
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`5 Ripple twice notes that the third prong of Howey looks to the reasonable expectation of profits “solely” from
`a promoter’s or third party’s efforts and thereby attempts to demonstrate the relevance of an interrogatory as
`to whether its efforts were “necessary” to effect a change in XRP’s price. 328 U.S. at 229; Mot. at 4. Ripple
`fails to note that, after Howey, the Supreme Court relaxed the requirement that an investor reasonably expect
`profits “solely” from the efforts of others and explained instead that the “touchstone is the presence of an
`investment in a common venture premised on a reasonable expectation of profits to be derived from the
`entrepreneurial or managerial efforts of others.” United Housing Found. v. Forman, 421 U.S. 837, 852 (1975).
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`In any event, the SEC provided Ripple substantive responses to twelve of its requests for admission
`on the very topics at issue in Interrogatory No. 17, which Ripple presumably will use to argue that
`its (non-existent) “acquired a stake” requirement was not met. Specifically, the SEC admitted that
`XRP purchasers were not entitled, based solely on their status as XRP holders, to receive direct
`payments from Ripple or to participate in Ripple’s operations, management, or business affairs.
`D.E. 362-2 at 5 (citing SEC responses to Defs.’ Requests for Admission Nos. 57-63, 71-72, and 75-
`78). As the SEC’s admissions demonstrate, see Ex. D, the SEC has provided substantial evidence on
`the issue of whether XRP holders “acquired a stake” in Ripple. Because the SEC is not required to
`detail every piece of evidence it intends to rely on, Phillies, 2020 WL 6482882, at *2-3, those
`responses sufficiently respond to Interrogatory 17, particularly where the interrogatory is premised
`on an incorrect reading of Howey and thus seeks irrelevant information.
`
`Ripple Interrogatory No. 19, like Interrogatory No. 17, asked the SEC to identify evidence
`supporting the contention that XRP holders had a right to future payments from Ripple resulting
`from their XRP purchases. As with Interrogatory No. 17, the SEC responded that the relevant
`inquiry is whether investors invested money in a common enterprise with a reasonable expectation
`of profit based on the efforts of others. D.E. 326-3, Resp. No. 19. The SEC likewise responded by
`referring to ten of its prior interrogatory responses (Nos. 1-5, 7-8, 10-12), which identified specific
`examples of evidence the SEC would rely on to support this aspect of its Howey analysis. Id.
`
`As with Interrogatory No. 17, the SEC later agreed to supplement its response to Interrogatory No.
`19 by providing additional substantive information. D.E. 362-2, at 5. The SEC thus referred to its
`responses to seven of Defendants’ requests for admission, where the SEC made admissions on the
`very topics at issue in this interrogatory: admitting that XRP purchasers were not entitled, based
`solely on their status as XRP holders, to receive direct payments from Ripple. Id. (citing SEC
`responses to Defs.’ Requests for Admission Nos. 57-60, 70, 73, 74). Because those admissions
`directly answer Ripple’s interrogatory, see Ex. D, no additional response should be required.
`
`Larsen Interrogatory No. 5 asked the SEC to pinpoint the date by which the SEC contends the
`“XRP Ledger” became “fully functional.” In response, the SEC noted that “whether and when the
`XRP Ledger became ‘fully functional’ is irrelevant under Howey.” D.E. 326-4, Resp. No. 5. The
`SEC further objected to the term “fully functional,” given that, as Ripple’s own witnesses have
`explained, the creation and development of distributed networks, such as the XRP Ledger, “are
`iterative processes without clearly demarcated end points” and that the term cannot be defined
`“without identifying parameters to measure functionality or the person from whose perspective
`functionality is being measured.” Id.
`
`The SEC Letter to Defendants reiterated that the SEC could not answer the interrogatory without
`additional guidance as to what Larsen means by “fully functional.” Dkt. 326-2, at 6.6 The SEC then
`offered to meet and confer, so that Larsen could provide the requisite detail as to his meaning of
`“fully functional.” Id. However, at the parties’ meet-and-confer, Larsen declined to provide any
`additional detail, context, or meaning for this interrogatory. Because Larsen has refused to provide
`
`
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`6 The SEC also noted Larsen’s General Objection 4 to the SEC’s first set of Interrogatories (“Larsen objects
`to the Interrogatories to the extent they call for responses better suited for depositions”) and reminded
`Larsen that he had the opportunity to ask various deponents, including Director Hinman, about their views as
`to the XRP Ledger’s functionality and that he had chosen not to ask such questions. Dkt. 326-2, at 6.
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`any detail as to what he means by a “fully functional” XRP ledger, the SEC should not be required to
`further answer this vague interrogatory that it presently lacks the ability to answer.
`
`Ripple Interrogatories Nos. 3, 7, 18, 22, 23, and 24 and Larsen Interrogatory No. 4: Ripple
`and Larsen complain that the SEC improperly responded to these interrogatories by incorporating
`its responses to other interrogatories. Yet such responses are perfectly proper and indeed more
`efficient. See United States v. R.J. Zavoral & Sons, Inc., 2014 U.S. Dist. LEXIS 200974, at *22-37 (D.
`Minn. Apr. 23, 2014) (denying motion to compel government to supplement interrogatory responses
`where it had incorporated responses to other interrogatories); Caliper Techs. Corp. v. Molecular Devices
`Corp., 213 F.R.D. 555, 560 (N.D. Cal. 2003) (denying similar motion to compel); Graco, Inc. v. PMC
`Global, Inc., 2011 U.S. Dist. LEXIS 30980, at *99-100 (D.N.J. Mar. 24, 2011) (allowing interrogatory
`response to incorporate by reference other responses).
`
`Indeed, Ripple and Larsen did the very same thing when responding to the SEC’s interrogatories.
`See Ex. C, Ripple’s Resp. to SEC’s 2d Interrogs., Resp. No. 8 (“Ripple incorporates by reference its
`response to Interrogatory No. 12”); Resp. No. 10 (“Ripple incorporates by reference its response to
`Interrogatory No. 11”). When the parties met and conferred, the SEC noted the irony of Ripple’s
`claim that an interrogatory response identical to one Ripple itself provided ran afoul of the Rules.
`The SEC then asked Ripple to specify what additional detail it sought in response to these
`interrogatories, in light of the information provided in the incorporated-by-reference responses.
`Ripple refused to clarify its demands and proceeded to file this Motion.
`
`As for Larsen Interrogatory No. 4, it asked the SEC to identify “with particularity all efforts by
`Ripple that You contend were made in order to generate profits for any Person who purchased XRP
`from Ripple.” The SEC responded by referencing its answers to Ripple’s Interrogatories No. 2, 8,
`and 10-11. D.E. 326-4, Resp. No. 4. Indeed, Larsen’s Interrogatory 4 is nearly identical to Ripple
`Interrogatory No. 11 (“Identify with particularity the factual basis” of any contention that “efforts
`by Ripple were necessary to affect any increase in the price of XRP”). Larsen concedes in the
`Motion that incorporating by reference is appropriate when interrogatories are identical. D.E. 326,
`at 6 n. 9. Moreover, as discussed above, the SEC substantively answered Ripple Interrogatory No.
`11 and provided an additional substantive response upon Ripple’s request. And, when Larsen
`requested that the SEC provide an additional response to his Interrogatory No. 4, the SEC obliged
`by referencing the additional substantive response it had provided to Ripple’s functionally identical
`Interrogatory No. 11. See D.E. 326-2, at 6. The SEC has therefore adequately responded to
`Larsen’s interrogatory by referencing responses to Ripple’s interrogatories—responses that answer
`Larsen’s question. No additional response should be required.
`
`For these reasons, the Court should deny the Motion.
`
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`Respectfully submitted,
`
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`
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`/s/ Mark R. Sylvester
`Mark R. Sylvester
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`cc: Counsel for All Defendants (via ECF)
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