Patrick Daugherty Discusses SEC’s Fight Against Discovery Orders in Ripple Case

Foley & Lardner LLP Partner Patrick Daugherty was quoted in the Bloomberg Law article titled, “Ripple Discovery Would Chill All Agency Debate, SEC Says,” discussing the ongoing effort by the Securities and Exchange Commission (SEC) to keep Ripple Labs, Inc. from gaining access to documents related to a 2018 speech by William Hinman, the then Director of the Division of Corporate Finance, contending that the speech didn’t reflect SEC policy, but rather advice his division would give the agency. The agency warned that turning over internal documents is likely to have a chilling effect on policy deliberations throughout the federal government.

Referencing his tenure as counsel to former SEC Commissioner Edward Fleishman, Daugherty noted that lawyers relying on speeches and other informal communications by SEC officials is “especially important in areas of the law where the terrain is novel and the precedents scarce, as was the case with digital assets in 2018 and is still the case today.” Daugherty continued, stating that the “present Commission seems intent on keeping the law obscure, so that it can pursue a policy and practice of regulation by enforcement rather than regulation by regulation.”