Will <em>Howey</em> Progeny Stifle Ripple's Fair Notice Affirmative Defense?

In the latest chapter of the high-profile SEC v. Ripple Labs, Inc., et. al. litigation, the SEC revisits its prior attempt to strike down the defendants' due process affirmative defense. Nearly a year after the SEC failed to convince U.S. District Court for the Southern District of New York Judge Analisa Torres to strike Ripple's "fair notice" affirmative defense, the agency is again targeted it in its motion for summary judgment (MSJ). The SEC recently supplemented its MSJ with a new opinion out of the U.S. District Court for the District of Massachusetts, arguing that court's ruling – rejecting a party's fair notice defense premised on the same precedent Ripple relies upon – is the latest example of federal courts striking down such arguments. Ripple pushed back, arguing that the recent opinion – as are other cases cited by the agency – are distinguishable given the ample evidence within the SEC's own files about regulatory confusion.