Ripple’s partial victory against the SEC is positive, but crypto firms still face uncertainty without a regulatory framework.
Analysis
The recent court ruling that Ripple’s XRP (XRP) token is not considered a security when sold on digital asset exchanges has sparked a wave of positive sentiment across the cryptocurrency ecosystem.
Stuart Alderoty, chief legal officer at Ripple, told Cointelegraph that he believes the most important part of this ruling is that the court unequivocally said XRP is not, in and of itself, a security. Given this, Alderoty noted that the XRP ruling is now a matter of law and not up for trial.
“Additionally, other findings that are not subject to trial include the following: sales on exchanges are not securities, sales by executives are not securities, and other XRP distributions to developers, charities and employees are not securities. The court’s ruling can now also be used by others in the SEC’s crosshairs,” he said.
We said in Dec 2020 that we were on the right side of the law, and will be on the right side of history. Thankful to everyone who helped us get to today’s decision – one that is for all crypto innovation in the US. More to come.
Ruling doesn’t ensure clear regulations
While the XRP court ruling marks a significant milestone for the entire crypto industry, Alderoty noted that he hopes Congress will use the ruling to create a clear regulatory framework moving forward. “There will be further court proceedings per the court’s order, and we’re evaluating next steps,” he said.
The United States Securities and Exchange Commission (SEC) can appeal the XRP ruling. Lewis Cohen, co-founder of DLx Law — a law firm focusing on crypto assets and blockchain technology — told Cointelegraph that the SEC could “reverse” this ruling by appealing it once it becomes final. “They can also bring similar actions in other federal districts seeking alternative outcomes,” he said.
A blog post by the law firm Holland & Knight elaborates on this notion. The firm states that the “court’s grant of summary judgment on certain aspects of the case signal some measure of finality with regard to the SEC’s jurisdictional reach (or lack thereof), an appeal would be deemed interlocutory at this stage, as the court did not dispose of the case in its entirety.”
Yet the post further notes that while “interlocutory appeals are permissible, they are rarely granted in practice.” So, it could take months or even years if the SEC decides to appeal the court ruling.
In addition, whether other digital assets sold on exchanges should be considered securities remains questionable. The Holland & Knight blog post states, “Judge Torres expressly declined to expand her opinion to secondary market sales of XRP or other tokens,” which could create further conflicts going forward.
Margaret Rosenfeld, chief legal officer at Cube Exchange — a digital asset exchange set to launch in Australia — told Cointelegraph that she believes companies may begin selling tokens on crypto exchanges in “programmatic sales” following the XRP ruling. This manner of sale would be based upon the argument that blind bid/ask sales are not securities transactions.
“Ripple sold approximately $757.6 million of XRP on digital assets exchanges ‘programmatically,’ which is through the use of trading algorithms. The sales were blind bid/ask transactions, which means the buyer and seller don’t know each other. The court found that because programmatic buyers could not have known whether their purchase payments went to Ripple, they didn’t invest their money in Ripple at all,” she said.
Rosenfeld cautioned that relying on a decision from one district court judge that can be appealed by the SEC does not mean that such programmatic sales are a clear path. In addition, “the court also didn’t address airdrops or secondary sales, so these will also remain risky.”
XRP ruling is a step in the right direction
All things considered, there are still several concerns that will likely delay a clear regulatory framework for digital assets to take shape in the United States. Rosenfeld is aware of this, noting that Cube Exchange has no plans to launch in the U.S. anytime soon.
However, she added the ruling had given hope to some digital asset firms that they could offer products and services in the U.S. sooner than expected.
“This case helps our industry in urging Congress that a digital asset framework is needed, as it demonstrates a clear conflict between our executive and judicial branches of government on how digital assets should be treated,” she said.
Alderoty also remains optimistic, saying he believes this decision will eventually encourage U.S. financial institutions to start discussing how crypto and blockchain technology can solve customer pain points. He said:
