As the October 7 appeal deadline approaches, speculation abounds regarding the next move for the U.S. Securities and Exchange Commission (SEC). Eleanor Terrett, a journalist with Fox Business, has reported that a former SEC lawyer believes the regulator would “probably” appeal the ruling, asserting the decision on programmatic sales is fundamentally flawed.
Background of the Case
The SEC filed a lawsuit against Ripple Labs in December 2020, alleging that the company conducted unregistered securities offerings by selling XRP. In July 2023, Judge Analisa Torres ruled against the SEC in the Ripple case concerning XRP programmatic sales.
This ruling in favor of Ripple regarding XRP programmatic sales was a critical blow to the SEC, and many believe it will influence future regulatory approaches toward labeling digital assets as securities.
The SEC suffered further losses, and the lawsuit ended in early August 2024 when the court ruled that Ripple would pay $125 million for violating securities laws through institutional XRP sales, significantly lower than the SEC’s $1.95 billion request.
Potential Grounds for Appeal
Experts believe the SEC’s potential appeal would focus on challenging Judge Torres’s interpretation of the Howey Test, a key framework for determining whether an asset qualifies as a security.
The Howey Test stipulates that an investment contract exists if there is an investment in a common enterprise with an expectation of profits derived from the efforts of others. The court’s application of this test to XRP’s programmatic sales, which determined that they did not violate securities laws, has been a contention.
The former SEC lawyer quoted by Terrett emphasized that those within the agency believe the decision is “not good law” and should be overturned. This sentiment suggests that the SEC sees broader implications in the ruling that could impact its regulatory reach and authority over the cryptocurrency market.
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Implications of an Appeal
Jeremy Hogan, a prominent attorney, responded to Terrett’s post by criticizing the SEC’s approach. He argued that the agency should focus on whether or not an appeal would aid its mandate on investor protection and capital formation, rather than simply contesting a loss.
Jungle Inc., a well-known crypto YouTuber, echoed similar sentiments, emphasizing the importance of protecting less sophisticated investors in the secondary market.
An appeal by the SEC would prolong the legal uncertainty around cryptocurrencies, and prolonged litigation might also delay the development of clear regulatory guidelines. However, the SEC might have troubles to worry about, as SEC Chair Gary Gensler is currently under investigation. Also, the U.S. House Majority Whip recently called him lawless for many unruly actions.
Disclaimer: This content is meant to inform and should not be considered financial advice. The views expressed in this article may include the author’s personal opinions and do not represent Times Tabloid’s opinion. Readers are urged to do in-depth research before making any investment decisions. Any action taken by the reader is strictly at their own risk. Times Tabloid is not responsible for any financial losses.
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