Since the dawn of this case in December 2020, Ripple’s unwavering pillar of defense has been its ‘fair notice’ argument. The token issuer staunchly maintained that it was impossible to register its XRP token with the SEC because it had never been given clear-cut guidance on what constituted a security in the world of cryptocurrencies.
Alas, a recent court ruling has thrown a wrench in the works of Ripple’s fair notice argument. The SEC’s landmark victory against broker-dealer Commonwealth Equity Services in April prompted the regulatory body to file a letter of support in the Ripple case, claiming that XRP’s fair notice defense was now null and void.
But all hope is not lost for Ripple. The Supreme Court’s ruling in March 2023 on Bittner v. United States breathed fresh life into the issuer’s argument. The Court sided with a beleaguered immigrant, Alexandru Bittner, who claimed that he was not afforded enough time to file the requisite documents for his bank accounts because he had not been properly informed of his obligations.
Ripple may not be the trailblazer in utilizing the fair notice defense, as Kik Interactive’s Kin cryptocurrency can attest to after the SEC thwarted their claim that the term “investment contract” was too ambiguous in 2017. Similarly, LBRY also tried to play this card in 2021 but was met with the same fate as Kik.
However, Ripple has been riding the wave of success as the court denied the SEC’s attempt to strike their fair notice defense. The SEC attempted to resurface the issue in their September 2022 motion for summary judgment, but the court has consistently maintained that compliance with the Howey Test is not a mere ripple in the vast sea of regulatory guidance.
Ripple has staunchly opposed the SEC’s ever-evolving view on what constitutes a common enterprise. Initially, the SEC claimed that Ripple itself was a common enterprise, but Ripple shot back with a valid argument. Since XRP holders do not receive any stake in the company just by holding tokens, it couldn’t be true. However, the SEC didn’t back down and created a new narrative.
According to them, XRP holders, third-party exchanges, and vendors accepting XRP were the common enterprise. However, thanks to 3,000 affidavits Ripple submitted and the expertise of John Deaton, a crypto attorney, the court didn’t accept this argument. The SEC then shifted gears and accused XRP of being the common enterprise, but Ripple’s chief legal officer, Stuart Alderoty, disagrees.
He explained, in a Tweet, that the SEC’s claim was misguided, as there’s a vast difference between common interest and a common enterprise. In other words, Ripple is ready to defend their stance against the SEC’s unpredictable and ever-changing accusations.
Securities Clarity Act
“By neglecting to differentiate between commodities and securities, the future of American innovation may be at risk,” warns Majority Whip Tom Emmer. But hope is on the horizon with the unveiling of the bipartisan Securities Clarity Act, co-introduced by Emmer and Representative Darren Soto.
This groundbreaking legislation aims to modernize existing securities laws, specifically addressing the gray area surrounding crypto projects and their initial classification as securities. By distinguishing “investment contract assets” from their securities counterparts, the Act allows for a truly “technology neutral” definition, paving the way for future innovation and growth in the industry.
Whether this new act could be an ace in Ripple’s sleeve is unclear at the moment. However, it does sound like a solution to the entire Ripple VS SEC saga. We will track the developments surrounding this bill with a lot of interest as it could decide the future of tokens and projects in the buoyant crypto world.
Ripple goes on a shopping spree
Ripple, amidst a controversial SEC lawsuit surrounding the classification of XRP as a security, made a bold move by investing $2.6 billion in its own cryptocurrency during the most recent quarter. However, the risk paid off as the company raked in an impressive $2.9 billion in sales by selling XRP over the counter in Q1 2023.
An astonishing 88% of sales revenue went towards purchasing cryptocurrency on secondary markets, showcasing the company’s commitment to the growth of XRP. Despite spending 6% less than the previous quarter, XRP still managed to surge approximately 60%, riding the wave of success alongside popular cryptocurrencies like Bitcoin and Ethereum.
In Q1, Ripple sold approximately $361 million worth of XRP to customers using its blockchain-powered “On-Demand Liquidity” payment channels, a separate system from RippleNet’s bank-focused settlement technology, which currently cannot support XRP due to regulatory limitations. Ripple’s selling of XRP to ODL users has no direct impact on crypto exchange prices, making it a stable and lucrative investment option.
In a bold move on May 17th, Ripple made a splash in the digital asset world by acquiring the esteemed Swiss custodian and tokenization guru, Metaco, for an impressive $250 million. This strategic acquisition has enabled Ripple to expand its enterprise horizons, offering its clientele the ability to seamlessly custody, issue, and settle tokenized assets.
With aspirations of reaching the $10 trillion institutional crypto-custody market by 2030, Ripple has conducted extensive research that shows most global financial leaders are also planning on implementing crypto-custody solutions within the next three years. Notably, heavy hitters such as BNY Mellon and Nasdaq have already jumped on board with plans of their own to launch crypto-custody management services in the near future.
With all of these investments, Ripple is showing that it is confident in its legality and the future of its token and crypto markets in general.
What’s at stake?
Enforcement-based regulation has the potential to unleash unintended chaos upon the financial stability and integrity of both the crypto realm and the wider economy. If the SEC triumphs in court and determines that XRP constitutes a security, this would trigger a hefty regulatory burden on other crypto firms, including exchanges and market-makers, resulting in an avalanche of onerous requirements to adhere to.
Additionally, this could expose the crypto industry to enforcement measures for non-compliance with regulatory obligations that are more applicable to the traditional securities market than to decentralized cryptocurrencies. This could not only hinder the advancement of innovative financial technology, but it could also act as an indirect prohibition of cryptocurrencies. Bans on crypto are notoriously difficult to implement, particularly since decentralized protocols inherently evade regulation.
Moreover, such bans often propel legitimate activities into the grey or black markets, exacerbating issues of financial integrity. Interestingly, crypto usage in China reportedly skyrocketed after the government imposed a crypto ban. Conversely, a favorable verdict for Ripple could have its own adverse consequences. Even a minor signal of judicial approval may be construed as validating the industry, igniting a destructive spark in a system that is already precarious and susceptible to abuse. The crypto extremists, sensing legitimacy, could pose a threat to financial stability.
Ultimately, the key peril lies in the signals sent to the market and the resulting reaction. Governments and regulators must not engage in a crypto war, nor should crypto adversaries declare war on regulators.
What happens next?
On a Twitter thread dated May 17th, the eminent pro-crypto attorney, Fred Rispoli, opined that the verdict on the summary judgment has already been penned and is just waiting to be disclosed. He also concurred that a divided ruling is the most probable outcome. Meanwhile, during a Twitter Space discussion, Deaton expressed his conviction that Judge Torres has already made up her mind regarding the verdict. However, he refrained from speculating on how much of the decision has been finalized. While he agrees that the verdict could be unveiled at any given moment, he cautioned that it may take another month or more to be revealed.
We will be watching closely and awaiting results of this seminal crypto case, as the fate of the entire crypto ecosystem may be affected by the decisions made in the Ripple VS SEC case.