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It ain’t over ‘til the fat lady sings — or until an appeals court says it’s siding with Judge Analisa Torres’ decision in the SEC’s case against Ripple.
If you haven’t a clue what I’m referencing, the SEC filed yesterday to appeal the $125 million judgment in its case against Ripple. The case, which is now as old as a human toddler (and will celebrate its fourth birthday in December if it’s still going on by then), has been a long and hard-fought battle for both the SEC and Ripple.
The two sides had until Oct. 7 to decide if they were going to pursue an appeal. An SEC spokesperson told me that it filed the appeal because it believes the decision “conflicts with decades of Supreme Court precedent and securities laws.”
Right now, we don’t really know what the appeal will look like, though the statement gives us some clues.
What we do know, however, is that this appeal isn’t what some others in crypto — specifically looking at Bitwise — wanted to see from the SEC. Bitwise just filed yesterday for an XRP ETF. And Galaxy Digital’s Alex Thorn warned that the likelihood of success from Bitwise “drops to near zero” with an appeal.
SEC has until next week (Oct. 7) to appeal Judge Torres’ July 2023 ruling (which held that secondary sales of XRP through exchanges were not securities)
likelihood of this ETF filing succeeding drops to near zero if they do appeal (i’ll be very surprised if they don’t appeal) https://t.co/FBGVZPNvwV
Ripple and the SEC both notched wins and suffered some losses throughout the years. In July of last year, Judge Torres handed the two parties the biggest decision yet: Ripple’s programmatic sales of XRP didn’t constitute investment contracts. However, the double-edged sword was that Torres ruled that the institutional sales did.
“The vast majority of individuals who purchased XRP from digital asset exchanges did not invest their money in Ripple at all. An Institutional Buyer knowingly purchased XRP directly from Ripple pursuant to a contract, but the economic reality is that a Programmatic Buyer stood in the same shoes as a secondary market purchaser who did not know to whom or what it was paying its money,” she wrote at the time.
At the time, the SEC sought to file an interlocutory appeal on the decision but was later denied.
And now we’re here. It’s not a huge surprise that the SEC would appeal, after all they didn’t necessarily win on the final judgment either. Though, one could also argue that Ripple didn’t either.
Basically, the SEC sought an eye-watering sum of $2 billion in the final judgment. Ripple, on the other hand, wanted a far lower sum of $10 million. In the end, Torres announced that Ripple would pay $125 million. When looking at the wide range, it falls closer to Ripple’s ask than the SEC’s request.
Following the decision, I was told by lawyers that it wouldn’t be surprising if the SEC sought an appeal.
Ripple’s chief legal officer Stuard Alderoty agreed with that assessment, calling the appeal filing “disappointing.”
“The Court already rejected the SEC’s suggestion that Ripple acted recklessly, and there were no allegations of fraud and, of course, there were no victims or losses,” he added.
(1) The SEC's decision to appeal is disappointing, but not surprising. This just prolongs what's already a complete embarrassment for the agency. The Court already rejected the SEC’s suggestion that Ripple acted recklessly, and there were no allegations of fraud and, of course,… https://t.co/PQozMMtthf
— Stuart Alderoty (@s_alderoty) October 2, 2024CEO Brad Garlinghouse reiterated that Ripple will continue to fight and didn’t mince words about the appeal.
“If Gensler and the SEC were rational, they would have moved on from this case long ago. It certainly hasn’t protected investors and instead has damaged the credibility and reputation of the SEC,” he said. “Somehow, they still haven’t gotten the message: they lost on everything that matters. Ripple, the crypto industry, and the rule of law have already prevailed.”
Now we’ll just have to see if the Court of Appeals agrees with him.
— Katherine Ross
Data CenterQ: The SEC’s head of enforcement Gurbir Grewal announced he is leaving the agency this month. What does the departure signal?
I’ll go out on a limb and call it — potentially — quite significant.
I’ve never bought the theory that the SEC is so monolithically opposed to crypto or that all decisions flow down from crypto’s favorite bugbear, Gary Gensler.
Rather, I’ve held the view that agencies like the SEC are composed of people with different ideas, different incentives and, yes, different views on crypto.
Yesterday’s statement made particular hay about Grewal’s crypto bonafides, including the “more than 100 enforcement actions addressing widespread noncompliance in the quickly growing crypto space” he oversaw.
Grewal’s deputy, Sanjay Wadhwa, will take over on an acting basis. But whoever is slotted into the spot more permanently could take a decidedly different tack, especially amid a shifting political climate. Gensler’s bitcoin ETF step-down earlier this year was an acknowledgment, good or bad, that the agency isn’t immune from outside forces.
So let’s wait and see, as we often do here in crypto.
— Michael McSweeney
The fish rots from the head, right?
If we’re assuming that the SEC is taking an opposition to crypto because Gensler’s leading the charge, then the resignation of one of his top dogs is not going to rock the ship too much.
Gurbir Grewal has certainly left his mark on the SEC, but that’s not to say that his replacement won’t go after the same types of cases.
I hesitate to read too much into his decision to resign. We don’t know the facts, for one, and while he played an important role in the agency I believe that his position is one that’s fairly replaceable. Sorry, Grewal, but it’s true.
For all we know, he’s seen so many crypto cases that he’s gone and started his own project (this is a joke) or perhaps he’s gone the way of some former SEC officials and joined companies with crypto exposure (see Robinhood’s Dan Gallagher or a16z advisor Bill Hinman).
Bottom line is this: If Gensler’s the one paving the way forward for an anti-crypto SEC, Grewal’s departure won’t change a thing.
— Katherine Ross
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