These comments by Judge Glenn in the Celsius matter should be brought to Judge Torres’ attention. The Judge is right to point out that cryptocurrency cases in the US may raise issues for which there is no controlling authority and the excellent paper of the UK Law Commission/1
may be persuasive in dealing with such issues. This is a passage from the same Law Commission paper the judge referred to which amply shows why cryptos such as #Ethereum#XRP and #Bitcoin are not securities /2
Bitcoin and Ethereum are referred to but the point holds equally well for XRP. DLT facilitates by electronic means the exchange of data between different participants in the same network but the data represented by the crypto asset does not provide rights to anything outside /3
the network. For XRP although Ripple in its business participates in the network and owns the most tokens it offers or obtains no rights or obligations from other XRP holders outside the network such as a share in profits. There is no right or obligation as an XRP holder /4
that i can legally enforce against Ripple. The extract from the Law Commission paper then refers to examples of security tokens which are something very different from Ethereum or XRP. /5
This is why the number of XRP Ripple owns is irrelevant. It doesn’t change the above analysis. The Law Commissioners who prepared this paper understand crypto assets far better than the SEC attorneys. /7
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I have now had a chance to properly consider the SEC's reply to Ripple arguments on the need for certain 'essential ingredients', including a contract, for there to be an 'investment contract. The SEC goes to some lengths to mischaraterize Ripple's attempt to construe /1
a non-defined statutory term 'investment contract' by reference to pre-1933 blue sky law cases, as its Ripple's own 'manufactured test'. There is a lot of rhetoric using words such as 'extremist argument', 'radical proposition', 'far-fetched theories', 'reactionary argument'./2
I find this language to be under-graduate and unnecessary and a sign of weakness in legal argumentation but perhaps it is acceptable in the US in making written legal arguments. There are only two points the SEC makes that I think are strong. /3
Here are some preliminary points. I will start by making the point that the legislature (Congress) makes laws and courts interpret and apply laws. The starting point is the 1933 Securities Act. The Act creates the concept of an investment contract not the Howey case. /1
Congress understood the terminvestment contract in a contemporary context of securities law in 1933, over a decade before the Court in the Howey case interpreted and applied the term to a specific factual context (in which there were written contracts with the investors) /2
Ripple states that the term Investment Contract drew its meaning in the 1933 Act from the pre-1933 Blue Sky laws which all had several characteristics: 1. a Contract, 2. which imposed post-sale obligations on the promotor and 3. gave the investor a right to receive profits /3
Thanks James. Early for once. The imprecise use of language in respect of common enterprise is just what the SEC should not be allowed to do. The enterprise is not defined and then used interchangeably with ecosystem as if ODL and the XRPL are identical. The SEC conflates /1
How gratifying is it to see having courtesy of @FilanLaw had the opportunity to now read the Ripple motion for summary judgment that Ripple has spent about 11 pages out of 75 pages demolishing the SEC’s arguments that there is a common enterprise. /3
I have seen a lot of comments about the Chamber’s Amicus brief not helping Ripple but being good for XRP holders. To a point this may be correct. The Chamber wants the court to differentiate between the transaction involving a digital asset which may be an investment contract /1
and an asset itself which the Chamber wants the court to see at least from some point in its life as a commodity. The Chamber wants the court to realise that whether a transaction involving a digital asset is a security & whether the asset itself is a security are seperate /2
inquiries. The exchanges would be happy if the Court drew a line at offers by an issuer or promoter and not find digital assets themselves to be securities in most instances. The exchanges would be happy with the Chamber’s arguments. /3
Ok. It is consistent but broader. Attorney Tenteiro focused on efforts to improve utility or increase adoption of XRP which can fall within terms in the Framework document such as development, improvement or enhancement. But here is where I have a problem with the Framework, /1
the Hinman speech and the SEC’s Amended Complaint against Ripple. There is very loose use of terms such as network (in the extract you provided), system, project etc. it leads to inconsistency and unclear thinking and argumentation/2
What is the network: is it the XRPL which can exist if Ripple ceases to exist, is it the validators, is it the ODL rails, the liquidity hub, the sidechains, private CBDC ledgers. This is why the SEC struggles to identify the common enterprise and just says it is everything/3
For the entire Ripple case I've wondered how the SEC distinguishes XRP from Ethereum if it truly believes that XRP is a security but Ethereum isn't. Reviewing the transcript of the hearing way back on 19 March 2021 I found a comment made by attorney Tenreiro that gives a clue./1
and it relates to the reasonable efforts of others prong of Howey. In the attached extract from the transcript there is a reference by Tenreiro to "Howey efforts". In the content of preceding passages from the transcript, this refers to efforts by Ripple, Brad and Chris /2
to create utility for and adoption of XRP. These it seems are for the SEC, Howey efforts which cause XRP holders to have an expectation of profits (even if they know nothing about Ripple and the efforts). The link b/w the efforts and the expectation is where Mr Doody comes in /3