Thanks James. It must be discouraging for LBC holders that #LBRY is in a weakened financial position because of the costs of years of investigation and litigation and a legally weakened because of what I regard as a poorly reasoned judgment, and on top of that /1
taking the motion at face value, LBRY makes a settlement proposal consistent with a framework laid out by the Judge at the recent Status Conference, which the SEC does not accept and is obviously playing hard ball. How does this help retail investors in LBC /2
This is in the context of no evidence in the case that any LBC holder supports the SEC or has any grievance against LBRY or is unhappy with the project (the evidence was to the contrary) /3
and key findings were made against LBRY, based on very thin evidence, that 99.99% of LBC holders would not have known about, but for the case, and which would not have influenced their decision to purchase. As @HesterPeirce asked after the Telegram case, who was protected?/4
To its eternal credit @LBRYcom fought as hard as it could against a government agency that is not properly protecting investors in crypto and harming investors outside its jurisdiction /5
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You know I’m obsessively going to the common enterprise prong to see what the parties say. Firstly for Ripple, the first point it makes, apparent already from reading the SEC’s Amended Complaint, is the SEC refuses to say what the common enterprise is. What are its boundaries/1
It relies on broad vertical commonality rejected in the second circuit. Secondly, it cannot prove pooling required under the Revak decision /2
The SEC equates the ‘enterprise’ with Ripple’s efforts which conflates two prongs of Howey: enterprise = efforts.
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
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