Whether or not Ripple violated securities law in making XRP available to retail investors by putting it on crypto exchanges is absolutely a question that needs appeals court intervention, the U.S. Securities and Exchange Commission (SEC) argued Friday.
The SEC filed a response to a Ripple memo which argued the opposite as part of its ongoing case against the crypto company closely affiliated with the XRP cryptocurrency. While Ripple argued last week that the SEC hadn’t made a sufficient argument to warrant an appeal, Friday’s filing pushed back forcefully.
“The Defendants themselves say that the issues have industry-wide significance and are of special consequence,” the filing said.
The SEC signaled its intent to appeal Judge Analisa Torres’ ruling in the U.S. District Court for the Southern District of New York last month, asking the judge for permission soon after. The judge allowed the SEC to make its case, giving Ripple a September 1 deadline to present its opposition. Friday’s filing is a response to Ripple’s opposition memo.
Judge Torres ruled in July that Ripple violated federal securities law in how it sold XRP to institutional investors, but that it had not done so with retail investors. Another judge in the same court, Judge Jed Rakoff, disagreed with the judgment when he ruled on a different case, also brought by the SEC. The regulator pointed to this in its first memo and Friday’s filing as part of its bid to convince Torres to allow the so-called interlocutory appeal, allowing an appellate court to take up some legal questions while the case is still progressing in the original court.
“‘[Judge Rakoff] did reject this Court’s legal conclusion that the existence of ‘blind’ trading platform-based transactions precludes the application of Howey, as a matter of law, under virtually identical facts (sales of the crypto asset by the issuer to investors on a platform in blind bid/ask transactions),” the filing said.
Should Judge Torres grant the SEC’s motion, it will need to present its case before the Second Circuit Court of Appeals.
Getting the legal disputes settled by the appellate court now could speed up the resolution of the case in the long term, the SEC contended.