The U.S. Securities and Exchange Commission’s request to appeal a federal judge’s ruling on whether it has jurisdiction over sales of the cryptocurrency Ripple could be a boon for crypto skeptics in Washington who prefer to see digital assets regulated under existing securities laws.
U.S. District Judge Analisa Torres ruled last month that sales of Ripple Labs’ cryptocurrency XRP
XRPUSD,
on digital-asset exchanges were not securities transactions and therefore the SEC doesn’t have the authority to regulate them.
Though she ruled that some sales of XRP to institutional investors did count as illegal securities offerings, the ruling dealt a serious blow to SEC Chair Gary Gensler’s arguments that existing laws largely give his agency enough authority to regulate the crypto markets.
The SEC’s move to request an interlocutory appeal follows on a separate decision by Torres’ colleague Judge Jed Rakoff of the Southern District of New York that explicitly rejected Torres’ logic in a decision in the SEC’s fraud case against stablecoin issuer Terraform Labs.
The Rakoff decision was a boon to the SEC and will help the agency as it seeks Torres’ permission for a panel of judges to review her ruling on secondary market sales of XRP, according to Ari Gabinet, a former SEC lawyer and lecturer at Brown University.
“I think it’s likely the appeal will be granted,” he told MarketWatch. “You have two conflicting opinions…what the SEC is saying is until this question is resolved, let’s not go to trial.”
Todd Baker, a lecturer in law at Columbia and financial services consultant wrote last week that “Rakoff is without doubt the most respected judge in the country when it comes to complex securities matters,” and his siding with the SEC on the Ripple question will likely carry weight with lawmakers in DC who are already reluctant to support a House-led Republican effort to pass a new crypto market structure bill that would make the Commodity Futures Trading Commission the primary regulator of crypto at the expense of the SEC.
Meanwhile, opposition to crypto by powerful Democrats in Congress appears as strong as ever. Rep. Maxine Waters of California, the ranking Democrat on the House Financial Services Committee said at a recent hearing that “we don’t need to invent new regulatory structures simply because crypto companies refuse to follow rules of the road.”
Though the Republicans’ market structure bill passed the financial services panel over Waters objections, another staunch Democratic crypto skeptic, Sen. Sherrod Brown of Ohio, shows no signs that he’d be willing to take up the legislation were it to pass the full House.
Meanwhile, it could take months before a decision to grant an appeal is made and many more before the appellate court makes a decision, according to Gabinet. The process could drag on well into next summer, just in time for an election season that typical puts controversial lawmaking on ice.
Read the full article here