Gensler's SEC crypto clampdown hits legal speed bump

In a surprising development, a ruling by U.S. District Court Judge Analisa Torres may significantly impact the regulatory landscape for cryptocurrencies. In a lawsuit filed by the Securities and Exchange Commission against Ripple Labs, Judge Torres concluded that a substantial portion of Ripple's digital tokens, known as XRP, were not subject to securities registration requirements.

The SEC brought a case against Ripple Labs in December 2020, contending that the firm had sold $1.38 billion worth of its XRP tokens without meeting mandatory securities registration criteria. However, Judge Torres dismissed part of the SEC's case, ruling that registration prerequisites did not pertain to approximately $757 million of XRP tokens sold on digital asset exchanges, as retail investors lacked a reasonable expectation of gaining profits from Ripple's business operations. However, she did deem tokens sold to institutional investors were securities as more sophisticated buyers were likely to understand that the tokens had ‘securities like’ features.

The case hinges on a hotly contested provision in U.S. securities law that prohibits the sale of "investment contracts" without registration as securities with federal authorities. This provision, introduced after the stock promotion scams during the Great Depression, has recently been used by SEC Chair Gary Gensler in his bid to regulate what he considers to be an unruly cryptocurrency industry.

Gensler's clampdown extended last month when lawsuits were filed against leading cryptocurrency exchanges Binance and Coinbase, alleging noncompliance with registration requirements. The future success of these lawsuits largely depends on the SEC's ability to convince the judiciary that modern fintech complies with the "investment contract" definition under a 1933 law known as the Howey Test.

The decision by Judge Torres gives mixed signals. While she upheld that sophisticated institutional investors, who bought $729 million worth of the XRP token, could anticipate potential profits from Ripple's entrepreneurial activities, she also found that less sophisticated retail investors were either uninformed or unable to comprehend Ripple's pitch. Thus, she ruled the tokens bought by retail investors did not constitute investment contracts and did not require registration.

Harvard-educated Ripple CEO Brian Garlinghouse applauded the ruling on social media, declaring that Ripple was "on the right side of the law, and will be on the right side of history."

Nonetheless, Torres ruled that a jury must determine if Garlinghouse and his predecessor, Christian Larsen, knowingly or recklessly ignored the illegality of selling unregistered securities to institutional investors.

While district court decisions are not typically binding, this ruling in the Ripple case provides an early preview of the challenges the SEC may encounter as it continues its crackdown on cryptocurrencies.

Coinbase's chief legal officer Paul Grewal stated last month that "the SEC's entire case is predicated on an understanding of what is [an] investment contract." He further added that such an understanding "plainly does not cover the types of tokens that we list or the products and services that we offer."

Following the decision, in what may be premature optimism, all cryptocurrencies jumped in value almost 6% to $1.3 trillion, while XRP surged 76% to 82 cents.