The U.S. Securities and Exchange Commission has submitted a filing urging the court to grant its motion to appeal a ruling from the Ripple Labs lawsuit that deemed that XRP was not a security when sold to retail investors.
The agency argued that there are “knotty legal problems” surrounding the court’s application of the law — specifically the Howey Test — that warrant a review.
— James K. Filan (@FilanLaw) September 8, 2023
As per a Sept. 8 filing, the SEC called for the U.S. District Court for the Southern District of New York to grant its motion for interlocutory appeal, and “stay further proceedings until the resolution of that appeal.”
“The SEC respectfully requests certification for appellate review now because the issues raised by the Court’s order on summary judgment (D.E. 874) (‘Order’) present precisely the kinds of ‘knotty legal problems’ that led Congress to provide for interlocutory review.”
Judge Analisa Torres ruled in July that XRP is generally not a security under SEC guidelines, particularly when distributed via programmatic sales (e.g. sold to retail via exchanges).
In the latest filing, the SEC argued that the rulings on programmatic sales and other distributions present “legal questions” that are significant enough for the agency’s interlocutory appeal to be approved by the court.
The SEC suggested that this is down to there being a legal gray area as to whether certain crypto assets fall under the classification of investment contracts via the Howey Test or not, as it highlighted court proceedings from other cases.
“At least two opinions within this District reach contradictory legal conclusions on these issues and many other courts are considering whether similar offers and sales […] satisfy Howey,” the SEC stated, adding that:
“While interlocutory appeal should be the exception, not the rule, this is the unusual case where the Defendants themselves say that the issues have industry-wide significance and are of special consequence, and thus is precisely the type of case as to which the Second Circuit has invited interlocutory appeal.”
These sentiments however, seemingly contradict previous statements from the agency and its chairman Gary Gensler.
On multiple occasions, Gensler has staunchly shot down the need for…