Saturday, September 30, 2023

Recent developments in the U.S. Securities and Exchange Commission (SEC) v. Ripple case concerning XRP have sparked discussions about the possibility of the securities regulator appealing the decision made by District Judge Analisa Torres. Providing insights into this potential scenario, renowned lawyer John E. Deaton, known for his involvement in the XRP community, shared his analysis of the situation.

In a tweet on Saturday, Deaton reassured the XRP community that an appeal would not necessarily be a setback for the cryptocurrency. He explained that if an appeal is pursued, it would take approximately two years before a final decision is issued by the 2nd Circuit, making the Torres Decision the prevailing law until then.

Deaton highlighted that even if the 2nd Circuit finds fault with Judge Torres’ application of the 3rd Howey factor (which he predicts won’t happen), it does not guarantee a victory for the SEC in regards to programmatic sales (sales on exchanges). He emphasized that in such a scenario, Judge Torres would still assess the other two factors, and it is possible she could arrive at the same conclusion, ultimately determining that the SEC did not meet the common enterprise factor—a more challenging factor to establish, according to Deaton.

Clarifying his point further, the lawyer stated that while Judge Torres’ decision is not binding within the SDNY (Southern District of New York), it would be challenging for a fellow judge in the 2nd Circuit to disagree with her, especially considering her citation of Judge Castel’s ruling in the Telegram case.

Deaton also addressed the issue of an immediate right to an appeal, explaining that either party can request Judge Torres’ permission for an appeal and subsequently ask the 2nd Circuit to accept it. However, he expressed skepticism about Judge Torres approving such a request, as she meticulously applied the Howey test to each type of XRP sale alleged by the SEC, adhering strictly to the well-settled 76-year-old Supreme Court test.

The SEC has expressed its consideration of filing an appeal in response to the Ripple ruling. SEC Chairman Gary Gensler expressed disappointment in the ruling concerning retail investors and recently sought additional funding from Congress to tackle risks in the crypto market.

Overall, John E. Deaton’s analysis provides valuable insights into the potential ramifications of an SEC appeal and sheds light on the complex legal landscape surrounding the Ripple-XRP case.

Frequently Asked Questions (FAQs) about SEC appeal

Q: What insights did the lawyer provide regarding the potential SEC appeal of the Ripple-XRP ruling?

A: The lawyer, John E. Deaton, shared his analysis, stating that if the SEC decides to appeal, it could take about two years before a decision is issued by the 2nd Circuit. He emphasized that the ruling by Judge Analisa Torres stands until then.

Q: How does the lawyer view an appeal in relation to XRP’s future?

A: The lawyer believes that an appeal would not necessarily be a setback for XRP. Even if the 2nd Circuit finds issues with one aspect of Judge Torres’ ruling, it doesn’t guarantee a win for the SEC in regards to programmatic sales. The case’s outcome could still be in favor of XRP, considering the other factors involved.

Q: Is Judge Torres’ decision binding within the Southern District of New York (SDNY)?

A: The lawyer clarified that Judge Torres’ decision is not binding within the SDNY. However, he expressed his belief that it would be challenging for a fellow judge in the 2nd Circuit to disagree with her, especially given her citation of Judge Castel’s ruling from the Telegram case.

Q: What are the implications of the lawyer’s view on the appeal process?

A: The lawyer’s perspective indicates that the legal process may take time to reach a definitive conclusion. If the SEC does appeal, XRP’s regulatory status and its future trajectory could remain uncertain for the duration of the appeal process, which is estimated to take around two years.

Q: How does the SEC Chairman, Gary Gensler, respond to the Ripple ruling?

A: Gary Gensler expressed disappointment in the ruling, particularly concerning its impact on retail investors. He highlighted the need for additional funding from Congress to address risks in the crypto market and the agency’s efforts to regulate a rapidly evolving industry.

More about SEC appeal

  • Lawyer’s Twitter Analysis: John E. Deaton’s Twitter
  • SEC’s Response to Ripple Ruling: SEC Chairman Gary Gensler’s Statement
  • Howey Test Explanation: Investopedia – Howey Test
  • Judge Analisa Torres’ Ruling: [Court Document – SEC v. Ripple](Link to the court document if available) Note: Court documents are typically not freely available online; you may refer to news sources reporting on the case for details.
  • Telegram Case Reference: [Previous Ruling – Telegram Case](Link to the previous ruling if available) Note: Similar to the above note, court documents are generally not freely available; news sources can be referenced for details on the Telegram case.


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