Ever since the US Securities and Exchange Commission accused Ripple of issuing unregistered securities a few weeks ago, the company has been fighting for damage control. Far more than just reputation is at stake.
60 percent discount in a little more than two weeks: This is the preliminary XRP balance sheet of a likely long-running dispute between Ripple and the Securities and Exchange Commission (SEC). Since the US Securities and Exchange Commission sued Ripple on December 21 for issuing unregistered securities, the bad news for the Californian FinTech – and ultimately for investors too.
The first trick
Almost two weeks ago, the Ripple boardroom received a letter from the SEC informing the company of an impending proceeding. After years of uncertainty, the SEC was finally able to make the decision to classify the ripple currency XRP as a security, i.e. a security token, and not a utility token. The decision coins on the Howey testwho draws a line between currency and security based on various criteria.
Which criterion ultimately made the difference is not entirely clear. According to the SEC, a key condition is “when money is invested in a joint venture with the reasonable expectation of profits from the efforts of others”. This is the case, for example, “if a token gives the holder the right to participate in the company’s earnings or profits or to realize profits from increasing the value of the digital asset”. The not exactly selective integration of XRP and Ripple market capitalization should have strengthened the SEC in its view.
Savory entanglements in the Ripple family
In addition, considerable amounts of XRP are in the private hands of Ripple CEO Brad Garlinghouse and co-founder Chris Larsen. Thus, there is also another SEC criterion: “The issuer owns or controls the ownership of intellectual property rights of the network or digital asset – directly or indirectly”. The fact that Ripple also regularly activates XRP contingents and transfers parts of them back to escrow accounts feeds the suspicion that “the publisher [creates] a market for his asset and [determines] the number of tokens created”.
Thus, in the opinion of the authority, XRP could ultimately be a security. In this case, Ripple did not provide potential investors with sufficient information (keyword: securities prospectus) to violate the applicable US federal securities laws – and, in the opinion of the SEC, was ultimately guilty of issuing unregistered securities.