It isn’t over till it’s over. That may be a good adage for crypto fanatics to remember as they tune in to the legal battle between Ripple and the U.S. Securities and Exchange Commission.
Ripple’s cryptocurrency XRP has more than doubled over the past nine days, driven by favorable rulings for the company on discovery issues in a dispute over whether initial coin offerings qualified as “securities offerings.” Since then, crypto bulls have been out in full force on social media, boldly asserting that Ripple not only would win the case overall, but that its value would also soar to $10, $20 or more from its current price of about $1.40.
“We are beginning to see a huge trend shift: many huge influencers and traders are starting to openly endorse #XRP,” a user with the handle CryptoBull2020 tweeted Monday. “There will be many as more as Ripple gets closer to win against the SEC or settle and as price continues toward $10.”
The user later tweeted: “Hit LIKE if you’re looking forward to $10 #XRP. RETWEET if you expect $20 and more,” adding a rocket ship emoji. The tweet had 1,000 retweets and 2,900 likes.
Another user tweeted: “SEC Clarity Coming Soon. When It Does, #XRP Price Will Implode. You Better Be Fucking Ready.”
Galaxy CEO and crypto billionaire Mike Novogratz even weighed in on XRP’s trajectory Friday, tweeting that the price run-up could indicate a “settlement coming,” although he did not appear to suggest he was aware of one. The increase in Ripple's Twitter following in connection with the timing of the litigation suggests many other people on the site are watching the matter closely, based on data from Thinknum.
It’s probably fair to say many of these crypto boosters have not watched a regulatory battle like this play out before in the courts, or gotten to know the deeply-entrenched politics of our federal bureaucratic machinery. If they had some experience with either, they might sense that we are perhaps still a long way off from the finish line, and the outcome is far from certain.
While the SEC definitely suffered a blow from the recent rulings, it still has some pretty powerful factors on its side as the case proceeds further in litigation. Among them:
Home field advantage:
Although the SEC’s headquarters are in Washington D.C., many of its big legal battles are fought in New York, including the case it filed against Ripple. Judges there are often more familiar with the in’s and out’s of the securities industry, and its various intricate regulations, than they are with Big Tech and its “move fast and break things” ethos. The reverse is more likely to be true in the Northern District of California, Ripple’s home turf. If a ruling on whether XRP qualifies as a “security” ultimately comes down to philosophical interpretations, the company could face an uphill climb.
There is another problem for Ripple with the case being filed in New York. This is the same court where messenger app Kik lost a similar dispute over its cryptocurrency Kin. In September, U.S. District Judge Alvin Hellerstein ruled that Kik violated securities laws when it raised $100 million through an initial coin offering in 2017. Kik agreed to pay a $5 million fine to settle the case. It is unlikely that U.S. District Judge Analisa Torres, who is hearing the Ripple case, will ignore the findings of her colleague.
The SEC’s track record in court isn’t perfect, but it still wins a lot more cases than it loses. An analysis by the Wall Street Journal found that the agency was successful in 69 percent of cases filed in federal court from October 2010 through March 2015. The agency also has a separate adjudication process handled through administrative law judges, where it wins 90 percent of cases.
This isn’t to say all hope is lost. Ripple has a lot going for it here, too. The company has a swell of public support on its side, so much that a federal magistrate judge posted a notice in the court docket asking people to stop flooding her conference call line. Ripple has also hired two of the best legal guns it could possibly find — in least in terms of plausibly arguing that that the case is a regulatory misstep. The team includes former SEC chair Mary Jo White and former enforcement director Andrew Ceresney.
And the rulings so far, denying the SEC access to personal financial records of Ripple CEO Brad Garlinghouse and founder Christian Larsen, and permitting the company access to agency documents showing internal interpretations of XRP, could make the going harder for the regulator. Ripple could win at the end up the day, it just isn’t the safest bet.
About the Data:
Thinknum tracks companies using the information they post online, jobs, social and web traffic, product sales, and app ratings, and creates data sets that measure factors like hiring, revenue, and foot traffic. Data sets may not be fully comprehensive (they only account for what is available on the web), but they can be used to gauge performance factors like staffing and sales.