The discourse surrounding the securities laws and the treatment of digital assets continues to draw debate among market participants, regulators, and legal practitioners. One of the most high-profile targets in this ongoing debate is XRP, a digital asset issued by Ripple Labs Inc. Despite voluminous public examination, regulators have not reached a consensus on the appropriate treatment for this widely traded digital asset.
Amid vociferous debate and clamoring from market participants for clear, concise and practical guidance from the United States Securities and Exchange Commission (SEC), the commission’s approach to the digital asset space to date has been notably sparse and cautious. However, we are currently enjoying a flurry of recent guidance. In April of this year, the SEC published the “Framework for Investment Contract Analysis of Digital Assets,” drawing heavily on a June 14, 2018, speech by William Hinman (the director of the corporate finance division of the SEC) on digital asset transactions. This suggests some hope that the SEC’s reluctance to embrace and promulgate digital asset guidance may be waning. This historical reluctance is made all the more apparent when compared with the vigor with which the Commodity Futures Trading Commission (CTFC) and the Financial Crimes Enforcement Network (FinCEN) have waded into the digital asset discussion, publishing numerous guides, interpretive letters, and proposed rules. Nevertheless, a pending class-action lawsuit against Ripple has the potential to offer a glimmer of regulatory clarity concerning the fundamental question that continues to disorder the digital asset ecosystem: When is digital asset security?
The Ripple lawsuit is slowly winding its way through the federal court system. Owing largely to procedural jostling, the plaintiffs in the case submitted an amended complaint on Aug. 5, to which Ripple responded on Sept. 19 with a motion to dismiss.
Among other things, the plaintiffs allege that Ripple has raised hundreds of millions of dollars through the sale of XRP — an asset that the plaintiffs allege is unregistered security — to retail investors in violation of the registration provisions of federal and state securities laws. In addition to claiming that XRP constitutes a security under California law, the plaintiffs in the Ripple case argue that XRP is a security under the SEC’s long-standing “investment contract” analysis promulgated under 1946 case of the SEC v. W.J. Howey Co., 328 U.S. 293 — i.e., the Howey test). Whether any asset (including a digital asset) constitutes an investment contract — and thus a security under the Howey test — is determined by the satisfaction of the following four elements: 1) an investment of money, 2) in a common enterprise, 3) with a reasonable expectation of profits, 4) to be derived from the efforts of others. The plaintiffs, in asserting their case, borrow heavily from the aforementioned SEC framework, quoting from it extensively.
The SEC framework, mentioned above, suggests, perhaps rather evidently, that “the first prong of the Howey test is typically satisfied in an offer and sale of a digital asset because the digital asset is purchased or otherwise acquired in an exchange for value.” The plaintiffs echo this sentiment and claim that XRP clearly satisfies the first prong of the Howey test. With respect to the second prong of the Howey test, the plaintiffs argue that purchasers of XRP have clearly invested in a “common enterprise,” acknowledging Ripple’s own concession that it “sells XRP to fund its operations and promote the network.”
Ripple Exec Warns About The Future Of Blockchain In The USA
In a recent interview with Wall Street Journal reporter Paul Vigna, Ripple’s co-founder and executive chairman Chris Larsen said that the United States has been “slow to the game” in terms of experimenting, implementing and regulating the blockchain and cryptocurrency industry. Larsen said that the U.S. must change its viewpoint toward blockchain and cryptocurrency, as the industry is already past the 2017 and 2018 hype.
The war against initial coin offering scams is won, he said, and now regulators must address the industry so that they can compete with China’s blockchain and cryptocurrency progress. According to Larsen, U.S. regulators have so far only helped China get ahead by “officially giving clarity to the two protocols effectively controlled by Chinese miners: Bitcoin and Ethereum.” If regulators fail to provide more clarity on blockchain, cryptocurrencies, and the supporting technologies that will power the next-generation global financial system, the U.S. could face a potential catastrophe, Larsen warned.
China is quite visibly ahead of the U.S. when it comes to adopting and investing in blockchain and digital currency. As the two countries head into a technology cold war, China having control over the global financial system can prove devastating for the financial power held by the U.S. today, said Larsen. He further warned that in such a case, China may curb America’s power to make defense payments to its allies or block American banks and companies with a low “Chinese social credit score” and control the settlement time for their payments. Even if there was a small chance that China could do that, the U.S. must keep a check on it and ensure that they are involved in this sphere to provide strong competition to the country, Larsen concluded.
New Tipbot Uses Cryptocurrency As An Incentive For People To Answer Questions
A new kind of cryptocurrency tipbot allows users to pay others to answer their questions on social media, providing a new tool to pool data in the ecosystem. Liser Lee of CCTip said that the system can help drive engagement or generate expert commentary. It lets users create a Twitter poll and automatically pay anyone who shares it with cryptocurrency, helping a poll gain more exposure and answers.
The company is also considering a system that pays the poll respondents instead. Other than Twitter, CCTip will also work on Telegram, Discord, WeChat, and on Reddit as well. It supports 200 different crypto assets, including Bitcoin (BTC), Bitcoin Cash (BCH), Ether (ETH), Tron (TRX), and many Ethereum-based tokens. Tron founder Justin Sun publicly thanked the firm when it added support for TRX in early April. Lee explained said that using a cryptocurrency-powered system is more effective when interacting with crypto enthusiasts compared to traditional systems. She pointed out that crypto community members may be simply happy to see their favorite crypto asset being used in the real world:
“If you pay BCH to a BCH enthusiast, he’s happy to see that BCH being used.”
Furthermore, the firm also launched the CCTip Ask feature last week, enabling users to ask any Twitter user a question. Lee showcased the system on May 18 by asking Bitcoin ABC lead developer Amaury Sechet if he believes Bitcoin Cash’s value can exceed the value of Bitcoin. Sechet was paid 0.5 BCH (about $114 as of press time) to answer the question he was asked on Twitter through the system. Lee commented:
“[CCTip Ask is] an effective way to get your question answered by a celebrity. If you raise a good question, answering the question is a good way to show your opinions. And it will attract more users’ attention.”
Cryptocurrencies enable anyone to instantly send payment to anyone else without having to share sensitive information with each other. This feature makes crypto assets the perfect fit for social media tipping, as many users on those platforms prefer to remain pseudonymous or otherwise protect their privacy. Because of this synergy, there’s lots of development in the crypto tipping space.
It was recently reported, that blockchain firm Aeternity recently launched its own social media monetization tool, which supports tipping in the form of Aeternity’s native coin, AE. The ever-changing landscape of cryptocurrency regulation still often threatens companies operating in the space, including tipbot services. In mid-May, XRP TipBot, a service enabling users to transfer XRP to each other via comments on Twitter, Reddit, and Discord, managed to save itself from having to shut its operations due to new regulations by partnering with digital payment platform Uphold.
Ripple Settlements Soon To Come To Japanese ATMs
Ripple partner and investor, SBI Holdings, announced plans to integrate Ripple-powered settlements across ATMs in Japan. The news was revealed in SBI’s latest financial report, announcing a plan to integrate the Ripple-powered settlements platform MoneyTap with ATMs run by various banks across Japan. The integration is intended to provide consumers with easier access to funds at ATMs regardless of their banking affiliation.
SBI claims that integrating MoneyTap will also allow banks to reduce the costs incurred through operating an ATMs, stating:
“Currently, each bank has an ATM with its own bank app, but with a common web app, the same ATM may be used as its own jointly operated multi-bank ATM.”
MoneyTap launched in October 2019 on iOS and Android, facilitating instant money transfers via QR Code or phone number. During September 2019, SBI chief executive and Ripple board member Yoshitaka Kitao stated that the firm was planning to utilize XRP for remittance in the future.
In other news regarding Ripple adoption, self-described digital asset bank Sygnum has launched support for XRP trading, custody, and credit services. Sygnum co-founder, Mathias Imbach, stated that he has been impressed by Ripple’s global traction — emphasizing that more than 300 financial institutions have joined the RippleNet payments network. “The company’s XRP-based solutions address the pain points of the fast-growing USD 700 billion global remittance market,” added Imbach. Despite Ripple gaining payment market share, XRP has ranked among the weakest performing crypto assets year-to-date among the top ten by capitalization.
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