Aug 10, 2023

Michael Selig, counsel at law firm Willkie Farr & Gallagher LLP, dives into the intricacies of the SEC planning to file an "interlocutory appeal" of a judge's ruling on Ripple's programmatic sales of XRP, according to a court filing on Wednesday.

Video transcript

So a lot of us have been really focused on this common enterprise prong uh for these uh programmatic sales, even if uh there is a reasonable expectation of profits based on the efforts of others, there's no common relationship between ripple and the purchasers. And so it's gonna be really tough i in my view to get past that. And, and so I, I do think XRP ultimately is still uh deemed in these types of transactions to be a nonsecurity. Uh but it very well may go back and forth and, and go up to the Supreme Court. Um I think on the actual distributions to employees, the SEC itself and, and guidance is kind, I've taken the view when there's no bargain for consideration. Uh so that the persons that on the, the employee side are not uh contributing to an employee benefit plan, for example, and receiving tokens or, or securities that that's typically not deemed to be um you know, a contribution of tangible and definable consideration. So I think it's gonna be hard as well for the SEC to back track on prior uh positions that it's taken. And also it's, it's not necessarily uh really clear in any case law. So I, I do think that issue actually could go in favor of ripple, um right away. Um But the other, the, the programmatic sales, uh you know, it's a, it's a trickier issue just in that, I think other prongs of how you really should be analyzed in that case.

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