Speaker 1: You want to have great facts because appellate courts, you
Speaker 1: know very much, will pick apart bad facts and use
Speaker 1: it to make bad law, or will not even give
Speaker 1: you the answer you on on a legal question. If
Speaker 1: there are bad facts, and so that's what the sec
Speaker 1: has here, you know, it's better to take an FTX
Speaker 1: or a do quon case like that up to up
Speaker 1: to an appeal, and that would just be a lot safer.
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Speaker 2: Link will be in a description. Welcome into the Thinking
Speaker 2: Crypto Podcast. I'm your host, Tony Edward, and with me
Speaker 2: is attorney Fred Rispoli, who's the founder of Hoddle Law.
Speaker 1: Fred.
Speaker 2: Great to see you.
Speaker 1: It is great to be back Tony.
Speaker 2: Fred. Of course, we got the big news yesterday of
Speaker 2: the SEC Ripple lawsuit ruling and the SEC getting one
Speaker 2: hundred and twenty five million dollars, and I want to
Speaker 2: get your take on it, you know, walk us through
Speaker 2: the ruling and the outcomes here.
Speaker 1: All right, Well, it's you know, I've had a day
Speaker 1: to sleep on it and think about it, and there's
Speaker 1: a lot more nuance in there that you know I
Speaker 1: was picking up on. And I really have to give
Speaker 1: Judge Torres credit for the way she attacked this, because
Speaker 1: not only did she do it well on the legal side,
Speaker 1: but she also did it well to give each side
Speaker 1: enough of what they want and also fearful enough of
Speaker 1: what could be lost to really question whether there's gonna
Speaker 1: be an appeal here on this one. And I'll get
Speaker 1: into that, you know, generally, as we go through. But
Speaker 1: you know, the bottom line is the order stands for
Speaker 1: the proposition that Ripple did not do anything with bad intent,
Speaker 1: or it'll repute, so to speak. So the penalty was
Speaker 1: on the lower side. It was a little bit higher
Speaker 1: than I thought it was going to be, but it
Speaker 1: was still low in comparison to the two billion dollars
Speaker 1: being sought, and so you know, that's huge. The second thing,
Speaker 1: and actually this is probably the most sortant thing, is
Speaker 1: that the order that the sec had wanted the judge
Speaker 1: to sign, the one they drafted and gave the judge,
Speaker 1: was rejected by the court, and the court went with
Speaker 1: a very generic order that essentially says, you are enjoined
Speaker 1: from violating section five of the securities laws going forward.
Speaker 1: And you know, guess what. You know, we haven't been
Speaker 1: you and me, we haven't been sued by the SEC yet,
Speaker 1: but we're also enjoined from violating section five of the
Speaker 1: Federal securities Law. So it is, you know, something that
Speaker 1: is as basic as it can be about you know,
Speaker 1: what they're prohibited from in this injunction. And it does
Speaker 1: leave a lot up for question as to what Ripple
Speaker 1: can and can't do going forward, But it doesn't explicitly,
Speaker 1: you know, by or it doesn't explicitly destroy their business model,
Speaker 1: which is what the SEC was going for in this,
Speaker 1: and in fact it when it stayed far away from that,
Speaker 1: and that was, you know, the best takeaway out of this.
Speaker 2: So FREDI, you know, let's say we go back to
Speaker 2: twenty twenty when this thing was filed. Obviously, they seemed
Speaker 2: to be some personal I don't know, vendettas or shots
Speaker 2: here because they went after Brad and Chris right and
Speaker 2: they made it seem like Ripple was doing this massive
Speaker 2: fraud scheme or something like that when it was far
Speaker 2: from that. So did the SEC kind of shoot itself
Speaker 2: in its foot by going adding all these things to
Speaker 2: this case versus saying, hey, your institutional sales are problems.
Speaker 1: Let's talk. Yeah, the SEC, which it normally does, decided,
Speaker 1: let's go big, big guns going into this suit, and
Speaker 1: we're going to throw in in the individuals and we're
Speaker 1: going to throw our full weight behind this and try
Speaker 1: and scare them into a settlement on our terms. Rebels survived,
Speaker 1: decided to fight. Most companies don't, and they survived the
Speaker 1: initial onslaught, and then after surviving that onslaught, you know,
Speaker 1: they just got better and better for them as the
Speaker 1: litigation went on, and you know, people forget the whole
Speaker 1: People don't forget the ethery and free pass, but some
Speaker 1: people maybe forget or don't know that when Bill Henman
Speaker 1: left the sec or and said even before he left
Speaker 1: and said I'm going to retire by this date, he
Speaker 1: continually went back and talked to people at the SEC
Speaker 1: and really shepherded the decision to sue Ripple, really pushed
Speaker 1: it through, trying to make sure everybody says, even though
Speaker 1: we're all leaving, you guys got to still be on
Speaker 1: board with this and file this suit and then left
Speaker 1: and hoping it was all going to go to plan.
Speaker 1: And I mean it did take a very long time,
Speaker 1: but four years later it did not go the way
Speaker 1: they were hoping.
Speaker 2: So XRP declared intrinsically not a security. Brad and Chris,
Speaker 2: you know that case has been dropped. The SEC gets
Speaker 2: one hundred and twenty five million dollars. Ripple seems to
Speaker 2: have walked away with the lion's share of the victory.
Speaker 1: Here. Would you agree with that? I would, and I
Speaker 1: would disagree with the people who are out there saying
Speaker 1: their business model is significantly damaged or their ODL model
Speaker 1: is significantly damaged. I just don't see that based on
Speaker 1: what the ruling was, what the pleadings were going into it.
Speaker 1: You know, we can get into that, of course, but
Speaker 1: and also you know how the company has responded in
Speaker 1: you know, since the since the order came out.
Speaker 2: So I guess the big question I have is can
Speaker 2: Ripple sell XRP to institutional investors, so let's say Black
Speaker 2: Rock or whatever right in the United States? I'm assuming no,
Speaker 2: But can they do it internationally? It seems like they can.
Speaker 1: Well, I would argue that they can do it in
Speaker 1: the US and outside of the US a lot easier,
Speaker 1: but even inside the US, and the issue with inside
Speaker 1: and what is specifically prohibited is really depends on what
Speaker 1: risk that Ripple wants to take. So you have to
Speaker 1: go back to the summary judgment ruling from a year
Speaker 1: ago when the judge said institutional sales are what is illegal,
Speaker 1: and the judge casually lumped in ODL in that category,
Speaker 1: and there was never really further discussion on that, and
Speaker 1: then we went into the specifics of what all those
Speaker 1: institutional sales were, so what they are definitely enjoined from
Speaker 1: going forward that there's no question is exactly what happened
Speaker 1: as set forth in those pleadings and described, you know,
Speaker 1: with all the evidence, the contracts, everything, that is what's enjoined.
Speaker 1: And so Ripple can make an argument saying, are sales
Speaker 1: to other companies of XRP here, even in the US
Speaker 1: are so far outside of what we got punished for.
Speaker 1: It's just not an investment contract. And the only thing
Speaker 1: that happens there is that the sec gets wind of
Speaker 1: it and they tell Ripple to stop, and Rypple says, no,
Speaker 1: these are not what we were prevented from doing. And
Speaker 1: there's a court order that says we are not specifically
Speaker 1: prevented from this. And I'm talking about the judgment, I guess,
Speaker 1: and the order itself. So the judgment is the two
Speaker 1: or three page document. The order is the fifteen page
Speaker 1: legal reasoning. You know. The judge there is where it
Speaker 1: gets a little you know, again, this is what this
Speaker 1: is what I do appreciate Judge Torres doing. Is where
Speaker 1: she gave enough to both sides, so she I'm gonna
Speaker 1: just look at it so I don't talk too crazy.
Speaker 1: But you know, Ripple said, hey, get ODL out of
Speaker 1: this order. And the judge said in her ruling yesterday. Well,
Speaker 1: you know that I had ODL in the institutional sales bucket.
Speaker 1: You're telling me it's different. Just because you tell me
Speaker 1: it's different, I'm not buying it. But in the very
Speaker 1: next sentence she says, I'm also not not buying it.
Speaker 1: So you know, she's saying, I'm not going to say
Speaker 1: that everything you're doing now is totally fine. In fact,
Speaker 1: you may you may have still been violating the law.
Speaker 1: I'm just going to tell you that you know you're
Speaker 1: in for a real whoopan' if if the SEC brings
Speaker 1: you back here and I find what you're doing is
Speaker 1: is outside is still within the scope of what I
Speaker 1: told you not to do. So yes, I would argue
Speaker 1: they can still sell XRP within the US, even without
Speaker 1: registration and without an exemption. But you know, it depends
Speaker 1: on how much Ripple wants to play that to the line,
Speaker 1: and it depends on how much it's clients want to
Speaker 1: play that to the line. Although the clients don't really
Speaker 1: need to worry because none of them were taken a
Speaker 1: court and they made lots of money, even the ones
Speaker 1: way back that we're at issue in the institutional sales
Speaker 1: they made a lot of money on this, so you know,
Speaker 1: they're very much in the clear. And it really comes
Speaker 1: down to what we're ultimately going to see is you know,
Speaker 1: there are a lot of people saying Ripple only sells
Speaker 1: XRP and that's its business model and it dumps onto retail.
Speaker 1: There's other people that say, when once the switch is flipped,
Speaker 1: you know, everything's going to go to the moon. And
Speaker 1: now is in a position where the emergency cover over
Speaker 1: the switch has now been unlocked. And so we're going
Speaker 1: to see what was Ripple just for lack of a
Speaker 1: better word, blowing smoke or do they have a sustainable
Speaker 1: business model that they can now accelerate into serious growth.
Speaker 1: And you know, I believe that they do and they
Speaker 1: do have a strong business model. But we're going to
Speaker 1: see great point.
Speaker 2: Now, there was a question from the community, and I
Speaker 2: have thoughts around this as well. So let's say institutions
Speaker 2: are accredited right there, they have all the licenses and
Speaker 2: all these things. Why can't Ripple specifically sell to black
Speaker 2: Rock and that be a securities transactions, but it doesn't
Speaker 2: affect the rest of the x RP in the open
Speaker 2: market or the XRP ledger can they just get a
Speaker 2: license for that aspect of the transaction, know if that
Speaker 2: makes sense.
Speaker 1: Yeah. So here's where I know enough securities law to
Speaker 1: be dangerous because there it is incredibly complex when you
Speaker 1: get into all the rules and specific exemptions. And I'm
Speaker 1: just not an expert there, but based on my knowledge
Speaker 1: and understanding, if you're going to get an exemption, I
Speaker 1: don't you don't even need to register some of those exemptions.
Speaker 1: You just you know, have a good faith belief that
Speaker 1: you fall within there. And again it would be up
Speaker 1: to the sec to figure it out and take Ripple
Speaker 1: back to court saying you're in contempt of disorder. You
Speaker 1: know by doing this. This is not an exemption. This
Speaker 1: is an institutional sale that requires registration. And so what
Speaker 1: Ripple can do? You know, if they go to exemption route,
Speaker 1: there's certain exemptions that they can't do because they've already
Speaker 1: gotten in trouble by the court. And when you get
Speaker 1: in trouble and have that type of injunction, it removes
Speaker 1: some exemptions. And then it also could cause a problem
Speaker 1: because if you buy the XRP under an exemption, you
Speaker 1: can't resell it unless there's another exemption. And so that
Speaker 1: could make it a little more complicated, but it is
Speaker 1: one route that they could go through, is you know,
Speaker 1: the accredited investor exemption process.
Speaker 2: Now, big question people want to or have, I should say,
Speaker 2: what's going to happen with the appeals? Will ripple and
Speaker 2: the SEC both appeal?
Speaker 1: So I I think that, I mean, it is as
Speaker 1: close to a fifty to fifty as you can get,
Speaker 1: although I'm going to lean towards not appealing just because
Speaker 1: I think there's too many factors that if the SEC
Speaker 1: is wise and smart, which also is an issue that
Speaker 1: people might significantly disagree with me on and I probably
Speaker 1: disagree with me on that too, is that this isn't
Speaker 1: really the best case to take up. When you're going
Speaker 1: to do an appeal, you want to have great facts
Speaker 1: because appellate courts, you know very much, will pick apart
Speaker 1: bad facts and use it to make bad law, or
Speaker 1: will not even give you the answer you want on
Speaker 1: a legal question if there are bad facts. And so
Speaker 1: that's what the SEC has here. You know, it's better
Speaker 1: to take an FTX or a do quon case like
Speaker 1: that up to up to an appeal, and that would
Speaker 1: just be a lot safer. So that's point number one
Speaker 1: factor one against an appeal. I think the penalty, you know,
Speaker 1: looking back, was probably a great call by the judge
Speaker 1: because it's if the penalty was too high, Ripple would
Speaker 1: surely appeal. If the penalty was too low, the SEC
Speaker 1: surely would appeal. And you know, now on this the
Speaker 1: again going back to the facts issue, the SEC's got
Speaker 1: to go back up to the Second Circuit and say
Speaker 1: say that the discouragement of zero rout was a problem. Well,
Speaker 1: the Second Circuit already said that there can be zero disgorgement.
Speaker 1: You've got a case where there was no investors that
Speaker 1: said they were harmed, and so the Second Circuit is
Speaker 1: just going to strengthen that opinion. And that is where
Speaker 1: the SEC loves filing cases is in New York, which
Speaker 1: is under the Second District. So that's a bad idea
Speaker 1: to appeal there. You know, on the appeal it side,
Speaker 1: Ripple can argue that there is no you know, essential
Speaker 1: ingredient to the contracts that they argued at the summary
Speaker 1: judgment and loss. That's not a very clear cut winner
Speaker 1: case right there for them, And the SEC would want
Speaker 1: to appeal the secondary market issue, which is, you know,
Speaker 1: that's the one thing that is driving whether they should
Speaker 1: appeal or not is we got to get that off
Speaker 1: the books for the secondary market, because you know, that's
Speaker 1: critical to how we do this, how we run our
Speaker 1: enforcement actions, you know, anywhere with crypto and so you know,
Speaker 1: you could you could get a situation though, where they decide, well,
Speaker 1: let's let's appeal the Binance one where they said no
Speaker 1: secondary markets with this exchange, and let the XRP one stand,
Speaker 1: and then XRP and Ribble would be in a unique
Speaker 1: one off where those facts have been decided and not appealed,
Speaker 1: and you could conceivably, three or four years get a
Speaker 1: ruling that secondary sales are securities generally, and only XRP
Speaker 1: is now, you know, completely protected from that because that
Speaker 1: aspect of it wouldn't be able to be changed, or
Speaker 1: at least a very strong argument that any future decision
Speaker 1: doesn't affect that aspect of this ripple ruling. So there's
Speaker 1: a lot going on, and then there's also the political
Speaker 1: side of it. You know, I was starting to get
Speaker 1: worried when I missed my prediction by seven days that
Speaker 1: maybe the sec or that the court was saying, you
Speaker 1: know what if I wait until early September to issue
Speaker 1: a ruling. The SEC doesn't have to make a decision
Speaker 1: on the appeal until after the election. You know, the
Speaker 1: Judge Tours has never kind of signaled doing anything like
Speaker 1: that or having those kinds of thoughts go through in
Speaker 1: her ruling. So it was, you know, but it did
Speaker 1: start to creep into my mind, but she didn't. And
Speaker 1: so now the SEC has to make that decision and
Speaker 1: ripple two by you know, early October. And so if
Speaker 1: they do, I mean to be to be honest, in
Speaker 1: US politics, a lot of people start making their minds
Speaker 1: up the month before the election. That's when things get
Speaker 1: really crazy. That's why there's a term called the October surprise.
Speaker 1: And so if the SEC has to file a notice
Speaker 1: of appeal early October, every pro crypto force can say,
Speaker 1: this is another example, don't believe the reset. Don't believe
Speaker 1: you know anything that this campaign is telling you. They're
Speaker 1: anti crypto, and so that's just that's a political headache
Speaker 1: that they would have to deal with.
Speaker 2: Yeah, I was gonna ask you about that because in
Speaker 2: the context of everything that's been going on over the
Speaker 2: past four to five months, I mean, you got Donald Trump,
Speaker 2: our presidential candidate calling out the head of the SEC,
Speaker 2: you know, and saying he would fire him, and so forth.
Speaker 2: You got Democrats turning on Elizabeth warning Gary gains Her,
Speaker 2: and then there seems to be some sort of capitulation
Speaker 2: with the SEC. They dropped the case against the Binance
Speaker 2: stable coin, they dropped the case against Stax, they dropped
Speaker 2: the investigation against Etherorem, they approved the etherom metfs, and
Speaker 2: then there was rumors of the Binance us case. They're
Speaker 2: pulling out tokens like Solana Cardano and so forth. So
Speaker 2: something is happening here. Maybe that political pressure will influence
Speaker 2: if they.
Speaker 1: Appeal or not. Yeah, there is foreshore political pressure, and
Speaker 1: they eventually some of these things will come out to
Speaker 1: the public. Some of these things will never know. There
Speaker 1: was extraordinary political The reason the ethery of METF got
Speaker 1: approved was because of political pressure. And you know, it'll
Speaker 1: be I guess probably not shocking to anybody in the
Speaker 1: XRP community when they hear how that went down, you know,
Speaker 1: when that eventually comes out. But there's other things going
Speaker 1: on that are just phone calls, meetings. During you know,
Speaker 1: at a lunch at a popular lunch spot in New Downtown,
Speaker 1: you know New York. I'm sorry to all my New
Speaker 1: York fans out there for not using the right boroughs
Speaker 1: and whatnot. But wherever the courthouse is, and in New York,
Speaker 1: you know all the lunch spots around there, and you
Speaker 1: know in d C. And in the suburbs, and you know,
Speaker 1: down in all those hangouts where they're having these conversations.
Speaker 1: And so you know, it's sad because that's not the
Speaker 1: rule of law, but that has always happened, you know,
Speaker 1: in America and otherwise you know where you have these conversations,
Speaker 1: and so that's happened. But you know, it's a battle
Speaker 1: right now between which faction is going to win out
Speaker 1: in terms of pro crypto or anti crypto. And it's
Speaker 1: been very encouraging the last couple of weeks and a
Speaker 1: couple of months, but you know, you really have to
Speaker 1: push forward. And you know, anybody that's very pro crypto,
Speaker 1: I would just say, and I'm doing this. I'm voting
Speaker 1: on single issue pro crypto candidates. You know, in my elections.
Speaker 1: I'm out here in California and nationally because if I
Speaker 1: get super rich from crypto, everything I care about all
Speaker 1: these other things. I care about social, economic issues. I
Speaker 1: can do a lot more being super rich than I
Speaker 1: can be just being you know, you know where I
Speaker 1: am now.
Speaker 2: Yeah, and I've brought up that point that first and
Speaker 2: foremost people are trying to survive. You have to have shelter, food,
Speaker 2: and you everybody's trying to increase their lifestyle right and
Speaker 2: make it better. And while there are other issues in
Speaker 2: this e lite, if you, like you said, are able
Speaker 2: to grow your wealth and become more financially free, you
Speaker 2: can then start to address some of those secondary tertiary
Speaker 2: issues that you care about. But you can't do that
Speaker 2: if you're you know, not able to create that opportunity.
Speaker 1: Yeah, exactly. I mean at the end of the day,
Speaker 1: you know what does happen and why, you know, short
Speaker 1: of getting drafted and sent off to war or you know,
Speaker 1: having federal forces or state forces show up at your
Speaker 1: doorstep and take you away to jail, there's not much
Speaker 1: you can do now that's to change things. Now, that
Speaker 1: doesn't mean give up and you know, not get involved
Speaker 1: at all, but just recognize what your limitation is and
Speaker 1: recognize kind of what you can do with whatever your
Speaker 1: your circumstances are. And you know that changes if you
Speaker 1: have a family, don't have a family, or a business owner,
Speaker 1: not a business owner. But you know, the bottom line
Speaker 1: is the more resources that you have, the more change
Speaker 1: you can make. And you know that's just something. And
Speaker 1: if the way you're going to get resources is with
Speaker 1: crypto appreciating vastly, then you just got to solely focus
Speaker 1: on that side of the wing. On the political election side.
Speaker 2: Final question herefore, I let you go, what are the
Speaker 2: odds or have the odds increase of an XRP ETF
Speaker 2: being approved by the SEC? Given that this thing is
Speaker 2: wrapping up, and look, I'm not talking this year, but
Speaker 2: maybe next year, what do you think about that?
Speaker 1: I definitely think it goes up because I think there'll
Speaker 1: be a new regime next year. Even regardless of who wins,
Speaker 1: I think things will shift around. And I think that,
Speaker 1: you know, even if you know on the Republican side,
Speaker 1: we've got the candidate saying he's going to be extremely
Speaker 1: pro crypto, the great thing about not being in office
Speaker 1: is you can say whatever you want. And you know,
Speaker 1: we know that Trump's record was not very pro crypto
Speaker 1: twenty sixteen through twenty twenty. Granted it's been much worse
Speaker 1: under the current regime. But those are the facts, and
Speaker 1: people can change, and I hope that Trump has changed
Speaker 1: on that topic. But I also think that all the
Speaker 1: money that is coming into crypto candidates. I mean, there
Speaker 1: was a very well known Democratic congresswoman, Corey Bush who
Speaker 1: just lost her primary. You know, there's a lot of
Speaker 1: factors that went into that. But what people are sleeping
Speaker 1: on is that fair Shake spend a couple million or
Speaker 1: at least over a million trying to get her out
Speaker 1: because she was anti crypto, and so that's a message.
Speaker 1: When you are an incumbent and you lose a primary,
Speaker 1: that is noticed in the halls of Congress, and so
Speaker 1: you're going to get a favorable and more favorable than
Speaker 1: where it is now regime from the Democrats, you know,
Speaker 1: if they win the election. And so I do think
Speaker 1: the chances of the XRP ETF have gone up. It'll
Speaker 1: be a little bit of a kick in the stomach
Speaker 1: to see us ALTA one go first. But I do
Speaker 1: think XRP is going to be in the top five
Speaker 1: for ETFs.
Speaker 2: Yeah, I agreed, And you know, on that fair Shake
Speaker 2: superPAC it's over two hundred million dollars. Now, I think
Speaker 2: if I'm not mistaken. It's the largest super packing election
Speaker 2: cycle and it's crypto. If you told me that in
Speaker 2: twenty twenty three, I wouldn't believe you. But the industry
Speaker 2: is fighting back and I don't blame them.
Speaker 1: Yeah it is. I mean, yeah, it's crazy. It's the
Speaker 1: largest or the second largest. I mean, it is a
Speaker 1: lot of money. And whether you're a Democrat or a
Speaker 1: publican candidate, you know one thing, and whether you agree
Speaker 1: or not, that moves these elections is money. And you
Speaker 1: go where the money is. And so you know, there
Speaker 1: could be a lot of people and if they all
Speaker 1: of a sudden are pro crypto because they're getting money,
Speaker 1: that's fine because they're expected to keep their promises when
Speaker 1: they take that money. So whether they believe in it
Speaker 1: or not, as long as you get the right laws,
Speaker 1: the right legislation in there, I'm okay with that. Fred.
Speaker 2: I appreciate you, man, I appreciate your insights. Thank you
Speaker 2: so much for joining me.
Speaker 1: Oh, no problem. Let me just plug one thing I
Speaker 1: just found out recently on our Songbird air drop case
Speaker 1: against coinbase. We got an oral argument just set in
Speaker 1: early October, probably right after the day I think the
Speaker 1: appeals is going to be filed. So I wanted to
Speaker 1: say thank you to everybody who watched me try and
Speaker 1: do my best at the oral argument last week or
Speaker 1: two weeks ago against the SEC for the ethereum case
Speaker 1: we have. This one's more important for all the songbird
Speaker 1: people who never got their Songbird from Coinbase. I'll put
Speaker 1: it on my x handle. If you watch that, I
Speaker 1: would really appreciate it.
Speaker 2: Yeah, everyone go check that out. I'll put links to
Speaker 2: Fred's website and so forth in Twitter. But Fred, thank
Speaker 2: you so much for fighting on behalf of retail investors.
Speaker 2: And I don't know why Coinbase did this, but you
Speaker 2: know I appreciate you fight. Gonna be half of
Speaker 1: Us, all right, Well, I'll see you later, Tony,