Is XRP a security? Ripple’s class-action lawsuit may not settle it

By Robert Stevens

Those standing by for an answer to the question of whether Ripple’s XRP cryptocurrency qualifies as a security under US federal law will have to wait a while longer.

Ripple is in the midst of fighting a class-action lawsuit waged by scorned investors who allege that XRP was sold as an “unregistered security” and are therefore entitled to compensation, as well as a refund of their investment. Ripple lobbed a motion to dismiss the lawsuit in August, according to court documents filed to a Californian court.

Yesterday, the court heard Ripple’s arguments and agreed to take “the matter under submission.” 

Jake Chervinsky, General Counsel at Ethereum-based DeFi platform Compound, said this means that the judge, Judge Phyllis J. Hamilton, will issue a written ruling. When? Who knows? "It could be days, weeks, or months,” he tweeted last night. 

“Even if Ripple wins its motion to dismiss & has the whole class action thrown out, it won't mean much for XRP. The big & interesting question is if XRP was (or is) a security. Ripple's motion didn't ask that question, so dismissal won't answer it—just defer it to another day,” he said. 

The question of XRP’s status as a security, if answered by a court in the affirmative, could spell disaster for XRP, the ailing altcoin whose value dropped over 50 percent in the past twelve months. 

If determined by a court to be a security, Ripple could be forced to refund any investor who qualifies as a class member of the suit. It would also have implications for the way in which XRP can be bought, sold and traded moving forward.

So, is XRP a security? It depends who you ask. 

If you ask Ripple Labs, XRP isn’t a security, obviously. And their original motion for dismissal, they cite the US Departments of Justice and Treasury, which in 2015 said that XRP is a “convertible virtual currency,” and not a security.

If you ask the Crypto Ratings Council, the (albeit toothless) collection of independent industry lawyers bankrolled by leading cryptocurrency exchanges, it is likely that XRP is a security. On a twenty point scale, where a mark of 5.00 suggests that a coin is likely to a security, XRP got a 4.00 (though it didn’t explain why). 

And Heath Tarbert, the chairman of the CFTC, said that it could be classified as a security, though the matter is still “unclear.”

The SEC, however—which has had plenty to say about digital assets over the last few years—has declined to comment on the matter.

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