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Zakinov v Ripple: Motion to dismiss granted and denied in part. Unregistered security allegations remain.

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I think the result is not too bad for Ripple. The securities case is not dismissed but even in case the plaintiff can eventually win the case and claim a liability, the amount that the plaintiff can claim is severely restricted which would suggest a strong incentive to settle as far as the plaintiff is concerned.

From the document:

"Significantly, as plaintiff pointed out at oral arguments its 129,000 XRP unit purchase during 2018 Q1, when compared to defendants sale of 0.095 percent of the XRP traded on the market that quarter, supports the inference that plaintiff purchased approximately 122 XRP units from defendant (or approximately 19 XRP units, discounting for plaintiff’s two week trading period and reasonably assuming uniform distribution of sale by defendant during that period).

This conclusion is further supported by the more glaring (but largely unaddressed) issue presented by this claim—namely, to what extent may defendants be considered in privity with an exchange purchaser when a subsequent purchase qualifies as part of an issuer transaction under § 25011. In any event, at this stage in the litigation, where the court may draw reasonable inferences and the relationship between defendants, subsequent purchasers,and the exchange isunclear, the court concludes that plaintiff has adequately alleged privity in support of his § 25503 claim, though he may ultimately be unable to prove it."

Also,

"As a preliminary matter, plaintiff suggests that Rule 9(b) does not necessarily apply to his claims for violation of § 25401because they might sound in negligence (as opposed to fraud). Dkt. 74 at 27. Plaintiff fails to develop that potential distinction. In any event, because Rule 9(b) applies to negligent misrepresentation claims,9plaintiff’s underdeveloped suggestion to the contrary is misplaced.As a result, the court applies Rule 9(b) to plaintiff’s § 25501 and § 25504.1 claims for violation of § 25401. Here, plaintiff failed to satisfy Rule 9(b)’s heightened pleading standards with respect to defendants’ allegedly fraudulent misstatements.

 

"“Similarly, on or about December 21, 2017, Ripple tweeted in Japanese that XRP was now available on over 50 exchanges. That tweet linked to an article on Ripple’s website which described XRP as ‘the fastest and most scalable [digital] asset on the market.’It continued, ‘[t]he market is taking notice of XRP’s speed, reliability and scalability —which has strengthened the demand for XRP and whereit’s listed. In fact, we’re proud to announce that XRP has gone from being listed on six exchanges earlier this year to more than 50 worldwide.’The article also linked to a number of exchanges where XRP could be purchased, and stated that ‘XRP’s long-term value is determined by its utility—including its ability to help financial institutions source liquidity for payments into and out of emerging markets.’” Id.¶ 45. Here, plaintiff fails to explain how or why the above statement is false. As a result, the misstatement alleged above fails Rule 9(b)."

 

"Various statements (mostly tweets) by defendants on specified dates concerning public interest in XRP (Compl. ¶ 63), advantages over Bitcoin (id.¶ 64), the growth and potential value of XRP (id.¶¶ 65-66), the future use of XRP by American Express, the Japan Bank Consortium, as well as other “banks and payment providers” (id.¶¶ 67, 68, 73), how XRP is more than “bank software”(id.¶ 74), a partnership with MoneyGram (id.¶¶ 102-103), defendants’ intent to develop the infrastructure necessary for banks to directly use XRP (id.¶ 102), and how XRP’s value depends upon the XRP Ledger’s use for cross-border payments as well as its adoption by enterprises (id.¶ 149).Again, plaintiff fails to explain how or whyany of the misstatements alleged in the above paragraphs are false. In their motion, defendants challenged the sufficiency of variousof these alleged misstatements. Dkt. 70 at 31. Plaintiff failed to respond to such challenges. Dkt. 74 at 27-28. As a result, the misstatements alleged at paragraphs 63-68, 70, 73-74, 102-03, and 149 all fail Rule 9(b)"

 

 

 

 

 

 

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BEND OVER ALL XRP HODLERS!

Below is the Order for those who know how to read law, (that excludes the semi-literate and one brain cell capacity  Tiny Account).   

We will see how Ripple overcomes the next layer of issues pertaining to the securities characterization of XRP.  The court's ruling is in red.

. Plaintiff Adequately Alleged the Federal Securities Claim Against Defendants

Title 15 U.S.C § 77l(a)(1) provides the following in relevant part: “Any person who— (1) offers or sells a security in violation of section 77e of this title, or . . . shall be liable, subject to subsection (b), to the person purchasing such security from him . . .” 15 U.S.C § 77l(a)(1). Title 15 U.S.C § 77e(a)(1) provides the following: “Unless a registration statement is in effect as to a security, it shall be unlawful for any person, directly or indirectly— . . . (1) to make use of any means or instruments of transportation or communication in interstate commerce or of the mails to sell

 Ripple lost on the main issues: that XRP is not a security and the  three year statute of repose issue as to when their security was first offered to the general public, which was Ripple's strongest line of defense.

https://www.courtlistener.com/recap/gov.uscourts.cand.334410/gov.uscourts.cand.334410.85.0.pdf

 

 

B. Analysis 1. Plaintiff’s Claims under the Federal Securities Laws Are Not Barred by the Statute of Repose

Here, whether Title 15 U.S.C § 77(m)’s three-year statute of repose bars plaintiff’s federal securities law claims depends upon two distinct issues: (1) the controlling rule for measuring when the statute of repose commences for purpose of Title 15 U.S.C § 77l(a)(1); and (2) when the alleged (or judicially noticeable) sales of XRP first qualified as a “bona fide” public offering within the meaning of Title 15 U.S.C. § 77l(a)(1).

b. The First Offered Rule Does Not Bars Plaintiff’s Federal Securities Claims

Having decided the controlling rule for determining when the statute of repose commences, the next issue is its application. Based on the allegations and judicially noticeable facts, the court concludes that defendants did not make their first bona fide public offering of XRP before August 5, 2016 (three years prior to plaintiff’s filing of his federal securities claims in this action on August 5, 2019)

It really does not mean much though because Ripple simply follows slavishly Bit Coin and has no genuine use case or value impacting its crypto market share, save speculation.

 

This article below is written by a professional who understands the securities problems of cryptos like Ripple. 

 https://www.coindesk.com/securities-law-helped-build-modern-capitalism-crypto-should-embrace-it

 

THE FOLLOWING IS WRITTEN BY: Bruce Fenton is CEO of Chainstone Labs, which owns Atlantic Financial, the Satoshi Roundtable and Watchdog Capital, an SEC registered broker-dealer. 

In 1602, the Dutch East India Company launched a new structure of ownership called the joint stock company. For the first time, investors could own and trade small pieces of businesses called shares. This invention changed the world.

Securities are one of the most crucial components to the operation of our global economy. Many types of securities have become heavily regulated over the last century. This isn’t a discussion in favor of the regulations (many are overly burdensome and outdated) but it does point to the importance of securities as a structure.

The logistics of operating and fundraising for public companies is hard work. Fundraising is a process with lots of friction, compliance requirements and paperwork. The ongoing operation of a public company can have complex management issues. For large companies, this is typically handled by trusted third parties like DTCC, which provides clearing and depository services. If we can make this easier, it could have a massive positive impact. Distributed ledgers allow us to replace trusted third parties and have a blockchain manage the ledger. This makes securities move more easily and quickly. 

The invention of distributed ledgers, bitcoin (BTC) and blockchains is not the same as the invention of the joint stock company and Dutch East India Co. It’s not a new economic model; it’s a new technology and tool that improves how ledgers work. The invention is more similar to the printing press, the computer or the internet. It’s a big deal, but it’s not an invention that changes existing laws of economics. Just as bitcoin doesn’t change the properties of money but finds a way to improve on money, tokens don’t change the fundamentals of investing; they improve on the existing inventions. Think of it as an evolution from paper stock certificates to something better than paper but where the fundamentals of the underlying legal structure stay the same. Just because we invented a better form of paper doesn’t mean we should scrap the most productive and proven legal instrument in history for an unproven model of widgets with no terms. Instead of reinventing the bicycle, let’s improve on a proven model and update the Dutch East India Co. model for a new century.  

In 2016, when I saw some of the first of the new wave of initial coin offerings (ICO), I had two simultaneous reactions:

1. Wow, this is amazing.

2. Wow, this is in violation of securities regulations.

I’ve been registered in the securities business in some form for 28 years now. Since I was 19 and done billions of dollars in transactions. So I knew it was possible to comply with the regulations. Rather than trying to avoid being a security, I figured the right choice for most companies would be to simply embrace being a security and focus on complying with regulations. This is a key difference from how many looked at it in the early days and how some still do. This isn’t because I think the regulations are great, but because I know they are unavoidable.  

The first time I heard of the Securities and Exchange Commission was at about age seven when my stockbroker Mom came home and told us that the SEC, Federal Bureau of Investigation and police had arrested someone in her firm who broke the rules. I thought this was fascinating. Only 12 years later I had my first job in a brokerage where the seriousness of federal laws was emphasized in our training. These rules have been around for 87 years and are not going anywhere.

THIS IS THE EQUIVALENT OF A MARIJUANA ACTIVIST OPENING AN UNLICENSED DISPENSARY IN TIMES SQUARE.

Forget trying to ignore the laws or hoping they go away or thinking “this tech makes it different.” Advocacy also matters little relative to old laws affecting trillions of dollars. Some in crypto think they can just build to violate these laws; it doesn’t work that way. This is the equivalent of a marijuana activist opening an unlicensed dispensary in Times Square. Some may support the ideology, but it would be an ineffective activist action.

In the first ICO wave, many focused on trying to prove “utility” so they wouldn’t be classified as a security. Today we still see similar efforts from some exchanges. For example, Coinbase’s Crypto Ratings Council makes  a case for why certain instruments are not securities, instead of doing the harder work to become licensed to deal in legal securities. 

Many DeFi projects, and efforts such as Hester Peirce’s "Safe Harbor" proposal, continue down the same road. The goal is to avoid being a security. I think this is a mistake.

The Securities Act of 1933 defines a security very broadly:

any note, stock, treasury stock, security future, security-based swap, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas, or other mineral rights, any put, call, straddle, option, or privilege on any security, certificate of deposit, or group or index of securities (including any interest therein or based on the value thereof), or any put, call, straddle, option, or privilege entered into on a national securities exchange relating to foreign currency, or, in general, any interest or instrument commonly known as a “security,” or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing.

Edited by Sporticus
Typo and omissions

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29 minutes ago, Sporticus said:

BEND OVER ALL XRP HODLERS!

Below is the Order for those who know how to read law, (that excludes the semi-literate and one brain cell capacity  Tiny Account).   

You do yourself no favours by showing a pettiness in discussion.  Those not turned away by your bombastic heading are likely to be similarly unimpressed with your schoolyard taunts.

 

33 minutes ago, Sporticus said:

which was their strongest line of defense.

Have you misunderstood the difference between “first” and “strongest”?

The first line of your defence is the one that costs you least and has some chance of efficacy.   It is often not the same as your “strongest”.  

But thanks for playing.   :) 

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6 minutes ago, Sharkey said:

Dude, what's the need for such rudeness?

The dude was rude to me and payback time. He claims to understand US securities laws and he criticizes those who actually do. He is misleading and fraudulent.

The fact is completely uninformed idiots hold forth in this chat.

Read the substance of what the Court opined and  a registered broke dealer wrote, which I quoted.  That is the message.  I am simply the messenger. Crypto as we know it, is a PONZI scheme and the 3000 crap coins are violations under United States laws. They are all financial crimes used to sell  unlawful securities and violate banking secrecy and money laundering laws. 

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1 hour ago, Sporticus said:

This article below is written by a professional who understands the securities problems of cryptos like Ripple. 

 https://www.coindesk.com/securities-law-helped-build-modern-capitalism-crypto-should-embrace-it

 

 

Well he is actually a BTC maxi and coindesk has close to zero credibility but whatever makes you feel good.

 

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Just now, wogojump said:

I had to block Tiny Account in the past. He goes on tangents spamming off topic nonsense.

That’s interesting...   I was unaware.  Perhaps next time let me know?  But this is off topic...   :) 

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59 minutes ago, Sporticus said:

He claims to understand US securities laws and he criticizes those who actually do. He is misleading and fraudulent.

That’s just not true.  Do you have a quote anywhere where I claim that?   I do not claim that and never have.  

I have however upset you in the past by not merely accepting your rants as correct and I think I recall wondering out loud about your claimed competence.   

Misleading and fraudulent sounds pretty bad...   any instances you can point to?

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What's confusing is Sporticus brings to the table what I've always feared and it makes the most sense out of anything I've read on these forums. But why is the news reporting all these positive partnerships to expand on XRP's utility if we are on the brink of something that's about to fail? I don't get why there is so much drama behind these dumb tokens, lets just get to the real story and enough with all the lies and exaggerations.

Basically Ripple can be slapped with a fine for treating XRP as a security. Great! a slap on the wrist for Ripple the company. Now that's out of the way, XRP cannot be classified as a security in and of itself since it isn't owned and operated by any one company and cannot be labelled as a security offering unless someone positions it as such. Time to start moving forward to utility and beyond!

Edited by Scout

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As a matter of fact,

Ripple never tried to circumvent the legal entity.

In reality, Ripple worked together with the regulators from 2014 as a participant of Faster Paymnent Task Force,  a historical event that decide the new infrastructure builder. 

Members of Ripple educated regulators about DLT and worked on building the regulatory frame together. 

From the recent interview with CNN, Brad claimed Ripple is not a payment company but an infrastructure company.  Not many people in the forum seems to get the significance of the statement.

Ripple is building the global financial blockchain rail with the US. 

And Xrp is the share of the infrastructure, not of Ripple. It is called 'digital asset' instead of 'share'. 

 

 

Edited by quan

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