Lynn Johannson, Advisor, Sustainability and ESG
January 4th, 2024
Lynn Johannson, President of E2 Management Corporation and Catalyst for THE Collaboration
In a care[...]
Decoding Judge Rakoff’s Opinion: What It Means for Future Crypto Regulations
Crypto Regulation | Aug 8
Image: Unsplash/Conny Schneider
"Crypto got Rakoff’d" delves into the legal intricacies of the SEC's Ripple case, highlighting the contrasting protections for institutional and retail investors in the crypto landscape.
Current Ripple Case Rationale
- A US district judge's hearing on the SEC's Ripple case led to a surge of joy in the crypto community. The judge's rationale was that institutional buyers expected Ripple to use the capital from its sales to enhance the XRP ecosystem and increase the XRP price.
- In contrast, programmatic buyers (retail buyers and sellers) couldn't have the same expectations. The court held that while big institutional investors get SEC protection, retail traders don't because they aren't privy to the inner workings of the crypto world.
- Ripple Judge Quote: "Whereas the Institutional Buyers reasonably expected that Ripple would use the capital it received from its sales to improve the XRP ecosystem and thereby increase the price of XRP . . . Programmatic Buyers [i.e., retail buyers and sellers] could not reasonably expect the same."
Enter Highly Respected Judge Rakoff's Opinion
- Judge Rakoff rejected many of the usual defenses presented in crypto cases. He particularly took issue with the distinction made between institutional and retail buyers in the Ripple case. He argued that the Howey test, which determines what constitutes a security, doesn't differentiate between types of purchasers. Whether a coin was bought directly from the defendants or in a secondary resale transaction doesn't impact the perception of promises of profits based on the defendant's efforts.
Watch: Brookings: The Future of Crypto Regulation (On Demand and Transcript)
- The implication of Judge Rakoff's opinion is that the distinction made between institutional and retail buyers in the Ripple case is not valid. He challenges the idea that securities law should treat institutional and retail investors differently based on their understanding or knowledge of the crypto industry. By rejecting many of the usual defenses presented in crypto cases and emphasizing that the Howey test doesn't differentiate between types of purchasers, Judge Rakoff's stance suggests that all investors, regardless of their size or sophistication, should be afforded the same protections under securities law.
Conclusion
Judge Rakoff's perspective on the Ripple case underscores the importance of equitable treatment for all investors within the realm of securities law. By challenging established distinctions between institutional and retail investors, he emphasizes the need for consistent legal interpretations and protections in the rapidly evolving crypto industry. This stance not only sets a precedent for future crypto-related cases but also calls for a more inclusive and fair approach to investor rights and protections.
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