23 April 2024
The legal battle between Ripple and the Securities and Exchange Commission (SEC) is getting heated and, following recent developments, looks far from over. This is due to the disagreement between both parties on the appropriate remedy for Ripple’s violation of securities laws.
Ripple Proposes $10 Million Fine Instead
In opposition to the SEC’s motion for remedies and entry of final judgment, Ripple has proposed that the court should not impose a civil penalty of not more than $10 million. This figure represents a far cry from the SEC’s proposed judgment. The Commission had earlier asked the court to order Ripple to pay the sum of $1,950,768,364 as a pecuniary fine for violations relating to its institutional XRP sales.
Specifically, the SEC proposed that Ripple pay a civil penalty of $876,308,712 alongside a prejudgment interest of $198,150,940 and disgorgement of $876,308,712, which represents the profits from its violation of the Securities Act. However, Ripple asked the court to deny the requests for disgorgement and pre-judgment interest and only focus on the civil penalty, which shouldn’t be more than $10 million.
Ripple’s lawyers also laid out arguments as to why the civil penalty should not exceed $10 million. Firstly, they stated that the first tier of the statutory maximum penalties is what applies to this case “because the SEC has never alleged fraud, deceit, or manipulation and has failed in its belated attempt to show that Ripple recklessly disregarded the law.”
Therefore, Ripple argued that the Commission’s request for a civil penalty of over $876 million isn’t the appropriate remedy for the first-tier structure. They added that the company’s revenue from pre-complaint institutional sales should be the only earnings considered when deciding on a remedy, which makes a civil penalty of not more than $10 million more appropriate.
Accounting Error From The SEC
Ripple suggested that the SEC made an error in calculating the company’s earnings while deciding on the right amount for which the crypto firm should be fined. According to the company’s lawyers, the Commission failed to “analyze or even consider any other categories of Ripple’s expenses.”
Meanwhile, they allege that the SEC didn’t offer any evidence or explanation “for why cost if revenue is the only category of Ripple’s deductible expenses.” Simply put, Ripple argues that the regulator, while calculating Ripple’s earnings, didn’t consider how much the company expended before deciding that almost $2 billion was an appropriate fine.
Ripple’s lawyers made this argument while stating that the SEC also erred in relying on the declaration of Andrea Fox, an accountant at the agency. They claim that the SEC never disclosed Fox as a fact or expert witness and that she wasn’t deposed during the initial discovery or supplemental remedies discovery. Therefore, they moved to strike her declaration as an “untimely disclosed expert report.”
Ripple Also Opposes SEC’s Proposed Injunction
As part of its entry for final judgment, the SEC had asked the court to “permanently” restrain and enjoin Ripple from “directly or indirectly conducting an unregistered offering of Institutional Sales.” Understanding how this could affect their ODL transactions, Ripple has asked the court to deny the request for an injunction.
The crypto firm argues that the Commission has failed to show why an injunction is warranted. Injunctions are usually granted when there is a fear of future violations. Ripple claims that the SEC has failed to show a “reasonable likelihood of future violations.”
The crypto firm’s lawyers further revealed that Ripple has “changed the way it sells XRP and changed its contracts to avoid any future violations.” To show good faith, they submitted a declaration by Ripple’s President, Monica Long, which describes the steps the company has taken to avoid future violations.