fraud

Feb 15 2021

Digital Assets Ecosystem Surpasses $1.5T Market Cap, $60B in BTC held by Public Firms, as First Bitcoin ETF to Launch in Canada

Researchers at Bloqport have confirmed that publicly-traded firms and fund managers now hold approximately $60 billion worth of Bitcoin (BTC), which is around 6% of the digital asset’s circulating supply.

Publicly-traded companies and fund managers now hold around $60 billion worth of #Bitcoin, roughly 6% of the circulating supply.

Source: @BTCtreasuries pic.twitter.com/W9Nrvt7gJD

— Bloqport (@Bloqport) February 15, 2021

The team at Bloqport pointed out that just three years back, in 2018, the founding PayPal CEO Bill Harris had said that Bitcoin is “the biggest scam in history.”

Visa CEO Al Kelly had argued back then that Bitcoin is “speculative” and that they would not be handling BTC transactions. Meanwhile, JPMorgan CEO Jamie Dimon had said that Bitcoin is “a fraud.” But now in 2021, every one of these companies has been “forced to recognize” Bitcoin, Bloqport adds.

While sharing other notable digital asset and blockchain industry developments, the Bloqport team confirmed that the total crypto market had surpassed the $1.5 trillion mark for the first time ever, but the market has retraced significantly at the time of writing.

Notably, Canada’s securities regulator has now approved the launch of the first Bitcoin exchange-traded fund (ETF), an investment manager revealed this past Friday. The ETF could offer investors improved access to the digital currency that has seen its price surge dramatically from below $4,000 in March 2020 to nearly $50,000 in 2021.

The Ontario Securities Commission (OSC) has cleared the launch of Purpose Bitcoin ETF, according to Toronto’s asset management firm Purpose Investments Inc. The OSC also confirmed that the approval had been made.

Purpose Investments stated:

“The ETF will be the first in the world to invest directly in physically settled Bitcoin, not derivatives, allowing investors easy and efficient access to the emerging asset class of cryptocurrency.”

Crypto investors currently have the option to trade BTC using futures contracts via the CME derivatives exchange. They’re also able to purchase certain closed-end investment funds, like the Bitcoin Fund via the Toronto Stock Exchange.

An ETF might be able to provide certain benefits to traders, like being able to purchase at net asset value instead of paying a premium, according to Arthur Salzer, CEO at Northland Wealth Management.

Salzer added:

“I think the OSC is doing the right thing allowing for an ETF. It gets rid of some of the negatives of the current funds.”

Bitcoin is trading at over $47,000 at the time of writing after recording a high of over $49,500 this past weekend. The flagship cryptocurrency has managed to appreciate around 65% in value in 2021 alone and has surged more than 1,130% since March of last year.

Billionaire Elon Musk’s Tesla recently revealed that it has acquired $1.5 billion in Bitcoin and will make preparations to accept BTC as payment.

The move by Tesla has helped the Bitcoin price significantly as many more investors are planning to gain exposure to the digital asset. As reported, the City of Miami has introduced several Bitcoin focused initiatives, as the pseudonymous crypto has managed to onboard 150 millions users globally according to estimates from a billionaire hedge fund executive.

It’s worth noting that in the US, eight companies have made failed attempts (since 2013) to launch a Bitcoin ETF.

Source

Feb 09 2021

Let’s Protect More than 40% of our Endpoints

Imagine finding out your most recent departmental budget was only 40% of what it should be. If you’re like me, you’d get a strong feeling that “something is missing and it’s a real disaster.”

Well, here’s the thing. If you’re a CISO – or if your job involves information security in general – you should be getting that exact feeling right this minute. Because most businesses only secure 40% of their endpoints.

Clearly, no one thinks that 40% is good enough – whether it’s your budget or your endpoint protection strategy. So why would an otherwise buttoned-up, well-run enterprise security organization pursue a strategy that fails to protect 60% of their endpoints?

Mobile devices are now the most common endpoints in the enterprise

The problem, in a word, is mobile. Enterprises have had decades to plan, implement and iteratively refine robust management and security solutions for traditional endpoints like desktops and laptops. But mobile devices transformed almost overnight from a nice-to-have luxury into the single most critical endpoint in the enterprise for employee productivity, connectivity and collaboration.

Today, enterprises are still struggling to get their arms around protection for mobile devices. That struggle results in part from the vast difference between mobile threat defense and traditional threat defense. Unlike desktop PCs:

Users are the admins on mobile devices, so they decide when to upgrade their OS, what networks to connect to and what apps to install;
All apps are in containers on mobile devices, limiting the capabilities of security apps; and
Endpoint protection platforms (EPP) and endpoint detection and response (EDR) solutions are ineffective on mobile devices.

Mobile devices are under-protected and disproportionately targeted

Bad actors recognize that mobile endpoints are a relatively easy target. By September 2020, we had already recorded more mobile app breaches, failures, and data leaks than all of 2019.

Every day, Zimperium detects 600 million threat events involving enterprise mobile devices. Essentially, all the methods and strategies hackers use on traditional endpoints apply to mobile devices.

Targeted attacks against enterprises often use unknown, “zero day” attacks that require machine learning-based detection;
“Land and expand” campaigns target the weakest link for entry into the network – unprotected mobile devices are the hacker’s perfect starting point today; and
To maximize the ROI of compromising any system (including a mobile endpoint), hackers want to establish a persistent foothold that remains even after reboot.

Even aside from inadequate protection, mobile devices have inherent characteristics creating a larger attack surface than traditional endpoints. Cybercriminals can attack mobile devices from multiple vectors.

Device: Attackers’ primary goal on mobile is to fully compromise the device, be persistent, and weaponize it for “land and expand” lateral movements;
Network: Attackers use rogue access points (RAPs) and man-in-the- middle (MITMs) to steal data and deliver targeted exploits to compromise the device;
Phishing: Mobile phishing – especially via text/messaging apps and personal email – is a highly effective way to steal credentials and deliver targeted exploits; and
Apps: Malicious apps can create fraud, steal information, and deliver device exploits; even apps from legitimate sources can have coding or other errors that make them vulnerable.

All of this is to say that the endpoint security problem itself is huge. But the bigger picture is that when your endpoint security is compromised, all your information security is compromised. If 60% of your endpoints lack adequate management and security, you cannot succeed with security frameworks such as zero trust. But this is not to say that protecting mobile devices is a hopeless cause. Rather, it just requires a different approach.

EPP and EDR solutions can’t protect mobile devices, but MTD can

I mentioned earlier that EPP and EDR solutions are ineffective on mobile devices. The reasons for that are complex. For example, the kernels in mobile OSs such as Android, iOS and ChromeOS are locked down. And since EPP and EDR rely on kernel access, they are blind and ineffective on mobile.

They have no ability to detect risky or malicious networks, and cloud-based detection can easily be disabled by network attackers. They can’t even assess privacy and security risks in legitimate (non-malicious) mobile apps.

Mobile endpoints therefore require a new security approach. Gartner calls this new class of solutions mobile threat defense, or MTD. As the global leader in mobile threat defense protecting millions of enterprise mobile endpoints around the world, Zimperium’s MTD solution uniquely has the characteristics required for successful MTD:

Detects threats even with locked-down OS kernels;
Detects known and unknown (targeted) device, network, phishing and malicious app risks and attacks;
Provides on-device detection that protects user privacy and defends mobile devices even when an attacker owns the network and protects user privacy; and
Assesses privacy and security risks in legitimate mobile apps.

The Zimperium platform leverages our machine learning-based engine – z9 – to protect mobile data, apps and sessions against device compromises, network attacks, phishing attempts and malicious apps. Our solutions include zIPS which runs locally on any mobile device and detects cyberattacks without a connection to the cloud and our first-of-its-kind Mobile Application Protection Suite (MAPS), a comprehensive solution that helps organizations protect their mobile apps throughout their entire life cycle.

MAPS is comprised of three solutions: zScan, which helps organizations discover and fix compliance, privacy, and security issues; zShield, which hardens the app through obfuscation and anti-tampering; and zDefend (formerly zIAP), an SDK embedded in apps to help detect and defend against device, network, phishing and malicious app attacks while the app is in use.

For more information

If you’d like to get past the 40% mark and move to 100% endpoint protection, please feel free to reach out to me directly or to anyone at Zimperium. We are here to help.

Let’s Protect More than 40% of our Endpoints

Source

Feb 01 2021

Blockchain tech makes sustainable development goals more achievable

United Nations Secretary-General António Guterres estimates trillions of U.S. dollars per annum is needed to achieve the 2030 Sustainable Development Goals. The question is: “Where would it come from?” Official development aid, philanthropy and public finances cannot suffice, which means the needle is moving toward private capital to fund sustainable development projects.

But the gap between financing and the environmental impact does not exude the confidence of private investors to fund development projects. India, a center of sustainability risks and innovative interventions, offers an example of this gap. Between 2014–2015 and 2018–19, corporate social responsibility, or CSR, spent by the approximately 1,100 listed Indian corporates grew at a rate of 16%, while India’s score on the United Nations Development Programme’s Human Development Index grew by roughly 1% compound annual growth rate, or CAGR. Ironically, most CSR spending by Indian companies goes to education and health — the very sectors the HDI index focuses on.

It is time for blockchain tech

Can blockchain technology be a workable solution? It can because development projects conduct measuring, reporting and verification, or MRV, processes measure the outcome and impact of projects. Most readers are aware that distributed ledger technology stores data batches in blocks on the network, and the need for independent verification from the network’s users makes the records transparent, secure, verifiable, and immutable. These are the very attributes by which blockchain can improve the MRV processes, thus improving data auditability and reducing misreporting/fraud of data. This can incentivize private capital to consider investing in this space.

Moreover, if we must identify the precise activity of a typical development project where blockchain technology can be leveraged, then it would collect and time-stamp project-level data for monitoring purposes. The challenge is many resource-crunched development projects, especially in developing countries, still collect field data by hand, which can lead to inaccuracies, mistakes and fraud. With a blockchain, such data can be collected and reported in a secure, transparent and verifiable manner.

What also adds adverse effects is the local institutions in the developing countries that implement such projects often lack the systems to ensure the data they report is verifiable. Weak regulations in such countries make it difficult to hold such local institutions to account. Add to this the distance between foreign investors and these local projects, and it becomes harder to stay on the same level.

Blockchain can reduce the data risks of local-level institutions, improve the validity of the data they report for impact, and instill confidence in foreign private donors/investors to fund such development projects.

Blockchain and MRV processes

What this implies is more financing flow can be committed to the local level. Back in 2017, the International Institute for Environment and Development estimated that only 10% of the $60 billion in public and private climate finance is directly committed to the local level, which is partly due to such perceived data risks. Using blockchain to improve MRV can facilitate greater access to capital for local-level institutions.

With blockchain enabling local projects to report verifiable performance as part of their MRV processes, local development institutions can gain a greater supply of capital. The Amazon in Brazil is an example. The Rainforest project uses blockchain and the Internet of Things to record and transfer data from electrical meters, robotic appliances and emission monitors on the environmental impact. Remote sensing satellites independently verify the status of patches, upon which blockchain smart contracts directly reward the farmers who preserve their rainforest patches. The outcome data is verifiable, and the exclusion of intermediaries while transferring incentives minimizes administrative costs and the siphoning of funds.

Blockchain-enabled MRV processes help disintermediate the intermediaries in a social or sustainability bond issuance, thus reducing issuance costs and making it possible for small enterprises to access the bond market or aggregate smaller assets into bonds. Already, leading Spanish bank BBVA uses blockchain to structure green bonds and loans.

As long as limitations such as internet capacity and technology literacy can be overcome, blockchain’s revolutionary role in improving the MRV processes around data can mobilize more private capital investments for development projects executed by local-level institutions in developing countries.

This article was co-authored by Sourajit Aiyer and Jae-Hoon Kwak.

The views, thoughts and opinions expressed here are the authors’ alone and do not necessarily reflect or represent the views and opinions of Cointelegraph.

Sourajit Aiyer is a consultant at South Asia Fast Track Sustainability Communications. Previously, he worked with traditional and sustainable finance organizations. He has written three books, over 160 articles for 60 publications, given over 30 guest-talks at various universities and conferences, and curated 20 webinars with over 50 international domain-experts.

Jae-Hoon Kwak is the CEO at Pan-Impact Korea, a company focusing on social impact via innovative technologies.

Blockchain tech makes sustainable development goals more achievable

Source

Jan 21 2021

Ignoring Bitcoin, Hedera Hashgraph, Reef and Perpetual Protocol rally higher

Bitcoin (BTC) price tumbled more than 10% today to hit a low near $31,000 and at the time of writing it looks like the sell-off has a bit further to go. In a weekly report from crypto fund provider, CoinShares, some institutional investors seem to be booking profits and the analysts also cited the strengthening (trade-weighted) U.S. dollar.

Another indicator that points to professionals selling Bitcoin is the drop in “Coinbase Premium.” As markets continue lower, an increasing number of investors may dump their positions with the intent to buy again at lower levels.

*Crypto market data daily view. Source:* *Coin360*

Guggenheim Partners chief investment officer Scott Minerd has turned bearish on Bitcoin for the year. In an interview with CNBC, Minerd said that Bitcoin may have topped out and could “see a full retracement back toward the 20,000 level.”

If Bitcoin plunges, altcoins are also likely to witness selling pressure. Although this may be the case, during sell-offs, tokens backed by strong fundamentals may outperform.

Let’s have a look at three tokens which have held steady during the current market correction.

HBAR/USD

Hedera Hashgraph (HBAR), the enterprise-grade distributed ledger, has been entering into various partnerships to leverage blockchain technology in real-world use cases in several sectors. If these initial projects are successful, it will open a plethora of future possibilities around the globe. Some of the recent collaborations are highlighted below.

Hedera and content services provider Hyland recently presented a proof of concept to the Texas Secretary of State to secure and verify government-issued records using electronic Apostilles, which will be recognized universally.

Fighting against money laundering and combating terrorism financing are critical regulatory requirements for every financial institution and these obligations are closely monitored by governments. TRM Labs has integrated with the Hedera public ledger to provide robust compliance and risk management solutions to the developers building on Hedera.

The team also has partnered with Everyware to monitor the cold storage equipment used to store COVID-19 and other vaccines at Stratford Upon Avon and Warwick hospitals.

Along similar lines, AVC Global and its Subsidiary MVC’s Track-and-Trace Platform have chosen to collaborate with Hedera to develop intelligent supply chains to reduce risk and fraud and enable the right product to reach the right place at the right time.

Hedera’s strength can be found in its diversified enterprises and the organizations that are part of the Hedera Governing Council. As the number of use cases for the protocol increase, it’s possible that HBAR will also continue to perform well.

HBAR has risen from an intraday low of $0.04151 on Jan. 12 to an intraday high at $0.12467 today, a 200% rally within a short span. The sharp rally on Jan. 20 cleared the overhead hurdle at $0.083.

*HBAR/USDT daily chart. Source:* *TradingView*

However, the sharp rally of the past few days has pushed the relative strength index (RSI) deep into the overbought territory, which may have attracted profit booking from traders. This has resulted in the formation of a Doji candlestick pattern today, suggesting indecision among the bulls and the bears about the next directional move.

The HBAR/USD pair could retest the recent breakout level at $0.083. If the price rebounds off this support, the bulls will again try to resume the uptrend. A breakout and close above $0.12467 could resume the uptrend, with the next target objective at $0.16616.

This bullish view will invalidate if the bears sink the price below the $0.083 support. Such a move could drag the pair to the 20-day exponential moving average ($0.06) as a deep fall tends to delay the resumption of the uptrend.

REEF/USD

The growing popularity of the DeFi space shows no signs of slowing down. Several new platforms promising innovative products pop up every other day and this makes it increasingly difficult to keep track of all new developments.

Reef’s (REEF) AI and Machine Learning powered algorithms attempt to address this problem by aggregating liquidity from various sources in order to offer users the most profitable option.

To achieve this objective, Reef has entered several partnerships in the past few weeks. The platform added support to Avalanche, enabling Reef’s clients to directly access the products available on Avalanche without leaving Reef’s platform.

Similarly, a partnership with bZx Protocol offers clients several trading and lending opportunities. The addition of a bZx farming pool to Reef’s AI and Machine Learning powered analytics engine will further widen the options available to Reef’s clients.

Reef’s collaboration with OpenDeFi allows users to invest in synthetic versions of real-world assets that are held by a custodian. Traders can invest in physical assets such as gold, silver, or even real estate and they can stake them to receive loans.

Reef finance was recently listed on Binance Launchpool, increasing its accessibility and a recent code audit by Halborn is likely to increase investors’ confidence in the project.

REEF rallied from an intraday low at $0.006516 on Jan. 13 to an intraday high at $0.023 today, a 252% rally within a short period. Due to the short trading history, a 4-hour chart has been used for the analysis.

*REEF/USDT 4-hour chart. Source:* *TradingView*

The REEF/USD pair is currently trading inside an ascending channel, with both moving averages sloping up and the RSI in the positive territory. This suggests that the bulls have the upper hand.

If the pair rebounds off the 20-EMA, the uptrend could resume its up-move inside the channel. A breakout and close above the channel will suggest a pick up in momentum. The critical level to watch on the upside is $0.031 and then $0.042.

Contrary to this assumption, if the bears sink the price below the support line of the channel, the pair could drop to the 50-simple moving average. A break below this support could signal that bears have taken control.

PERP/USD

Perpetual Protocol (PERP) is a relatively new entrant in the DeFi space, listing on the Ethereum mainnet on Dec 14. The recent crypto bull run could have accelerated its adoption as traders have been using perpetual contracts to profit from the speeding market.

Even though the platform supports only three trading pairs, Perpetual said their 7-day volume puts them in the top 10 on the DEX Metrics highlighted by Dune analytics.

After its initial success, Perpetual plans to add a fourth trading pair and then follow it up with more additions in due course. The staking pool may launch in February, which will allow PERP token holders to stake and earn rewards on fees generated by trading on the platform. The team is currently working to integrate limit orders sell options to the platform and the feature is expected to go live before the end of Q1.

PERP rallied from $1.844 on Jan. 12 to an intraday high at $6.055 on Jan. 17, a 228% rally within a week. After a three-day correction, the bulls are currently attempting to resume the uptrend.

*PERP/USD daily chart. Source:* *Beta.Dex Vision*

The shallow correction of the past three days suggests that the bulls are not closing their positions in a hurry. If the buyers can push the price above $6.055, the next leg of the up-move could begin. The next target objective on the upside is $9.41.

On the contrary, if the price turns down from $6.055, the PERP/USD pair may correct to $4.275 and remain range-bound between these two levels for a few days.

A break below $4.275 may intensify selling with the next support at the 50% Fibonacci retracement level. A breakdown and close below the 20-day EMA ($3.19) will signal a possible trend change.

The views and opinions expressed here are solely those of the author and do not necessarily reflect the views of Cointelegraph. Every investment and trading move involves risk, you should conduct your own research when making a decision.

Ignoring Bitcoin, Hedera Hashgraph, Reef and Perpetual Protocol rally higher

Source

Dec 27 2020

SEC vs. Ripple: A predictable but undesirable development

The U.S. Securities and Exchange Commission has not been kind to crypto in the past year. In March 2020, in the SEC v. Telegram case, the Commission won a worldwide injunction against the proposed issuance of Grams by Telegram, undoing years of innovative work even in the absence of any allegations of fraud. Then, on the last day of September 2020, Judge Alvin K. Hellerstein dashed the hopes of Kik Interactive by ruling in favor of the SEC’s motion for summary judgment in SEC v. Kik Interactive, halting the sale of Kin crypto tokens. Both of these actions were filed in the Southern District of New York. On Dec. 22, 2020, the SEC decided that it was time to initiate another high-profile action, filing in the same district against Ripple Labs and its initial and current CEOs, Christian Larsen and Bradly Garlinghouse, respectively, for raising more than $1.38 billion through the sale of XRP since 2013.

The initial fallout from this action has been swift and severe: 24 hours after the lawsuit was filed, the price of XRP was down almost 25%. This still left XRP ranked fourth on CoinMarketCap, with a total market capitalization of over $10.5 billion.

The complaint

In its complaint, the Commission paints a straightforward pattern of sales of XRP that were never registered with the SEC or made pursuant to any exemption from registration. From the perspective of the Commission, this amounts to a sustained practice of illegal sales of unregistered, non-exempt securities under Section 5 of the Securities Act of 1933.

For readers not familiar with legal procedure, it might seem unusual for the case to be brought in a New York federal court, especially since Ripple is headquartered in California, and both named individuals reside there. However, Ripple has an office in the Southern District of that state, some statements were made by Garlinghouse while he was present in New York, and significant sales of XRP were made to New York residents. In legal parlance, this would make venues in the Southern District of New York appropriate.

In addition, it might be surprising to some that both Larsen and Garlinghouse were named personally in an action that seeks primarily to recover for XRP allegedly sold illegally by Ripple, through its wholly-owned subsidiary, XRP II LLC. They are named both because they individually also sold significant volumes of XRP — 1.7 billion by Larsen and 321 million by Garlinghouse — and because the SEC contends they “aided and abetted” Ripple in its sales.

Aiding and abetting is a cause of action that depends on a primary violation by a third party, in which the aider and abettor voluntarily and knowingly participates with the goal of assisting in the venture’s success. In this case, Ripple would be the primary violator, and both Larsen and Garlinghouse are alleged to have substantially participated in the pattern of Ripple’s XRP sales, with the goal of allowing the company to raise funds without registering XRP under the federal securities laws or complying with any available exemption from registration.

The bulk of the complaint provides an overview of digital assets, details the SEC’s version of the history of Ripple and its marketing efforts with regard to XRP, illustrates how in the opinion of the Commission, XRP satisfies the elements of the Howey investment contract test under the federal securities laws, and seeks to demonstrate how Larsen and Garlinghouse participated in the on-going sales efforts.

In addition to disgorgement of all “ill-gotten gains,” the requested order would permanently ban the named defendants from ever selling unregistered XRP or participating in any way in the sale of unregistered, non-exempt securities. It would also prohibit them from participating in the offering of any digital asset securities, and it seeks unspecified civil monetary penalties.

A brief history of Ripple and XRP

The idea behind the current XRP dates back to late 2011 or early 2012, before the company changed its name to Ripple. The XRP Ledger, or software code, operates as a peer-to-peer database, spread across a network of computers that records data about transactions, among other things. In order to achieve consensus, each server on the network evaluates proposed transactions from a subset of nodes it trusts not to defraud it. Those trusted nodes are known as the server’s unique node list, or UNL. Although each server defines its own trusted nodes, the XRP Ledger requires a high degree of overlap between the trusted nodes chosen by each server. To facilitate this overlap, Ripple publishes a proposed UNL.

Upon the completion of the XRP Ledger in December 2012, and as its code was being deployed to the servers that would run it, a fixed supply of 100 billion XRP was set and created at little cost. Of those XRP, 80 billion were transferred to Ripple and the remaining 20 billion XRP went to a group of founders, including Larsen. At this point in time, Ripple and its founders controlled 100% of XRP.

Note that these choices represent a compromise between the fully decentralized, peer-to-peer network that was envisioned when Bitcoin (BTC) was first announced and a fully centralized network with a single trusted intermediary such as a conventional financial institution. In addition, Bitcoin was never designed or intended to be held or controlled by a single entity. In contrast, all XRP was originally issued to the company that created it and that company’s founders. This hybrid approach to a blockchain-based digital asset and more conventional assets created and controlled by a single entity led some crypto enthusiasts to complain that XRP was not a “true” cryptocurrency at all.

According to the SEC’s complaint, from 2013 through 2014, Ripple and Larsen made efforts to create a market for XRP by having Ripple distribute approximately 12.5 billion XRP through bounty programs that paid programmers compensation for reporting problems in the XRP Ledger’s code. As part of these calculated steps, Ripple distributed small amounts of XRP — typically between 100 and 1,000 XRP per transaction — to anonymous developers and others to establish a trading market for XRP.

Ripple then began more systematic efforts to increase speculative demand and trading volume for XRP. Starting in at least 2015, Ripple decided that it would seek to make XRP a “universal [digital] asset” for banks and other financial institutions to effect money transfers. According to the SEC, this meant that Ripple needed to create an active, liquid XRP secondary trading market. It, therefore, expanded its efforts to develop a use for XRP while increasing sales of XRP into the market.

At about this time, Ripple Labs, and its subsidiary, XRP II LLC, came under investigation by the U.S. Financial Crimes Enforcement Network, or FinCEN, acting pursuant to its mandates in the Bank Secrecy Act, or BSA. Acting in conjunction with the U.S. Attorney’s Office for the Northern District of California, the two companies were charged with failing to comply with various BSA requirements, including failure to register with FinCEN and failure to implement and maintain proper Anti-Money Laundering and Know Your Customer protocols. According to FinCEN, Ripple’s failure to comply with these FinCEN requirements was facilitating the use of XRP by money launderers and terrorists.

This action did not proceed to trial, with Ripple Labs settling the charges by agreeing to pay a $700,000 fine and further agreeing to take immediate remedial steps to bring the companies into compliance with BSA requirements. The settlement was announced by FinCEN on May 5, 2015. The major contention of FinCEN throughout its investigation was that XRP was a digital currency. Ripple acceded to this position and has since worked to comply with BSA requirements.

At the same time, as noted in the SEC’s complaint, from 2014 through the third quarter of 2020, the company sold at least 8.8 billion XRP in the market and institutional sales, raising approximately $1.38 billion to fund its operations. In addition, the complaint asserts that from 2015 through at least March 2020, while Larsen was an affiliate of Ripple as its CEO and later chairman of the board, Larsen and his wife sold over 1.7 billion XRP to public investors in the market. Larsen and his wife netted at least $450 million from those sales. From April 2017 through December 2019, while an affiliate of Ripple as CEO, Garlinghouse sold over 321 million XRP he had received from Ripple to public investors in the market, generating approximately $150 million from those sales.

XRP is not like Bitcoin or Ether

The preceding description paints a picture of a digital asset that is widely held by persons scattered around the globe. In the case of both Bitcoin and Ether (ETH), this kind of decentralization was apparently enough to convince the SEC that those two digital assets should not be regulated as securities. As Director Bill Hinman of the SEC’s Division of Corporation Finance explained in June of 2018:

“If the network on which the token or coin is to function is sufficiently decentralized — where purchasers would no longer reasonably expect a person or group to carry out essential managerial or entrepreneurial efforts — the assets may not represent an investment contract. Moreover, when the efforts of the third party are no longer a key factor for determining the enterprise’s success, material information asymmetries recede. As a network becomes truly decentralized, the ability to identify an issuer or promoter to make the requisite disclosures becomes difficult, and less meaningful. […] The network on which Bitcoin functions is operational and appears to have been decentralized for some time, perhaps from inception. Applying the disclosure regime of the federal securities laws to the offer and resale of Bitcoin would seem to add little value.”

This kind of analysis does not really work for XRP, most of which continues to be owned by the company that created it, where the company continues to have significant influence over which nodes will serve as trusted validators for transactions, and where the company continues to play a significant role in the profitability and viability of the asset. Part of that role will now, of course, involve responding to this latest SEC initiative.

The court’s probable reaction

Unfortunately for Ripple and its former and current CEOs, the SEC has a strong case that XRP fits within the Howey investment contract test. Derived from the 1946 Supreme Court decision in SEC v. W. J. Howey, this test holds that you have bought a security if you: (1) make an investment (2) of money or something else of value, (3) in a common enterprise, (4) with the expectation of profits, (5) from the essential managerial efforts of others. Most of the purchasers of XRP, or certainly a very large number of them, would appear to fit within each of these categories.

Ripple raised more than $1.38 billion from the sale of XRP, so it is abundantly clear that purchasers were paying something of value. Moreover, as there was no effort to limit purchasers to the amount of XRP that they might reasonably “use” for anything other than investment purposes, that element appears likely to be present as well. The fact that the fortunes of all the investors rise and fall together along with the value of XRP in the marketplace should satisfy the commonality requirement.

The complaint highlights a number of things that Ripple has done to promote profitability, including statements that it has made, all of which suggest that a reason for purchasing XRP is the potential for appreciation. The limited functionality of XRP in comparison to its trading supply is another reason to believe that most purchasers were buying for investment, seeking to make a profit.

Finally, the significant on-going involvement and role of the company, especially given its huge continuing ownership interest in XRP, means that there is a strong case to be made that the profitability of XRP is highly dependent on the efforts of Ripple. All of this points to the reality that, under the Howey Test, XRP is likely to be a security.

Ripple’s response to the SEC’s action

Ripple’s response to the SEC’s enforcement action came even before the SEC’s complaint was officially filed. On Dec. 21, Garlinghouse tweeted out a condemnation of the SEC’s planned action, criticizing the agency for picking favorites and trying to “limit US innovation in the crypto industry to BTC and ETH.” Soon after, Ripple’s general counsel, Stuart Alderoty, gave a strong indication of how the company was likely to respond in the pending matter by pointing out the 2015 FinCEN issue, which he claimed was a government determination that XRP was a digital currency rather than a security under the Howey Test.

Unfortunately, classification as a digital currency does not necessarily preclude regulation as a security. As another New York district court decided in the 2018 case of CFTC v. McDonnell, in the context of the Commodity Futures Trading Commission’s authority to regulate digital assets, “Federal agencies may have concurrent or overlapping jurisdiction over a particular issue or area.”

Thus, even though FinCEN regulates crypto as a digital asset, the CFTC may treat it as a commodity; the SEC may regulate it as a security; and the Internal Revenue Service may tax it as property. All at the same time.

Conclusion

This comment should not be taken as approval of the SEC’s current approach and relative hostility to crypto offerings. As the SEC’s complaint notes, the XRP sales that are now being questioned took place over many years. The initial sales date back to 2013, which had happened considerably before the SEC first publicly announced its position that digital assets should be regulated as securities if they fit within the Howey investment contract analysis, which did not come until 2017 with The DAO Report. Moreover, since 2015, Ripple has been proceeding in accordance with the settlement reached with FinCEN. Since that time, Ripple has worked to bring its operations into compliance with BSA requirements, operating as if XRP is a currency rather than a security.

The views, thoughts and opinions expressed here are the author’s alone and do not necessarily reflect or represent the views and opinions of Cointelegraph.

Carol Goforth is a university professor and the Clayton N. little professor of law at the University of Arkansas (Fayetteville) School of Law.

The opinions expressed are the author’s alone and do not necessarily reflect the views of the University or its affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

SEC vs. Ripple: A predictable but undesirable development

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