Ripple Spotlights XRP in Latest Filing for Cross Appeal Against SEC Emphasizing 4 Key Concerns

Ripple has submitted its pre-argument appeal statement, outlining four issues it plans to cross-appeal against the SEC. This move comes two weeks after Ripple stated that its appeal would leave no stone unturned. Previously, Ripple had lost the case regarding institutional sales of XRP, which were deemed investment contracts. As a result, the federal court imposed an injunction on Ripple’s future institutional sales and issued a $125 million fine.
However, with the SEC appealing the rulings it lost to Ripple (programmatic sales and other distributions of XRP), Ripple has filed a cross-appeal notice specifically challenging the decision on institutional sales.
In the filing, Ripple presented four issues it intends to bring before the Second Circuit in the appeal. The company has urged the Second Circuit to independently review these issues, without relying on the district court’s decision.
The first issue Ripple plans to present is whether the Securities Acts of 1933 require an investment contract to have an actual contract, post-sale obligations, and the buyer’s rights to profit from the seller’s efforts.
Secondly, Ripple aims to determine whether the district court was incorrect in declaring that some of its XRP-related transactions satisfy the three elements of the SEC’s securities test, Howey. These elements include an investment of money in a common enterprise, with buyers expecting profit from the seller’s efforts.
The third issue Ripple’s cross-appeal will focus on is its fair notice defense. Specifically, Ripple questions whether it raised a genuine dispute of fact by presenting evidence of the SEC’s inconsistent guidance and regulatory uncertainty, arguing that it lacked fair notice on whether its conduct violated federal securities laws.
Lastly, Ripple seeks to nullify the injunction order to ensure it does not impact its future business operations. Ripple questions whether the Rule 65 requirements prevent the injunction by simply directing the enjoined party to obey the law.
Moving forward, the next step in the SEC v. Ripple lawsuit will involve the Second Circuit issuing a scheduling order for the briefings after Ripple’s submission of the Form C statement. The SEC will file its opening appeal brief, followed by Ripple’s response. Ripple will then file its cross-appeal brief, and the SEC will respond to the issues. The entire briefing process is expected to conclude in July 2025, according to Ripple’s CLO Stuart Alderoty.
Meanwhile, the SEC has requested an extension of the deadline for filing its principal appeal brief. The SEC wants the deadline extended to January 15, 2025. XRP proponents have suggested that this request indicates the SEC’s intention to delay the case, similar to its tactics at the district court level. However, the court has yet to make a decision on the request.
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