[by Juho Rantala & Outi Korhonen]
The SEC case against Ripple and its co-founders allegedly determines the future of crypto regulation at large and, in particular, the future of digital assets and blockchain technology policy in the United States. As 95% of SEC claims end in settlement between the agency and the company under scrutiny, it is much more likely than not that Ripple Labs will also settle. It is predicted that discovery and depositions will continue throughout the fall of 2021 and a settlement would be possible some time in 2022.
The story behind the case is one of Silicon Valley innovation, the paradoxical position of blockchain innovations in-between providing for global decentralization of financial power and making centralized financial institutions yet more efficient and controlling, the United States’ technology policy, and the individuals at Ripple Labs and at the SEC, some of the latter having interests in rival blockchain projects, like Ethereum.
Daniel Krupka summarises the SEC complaint as follows: the SEC claims that “XRP is an unregistered security that was sold by Ripple (the company), Brad (Carlinghouse) and Chris (Larsen), and that all three parties engaged in bad business practices to enrich themselves in the process” (brackets added). In more detail and according to the SEC, the legal issues of the complaint against Ripple Labs, Bradley Carlinghouse and Christian A. Larsen, further implicating five other insiders, are the following:
“From at least 2013 through the present, Defendants sold over 14.6 billion units of a digital asset security called ‘XRP,’ in return for cash or other consideration worth over $1.38 billion U.S. Dollars (…), to fund Ripple’s operations and enrich Larsen and Garlinghouse. Defendants undertook this distribution without registering their offers and sales of XRP with the SEC as required by the federal securities laws (…)” (See the case document; hereinafter Complaint.)
The legitimate state purpose to require strict and formal information filings for any such securities (equities, bonds and derivatives) that are to be sold to the general public is to avoid an “information vacuum” that might be exploited by those (e.g., the issuing company’s insider executives, such as Carlinghouse and Larsen) holding informational upper hand over everyone else. The SEC’s mandate is to protect the public. After interventions on behalf of the public in the United States and elsewhere, who own XRP and have suffered devaluation because of the lawsuit, the complaint has been explicitly limited to the company and its executives; thus, the XRP-holding public is immunised from any claims.
RippleLabs’ main defence rests on the lack of “fair notice” from the SEC. The SEC asserts that it had put the company on notice of potential violation already in 2012. Whether the defendants were on genuine notice or whether, indeed, they had grounds to rely on being compliant is one of the major issues of the case. (See, e.g., 1; 2.) The SEC charges against the two executives that
“Larsen — Ripple’s initial chief executive officer (‘CEO’) and current chairman of the Board — and Garlinghouse — Ripple’s current CEO — orchestrated (the) unlawful sales and personally profited by approximately $600 million from their unregistered sales of XRP”. (Complaint, p.5.)
Their profits rose this high, according to the SEC, as a direct result of the illegal information asymmetry that they had created by not filing the formal documentation specified by law for any initial public offering of a security. Krupka highlights the problem: “(T)he SEC confirms a long-held belief by critics of Ripple that its only profits come from its selling of XRP behind the scenes to large investors at a discount (…) they were able to resell it for a nice profit to hyped up retail investors like you and me who were completely unaware this was happening behind the scenes.”
On the opposite side, the sales are part of the tokenomics of XRP, the plan of distribution and release into circulation detailed in the White Paper. The holding of the XRPs by the executives and developers have been part of their remuneration and compensation for the risks that they have taken in developing Ripple Labs from a startup to its current status. Carlinghouse (born 1971) was a seasoned Silicon Valley executive when he joined Ripple Labs in 2015. He had served in many technology companies, including as Senior Vice-President at Yahoo, where he penned the famous company critique “The Peanut Butter Manifesto” in 2006. Christian Larsen (born 1960) is a serial entrepreneur who had founded Prosper and E-Loan before Ripple Labs. Larsen came along in 2012 (the company was first called NewCoin and OpenCoin until 2013) to manage an improvement on Bitcoin-style blockchain technology that had been developed by engineers David Schwartz, Jed McCaleb, and Arthur Britto in the previous year. Based on McCaleb’s initiative, the engineers had designed a digital asset ledger (XRPL) that was more sustainable and calibrated for payment transactions. McCaleb had posted in Bitcoin Forum (May 27, 2011): ”So I’ve been thinking… bitcoin mining seems like such an unfortunate side effect of the system since it is so wasteful. It will be a bit obscene how much will be spent mining if the network ever gets large. It would be cool to come up with a bitcoin that doesn’t need miners.” Notably, none of the engineers face SEC complaints.
In this paper we shall combine a basic IRAC-analysis of the on-going case with a microhistorical approach, that is, adding narrative elements concerning all protagonists and the technology itself yet avoiding the construction of a plot. The aim of such an approach is to situate a blockchain debate, including its legal issues, in a rich(er) context thus offering a gripping surface for multidisciplinary analysis. Paraphrasing Le Roy Ladurie, the approach is neither that of truffle hunting nor parachuting but something in between.
What are Ripple, RippleLabs and XRP?
After Bitcoin launched the rise of blockchain technology in 2008–2009, its open source foundation guaranteed that thousands of new projects and cryptocurrencies started to spring out. One of the key developmental updates was Ethereum (2012); however, around the same time, in 2013, another system was introduced first as OpenCoin, and then quickly changing its company name to Ripple Labs. The foundations of the Ripple system were conceived by Jed McCaleb, of the Mt. Gox-fame, and OpenCoin-developer Ryan Fugger. Fugger had already in the pre-Bitcoin era hoped to create “a way for people to extend credit to strangers through the people they already knew”, and had built a system called Ripplepay in 2005–2006.
The Ripple system is a centralized blockchain that moves system tokens, XRPs, through a semi-centralized system. It is semi-centralized in that it is controlled by the company and a group of administrative nodes. The XRP-tokens are free for use by anyone. At the moment, XRPs are designed to work as a kind of mediating currency between different fiat currencies and other cryptos for financial institutions. RippleLabs (Ripple for short) has developed a system that aims to make financial transactions as quick and easy as email, thus challenging the slow and cumbersome SWIFT system (itself initiating major reforms after the rise of interest in Ripple). Ripple is a payment protocol for financial institutions, especially banks, like the SWIFT system — or, in other words, it is “a real-time gross settlement solution/infrastructure technology for interbank transactions.” The idea is that financial institutions can integrate Ripple’s transaction system into their own existing systems increasing speed and cutting cost. XRPs (the tokens), on the other hand, work as the bridge currency, “which can be necessary if no direct exchange is available between two currencies at a specific time, for example, when transacting between two rarely traded currency pairs.”
The company’s vision for XRP and the Ripple protocol is to create the first global central bank digital currency (CBDC). This is underlined in the paper produced by the company. The paper points out that one of the key elements that CBDC requires is interoperability between different currencies and payment schemes in local and global levels. In addition, CBDC requires a certain amount of control over the protocol system, which XRP also offers as it is a semi-decentralized system.
SWIFT, or Society of Worldwide Interbank Financial Telecommunications, has been in use by traditional institutions already for over 45 years. SWIFT was, in its time, a huge lead from the previous Telex system, which was “a separated telephone-like system to deliver free form transaction messages.” Telex was slow because the details of transactions needed to be described in sentences. SWIFT enabled a standardized and coded system, which made the system more fluid. As Qiu & al. write:
“[SWIFT] is a network of banks, and is heavily dependent on banks as operating units. The problem with SWIFT is the liquidity and credit risk as its business model heavily relies on tiers of banks to allow the transactions to go through. A clearing center or settlement center is needed at the sender’s end and the receiver’s end. This makes the whole process lengthy.”
SWIFT code included several key identifier components (e.g., institution code, country code, location code, branch code), but the weakness of the system is that it is “essentially a messenger system”: it can only deliver the transaction messages, and it does not settle the payments. The update with Ripple would be that it combines these two elements into one system or protocol — “the transaction data and the actual fund is carried at the same time.”
Ripple’s blockchain is a quite simple system: much like Ethereum or Bitcoin, it acts as a distributed digital ledger that is constantly updated to every user and in which consensus protocols (or algorithms) verify transactions as legal, eliminating the “double-spend problem.”
At first, the system used what was called the “Ripple Protocol Consensus Algorithm” (RPCA), an overall algorithmic mechanism that integrated all parts together. By 2018, the system updated its functions and changed the name to “XRP Ledger Consensus Protocol” (XLCP). The change was probably — in addition to general technical updates — due to the fact that by 2018, over 100 financial institutions had joined Ripple’s network. However, most of them used its messaging system and not XRP tokens.
The 2014 white paper is still its seminal text, as the new paper focuses on providing detailed mathematical evidence for a more robust algorithm for UNL. In the original white paper, we can see that the overall structure follows Bitcoin, but the transaction verification process differs somewhat from public systems such as Bitcoin. The system protocol uses a list of unique nodes (UNLs):
“Each server, s, maintains a unique node list, which is a set of other servers that s queries when determining consensus. Only the votes of the other members of the UNL of s are considered when determining consensus (as opposed to every node on the network) […] Any server can broadcast transactions to be included in the consensus process, and every server attempts to include every valid transaction when a new consensus round starts. During the consensus process, however, only proposals from servers on the UNL of a server s are considered by s.”
Each node only votes “on proposal from a trusted set of nodes” — and all of these nodes can “have differing UNLs” – which leads to a point where “only one consensus will be reached amongst all nodes.”
RCPA unifies or synthesizes all these together as an overall consensus mechanism. The 2014 White paper divides the process into four steps. First, each of the servers takes all transactions and makes them a public list. Second, each of these servers “amalgamates the [public lists] of all servers on its UNL, and votes on the veracity of all transactions.” Third, those that receive enough “yes” votes are passed on to another voting round. Fourth, “the final round of consensus requires a minimum percentage of 80% of a server’s UNL agreeing on a transaction.” Thus, transactions that meet this requirement are applied to the ledger, and that ledger is closed”.
Already the RCPA increased the speed and energy efficiency of many blockchain systems, especially Bitcoin. In addition, it, at least in theory, could prevent a so-called “fork”, a mechanism through which malicious (or non-malicious) nodes can create another blockchain alongside the prior one. Also, if compared to prior mentioned SWIFT, Ripple system does provide 24/7 real-time transaction settlement.
Two-thirds of XRPs have been retained by the company. This has made the owners, especially former CEO Chris Larsen rich; but, on the other hand, it has been justified as a functional part of the system of a centralized blockchain and appears to serve as a funding source for the company’s R&D at times.
In order to protect the public, the SEC enforces all financial securities offerings to follow the Securities Act - that is, to make extensive formal information filings before any sale is made to the public. Cryptocurrency offerings, their initial coin offerings (ICOs), have mostly omitted such filings and thus deviated from the practice at initial public offerings (IPOs) by companies. The justification has been that they are currencies (akin to money) not securities (akin to shares). Obviously, whether a new technological medium such as XRP (digital token) is more like a share or a unit of money, can be complicated. Typically, technological innovations break out of traditional classifications and present mixed characteristics of old types and then include some new features.
In determining whether a financial instrument falls under the Securities Act (1933), the United States courts traditionally apply the so-called Howie Test. The Howie Test comes from a US Supreme Court 1946 precedent concerning interests in oranges and comprises four criteria to determine whether an instrument qualifies as a security. The criteria are (1) the existence of an investment contract, (2) the formation of a common enterprise, (3) a promise of profits by the issuer, and (4) use of a third party to promote the offering. If an instrument satisfies the criteria it is deemed that the company is “offering something more than (e.g.) fee simple interests (…) they are offering an opportunity to contribute money and to share in the profits of (an) enterprise.”
As explained by the SEC:
“Courts have found that novel or unique investment vehicles constitute investment contracts, including interests in orange groves (Howey case), animal breeding programs, railroads, mobile phones, and enterprises that exist only on the Internet. As the United States Supreme Court noted in SEC v. W. J. Howey Co., Congress defined ‘security’ broadly to embody a ‘flexible rather than a static principle, one that is capable of adaptation to meet the countless and variable schemes devised by those who seek the use of the money of others on the promise of profits.’ 328 U.S. 293, 299 (1946).” (Complaint, p.7.)
If an instrument satisfies the Howey Test, it is normally deemed a security and extensive documentation is required before it can be offered for sale. An ardent critic of the SEC case, Roslyn Layton, in a crypto-positive Forbes article, asserts that “(i)f (…) regulators were honest, they would admit that nothing in the 1933 Securities Act refers to cryptocurrency and then would request Congress to clarify the statute. Instead, the SEC made an unfounded determination with no warning or process.” She finds the complaint full of flaws. It is also worth mentioning that the United States is among a handful of states including Canada and North Korea to name but a few, which hold very strict standards for initial offerings. Many other states, for example Switzerland, have deemed XRP and others ‘currencies’ or ‘crypto currencies’.
The outgoing leadership of the SEC, in their last month of office, launched a complaint against Ripple. According to the SEC, not only did the company sell unregistered securities (XRP coin) but the two executives also sold their holdings, thereby acquiring hundreds of millions of US dollars when prices increased. (Complaint, p.15.) The speculative sales included discounted sales to institutional buyers, cryptocurrency market makers (Complaint, p.15–16), all kinds of distribution and compensation programs, and even XRP options sales (Complaint, p.24–25). XRP was also used as remuneration for employees and affiliates. The SEC finds that “Garlinghouse and Larsen (…) undertook significant efforts to monitor, manage, and impact the XRP trading markets, including the trading price and volume of XRP.” For this they had a dedicated XRP Markets Team which co-ordinated Ripple’s buying of their own coin on designated digital market platforms to coincide with positively tuned press releases that, in fact, had nothing to do with XRP per se (Complaint, p.29–32).
Reflecting on the Howey criteria, the SEC ties the success of XRP to the success of the Ripple Labs (the company as the ‘third party’) and its strategy: “Because XRP is fungible, the fortunes of XRP purchasers were and are tied to one another, and each depend on the success of Ripple’s XRP Strategy. In other words, Ripple’s success or failure in propelling trading of XRP drives demand for XRP, which will dictate investors’ profits (recognized in increased prices at which they could sell XRP) or losses.” (Complaint, p.45) According to Krupka, the case will test whether the Howey test is broad enough for cryptocurrencies. He summarises the gist of the test: “The Howey Test boils down to one simple question: is monetary value of the asset being invested in dependent on the efforts of a third party?” — the third party being the issuing company (such as Ripple Labs).
A further controversy concerns an earlier settlement reached between Ripple and the United States Department of Justice (DOJ) cooperating with FinCEN. Whilst commentators claim that this settlement confirmed XRP as ‘virtual currency’ in 2015, the SEC Complaint strongly disagrees stating:
“In May 2015, Ripple and XRP II agreed (i) to settle charges brought by the United States Department of Justice and FinCEN for failing to register as a ‘Money Services Business’ Case 1:20-cv-10832 Document 4 Filed 12/22/20 under the Bank Secrecy Act and (ii) to comply with other regulatory requirements with respect to Ripple’s XRP sales, which the settlement called ‘virtual currency’ (…) (Yet) XRP is not ‘currency’ under the federal securities laws. (…) XRP has not been designated as legal tender in any jurisdiction. XRP is not issued by, nor is backed by the full faith and credit of, any country, national government, central bank, or other central monetary authority. A ‘native currency’ that operates, for example, on Ripple’s decentralized network of blockchain technology is a specialized instrument for a particular computer network, not legal tender. Similarly, using XRP as a ‘bridge’ between two real, fiat currencies does not bestow legal tender status on XRP. (…) Moreover, Ripple has never offered or sold XRP as ‘currency,’ as that term is used in the federal securities laws. (…) Ripple never restricted offers or sales of XRP solely to purchasers who had a need for alternatives to traditional, fiat currencies, nor did Ripple promote XRP as an instrument for consumers to purchase goods or services.” (Complaint, p.60.)
According to Krupka, Bitcoing and Ethereum do not similarly depend on the actions and successes of an issuing company because they are decentralised to a much higher degree — or, as in Bitcoin’s case, completely.
The SEC quotes Garlinghouse’s explanation, which seems rather to highlight the paradox of SEC’s binary view on ‘currency v security’ rather than to prove SEC’s point about what ‘currency’ would or should mean in a crypto economy:
Garlinghouse (interviewed): “XRP in my judgment, and really any crypto, I don’t think the use case is a consumer use case today. . . . [W]hen people talk about using crypto for consumer use case I go to the ‘well what problem are we trying to solve?’ . . . [I]n first world countries like the United States . . . I don’t see the consumer use for crypto any time soon, or even for 95% of global GDP.” (Complaint, p.61)
The SEC finds that “Defendants engaged in and are currently engaging in the unlawful offer and sale of securities in violation of Sections 5(a) and 5(c) of the Securities Act of 1933 (“Securities Act”) [15 U.S.C. §§ 77e(a) and 77e(c)], and that Larsen and Garlinghouse also aided and abetted Ripple’s violations of those provisions.” The SEC demands a judgment to “(…) (a) permanently enjoin(…) Defendants from violating Sections 5(a) and 5(c) of the Securities Act, pursuant to Section 20(b) of the Securities Act [15 U.S.C. § 77t(b)]; (b) pursuant to Section 21(d)(5) of the Securities Exchange Act of 1934 (“Exchange Act”), (i) order(…) Defendants to disgorge their ill-gotten gains and to pay prejudgment interest thereon and (ii) prohib(…) Defendants from participating in any offering of digital asset securities; and c) impos(e) civil money penalties on Defendants pursuant to Section 20(d) of the Securities Act [15 U.S.C § 77t(d)].” (Complaint, p.3)
Internationally, the case tests the concept of money and currency in cyberspace. The only use-case of XRP, mentioned in the SEC complaint, is cross border transfers of funds. It has been alleged that cryptocurrencies allow competition and reduce prices and speed (for example, in international remittances), thus contributing to the meeting of the targets set by, for example, the Global Compact for Migration. Thus, such use-cases should be promoted, not impeded. If XRP were to show contribution to such targets, the defendants may, at least in theory, attempt to list international regulatory support.
Application of Rules in the Case
SEC is convinced that the securities regulations apply to Ripple’s token (XRP) as such and that there is no ambiguity. It has obtained legal memoranda that Ripple Labs had commissioned international law firms at its outset in early 2010s. In addition, in emails with employees and co-workers, Larsen recognised the risk of XRP being determined a ‘security’ within the meaning of the Securities Act (Complaint, p.10–11, 65). According to the SEC the defendants were well aware of the status of their enterprise and its offerings, and knowingly took the risk of legal hazards. They discussed it internally and openly. SEC summarises the findings of Ripple’s own legal advisors:
“If individuals purchased XRP ‘to engage in speculative investment trading’ or if Ripple employees promoted XRP as potentially increasing in price, the Legal Memos warned that Ripple would face an increased risk that XRP units would be considered investment contracts (and thus securities). (…) Both memos warned that XRP was unlikely to be considered ‘currency’ under the Exchange Act because, unlike ‘traditional currencies,’ XRP was not backed by a central government and was not legal tender. (…) The October 2012 Legal Memo also advised Ripple and Larsen to contact the SEC to obtain clarity as to whether XRP was a security under the federal securities laws(…) (yet) Ripple and Larsen (and later Garlinghouse) offered, sold and promoted XRP as an investment — precisely the type of conduct the Legal Memos had warned could lead to a determination that XRP was a security” without bothering to contact the SEC for clarification, the agency claims.
In a war of discovery motions, both protagonists have obtained rather extensive discovery into each others’ internal memoranda and discussions. Ripple Labs has obtained access to various SEC documents and the right to depose SEC staff (including Director Hinman) in an attempt to show that the SEC was internally at least as uncertain as Ripple about the status of cryptocurrencies.
The SEC also asserts that “Ripple made it part of its ‘strategy’ to sell XRP to as many speculative investors as possible.” Commentators explain it as the most common way to raise money for various blockchain projects and products:
“While Ripple touted the potential future use of XRP by certain specialized institutions, a potential use it would deploy investor funds to try to create, Ripple sold XRP widely into the market, specifically to individuals who had no ‘use’ for XRP as Ripple has described such potential ‘uses’ and for the most part when no such uses even existed.” (Complaint, p.13)
However, judges at U.S. District Court for the Southern District of New York concluded in a March 2021 hearing that, at least to date, XRP has both currency and utility value that distinguish it from Bitcoin and Ether. The first clear use-case was the introduction in 2018 of the crossborder payment service called ODL (On-Demand-Liquidity)/XRapid, which the SEC regards as a ‘de minimis’ use-case in comparison to any function as security of and profitable speculation with XRP (Complaint, p.21, 57–59).
According to Krupka, it is unlikely that Ripple, Garlinghouse and Larsen could win the case. He says: “(I)t is quite clear that Ripple, Brad, and Chris engaged in bad business practices that warrant some degree of legal repercussion. The question is whether this retribution depends on whether or not XRP is a security.” Commentators predictions, however, differ widely, and especially after permissions for extensive discovery by Ripple and various third-party interventions, XRPs value has risen manifold based on expectations of a fairly good settlement or even a win. Meanwhile, the case has tied up Ripple in a way that may severely damage its business in a fast-moving industry.
Krupka refers to blockchain community discussion on the matter and specifically to one blockchain technology ‘founding father’ Charles Hoskinson according to whom
“XRP is not a security even though it comes dangerously close to that classification. This is because the XRP ledger would continue to exist and operate even if Ripple were shut down and both Brad and Chris were put in prison.”
Krupka also points out that Ripple will analogise its relationship to XRP as the same as Exxon’s relationship to oil, for example. Layton sees the SEC Complaint as resulting from an ambiguous statute inviting ‘overinterpretation’ by misguided regulators. Garlinghouse has invoked the principles of unfair delay and legal certainty: “In their own court filings, (SEC) said that the court will determine (whether XRP is a security), which of course, brings a contradiction that if the court’s going to determine that, how could I personally have known that the SEC would view XRP as a security.” The SEC as well as Ripple have multiple attorneys on the case and there seem to have been clear changes.
In a series of commentaries[*] in Forbes and in a Senate Policy Letter, Layton alleges that the SEC complaint against Ripple and its executives is motivated by nefarious agendas of the former SEC leadership, and as such, are faulty at best. She explains how the former SEC leaders, who have initiated the complaint, have been and are heavily involved in the crypto economy and have misguidedly ‘handicapped’ Ripple as the flagship of American blockchain-powered crypto currencies. For example, SEC Director William Hinman was a prominent Silicon Valley lawyer and involved with cryptocurrencies before and after his career at the SEC. Layton explains that Judge Netburn agreed to Ripple’s request for discovery of internal SEC communication regarding the complaint. Layton calls for intra-agency transparency while:
“(the) disclosures could bring new headaches to scandal-plagued Apollo Capital Management which Clayton (former SEC Chair Jay Clayton) joined upon leaving the SEC, ostensibly to clean up the mess left by founder Leon Black and his links to Jeffrey Epstein. The timing of the lawsuit on Clayton’s last day and his subsequent hiring by a crypto-focused hedge fund are very curious coincidences. Conflict of interest concerns could also intensify for Hinman (former SEC Corporation Finance Division director), now back at his old firm Simpson Thacher, which paid him a $1.6 million annual pension while he worked at the SEC. Hinman’s influence to the determination that ether is not a security keeps the SEC’s regulatory paws off Ethereum, the blockchain platform which Simpson Thacher supports as a member of the Ethereum Enterprise Alliance. Simpson Thatcher also handled the $100 million IPO of Canaan, the Chinese maker of machines used to mine cryptocurrency.”
Layton also discusses what she views as a convoluted and ambiguity-riddled position of the SEC; it took the SEC seven years to address XRP as an illegal security although Ripple has done anything but kept a low profile. Referring to a class action by retail XRP-holders to exempt their tokens from the value reducing case, Layton highlights the principle of legal certainty. If the SEC, in defending against a class action, still claims that it is up to the courts to determine and thus no determination yet exists whether XRP is or is not a security, then how could Ripple and the other defendants be expected to have reasonable certainty almost a decade ago about what to do with their innovation thus echoing Ripple executives’ interviews.
Thus, taking different perspectives and considering the space in which the facts and legal issues involving SEC v. Ripple Labs, Carlinghouse, and Larsen take place, we encounter a host of questions and competing narratives: a story about the SEC’s more or less dubious entanglements with rising industries; a story of contrasting American technology policies under the Trump and Biden Administration; a story of the inevitable and increasing outdatedness of law in the face of accelerating technological progress; a story about defrauding the public and reeling in billions for a couple of brash Silicon Valley executives capitalising on the work of innovative engineers; and questions over who is protecting the public interests — the SEC or the Ripple community, at the core of which stands Ripple Labs, claiming to “(s)upport development of tools and platforms for financial inclusion globally”. The questions invite multidisciplinary interpretations on the SEC v. Ripple Labs stories. The case is illustrative of our lives in digital capitalism, in the ledger economy, and in the various, conflicting struggles for human agency within it.
[*: Roslyn Layton, In The Ripple Case, the SEC is Now on Trial — and Knows It, forbes. com (April 8, 21) at https://www.forbes.com/sites/roslynlayton/2021/04/08/in-the-ripple-case-the-sec-is-now-on-trial--and-knows-it/?sh=7da128084bd6; id., SEC Stumbles in Ripple Case, Lost in a Maze of Its Own Making, forbes.com (March 11, 2021) at https://www.forbes.com/sites/roslynlayton/2021/03/11/sec-stumbles-in-ripple-case-lost-in-a-maze-of-its-own-making/?sh=50332ff02e9b; id., SEC v. Ripple, Mining for Clarity in Regulatory Chaos (Feb 10, 2021) at https://www.forbes.com/sites/roslynlayton/2021/03/11/sec-stumbles-in-ripple-case-lost-in-a-maze-of-its-own-making/?sh=50332ff02e9b; id., SEC v. Ripple, The Cryptocurrency Trial of the Century, forbes.com (Dec 29, 2020) at https://www.forbes.com/sites/roslynlayton/2021/12/29/sec-v-ripple-the-cryptocurrency-trial-of-the-century/?sh=61463d8e5417; see also id., Five New Year’s Resolutions for Cryptocurrency, forbes.com (Jan 15, 2021) https://www.forbes.com/sites/roslynlayton/2021/01/15/five-new-years-resolutions-for-cryptocurrency/?sh=2757817655e7]