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Ex-SEC Explains Why Secondary Sales Are Not Securities

Published

4 months ago

August 29, 2024

Ripple SEC Case: The U.S. Securities and Exchanges Commission (SEC) Wells Notice against NFT marketplace Opensea has fueled debates on whether secondary sales are securities or not. Judge Torres did not issue a ruling on these sales but she stated that a “programmatic buyer stood in the same shoes as a secondary market purchaser.”

Secondary Market Sales Are Not Securities, Ex-SEC Lawyer Agree

Lawyers argue that the U.S. SEC lawsuit against Opensea alleging non-fungible tokens (NFT) as securities, is in conflict with the latest rulings in crypto cases.

Pro-XRP lawyer Bill Morgan revealed that Judge Torres in the SEC v Ripple case ruled that the XRP token in itself is as security. The judge claims the crypto is not a contract, transaction, or scheme that meets the Howey requirements of an investment contract.

Former SEC securities lawyer Marc Fagel agreed that while Judge Torres did not address secondary market sales, “programmatic sales sure sound like secondary market sales”. He also commented on the SEC Commissioners votes regarding the Ripple SEC case remaining confidential until the lawsuit completely ends.

Judge Orrick in SEC vs Kraken warned the agency about distinguishing between the nature of the crypto asset itself and sales of the asset. Moreover, in the SEC v Binance lawsuit, Judge Jackson completely dismissed the SEC’s claims that secondary sales of BNB and sales of BUSD are securities.

Opensea wells notice is seen as an attack on creators and artists. NFTs are fundamentally creative goods: art, collectibles, video game items, domain names, event tickets, and more.

Fagel further explained that secondary sales are not exactly securities, but the court will have to whether Section 5 of the Securities Act is violated. Ripple CLO Stuart Alderoty reveals why a case against Opensea is damaging for the government agency.

SEC Will Not Appeal Ripple SEC Case

The U.S. SEC has nearly 40 days remaining to appeal the remedies ruling. Lawyers believe the government agency can appeal Judge Torres’ summary judgment on XRP sales. The regulator also risks escalation to the Second Circuit Court if they appeal against the ruling.

The Second Circuit Court earlier ruled in favor of Coinbase that secondary market sales of crypto are not securities, adding weight to Judge Torres’ ruling on XRP programmatic sales. Coinbase CLO Paul Grewal took to X to reveal the major win for the crypto industry.

The regulator losing to Ripple in the Second Circuit could create a binding precedent over other courts, thus it discourages the SEC from appealing the Ripple case.

XRP Price Trades Below $0.60

XRP price jumped more than 1% in the past 24 hours, with the price currently trading at $0.57. The 24-hour low and high are $0.566 and $0.576, respectively. Furthermore, the trading volume has decreased by 40% in the last 24 hours, indicating a decline in interest among traders.

However, September could turn out to be bullish for XRP with a potential to rally to $0.75 and even up to $1. As per an XRP price prediction, Ripple’s fundamentals are surprisingly strong despite the uncertainty around potential appeal in the Ripple SEC case. Also, a breakout as whales fill their bags will bring upside momentum.

Total XRP futures open interest also witnessing buying activity, as per CoinGlass data. XRP futures OI jumped 3% in the last 24 hours to 1.10 billion.