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When Chris Giancarlo was the chairman of the Commodity Futures Trading Commission he became a rock-star of sorts in certain corners of the cryptocurrency community, helping establish criteria that eventually led to bitcoin and ethereum being declared commodities, more like coffee or sugar than stock in a company. The U.S. Securities and Exchange Commission largely followed suit, eventually also declaring that bitcoin and ether, the cryptocurrency powering the ethereum blockchain weren’t securities.
Now chairman emeritus Giancarlo, who was deemed “Crypto Dad” following an impassioned speech he gave to Congress where he credited bitcoin for finally getting his kids interested in finance, is at it again, having co-written a detailed argument published this morning in the International Financial Law Review for why XRP, the cryptocurrency formally known as “ripples,” was also not a security. The only problem is he’s no longer a regulator. In fact, his employer is on the payroll of Ripple, the largest single owner of XRP, whose co-founders actually created the cryptocurrency.
The bombshell paper, titled, “Cryptocurrencies and U.S. Securities Laws: Beyond Bitcoin and Ether,” co-authored by commodities lawyer Conrad Bahlke of New York law firm Willkie Farr & Gallagher LLP, methodically reviews the criteria of the Howey Test, established by the SEC in 1946 to determine whether something is a security, and point-by-point argues that XRP does not qualify. Rather, the paper argues, like its name would indicate, cryptocurrency is a currency of perhaps more interest to the Federal Reserve and central banks than securities regulators.
What’s at stake here to the cryptocurrency world cannot be overestimated. XRP is now the fourth largest cryptocurrency by market cap, with $5.9 billion worth of the asset in circulation according to cryptocurrency data site Messari. While Ripple was valued at $10 billion according to its most recent round of funding, the company continues to fund itself in part by selling its deep war chest of 55.6 billion XRP, coincidentally valued at the same amount as the company itself.
Not only could an eventual decision by the SEC to classify—or not classify—XRP as a security impact the untold individual owners of the cryptocurrency, but other clients using Ripple services that don’t rely on the cryptocurrency, including American Express, Santander, and SBI Holdings could stand to be impacted positively or negatively depending on the decision. After all if XRP were to be rescinded it would be a huge cost to their software provider. If Giancarlo is right though, Ripple could end up being one of the most valuable startups in fintech.
“Ultimately, under a fair application of the Howey test and the SEC’s presently expanding analysis, XRP should not be regulated as a security, but instead considered a currency or a medium of exchange,” Giancarlo and Bahlke argue in the paper. “The increased adoption of XRP as a medium of exchange and a form of payment in recent years, both by consumers and in the business-to-business setting, further underscores the utility of XRP as a bona fide fiat substitute.”
Giancarlo was nominated to be a commissioner of the CFTC by then-President Barack Obama in 2013. In 2015, he helped lead the thinking behind the CFTC’s decision that bitcoin and other cryptocurrencies were commodities, paving the way for the SEC’s related comments that neither bitcoin nor ethereum are securities. Then, at the height of the 2017 cryptocurrency bubble President Trump nominated him to be Chairman of the CFTC, where he oversaw the creation of a number of bitcoin futures projects, including at CME Group and the short-lived effort at Cboe.
While many blame the creation of bitcoin futures for popping the 2017 price bubble, which almost hit $20,000 before halving today, others have seen the works as a fundamental process of maturity, helping pave the way for more sophisticated crypto-enabled financial offerings. Giancarlo’s last day in office at the CFTC was in 2019, after which he promptly got involved helping envision the future of assets issued on a blockchain. In November he joined as an advisor to American Financial Exchange, using ethereum to create a Libor alternative. The following January he co-founded the Digital Dollar Project leading the push to use blockchain at the Federal Reserve and now it would seem he’s hoping to influence the classification of XRP as he did for bitcoin and ethereum, but from the other side of regulation.
Importantly however, a footnote in the report discloses that not only is Giancarlo and Bahlke’s firm, Willkie Farr & Gallagher LLP counsel to Ripple Labs, but they “relied on certain factual information provided by Ripple in the preparation of this article.” While it’s impossible to parse what information came from the co-authors and what came from Ripple, the resulting legal argument is fascinating, even if it does leave room for doubt.
The Howey test Giancarlo uses to bolster his arguments is a three-pronged definition used by the SEC, none of which he says apply to XRP. The first prong, is that an investment contract should be implied or explicitly stated between the issuer of the asset, in this case XRP and the owner, in which money exchanges hands. “The mere fact that an individual holds XRP does not create any relationship, rights or privileges with respect to Ripple any more than owning Ether would create a contract with the Ethereum Foundation, the organization that oversees the Ethereum architecture,” he writes.
This does however overlook the fact that OpenCoin, credited on Ripple’s own site in 2013 for creating XRP (then tellingly described as “ripples”), was run by many of the same people that founded Ripple. The original creators of XRP then donated the vast majority of the assets to Ripple, which they also ran, creating a sense of distance, tacit though it may be. The actual data around the creation of XRP was also muddled by a glitch in the code that means unlike bitcoin and ethereum the crucial genesis data is no longer attached to the rest of the ledger. The rebranding of “ripples” as XRP further extended the sense of distance between XRP and Ripple, followed by an aggressive campaign to get media to stop describing the cryptocurrency as “Ripple’s XRP.”
With so much distance between the company that actually created XRP and the company that now owns more than half of it, one would be forgiven for wondering, if there was an implied contract between OpenCoin and XRP owners, does the donation from one group of people at one company to a very similar group of people at another company sever that responsibility? In spite of the sense of distance created by Ripple between itself and the cryptocurrency its co-founders created, a number of active lawsuits alleging securities violations have been filed. In all fairness though, Giancarlo appears to recognize this prong may not be Ripple’s strongest defense and concludes the section, hedging: “Even if XRP were to satisfy one or two of the “prongs” of the Howey test, it does not satisfy all three factors such that XRP is an investment contract subject to regulation as a security.”
The second prong of the Howey test stipulates that there can be no “common enterprise” between shareholders or a shareholder and the company. While refuting both relationships, Giancarlo curiously goes onto to write that “given the juxtaposition between XRP’s intended use as a liquidity tool, its more general use to transfer value and its potential as a speculative asset, XRP holders who utilize the coins for different purposes have divergent interests with respect to XRP.”
Ironically, there has always been a widely held belief that owning a cryptocurrency would unify interests around a single goal: to co-create the infrastructure that lets the cryptocurrency exist and ensure it was vibrant and diverse. Meanwhile, XRP, in spite of its aggressive supporters on social media, is one of the least diverse ecosystems, with the vast majority of serious development being done within Ripple. If XRP owners aren’t expecting an increase in value from the work being done by Ripple, they certainly aren’t nearly as involved in helping build that future as are owners of bitcoin and ethereum.
In a related issue, the third prong of the Howey test stipulates that “no reasonable expectation of profit should be derived from the efforts of Ripple,” according to the paper. Supporting this position, Giancarlo writes: “Though Ripple maintains a sizable stake of the XRP supply and certainly has a pecuniary interest in the value of its holdings, it is not enough to suggest that a mutual interest in the value of an asset gives rise to an expectation of profits as contemplated by Howey.” Again, this strains credulity.
According to its own site, Ripple currently has access to 6.4% of all the XRP ever created. But that doesn’t count the 49.2% of the total XRP Ripple owns, but is locked in a series of escrow accounts that become periodically available to Ripple and Ripple alone. Adding those two percentages together leaves a float of only about 44% of XRP that has been distributed for public ownership. For some comparison, Facebook went public the same year XRP was created and has a 99% float, according to FactSet data, meaning almost all of its stock is in the hands of traders.While Ripple does also have more traditional stock, this distribution shows that Ripple might not be as distributed as it claims.
While it’s perhaps no surprise that Giancarlo would come out on the side of his own client, there’s also plenty of other reasons to believe his argument may in fact hold water. In February 2018, the notoriously compliant exchange Coinbase added support for XRP, something it would unlikely do if it were concerned it might accidentally be selling an unlicensed security. Perhaps most tellingly though, Ripple has also been granted a difficult-to-obtain BitLicense from the New York Department of Financial Services, giving it the blessing of a respected regulator. However, while the license was granted after then-superintendent Benjamin Lawsky stepped down from the regulator, it's perhaps no coincidence that a year later he joined Ripple on its board of directors and is now active in the cryptocurrency space. Perhaps a similar fate is in store for Giancarlo.
Editor’s note: This article has been updated to clarify that Ripple Labs is a client of Giancarlo’s law firm.
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