The Securities and Exchange Commission still firmly believes that the cryptocurrency XRP is a security, FOX Business has learned.
The revelation comes following a lawsuit filed Thursday evening by crypto derivatives exchange Bitnomial, which sued Wall Street’s top cop over its claim that it has jurisdiction over a planned futures contract that tracks the price of XRP, the seventh-largest digital asset by market cap.
Bitnomial, which is regulated by the SEC’s sister agency the Commodity Futures Trading Commission, self-certified the XRP US Dollar Futures contract in August following the conclusion of the SEC’s lawsuit against blockchain payments firm Ripple, where a federal judge ruled against the SEC’s claim that XRP is a security.
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According to Bitnomial’s lawsuit, the SEC contacted the exchange shortly after the filing, claiming that XRP Futures are "security futures" which are subject to joint SEC and CFTC jurisdiction, and that Bitnomial would be violating federal securities laws if it proceeded with the listing. The SEC also said Bitnomial would be required to comply with additional requirements before listing XRP Futures, including registering as a national securities exchange.
"The SEC takes the view that the underlying asset, XRP, is an investment contract and, therefore, transactions in XRP constitute a security under the Securities Exchange Act," the lawsuit states. "Bitnomial disagrees with the SEC’s view that XRP is an investment contract and, therefore, a security, and that XRP Futures are thus security futures."
The SEC had no immediate comment.
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The SEC's claim that XRP futures are securities futures is a further escalation in the turf war between the two agencies currently vying for sole jurisdiction over digital assets. Bitnomial believes its lawsuit will help provide some clarity about how crypto derivatives should be regulated.
The CFTC currently oversees futures contracts for bitcoin and ether, the only two digital assets the SEC has deemed to be non-securities.
In addition to seeking a declaration from an Illinois district court that XRP Futures are not securities futures, Bitnomial is asking the court to issue an order that prevents the SEC from claiming authority over XRP Futures and taking any legal action against Bitnomial related to its offering.
"Unlike other U.S. businesses in litigation with the SEC, Bitnomial has not been accused of wrongdoing. As such, we are in a unique position to push for a court decision on the securities or commodities classification of XRP futures following the landmark determination as a non-security in the Southern District of New York case," Bitnomial CEO Luke Hoersten tells FOX Business. "Establishing this precedent is not just about XRP; it’s about all digital assets."
The status of XRP as a security has been a hotly contested issue at the center of the ongoing legal battle between the SEC and Ripple. A federal judge handed Ripple a partial victory last July when she ruled that the company’s sales of XRP on exchanges were not securities, but their sales to institutional investors were.
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The SEC filed a notice of appeal in the Ripple case last week, signaling that it will likely contest Judge Torres’s decision that XRP when traded on exchanges is not a security. Ripple filed a notice of cross-appeal on Thursday, but neither entity has yet disclosed the specifics of their appeals.
Bitnomial’s lawsuit is the second one filed against the SEC this week. Digital asset exchange Crypto.com announced it was suing the SEC on Tuesday, alleging the regulator is overstepping its jurisdiction by claiming that nearly all crypto assets are securities.
