Crypto lawyers are seemingly divided over the significance of a recent court order from Judge Analisa Torres, who denied the United States Securities and Exchange Commission’s (SEC) plan to file an interlocutory appeal against Ripple.
While many lawyers and commentators chalked the decision up as a substantive win for Ripple in its case against the regulator, other legal experts have urged the public to temper their enthusiasm.
Torres denied the SEC’s interlocutory appeal based on the grounds of her previous ruling, which sided partially in favor of Ripple. She said this did not necessitate an order that “involved a controlling question of law,” which is an essential condition for approving an interlocutory appeal.
Breaking: Judge rejects SEC’s motion to file an appeal against Ripple ruling
An interlocutory appeal is simply an appeal made during a trial, which, in this case, is the proceedings by the SEC against Ripple, its CEO Brad Garlinghouse and executive chairman Christian Larsen.
Bill Hughes, a lawyer at blockchain firm ConsenSys, told Cointelegraph that the rejection of the SEC’s appeal was something he’d expected, explaining that it’s not typical for such an appeal to make it through during this part of a trial.
On the other hand, crypto lawyer Jeremey Hogan was more confident that the decision was a “disaster” for the SEC. Hughes, however, disagreed.
The SEC’s motion for interlocutory appeal DENIED.
Which means, the case either goes to trial in April, or goes away.
AND, this Order allowed the Judge to explain parts of her ruling even better, making appeal that much harder for the SEC to win.
“The court says that [Torres’] ruling is limited to this case. Frankly, that’s fine for the SEC if they don’t mind one case not telling you very much about the next,” Hughes explained.
Similarly, Gabriel Shapiro, general counsel at Delphi Labs, warned crypto advocates to temper their excitement over the ruling, explaining that the decision wasn’t an all-out loss for the SEC.
In an Oct. 3 post on X (formerly Twitter), Shapiro said that while the SEC’s motion for an appeal had been denied in this instance, the SEC could still appeal the case later.
don’t get too excited about the denial of SEC’s interlocutory appeal in Ripple…it doesn’t mean the SEC “lost its appeal”…it means that if the SEC wants to appeal it has to appeal everything at once after the trial…
still, some useful clarifications of Torres’ opinion
“It doesn’t mean the SEC ‘lost its appeal’… it means that if the SEC wants to appeal it has to appeal everything at once after the trial,” he said.
Still, as Scott Chamberlain, an entrepreneurial fellow at the ANU College of Law, explained, the decision may prove more significant for Ripple than others are willing to give credit for.
“Yes, the SEC can appeal later, but it is stuck with [a] shitty factual record that makes successful appeal much more difficult,” Chamberlain wrote.
Chamberlain added that any future appeal from the commission would most likely be heard in the Supreme Court as there are no major legal questions left to decide. All that’s left is the “difficult but ultimately mundane task of applying known law to a complicated fact matrix that doesn’t support the SECs claim.”
“The law didn’t change. SEC failed to prove its case. Now it has to push shit uphill with a pointy stick if it wants to win.”
Ripple CEO Brad Garlinghouse also added his take to the mix, taking to social media to express his enthusiasm.
The SEC’s request to file an interlocutory appeal is DENIED. I’m not a lawyer but it seems the Court just told the SEC: You asked me to apply the “Howey” test, I did, and like it or not, you lost. https://t.co/0E4MS0iuRYpic.twitter.com/bkhCpum17n
As set out in the most recent court order, the trial on the matter is currently scheduled for April 23, 2024. If the SEC wishes to lodge an appeal, it must do so after the trial has concluded.
Rachel Reeves has been urged by a think tank to cut national insurance and increase income tax to create a “level playing field” and protect workers’ pay.
The Resolution Foundation said the chancellor should send a “decisive signal” that she will make “tough decisions” on tax.
Ms Reeves is expected to outline significant tax rises in the upcoming budget in November.
The Resolution Foundation has suggested these changes should include a 2p cut to national insurance as well as a 2p rise in income tax, which Adam Corlett, its principal economist, said “should form part of wider efforts to level the playing field on tax”.
The think tank, which used to be headed by Torsten Bell, a Labour MP who is now a key aide to Ms Reeves and a pensions minister, said the move would help to address “unfairness” in the tax system.
As more people pay income tax than national insurance, including pensioners and landlords, the think tank estimates the switch would go some way in raising the £20bn in tax it thinks would be needed by 2029/2030 to offset increased borrowing costs, flat growth and new spending commitments. Other estimates go as high as £51bn.
Image: Torsten Bell appearing on Sky News
‘Significant tax rises needed’
Another proposal by the think tank would see a gradual lowering of the threshold at which businesses pay VAT from £90,000 to £30,000, as this would help “promote fair competition” and raise £2bn by the end of the decade.
The Resolution Foundation also recommends increasing the tax on dividends, addressing a “worrying” growth in unpaid corporation tax from small businesses, applying a carbon charge to long-haul flights and shipping, and expanding taxation of sugar and salt.
“Policy U-turns, higher borrowing costs and lower productivity growth mean that the chancellor will need to act to avoid borrowing costs rising even further this autumn,” Mr Corlett said.
“Significant tax rises will be needed for the chancellor to send a clear signal that the UK’s public finances are under control.”
He added that while any tax rises are “likely to be painful”, Ms Reeves should do “all she can to avoid loading further pain onto workers’ pay packets”.
The government has repeatedly insisted it will keep its manifesto promise not to raise income tax, national insurance or VAT.
A Treasury spokesperson said in response to the think tank report it does “not comment on speculation around future changes to tax policy”.
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Is Britain heading towards a new financial crisis?
Chancellor urged to freeze alcohol duty
Meanwhile, Ms Reeves has been urged to freeze alcohol duty in the upcoming budget and not increase the rate of excise tax on alcohol until the end of the current parliament.
The Scotch Whisky Association (SWA), UK Spirits Alliance, Welsh Whisky Association, English Whisky Guild and Drinks Ireland said in an open letter that the current regime was “unfair” and has put a “strain” on members who are “struggling”.
The bodies are also urging Ms Reeves “to ensure there will be no further widening of the tax differential between spirits and other alcohol categories”.
A Treasury spokesperson said there will be no export duty, lower licensing fees, reduced tariffs, and a cap on corporation tax to make it easier for British distilleries to thrive.
Leave retailers alone, Reeves told
This comes as the British Retail Consortium (BRC) warned that food inflation will rise and remain above 5% into next year if the retail industry is hit by further tax rises in the November budget.
The BRC voiced concerns that around 4,000 large shops could experience a rise in their business rates if they are included in the government’s new surtax for properties with a rateable value – an estimation of how much it would cost to rent a property for a year – over £500,000, and this could lead to price rises for consumers.
Latest ONS figures put food inflation at 4.9%, the highest level since 2022/2023.
The Bank of England left the interest rate unchanged last week amid fears that rising food prices were putting mounting pressure on headline inflation.
“The biggest risk to food prices would be to include large shops – including supermarkets – in the new surtax on large properties,” BRC chief executive Helen Dickinson said.
She added: “Removing all shops from the surtax can be done without any cost to the taxpayer, and would demonstrate the chancellor’s commitment to bring down inflation.”
Nine US lawmakers asked the SEC to move forward on last month’s executive order to speed up the inclusion of alternative assets like crypto in US retirement funds.