Ruling on XRP’s status as a security unlikely until late 2020

Disclaimer: These summaries are provided for educational purposes only by Stephen Palley. They are not legal advice. These are our opinions only, aren’t authorized by any past, present or future client or employer. Also we might change our minds. We contain multitudes.

A consolidated class action in federal court in Oakland may one day lead a court to rule on (1) whether Ripple violated U.S. Securities laws by creating the XRP token and (2) whether XRP is a security. That day will not be in 2019, judging from a scheduling order entered by the Court on March 18.

The Order sets forth a schedule for roughly the next twelve months. Here's what's going to happen:

By March 20, Plaintiffs will publish a notice under federal law that verifies that they read the complaint, authorized its filing, didn't buy XRP in oder to become plaintiffs, and a number of other things that are set forth in the Private Securities Litigation Reform Act (a law that was passed purportedly to prevent abuses class action practice.

[related id=1]In 60 days, any member of the "purported class" can ask the court to be appointed as lead plaintiff and to approve selection of their counsel. This is a big deal from a financial standpoint for the lawyers, because the class lead will almost certainly earn more if there's a favorable result. As a result, you will see some litigation over this in about two months (we had a taste of that in the Tezos class action litigation, if you've followed that case).

45 days after the Court chooses the lead plaintiff, they will file a new complaint, which will replace all of the other complaints that the different plaintiffs filed. (As a reminder, this particular lawsuit consolidates or brings together a bunch of separately filed suits against Ripple).

45 days after the new complaint is filed, Defendants have to respond. Instead of answering, it is a virtual guarantee that they will file motions to dismiss. The parties will have 30 days to reply to the motion.

All of the cases are ordered consolidated for pretrial purposes, which means that depositions, written discovery and motions will all be handled in this one case by this particular judge.

If we build in time for the Court to rule and for some potential delay in the class rep designation process, it's possible that the Court will rule on Motions to Dismiss by the end of this year. It's also possible that this will role into next year. It's a dicey proposition to speculate on motions that haven't been filed yet, but if we assume that the motion to dismiss is denied -- which is usually the case if a Complaint is reasonably well pleaded -- we'd probably see an answer on file in early 2020.

Discovery, class certification motions, and dispositive motions will likely take place in 2020 and 2021. It's possible that when the Court rules on the likely Motion to Dismiss we will see an indication as to whether or not the Court thinks a security is at issue, but Motions to Dismiss generally speaking don't address the merits of a case -- they assume that the facts stated are true for purposes of ruling, and will only look at whether or not a viable claim was pleaded.

In short, I wouldn't expect to see a ruling on XRP's status as a security until late 2020 at the earliest.