Derivatives exchange Bitnomial sues SEC over securities label on its XRP Futures

Crypto derivatives exchange Bitnomial has filed a lawsuit against the U.S. Securities and Exchange Commission, its chair Gary Gensler, and four other commissioners, alleging that the agency had “inappropriate” jurisdiction over its XRP Futures product.

According to the court document filed Thursday, Bitnomial alleged that the SEC asserted the exchange’s yet-to-be-listed XRP Futures product violated federal securities laws, viewing XRP as an investment contract. The agency reportedly claimed that the futures product needs to be supervised by both the SEC and the Commodity Futures Trading Commission.

“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 company wrote in the filing. 

The firm argued that the agency required the company to comply with additional requirements for XRP Futures, which had already attained a self-certification from the CFTC. The filing said one of the requirements included the “significant task” of registering as a national securities exchange under SEC jurisdiction.

Bitnomial further argued that the SEC effectively prevented the company from listing XRP Futures contracts. The SEC's regulations require the issuer of the underlying security to register with the agency before a security futures contract can be listed.

“As the SEC knows, XRP, which is the underlying security in the SEC’s view, is not registered,” the filing said. “Further, Bitnomial is not the issuer of XRP and, even if it wanted to, does not have the power to register XRP.”

The derivatives exchange also pointed out the Southern District of New York court’s decision to reject the SEC’s stance to view XRP as a security when traded on a secondary market. 

The SEC did not immediately respond to The Block's request for comments.

The XRP dispute

Whether XRP cryptocurrency is a financial security has been contested since the SEC accused XRP issuer Ripple in 2020 of raising $1.3 billion by selling XRP as unregistered securities.

Last year, Southern District Court of New York Judge Analisa Torres ruled that Ripple’s “programmatic sales,” in which Ripple did not know who the buyer was, did not violate securities laws. However, Judge Torres ruled that the institutional sales of XRP were unlawful securities sales. As a result, Ripple was fined $125 million against the SEC’s proposed $2 billion. Both parties claimed victory in the wake of the decision.

The legal dispute between Ripple and the SEC on XRP is still ongoing. Earlier this month, the SEC said it would appeal the decision from the Appeals Court for the Second Circuit. Yesterday, Ripple filed a cross-appeal to the same court.