Court Denies SEC's Request for $1 Billion in Disgorgement from Ripple

II. Disgorgement

A. Legal Standard

In addition to injunctive relief, a district court may also order disgorgement, which “serves to remedy securities law violations by depriving violators of the fruits of their illegal conduct.” SEC v. Contorinis, 743 F.3d 296, 301 (2d Cir. 2014). Disgorgement is an equitable remedy, permissible only where it “does not exceed a wrongdoer’s net profits and is awarded for victims.” Liu v. SEC, 591 U.S. 71, 75 (2020). [6]

Following Liu, the Second Circuit clarified the meaning of “victims” in SEC v. Govil, 86 F.4th 89 (2d Cir. 2023). There, the defendant caused his company “to engage in three fraudulent securities offerings,” representing to investors that the company “would use the proceeds from the transactions to satisfy outstanding debts and for general corporate purposes.” Id. at 93. “Instead, he diverted over $7.3 million of the offering proceeds to his own private accounts.” Id. The district court determined that disgorgement was warranted, reasoning that the defrauded investors were victims of the defendant’s conduct because they were lied to, even if they “may not have been financially harmed” as a result of the lie. Id. at 97.

The Second Circuit reversed, holding that “a ‘victim’ for purposes of § 78u(d)(5) is one who suffers pecuniary harm from the securities fraud.” Id. at 102. The Circuit explained that an equitable remedy is meant to “restore[] the status quo”—in the context of disgorgement, by “returning the funds to victims.” Id. at 103 (quoting Liu, 591 U.S. at 80, 88) (cleaned up). Allowing “defrauded investors who suffered no pecuniary harm . . . to receive the proceeds of disgorgement,” the Circuit reasoned, would “confer[] a windfall on those who received the benefit of the bargain.” Id. at 103. Therefore, for purposes of ordering disgorgement, it is not enough that investors are lied to and “thus denied the right to make an informed decision when considering whether to make [an] investment.” Id. at 105. “[O]ffending that right” does not result in pecuniary harm.” Id. (citing Ciminelli v. United States, 598 U.S. 306, 315 (2023))

B. Application

The parties dispute whether the Circuit’s decision in Govil bars disgorgement of Ripple’s profits from Institutional Sales. The Court finds that it does.

The SEC contends that ordering disgorgement would not run afoul of Govil because Ripple’s violation of Section 5, via “entirely tainted transactions, caused pecuniary harm to investors.” SEC Mem. at 17. Specifically, the SEC argues that Ripple sold XRP to certain Institutional Buyers at “deep undisclosed discounts” as high as [redacted]. Id. at 18. Because Ripple failed to publicly register these discounted Institutional Sales, the SEC argues, “non-favored investors” were deprived of “the information they needed to determine whether Ripple was treating them worse and whether they could purchase [] XRP at a better price.” Id. The SEC estimates that if Ripple had disclosed its “significant discounts to other investors,” non-favored investors could have saved “potentially more than [redacted].” Id. at 19–20. The SEC further contends that the discounted sales caused pecuniary harm by “put[ting] downward pressure on the market price of XRP,” as investors who bought discounted XRP could sell for below-market prices and still profit. Id. at 20.

Govil forecloses this argument. The SEC contends that Ripple “appears to have not uniformly disclosed the disparate prices and discounts offered” to Institutional Buyers. Id. at 18. The Circuit held, however, that “the right to make an informed decision when considering whether to make [an] investment” is not a property interest that can be vindicated through disgorgement. Govil, 86 F.4th at 105. As Ripple argues, many of the Govil investors would have likely been dissuaded from investing—or, at least, valued the shares at a lower price—had they known that the company’s founder intended to pocket the funds for his own use. See Ripple Opp. at 20. Yet the Circuit found that the pecuniary-harm requirement was not satisfied, as the district court acknowledged that “the investors received the return on the investment contemplated at the outset.” Govil, 86 F.4th at 105.

Here, the SEC offers only speculative evidence that the Institutional Buyers did not “receive[] the return on the investment contemplated.” Id; see also id. at 104 n.16 (noting that “whether the investors actually suffered pecuniary harm would depend on the type of securities held, the terms of those securities, and when those securities were sold,” a level of detail missing from the record in Govil). The SEC’s [redacted] estimate of lost potential savings comes from an analysis conducted by SEC accountant Andrea Fox, who calculated “how much less Institutional Buyers in the aggregate would have paid for XRP if the best price offered to Institutional Buyers had been obtained by every Institutional Buyer.”[7] Fox Decl. ¶ 34, ECF No. 946. But, the SEC does not (and cannot) establish that Ripple would have, in fact, offered any additional discounts to investors had it complied with Section 5’s registration requirements. It is possible that some investors “could have demanded and potentially paid lower prices.” SEC Mem. at 18. Yet, it is at least equally possible that Ripple would have opted to offer fewer and smaller discounts overall. Cf. id. at 17 (explaining that “unregistered shares . . . are [generally] worth less” than their registered counterparts). The fact that some investors “may have been able to negotiate better deals if discounts [offered to others] were disclosed as required,” SEC Mem. at 19, does not establish that they suffered pecuniary harm by paying the sticker price. Cf. Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 342 (2005) (noting that in fraud-on-the-market cases, “an inflated purchase price will not itself constitute or proximately cause the relevant economic loss”).[8]

Relying on SEC v. Ahmed, 72 F.4th 379 (2d Cir. 2023), the SEC also argues that disgorgement is appropriate because Ripple’s failure to disclose the discounts “tainted” each of the Institutional Sales. SEC Reply at 9, ECF No. 961. In Ahmed, the investment-manager defendant “stole over $65 million” from his employer and ten portfolio companies, including by negotiating transactions in which he had an undisclosed conflict of interest. 72 F.4th at 390. The Second Circuit found that the conflicted transactions were “entirely tainted,” holding that the defendant was obligated to disgorge the full amount he received. Id. at 397. But the Circuit’s inquiry into the permissible amount of disgorgement sheds little light on the threshold question here: whether the SEC has shown pecuniary harm at all such that disgorgement is warranted. In Ahmed, which involved the defendant’s knowing misappropriation of millions of dollars from his employer, there was no question that the employer had suffered an economic loss. See id. at 390–91. Here, pecuniary harm is far less apparent.

Because binding Circuit precedent precludes disgorgement based on the facts of this case, the SEC’s request for disgorgement and prejudgment interest[9] is DENIED.

[6] Six months after Liu, “Congress enacted § 78u(d)(7), which “gives the SEC the power to ‘seek’ and federal courts the power to ‘order’ the remedy of ‘disgorgement.’” SEC v. Govil, 86 F.4th 89, 99–100 (2d Cir. 2023) (discussing 15 U.S.C. § 78u(d)(7)). The Second Circuit has interpreted § 78u(d)(7) to limit disgorgement to the bounds established by the Supreme Court’s decision in Liu. Id. at 102 (citing SEC v. Ahmed, 72 F.4th 379, 396 (2d Cir. 2023)). But see SEC v. Hallam, 42 F.4th 316, 338 (5th Cir. 2022) (holding that “Section 78u(d) authorizes disgorgement in a legal—not equitable—sense.”).

[7] Ripple separately moves to strike Fox’s declaration and supporting exhibits, arguing that they were filed late. ECF No. 951; see ECF Nos. 959, 960. In light of the Court’s finding that no disgorgement is permitted, the motion is DENIED as moot.

[8] The SEC’s sole authority to the contrary, SEC v. iFresh, Inc., No. 22 Civ. 3200, 2024 WL 416709 (E.D.N.Y. Feb. 5, 2024), is an unpublished district court opinion that found (without analysis) the fact that stock prices were artificially inflated sufficient to establish pecuniary harm. Id. at *3; see SEC Reply at 9, ECF No. 961. That case— involving a consent order—required the district court to accept the SEC’s allegations of stock price inflation as true. iFresh, Inc., 2024 WL 416709 at *3.

[9] “[T]he amount on which a violator must pay prejudgment interest usually tracks the amount that the party is ordered to disgorge.” Contorinis, 743 F.3d at 308.