However, the lack of progress toward a briefing schedule increases the chance of a contested one. The court would arrange a contested briefing schedule if the two parties cannot settle. Significantly, a contested briefing schedule also raises the possibility of an unfavorable settlement for Ripple.
Investor caution was evident on Tuesday, with XRP falling to a session low of $0.6518 before steadying.
The size of the disgorgement could be a stumbling block if the two sides engaged in remedial talks.
In recent sessions, attorneys Jeremy Hogan and John E. Deaton outlined reasons for Ripple to settle under favorable terms. In contrast, the SEC is eyeing a $770 million disgorgement, which Ripple may not agree to.
On November 5, amicus curiae attorney Deaton raised his doubts about the two parties agreeing to a briefing schedule, saying,
“There are NO current or ongoing settlement talks between Ripple and the SEC.”
However, Deaton pointed out that he had “Zero insider information.”
Uncertainty toward the outcome of the SEC v Ripple case will remain a headwind. There may also be the fear that Ripple may be unable to convince the SEC to accept the Programmatic Sales ruling as part of the settlement.
Contested Briefing Schedule Paves the Way to an SEC Appeal
Failure to settle before the November 9 deadline means the court will arrange a contested briefing schedule. While the size of the penalty will be the focal point, the matter of the Programmatic Sales ruling may also feature. Ripple could agree to a higher penalty if the SEC agrees not to appeal the Programmatic Sales ruling. However, the Programmatic Sales ruling may have more significance for the SEC.
The consensus is that the SEC is fast-tracking the case to appeal the Programmatic Sales ruling. By law, the SEC must wait until the end of the case to contest any court rulings. On October 3, the court rejected the SEC motion to file an interlocutory appeal.
Notably, an interlocutory appeal would stop progress in the SEC v Ripple case until the end of the appeal process. Since the court ruling, the SEC has taken steps to expedite the SEC v Ripple case, suggesting intentions to appeal the Programmatic Sales ruling.
Uncertainty toward the outcome of an appeal would become a headwind for XRP and the broader crypto market.