Legal Expert: XRP Absent from SEC’s List of Securities in Kraken Lawsuit

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The recent enforcement action by the U.S. Securities and Exchange Commission (SEC) against cryptocurrency exchange Kraken has drawn significant attention—not only for its broader implications on digital asset regulation but also for a notable omission: XRP.

In a lawsuit filed against Kraken, the SEC listed several cryptocurrencies it considers unregistered securities. However, XRP—despite being at the center of one of the most high-profile regulatory battles in crypto history—was conspicuously absent from that list. This has sparked renewed discussion among legal experts, investors, and blockchain advocates about what this omission could mean for the future of XRP and the evolving definition of a security in the digital asset space.

The Kraken Lawsuit and the SEC’s Listed Cryptocurrencies

On November 21, legal analyst Jeremy Hogan, known for his deep involvement in tracking the SEC’s case against Ripple, highlighted an important detail in a post on X (formerly Twitter). He pointed out that while the SEC named multiple digital assets as securities in its complaint against Kraken, XRP did not appear among them.

The cryptocurrencies explicitly labeled as securities in the lawsuit include:

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The SEC claims these assets were offered as “crypto asset securities” through Kraken and have also been the subject of prior or ongoing regulatory actions involving other unregistered intermediaries—such as Bittrex, Binance, and Coinbase.

This pattern suggests a coordinated effort by the SEC to assert jurisdiction over specific tokens it believes meet the criteria of investment contracts under the Howey Test. Yet, XRP’s absence stands out—especially given its prolonged legal battle with the same agency.

Why XRP’s Exclusion Matters

The omission of XRP from the Kraken lawsuit is more than just a curiosity—it may carry legal and market significance.

In July 2023, U.S. District Judge Analisa Torres delivered a landmark ruling in the SEC vs. Ripple case. She determined that sales of XRP to retail investors via exchanges did not constitute offers or sales of securities. This partial victory for Ripple hinged on the Howey Test’s requirement that an investment contract must involve an expectation of profit derived from the efforts of others.

Judge Torres found that programmatic sales (i.e., automated exchange trades available to retail buyers) lacked the necessary contractual privity and reliance on Ripple’s efforts to qualify as securities. However, she left open the question for institutional sales, where direct agreements and promotional efforts were more evident.

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This nuanced ruling created a precedent: not all token distributions are securities, even within the same project. The SEC’s decision not to include XRP in its Kraken complaint may reflect an implicit acknowledgment of this precedent—suggesting that retail-level token transactions, particularly those without centralized promotion or promises of returns, may fall outside current enforcement priorities.

Implications for the Broader Crypto Industry

XRP’s exclusion could signal a shift in how the SEC applies its regulatory framework. Rather than treating entire tokens as securities categorically, the agency might be moving toward a context-based approach, where the nature of the sale—not just the asset itself—determines regulatory status.

This aligns with growing calls from industry stakeholders for clearer, more consistent guidelines. A blanket classification system risks stifling innovation, especially for utility tokens designed for decentralized networks rather than centralized fundraising.

Moreover, excluding XRP while including others like Solana (SOL) and Polygon (MATIC)—which share similar use cases—raises questions about consistency. Are these tokens fundamentally different? Or is enforcement being applied selectively?

Legal experts argue that such inconsistencies underscore the need for comprehensive legislation rather than relying solely on agency interpretation. Until Congress passes clear crypto laws, companies and investors will continue to operate in a gray zone shaped by litigation outcomes.

Market Reaction and Investor Sentiment

Despite regulatory uncertainty elsewhere, XRP has shown resilience in market performance. As of late November 2025, XRP was trading at approximately $0.6248, reflecting a 1.08% gain over 24 hours, a 1.34% increase over seven days, and a notable 13.81% rise over the past month.

These figures suggest sustained investor confidence, possibly bolstered by Ripple’s legal wins and increased adoption of its payment solutions globally. Financial institutions continue exploring blockchain-based cross-border payments—a core use case for XRP—which may further support long-term demand.

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Frequently Asked Questions (FAQ)

Q: Why wasn’t XRP included in the SEC’s Kraken lawsuit?
A: While the SEC hasn’t officially explained the exclusion, many legal experts believe it reflects the impact of Judge Torres’ ruling that retail sales of XRP are not securities. The agency may be adjusting its enforcement strategy accordingly.

Q: Does this mean XRP is fully cleared of being a security?
A: Not entirely. The court ruled only that certain types of sales—specifically retail, programmatic ones—do not meet the definition of a security. Institutional sales remain under scrutiny, and the final determination may depend on settlement outcomes.

Q: How does the Howey Test apply to cryptocurrencies?
A: The Howey Test determines whether an arrangement qualifies as an investment contract. For crypto, this hinges on whether buyers expect profits primarily from the efforts of a promoter or third party. If yes, it may be deemed a security.

Q: Could other excluded tokens challenge their classification based on XRP’s precedent?
A: Potentially. Legal teams for projects like Solana or Polygon might cite Ripple’s case to argue that decentralized, retail-focused token distributions should not be classified as securities.

Q: Is the SEC changing its overall approach to crypto regulation?
A: Evidence suggests a more nuanced stance is emerging—one that differentiates between types of sales and levels of centralization. However, without congressional action, enforcement remains inconsistent.

Q: What’s next for Ripple and the SEC?
A: Both parties are engaged in settlement discussions regarding penalties for institutional sales of XRP. A resolution could set another precedent for how regulators handle past token distributions.

The absence of XRP from the SEC’s latest enforcement action marks more than a procedural detail—it reflects an evolving regulatory landscape where context matters as much as code. As courts and agencies grapple with defining digital assets, precedents like Ripple vs SEC will continue shaping the future of blockchain innovation in the United States.