UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 22-cv-23171-BLOOM/Torres

SECURITIES AND EXCHANGE COMMISSION, 

 Plaintiff, 

v. 

ARBITRADE LTD.; 

CRYPTOBONTIX INC.;

TORY R.J. HOGG;

JAMES L. GOLDBERG;

STEPHEN L. BRAVERMAN;

MAX W. BARBER;

SION TRADING FZE,

 Defendants. 

____________________________________________/ 

ORDER ON MOTION FOR RECONSIDERATION OR CERTIFICATION FOR

INTERLOCUTORY APPEAL

THIS CAUSE is before the Court upon Defendant James L. Goldberg’s (“Goldberg”) 

Motion for Reconsideration or Certification for Interlocutory Appeal, ECF No. [95] (“Motion”), 

filed on November 21, 2023, which was joined by Defendant Tory R.J. Hogg (“Hogg”), ECF No. 

[104]. Plaintiff Securities and Exchange Commission (the “Commission”) filed a Response in 

Opposition, ECF No. [109], to which Goldberg filed a Reply, ECF No. [110]. The Court has 

reviewed the Motions, all opposing and supporting submissions, the record in this case, the 

applicable law, and is otherwise fully advised. For the reasons discussed below, the Motions are

denied. 

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I. BACKGROUND

A. Complaint

As recounted in the Court’s Order on Motions to Dismiss, ECF No. [76] (“Order”), the 

Complaint alleges the following:

On September 30, 2022, the SEC filed a 13-count Complaint against Arbitrade Ltd. 

(“Arbitrade”), its “control person” Goldberg, and its Chief Operations Officer, Braverman; 

Cryptobontix Inc. (“Cryptobontix”) and its “control person” Hogg; and SION Trading FZE 

(“SION”) and its founder, owner, and sole officer, Max W. Barber (“Barber”). ECF No. [1] ¶ 1. 

The Complaint alleges Defendants committed numerous violations of the Securities Act, 15 U.S.C. 

§ 77q(a)(1) et seq., the Exchange Act of 1934 (“Exchange Act”), 15 U.S.C. § 78(j)(b) and 17 

C.F.R. § 240.10b-5(a) et seq., as well as related aiding and abetting and unjust enrichment claims. 

See generally id. The SEC accuses Defendants of engaging in “a classic pump and dump scheme” 

involving a crypto asset called “Dignity” or “DIG.” Id. ¶ 2. The Complaint sets forth the following 

scheme:

In early 2017, Hogg, through his company Cryptobontix, developed a crypto asset, which 

was later named “Dignity” or “DIG.” Id. ¶ 17. Three billion DIG tokens were created, and they 

were all owned by Hogg and Cryptobontix. Id. ¶ 19. Hogg and Cryptobontix began trading the 

tokens on a crypto asset-trading platform called “Livecoin.” Id. 

Hogg recruited Arbitrade and the individuals who controlled it, Goldberg and Braverman, 

to assist in promoting an “initial coin offering” of DIG tokens. Id. ¶¶ 10-11, 20-21. Arbitrade’s 

website represented that DIG tokens would eventually be redeemable for gold. Id. ¶ 24. Arbitrade 

and Cryptobontix “consistently advertised” that they would back the DIG tokens with gold worth 

$1 per token. Id. ¶ 26. 

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In the Spring of 2018, Hogg and Goldberg were introduced to Barber and SION as a 

potential source to acquire gold. Id. ¶ 27. Arbitrade and SION executed a “Memorandum of 

Understanding” (“MOU”) in which they agreed to execute a definitive contract under which 

Arbitrade would purchase $10 billion of gold bullion from SION, in exchange for an equity interest 

in Arbitrade, 150 million DIG tokens, and monthly installments of approximately $1 million. Id. 

¶¶ 28-29.

Several days after executing the MOU, Arbitrade and SION signed an “Asset Pledge 

Agreement,” under which SION agreed to provide Arbitrade a “Safe Keeping Receipt” indicating 

that Arbitrade held title to $10 billion in gold bullion. Id. ¶ 30. The deal was finalized in September 

2018 when Arbitrade and SION executed an “Assignment Agreement” that purportedly transferred 

to Arbitrade “all of [SION’s] ownership rights and title in the Gold which vests in [SION] pursuant 

to the [Safe Keeping Receipt].” Id. ¶ 31. The Safe Keeping Receipt is a single-page document 

issued by G4S Cash Services LLC (“G4S”), a company specializing in vaulting and transport of 

valuable assets. Id. ¶ 32. The Safe Keeping Receipt does not refer to Arbitrade or SION holding 

title to gold of any value, but rather references a gold “Certificate of Guarantee.” Id. ¶¶ 32-34. That 

“Certificate of Guarantee” and related documentation are replete with errors and “appear to be 

forgeries[.]” Id. ¶ 40.

To strengthen the appearance that the gold transaction was legitimate, Arbitrade engaged 

two accounting firms to evaluate and confirm details of the transaction. Id. ¶ 41. The scope of one 

firm’s investigation was narrowly dictated by SION, and neither of the firms confirmed whether 

SION actually possessed rights or title to gold bullion. Id. ¶¶ 43-47. Defendants “ignored the red 

flag presented when SION told [one of the firms] to drop its request for a video conference with 

the G4S employee whose signature purportedly appears on the Safe Keeping Receipt.” Id. ¶ 48. 

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“Arbitrade also acquiesced to SION’s requirement that Arbitrade should have no direct 

communications with G4S personnel.” Id. ¶ 49.

In October 2018, Braverman on behalf of Arbitrade attempted to hire Bureau Veritas, a 

company that specializes in inspection and certification services, to provide an opinion about the 

existence of the gold bullion that Arbitrade purportedly purchased from SION. Id. ¶ 50. Bureau 

Veritas “refused to accept the engagement when it became clear that Arbitrade wanted the firm to 

issue its opinion without conducting any physical examination of the gold, with Braverman telling 

the firm that ‘[c]ounting bars I believe is overkill.’” Id. ¶ 51.

From March 2018 through January 2019, Defendants Arbitrade, Cryptobontix, Hogg, 

Goldberg, Braverman, and Barber “made material misstatements or omissions” concerning 

Arbitrade’s purported acquisition of billions of dollars of gold bullion. Id. ¶ 53. In actuality, 

“Arbitrade never acquired or received title to $10 billion in gold bullion,” and no audit of the $10 

billion in gold was ever performed by a major accounting firm,” as represented in one of the news 

releases. Id. ¶¶ 72-73. Braverman personally reviewed at least one of the false press releases prior 

to its issuance. Id. ¶ 55. The representations in the news and press releases concerning Arbitrade’s 

acquisition of gold bullion “were blatantly false and misleading.” Id. ¶ 71.

The effect of the false and misleading news stories was to create artificial demand for DIG 

tokens and inflate their price. Id. ¶¶ 76-77. DIG investors bought the DIG tokens with Bitcoin or 

other crypto assets. Id. ¶ 82. They relied on Defendants’ representations that the value of DIG 

tokens would increase once Arbitrade and Cryptobontix secured sufficient gold to back the DIG 

tokens. Id. ¶ 84.

While Arbitrade and Cryptobontix were engaged in “the false promotional campaign,” Hogg 

and Goldberg sold their DIG tokens, making proceeds “totaling about $36.8 million.” Id. ¶ 79-80. 

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Braverman converted those proceeds to cash, which he then redistributed between Hogg, 

Goldberg, and himself. Id. ¶¶ 86-88. By February 2020, the DIG token “reached a sustained 

valuation of zero.” Id. ¶ 91. 

B. Order on Motion to Dismiss

Goldberg filed his Motion to Dismiss on January 12, 2023, which was joined by Hogg.1

ECF Nos. [25], [27]. Goldberg argued this case must be dismissed for lack of subject matter 

jurisdiction because the SEC lacks the authority to regulate DIG tokens, which Goldberg asserts 

are not securities. See generally ECF No. [25] (“Motion to Dismiss”). The Commission responded 

that Defendants’ sales of DIG tokens constitute investment contracts under the traditional Howey

test. ECF No. [48] at 5 (citing SEC v. W.J. Howey Co., 328 U.S. 293 (1946)).

The Court thereafter issued an Order Denying Motions to Dismiss, ECF No. [76] 

(“Order”). Relevant here, the Court determined the Commission has jurisdiction to bring this 

lawsuit because the Complaint plausibly alleges Defendants’ offer of DIG tokens constitutes an 

“investment contract” under the Howey test. The Court began its analysis by noting “[t]he 

Securities Act defines the term ‘security’ to encompass ‘any note, stock, treasury stock, security 

future, security-based swap, bond, debenture, . . . investment contract, . . . or, in general, any 

interest or instrument commonly known as a ‘security.’” Id. at 9 (quoting 15 U.S.C. § 77b(a)(1)). 

The Order explains the Supreme Court established the Howey test to determine whether a 

particular scheme constitutes an “investment contract,” namely, “whether the scheme involves an 

investment of money in a common enterprise with profits to come solely from the efforts of 

others.” 328 U.S. at 301. The Howey test thus instructs “an investment contract exists if there is 

(a) an investment of money, (b) in a common enterprise, (c) based on an expectation of profits to 

1 Defendant Stephen L. Braverman also filed a Motion to Dismiss challenging the sufficiency of 

the Complaint’s allegations. See generally ECF No. [30].

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be derived from the entrepreneurial or managerial efforts of others.” SEC v. Friendly Power Co. 

LLC, 49 F. Supp. 2d 1363, 1368 (S.D. Fla. 1999)). 

In its Order, the Court found the Complaint plausibly alleges that Defendants’ scheme 

satisfies the Howey test. Regarding the first element, the Court found the Complaint’s allegations 

“that investors committed funds in the form of Bitcoin and other crypto assets to buy DIG tokens, 

which would later be redeemable for gold” plausibly alleges those investors made an investment 

of money. ECF No. [76] at 10 (citing ECF No. [1] ¶¶ 24, 82). Regarding the second element—

“common enterprise”—the Court explained the Eleventh Circuit employs a “‘broad vertical 

commonality’ test” requiring “the movant ‘to show that the investors are dependent upon the 

expertise or efforts of the investment promotor for their returns.’” Id. (quoting SEC v. ETS 

Payphones, Inc., 408 F.3d 727, 732 (11th Cir. 2005)). The Court determined the Complaint’s

allegations “that investors’ expectation of profits derived from their expectation that the value of 

their DIG tokens would increase due to the efforts of Arbitrade and Cryptobontix to back the tokens 

with gold bullion[]” plausibly alleges Defendants’ scheme constitutes a common enterprise. 

Finally, the Court determined the Complaint’s allegations satisfy the third element, whether 

“investors expect their profits to come solely from the efforts of others.” Id. at 10-11 (quoting SEC 

v. Unique Fin. Concepts, Inc., 196 F.3d 1195, 1201 (11th Cir. 1999) (internal quotation omitted). 

The Court concluded the allegations that the DIG investors’ “role was limited to purchasing the 

DIG tokens[,]” with the “expectation of profits derived solely from the actions of Arbitrade and 

Cryptobontix, including their efforts to back the value of DIG tokens with gold bullion[]” were 

sufficient. Id. (citing ECF No. [1] ¶ 84). 

The Court observed that “Goldberg does not attempt to apply the Howey test to the DIG 

scheme alleged in the Complaint, nor does Goldberg specify which element of the Howey test is 

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not satisfied.” Id. at 11 (citing ECF Nos. [25], [62]). The Order noted “[w]hether other crypto 

assets constitute securities or commodities is not the issue before this Court[,]” explaining the 

Complaint alleges Defendants’ scheme involving DIG tokens constitutes an investment contract, 

not that the DIG tokens are themselves securities. Id. at 12. 

Goldberg filed the instant Motion on November 21, 2023. Goldberg requests that the Court 

reconsider its conclusion that the Commission has jurisdiction to bring this case pursuant to Rule 

60(b). Goldberg relies on SEC v. Ripple Labs, Inc., 20 Civ. 10832 (AT), 2023 WL 4507900 

(S.D.N.Y. July 13, 2023) and contends that the Court’s finding that Defendants’ alleged scheme 

constitutes an investment contract is erroneous, and reconsideration is necessary to avoid manifest 

injustice. Alternatively, Goldberg requests that the Court certify the following question for 

interlocutory appeal: 

1. “[W]hether digital asset sales on trading platforms constitute securities transactions 

under the Howey test[.]” 

ECF No. [95] at 11.

II. LEGAL STANDARD

A. Motion for Reconsideration

A motion for reconsideration is “an extraordinary remedy to be employed sparingly.” 

Burger King Corp. v. Ashland Equities, Inc., 181 F. Supp. 2d 1366, 1370 (S.D. Fla. 2002). “The 

burden is upon the movant to establish the extraordinary circumstances supporting 

reconsideration.” Saint Croix Club of Naples, Inc. v. QBE Ins. Corp., No. 2:07-cv-00468-JLQ, 

2009 WL 10670066, at *1 (M.D. Fla. June 15, 2009) (citing Taylor Woodrow Constr. Corp. v. 

Sarasota/Manatee Airport Auth., 814 F. Supp. 1072, 1073 (M.D. Fla. 1993)). 

A motion for reconsideration must do two things. First, it must demonstrate some 

reason why the court should reconsider its prior decision. Second, it must set forth 

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facts or law of a strongly convincing nature to induce the court to reverse its prior 

decision. Courts have distilled three major grounds justifying reconsideration: (1) 

an intervening change in controlling law; (2) the availability of new evidence; and 

(3) the need to correct clear error or manifest injustice.

Cover v. Wal-Mart Stores, Inc., 148 F.R.D. 294, 295 (M.D. Fla. 1993) (citations omitted). “Such 

problems rarely arise and the motion to reconsider should be equally rare.” Burger King Corp., 

181 F. Supp. 2d at 1369.

Because court opinions “are not intended as mere first drafts, subject to revision and

reconsideration at a litigant’s pleasure,” a motion for reconsideration must clearly “set forth facts 

or law of a strongly convincing nature to demonstrate to the Court the reason to reverse its prior 

decision.” Am. Ass’n of People With Disabilities v. Hood, 278 F. Supp. 2d 1337, 1339, 1340 (M.D. 

Fla. 2003) (citations omitted). As such, a court will not reconsider its prior ruling without a 

showing of “clear and obvious error where the ‘interests of justice’ demand correction.” Bhogaita

v. Altamonte Heights Condo. Ass’n, Inc., No. 6:11-cv-1637-Orl-31, 2013 WL 425827, at *1 (M.D. 

Fla. Feb. 4, 2013) (quoting Am. Home Assurance Co. v. Glenn Estess & Assoc., 763 F.2d 1237, 

1239 (11th Cir. 1985)). “When issues have been carefully considered and decisions rendered, the 

only reason which should commend reconsideration of that decision is a change in the factual or 

legal underpinning upon which the decision was based.” Taylor Woodrow Constr. Corp., 814 F. 

Supp. at 1072-73; see also Longcrier v. HL-A Co., 595 F. Supp. 2d 1218, 1247 n.2 (S.D. Ala. 

2008) (noting that reconsideration motions are to be used sparingly, and stating, “imagine how a 

district court’s workload would multiply if it was obliged to rule twice on the same arguments by 

the same party upon request”). A motion for reconsideration “is not an opportunity for the moving 

party ... to instruct the court on how the court ‘could have done it better’ the first time.” Hood v. 

Perdue, 300 F. App’x 699, 700 (11th Cir. 2008) (citation omitted).

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Thus, a motion to reconsider is “appropriate where, for example, the Court has patently 

misunderstood a party, or has made a decision outside the adversarial issues presented to the Court 

by the parties, or has made an error not of reasoning but of apprehension.” Kapila v. Grant 

Thornton, LLP, No. 14-61194-CIV, 2017 WL 3638199, at *1 (S.D. Fla. Aug. 23, 2017) (quoting 

Z.K. Marine Inc. v. M/V Archigetis, 808 F. Supp. 1561, 1563 (S.D. Fla. 1992) (internal quotation 

marks omitted). “Such problems rarely arise and the motion to reconsider should be equally rare.” 

Burger King Corp., 181 F. Supp. 2d at 1369. Ultimately, reconsideration is a decision that is “left 

‘to the sound discretion’ of the reviewing judge.” Arch Specialty Ins. Co. v. BP Inv. Partners, LLC, 

No. 6:18-cv-1149-Orl-78DCI, 2020 WL 5534280, at *2 (M.D. Fla. Apr. 1, 2020) (quoting Region 

8 Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 806 (11th Cir. 1993)).

B. Interlocutory Appeal

Three elements are required to certify a question for interlocutory appeal pursuant to 28 

U.S.C. § 1292(b):

(1) a controlling question of law;

(2) over which there is a substantial ground for difference of opinion among 

courts; and

(3) the immediate resolution of the issue would materially advance the ultimate 

termination of the litigation. 

See 28 U.S.C. § 1292(b). Interlocutory appeals under § 1292(b) serve as a “rare exception” to the 

general rule that final judgment must precede appellate review. McFarlin v. Canseco Servs., LLC, 

381 F.3d 1251, 1264 (11th Cir. 2004). Further, the Court of Appeals for the Eleventh Circuit 

considers liberal use of § 1292(b) to be bad policy, as it may promote piecemeal appeals. Id. at 

1259. Accordingly, § 1292(b) certification is only proper “in exceptional cases where decision of 

the appeal may avoid protracted and expensive litigation ... where a question which would be 

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dispositive of the litigation is raised and there is serious doubt as to how it should be decided.” Id.

at 1256.

The first element requires a showing that the question involves a controlling question of 

law. This element requires demonstrating the following:

A “controlling question of law” arises where the appellate court can rule on 

a controlling question of pure law without having to search deep into the record in 

order to discern the facts of the underlying case. See Allapattah Servs., Inc. v. Exxon 

Corp., 333 F.3d 1248, 1252-53 (11th Cir. 2003). To meet the first element for 

interlocutory appeal, the movant must demonstrate there is a question of law, and 

it is controlling. See McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1259 (11th 

Cir. 2004). A controlling question of law pertains to “the meaning of a statutory or 

constitutional provision, regulation, or common law doctrine.” Id. at 1258. In other 

words, a controlling question of law is an issue of “pure law” that can be decided 

“quickly and cleanly without having to study the record.” Id. The question must 

also “be stated at a high enough level of abstraction to lift the question out of the 

details of the evidence or facts of a particular case and give it general relevance to 

other cases in the same area of law.” Id. at 1259. By contrast, “[t]he antithesis of a 

proper § 1292(b) appeal is one that turns on whether there is a genuine issue of fact 

or whether the district court properly applied settled law to the facts or evidence of 

a particular case.” Id. at 1259.

Cont’l 332 Fund, LLC v. Albertelli, No. 2:17-cv-41-FtM-38MRM, 2018 WL 3656472, at *2 (M.D. 

Fla. Aug. 2, 2018).

With respect to the second element under § 1292(b), where the appellate court is in 

“complete and unequivocal” agreement with the district court, a “substantial ground for difference 

of opinion” does not exist. McFarlin, 381 F.3d at 1258 (quoting Burrell v. Bd. of Trustees of Ga. 

Military Coll., 970 F.2d 785, 788-89 (11th Cir. 1992)). Moreover, questions of first impression or 

the absence of binding authority on an issue, without more, are insufficient to demonstrate a 

substantial ground for difference of opinion. See In re Flor, 79 F.3d 281, 284 (2d Cir. 1996); 

Williams v. Saxon Mortgage Co., No. CIV. A. 06-0799-WS-B, 2007 WL 4105126, at *2 (S.D. 

Ala. Nov. 15, 2007) (citations omitted). Instead, the district court should measure the weight of 

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opposing arguments to the disputed ruling in deciding whether there is a “substantial ground for 

dispute.” In re Flor, at 284.

The final requirement that the controlling question of law “may materially advance the 

ultimate termination of the litigation” is a straightforward one. This inquiry simply requires an 

examination of whether the “resolution of [the] controlling legal question would serve to avoid a 

trial or otherwise substantially shorten the litigation.” McFarlin, 381 F.3d at 1259. 

The Eleventh Circuit has “identifie[d] several principles to guide [courts] in when deciding 

whether to exercise [their] discretion under § 1292(b) to allow for a rare interlocutory appeal.” 

Drummond Co., Inc. v. Conrad & Scherer, LLP, 885 F.3d 1324, 1336 (11th Cir. 2018) (citing 

McFarlin, 381 F.3d at 1264).

In general, [courts] exercise [their] discretion only when (1) the appeal presents a 

pure question of law, (2) the question is controlling of at least a substantial part of 

the case, (3) the district court identifies the question in its order, (4) there are 

substantial grounds for differences of opinion on the question, and (5) resolution of 

the question may reduce the amount of litigation necessary on remand. 

Id. (citing McFarlin, 381 F.3d at 1264). “This standard is conjunctive, meaning that if any elements 

are not satisfied, the Court must deny interlocutory review.” In re Yormak, No. 2:17-cv-73-FtM38, 2017 WL 2645601, at *2 (M.D. Fla. June 19, 2017) (citation omitted). Acknowledging the 

profound hurdles that parties face in seeking interlocutory appeal, the Eleventh Circuit has 

characterized this certification as a “high threshold,” and pointed out that “[m]ost interlocutory 

orders do not meet this test.” OFS Fitel, LLC, 549 F.3d at 1359. Ultimately, “§ 1292(b) 

certification is wholly discretionary with both the district court and [the Court of Appeals].” Id. at 

1358.

III. DISCUSSION

Goldberg primarily relies on SEC v. Ripple Labs, Inc., 20 Civ. 10832 (AT), 2023 WL 

4507900 (S.D.N.Y. July 13, 2023) (“Ripple I”) to argue that the Court should reconsider its Order. 

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Alternatively, Goldberg contends Ripple I justifies certifying whether digital asset sales on trading 

platforms constitute securities transactions for interlocutory appeal. In Ripple I, the Commission 

sued Ripple Labs, Inc. and two of its senior leaders for allegedly unlawful sales of securities, 

specifically digital XRP tokens. The parties filed cross-motions for summary judgment. A critical 

question was “whether Defendants offered to sell or sold XRP as a security[,]” by selling XRP 

tokens as investment contracts. 2023 WL 4507900, at *5. The court applied the Howey test to 

analyze whether the defendants’ sales and offers to sell XRP tokens constituted investment 

contracts. Relevant here, the court drew a distinction between Ripple Labs, Inc.’s “Institutional 

Sales” of XRP tokens “to sophisticated individuals and entities pursuant to written contracts[,]” 

and “Programmatic Sales” of XRP tokens “through the use of trading algorithms” on “digital assets 

exchanges[.]” 2023 WL 4507900, at *2, 9. Unlike the institutional sales of XRP tokens, the 

programmatic sales consisted of “blind bid/ask transactions” where “Ripple did not know who was 

buying the XRP, and purchasers did not know who was selling it.” Id., at *2.

Applying Howey to both types of sales, the court concluded that the institutional sales 

constituted investment contracts, but the programmatic sales did not. Regarding the institutional 

sales, the court found that “[b]ased on the totality of circumstances ... reasonable investors, 

situated in the position of the [i]nstitutional [b]uyers, would have purchased XRP with the 

expectation that they would derive profits from Ripple’s efforts,” which included 

“communications, marketing campaign, and the nature of the [i]nstitutional [s]ales” because 

“reasonable investors would understand that Ripple would use the capital received from its 

[i]nstitutional [s]ales to improve the market for XRP and develop uses for the XRP ledger.” Id. at 

*10. The institutional sales accordingly satisfied the third element of Howey, a conclusion further 

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supported by contractual provisions providing for discounted sales prices and resale restrictions as 

well as marketing brochures those institutional buyers received. Id. 

Unlike those institutional sales, however, the court concluded the programmatic sales failed 

to satisfy the third element of the Howey test. The court noted that “[w]hereas the [i]nstitutional 

[b]uyers reasonably expected that Ripple would use the capital it received from its sales to improve 

the XRP ecosystem and thereby increase the price of XRP, [p]rogrammatic [b]uyers were blind 

bid/ask transactions, and [p]rogrammatic [b]uyers could not have known if their payments of 

money went to Ripple, or any other seller of XRP.” Id., at *11. The court observed that although 

it “may certainly be the case that many [p]rogrammatic [b]uyers purchased XRP with an 

expectation of profit, they did not derive that expectation from Ripple’s efforts (as opposed to 

other factors, such as general cryptocurrency market trends)—particularly because none of the 

[p]rogrammatic [b]uyers were aware that they were buying XRP from Ripple.” Id., at *12. The 

court also noted the programmatic buyers were not subject to contractual provisions restricting 

resale or offering discounted prices, nor did those buyers receive the same marketing materials 

provided to the institutional buyers. Id. The court therefore concluded “the economic reality and 

totality of the circumstances[]” demonstrated “Ripple’s [p]rogrammatic [s]ales of XRP did not 

constitute the offer and sale of investment contracts.” Id. at *13. 

A. Reconsideration

The Motion does not identify an intervening change in law or the availability of new 

evidence justifying reconsideration of the Order. Instead, Goldberg contends reconsideration is 

needed to correct clear error or manifest injustice. Goldberg argues Ripple I’s finding that the sales 

of XRP tokens to programmatic buyers failed to satisfy the Howey test demonstrates that 

reconsideration of the Court’s Order is warranted. The Commission responds that the Motion is 

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procedurally deficient, and Goldberg’s contention that Ripple I is highly persuasive fails to provide 

a basis for reconsideration. 

As a threshold matter, the Court declines to deny the Motion for erroneously seeking 

reconsideration pursuant to Rule 60(b). “Rule 60(b) applies only to final judgments, orders, or 

proceedings.” Jacobs v. Hudson Real Est. Holdings, LLC, No. 20-CIV-80911-RAR, 2021 WL 

705785 (S.D. Fla. Feb. 23, 2021). See Fed. R. Civ. P. 60(b) (“[T]he court may relieve a party or 

its legal representative from a final judgment, order, or proceeding ....”) (emphasis added)). 

However, “[m]otions for reconsideration, whether considered under Rule 54(b), Rule 59(b), or 

Rule 60(b) ... are generally all evaluated under the same standard.” Onita-Olojo v. Veolette Sellers, 

No. 12-CIV-62064, 2016 WL 11600719, at *1 (S.D. Fla. June 27, 2016); see Maldonado v. Snead, 

168 F. App'x 373, 386-87 (11th Cir. 2006) (“Although the district court reviewed [the] motion 

under Rule 54(b) as a motion for reconsideration of a non-final order rather than under Rule 60(b) 

as a motion for relief from judgment, ‘[w]e see no reason to apply a different standard when the 

party seeks reconsideration of a nonfinal order’ than when the party seeks reconsideration of a 

final judgment.’”) (quoting Region 8 Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d 

800, 806 (11th Cir. 1993)). The Court accordingly considers the Motion on the merits rather than 

denying it for improperly seeking relief from a non-final order. 

Goldberg contends reconsideration is warranted “in view of Ripple ... and given the 

prospect of a Court of Appeals decision holding that digital asset sales on trading platforms are 

not securities transactions[.]” Motion at 11. The Motion wholly fails to identify any “clear and 

obvious error where the ‘interests of justice’ demand correction[,]” however. Bhogaita, 2013 WL 

425827, at *1 (M.D. Fla. Feb. 4, 2013) (quoting Glenn Estess & Assoc., 763 F.2d at 1239). Instead, 

Goldberg contends Ripple I is analogous and sufficiently persuasive to warrant reconsideration. 

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Even assuming this is the case, Goldberg fails to articulate how that provides a basis for 

reconsidering the Court’s Order. Moreover, Goldberg does not even suggest, let alone 

demonstrate, that the Court’s Order is clearly erroneous. The Court concludes that reconsideration 

is inappropriate in the absence of any showing that its Order committed clear error or otherwise 

caused manifest injustice. 

B. Interlocutory Appeal

Goldberg alternatively argues that the Court should certify the following question for 

interlocutory appeal: “whether digital asset sales on trading platforms constitute securities 

transactions under the Howey test[.]” ECF No. [95] at 11. Goldberg contends this question satisfies 

§ 1292(b)’s requirements. For additional support, Goldberg points to the Commission’s 

unsuccessful attempt to certify the Ripple I court’s holding that so-called programmatic sales were 

not securities under Howey for interlocutory appeal. Goldberg contends this demonstrates his 

proposed question should be certified for interlocutory appeal. The Commission responds that 

Goldberg’s proposed question satisfies none of § 1292(b)’s requirements, and its prior attempt to 

certify the holding in Ripple I for interlocutory appeal fails to show that certification is appropriate 

here. 

The Ripple court subsequently denied the Commission’s motion to certify two questions 

for interlocutory appeal. Relevant here, the first question concerned whether “as a matter of law, 

Defendants’ ‘Programmatic’ offers and sales of XRP over crypto asset trading platforms could not 

lead investors to reasonably expect profits from the efforts of others[.]”2 Sec. & Exch. Comm'n v. 

2 The second question concerned whether “the ruling that Ripple’s ‘Other Distributions’ of XRP as 

a ‘form of payment for services’ ... was legally insufficient to constitute an ‘investment of money’ under 

[Howey].” Sec. & Exch. Comm'n v. Ripple Labs, Inc., No. 20 CIV. 10832 (AT), 2023 WL 6445969, at *2

(S.D.N.Y. Oct. 3, 2023). The Court does not discuss this portion of Ripple I’s analysis, as neither party 

suggests it provides a basis for certifying an interlocutory appeal. 

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Ripple Labs, Inc., No. 20 CIV. 10832 (AT), 2023 WL 6445969, at *2 (“Ripple II”). The court 

concluded none of § 1292(b)’s requirements were satisfied. First, the court found the Commission 

failed to present a controlling question of law. The court explained its prior order “did not hold 

that offers and sales on a digital asset exchange cannot create a reasonable expectation of profits 

based on the efforts of others.” Id., at *3. Instead, it “held that based on the totality of the 

circumstances in this case, including an examination of the facts, circumstances, and economic 

realities of the transactions, Ripple’s [p]rogrammatic [s]ales could not lead investors to reasonably 

expect profits from Ripple's efforts.” Id. (record citations omitted) (emphasis in original). The 

court also found the Commission’s reliance on SEC v. Terraform Labs Pte. Ltd., No. 23 Civ. 1346, 

––– F.Supp.3d ––––, ––––, 2023 WL 4858299, at *15 (S.D.N.Y. July 31, 2023) failed to 

demonstrate a substantial ground for difference of opinion. Ripple II, 2023 WL 6445969, at *5-6. 

Finally, the court concluded certifying the Commission’s proposed questions for interlocutory 

appeal would hinder rather than advance the ultimate termination of the litigation. Id. at *6-7.

Goldberg’s argument that the Commission’s attempt to certify the decision in Ripple I for 

interlocutory appeal demonstrates an interlocutory appeal is appropriate here lacks merit. The 

parties spill much ink discussing the extent to which the Commission’s position in Ripple II is 

inconsistent with its arguments in opposition to Goldberg’s Motion. That discussion certainly does 

not demonstrate that an interlocutory appeal is warranted in this case. Goldberg cannot meet his 

burden under § 1292(b) by pointing to the Commission’s conduct in another case. This is 

particularly the case considering Ripple II denied the Commission’s request to certify an 

interlocutory appeal. As in Ripple II—and regardless of the Commission’s position in that case—

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the Court similarly finds Goldberg’s proposed question fails to satisfy any of § 1292(b)’s 

requirements.3

i. Controlling question of law

Goldberg argues his question presents a controlling question of law because “if the 

Eleventh Circuit holds, consistent with Ripple, that digital asset sales on trading platforms do not 

constitute securities transactions under the Howey test ... there is no subject matter jurisdiction 

here.” ECF No. [95] at 12. The Commission responds that the Court’s Order does not present a 

controlling question of law because the Order simply found the Complaint plausibly alleged that 

Defendants’ scheme involving the sale of DIG tokens satisfies the Howey test. The Commission 

contends neither Ripple nor this Court’s Order turned on the fact that the sales in question took 

place on trading platforms. The Court agrees.

Despite Goldberg’s contrary assertions, the Court’s Order does not present the pure legal 

question of whether digital asset sales on trading platforms constitute securities transactions under 

Howey. Goldberg’s suggestion that the Order provides a basis for the Eleventh Circuit to hold that 

digital asset sales on trading platforms are not securities transactions as a matter of law 

misunderstands the nature of the Howey test. As explained in the Order, the Howey test “embodies 

a flexible rather than a static principle, one that is capable of adaptation to meet the countless and 

variable schemes devised by those who seek the use of the money of others on the promise of 

profits.” ECF No. [76] at 9 (quoting Howey, 328 U.S. at 301). Accordingly, “[i]n analyzing 

whether something is a security, ‘form should be disregarded for substance and the emphasis 

should be on economic reality.’” Id. (quoting Tcherepnin v. Knight, 389 U.S. 332, 336 (1967)). 

3 The Commission also argues certifying an interlocutory appeal based on the denial of a motion to 

dismiss is generally improper, and the Motion is untimely because Goldberg waited over four months to 

seek an interlocutory appeal. The Court declines the Commission’s invitation to dismiss the Motion on 

procedural grounds and, instead, denied it on its merits. 

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Consistent with this guidance, the Court’s Order concluded “that the ‘entire scheme’ involving 

DIG tokens, as alleged in the Complaint, constitutes an ‘investment contract’ under the Howey

test.” Id. at 12 (citation omitted).

Certifying the Court’s Order for interlocutory appeal would accordingly merely require the 

Eleventh Circuit to review the sufficiency of the allegations to determine whether they plausibly 

satisfy the Howey test. Goldberg’s proposed question, “whether digital asset sales on trading 

platforms constitute securities transactions under the Howey test” fails to consider that Howey is, 

by its own terms, a flexible standard that turns on the particular facts and overall “economic 

reality” of the transaction or scheme in question. Goldberg’s question suggests the Howey test is 

properly subject to a bright-line rule on whether digital asset sales on trading platforms constitute 

securities transactions. However, Goldberg has no support for his position, nor does he articulate 

how any such rule would be consistent with Howey’s fact-specific test. 

Furthermore, as the Commission correctly observes, Ripple II rejected the Commission’s 

argument that whether the programmatic sales failed to satisfy the third prong of Howey presents 

a controlling question of law. The court explained its holding was “based on the totality of the 

circumstances in this case, including an examination of the facts, circumstances, and economic 

realities of the transactions, Ripple’s [p]rogrammatic [s]ales could not lead investors to reasonably 

expect profits from Ripple's efforts.” 2023 WL 6445969, at *4. The court observed its “findings 

come from a direct application of Howey to the unique facts and circumstances of this case[]” and 

rejected the Commission’s argument that Ripple I presented controlling questions of law due its 

precedential value. Ripple II also made clear Ripple I’s “holding did not turn on the fact that 

Ripple's offers and sales [were] on crypto asset trading platforms.” Id. (alteration added) (record 

citation omitted). 

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Consistent with Ripple I, the Court applied Howey to the Complaint’s allegations and found 

those allegations plausibly satisfy Howey. As in Ripple, appellate review of this determination 

requires a fact-specific determination. Although this fact-specific inquiry is less intensive than 

studying a fully developed record, it nonetheless requires determining “whether the district court 

properly applied settled law to the facts or evidence of a particular case.” Cont’l 332 Fund, LLC v. 

Albertelli, No. 2:17-cv-41-FtM-38MRM, 2018 WL 3656472, at *2 (M.D. Fla. Aug. 2, 2018). The 

Court accordingly concludes that Goldberg fails to present a controlling question of law.

ii. Substantial ground for difference of opinion

Even if Goldberg did present a controlling question of law, the Motion nonetheless fails to 

demonstrate a substantial ground for difference of opinion. Goldberg emphasizes the distinctions 

between the decisions in Ripple I and Sec. & Exch. Comm'n v. Terraform Labs Pte. Ltd., No. 23-

CV-1346 (JSR), 2023 WL 4858299 (S.D.N.Y. July 31, 2023) (“Terraform”). Goldberg contends 

the differences between Ripple I and Terraform creates a substantial ground for difference of 

opinion justifying certifying his proposed question for interlocutory appeal. The Commission 

responds that Ripple I and Terraform simply applied Howey to the particular facts of the case and 

are consistent with the Court’s Order. 

As discussed above, Ripple I found the third element of Howey was not satisfied with 

respect to the programmatic buyers because “[w]hereas ... Institutional Buyers reasonably 

expected that [the defendant] would use the capital it received from its sales to improve the [XRP 

token] ecosystem and thereby increase the price of [the XRP token],” the so-called programmatic 

buyers’ expectations of profit were not attributable to the defendants’ efforts. Ripple I, 2023 WL 

4507900 at *11-12. That was because those programmatic buyers purchased XRP tokens through 

secondary transactions and did not know if their payments went to the defendants or to third 

parties. In Terraform, the court found the Commission plausibly alleged the defendants’ cryptoCase 1:22-cv-23171-BB Document 115 Entered on FLSD Docket 03/06/2024 Page 19 of 24
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asset scheme satisfied the Howey test. With respect to Howey’s third element, the court determined 

“the SEC’s claim that the defendants held out to the coins’ consumers the possibility of profiting 

from their purchases is supported by specific factual allegations ... including readouts of investor 

meetings, excerpts of investor materials, and screenshots of social media posts made by Mr. Kwon 

and other Terraform executives.” 2023 WL 4858299, at *14. The court accordingly concluded “the 

SEC’s assertion that the crypto-assets at issue here are securities under Howey survives the 

defendants’ motion to dismiss.” Id. 

In reaching this conclusion, the court “reject[ed] the approach” adopted by Ripple I by 

“declin[ing] to draw a distinction between these coins based on their manner of sale, such that 

coins sold directly to institutional investors are considered securities and those sold through 

secondary market transactions to retail investors are not.” Id., at *15. Terraform noted Howey 

“makes no such distinction between purchasers” and explained whether “a purchaser bought the 

coins directly from the defendants or, instead, in a secondary resale transaction has no impact on 

whether a reasonable individual would objectively view the defendants’ actions and statements as 

evincing a promise of profits based on their efforts.” Id. 

Goldberg relies on Terraform’s rejection of the notion that the manner of sale is itself 

relevant as to whether the Howey test is satisfied to argue a substantial ground for difference of 

opinion exists. Goldberg provides no support for his position that a disagreement between two outof-circuit cases provides a sufficient basis for an interlocutory appeal. Goldberg cites Matter of 

Maine Mar. Museum, No. 2:21-CV-00238-NT, 2023 WL 3250804, at *3 (D. Me. May 4, 2023) 

for the general proposition that where “proceedings that threaten to endure for several years depend 

on an initial question of jurisdiction, limitations, or the like, certification may be justified at a 

relatively low threshold of doubt.” Id., at *3. Aside from being non-binding, the Court is 

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unpersuaded that Goldberg is properly subject to a “relatively low threshold of doubt[]” here. As 

discussed above, Goldberg’s proposed question oversimplifies Howey’s fact-specific test to 

suggest that a favorable appellate ruling will deprive the Commission of jurisdiction and 

effectively terminate the case. Furthermore, neither Ripple I nor Terraform is inconsistent with the 

Court’s Order. 

As Ripple II observes, “[t]he Terraform court did not engage with the Court's reasoning in 

the Order. Nor was it required to, given the different procedural postures of the two cases.” Ripple 

II goes on to explain the key differences between its decision in Ripple I and Terraform: 

As stated above, the Order did not turn on the fact that Programmatic Sales were

“sold through secondary market transactions to retail investors.” Id. Rather, the 

Court concluded, based on the totality of circumstances, that an objective,

reasonable Programmatic Buyer was not led to expect profits from the efforts of 

Ripple. Order at 24. Unlike in Terraform, the reasonable Programmatic Buyer 

would not believe that “sales from purchases of all [XRP] ... would be fed back into 

[Ripple and the XRP Ledger] and would generate additional profits for all [XRP] 

holders.” Terraform, ––– F.Supp.3d at ––––, 2023 WL 4858299, at *15. Similarly, 

the undisputed record makes clear that many of Ripple's key promotional 

materials—such as the “Ripple Primer,” which states that Ripple “hopes to make 

money from XRP if the world finds the Ripple network useful,” and the 

“Gateways” brochure, which states that “Ripple’s business model is based on the 

success of [XRP],” Order at 19–20—were only distributed to Institutional Buyers, 

and not more broadly to Programmatic Buyers, id. at 24–25. In other words, after a 

close examination of the extensive factual record and expert reports, the Court 

concluded that the Programmatic Buyers did not “ha[ve] every bit as good a reason 

[as the Institutional Buyers] to believe that [Defendants] would take their capital 

contributions and use [the capital] to generate profits on their behalf.” Terraform, 

––– F.Supp.3d at ––––, 2023 WL 4858299, at *15. 

Sec. & Exch. Comm'n v. Ripple Labs, Inc., No. 20 CIV. 10832 (AT), 2023 WL 6445969, at *6

(S.D.N.Y. Oct. 3, 2023). 

The Court’s own review of Ripple I and Terraform is consistent with Ripple II’s 

interpretation of those decisions. As explained above, Ripple I concluded that programmatic 

buyers did not possess the same reasonable expectation of profit as institutional buyers. That 

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finding was based on the particular factual circumstances surrounding each type of sale, not simply 

based on the differing manners of sale—sales based on written contracts versus sales executed via 

digital asset exchanges. The distinctions between Ripple I and Terraform accordingly fail to 

provide a basis for an interlocutory appeal. Moreover, neither decision is inconsistent with the 

Court’s Order. Consistent with Terraform, the Court determined the Commission’s Complaint 

“sufficiently alleges that DIG investors’ fortunes depended on the actions of Arbitrade and 

Cryptobontix, so the third prong of Howey is satisfied.” ECF No. [76] at 11 (citation omitted). The 

Order did not distinguish between the manner of sale to investors when analyzing Howey. Nor 

could it, as the Commission invariably alleges the investors “role was limited to purchasing DIG 

tokens[,]” “were entirely passive[,]” and were privy to the same marketing materials. Id. (citing 

ECF No. [1] ¶ 84). 

This Court’s Order and Terraform are consistent with Ripple I. The Order and Terraform

each took the Commission’s allegations that the purchasers reasonably expected the defendants to 

use their capital contributions to generate profits as true. Unlike those decisions, Ripple I reviewed 

the extensive record evidence regarding both the institutional sales and programmatic sales and 

determined that the totality of the circumstances demonstrated the programmatic buyers did not 

reasonably expect profits based on the defendants’ efforts. In sum, Ripple I and Terraform do not 

create a substantial ground difference of opinion with respect to whether the manner of cryptoasset sales itself determines whether those transactions are considered securities under Howey. 

Consistent with Howey, this Court’s Order, Ripple I, and Terraform each reasonably applied 

Howey to the particular facts—or allegations—of each case. The Court concludes the resulting 

distinctions among those decisions reflect the differing procedural postures and factual 

circumstances at issue rather than a principled disagreement on the proper interpretation of the 

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Howey test. Goldberg accordingly fails to demonstrate that a substantial ground for difference of 

opinion exists justifying an interlocutory appeal. 

iii. Materially advance the ultimate termination of the litigation

Goldberg has also failed to demonstrate that certifying his question for interlocutory appeal 

would “materially advance the ultimate termination of the litigation.” McFarlin v. Canseco Servs., 

LLC, 381 F.3d 1251, 1259 (11th Cir. 2004). Goldberg is correct that a favorable decision from the 

Eleventh Circuit could effectively resolve this case. As discussed, however, Goldberg’s proposed 

question glosses over the fact-specific inquiry demanded by Howey. The more likely scenario is a 

considerable delay in these proceedings while the parties await a decision from the Eleventh 

Circuit. If the Eleventh Circuit concludes the Complaint’s allegations plausibly satisfy the Howey 

test, the net result of an interlocutory appeal will simply be delay and additional expense. The 

Court therefore concludes that Goldberg fails to show an interlocutory appeal “would serve to 

avoid a trial or otherwise substantially shorten the litigation.” Id. The above discussion instead 

suggests “an interlocutory appeal of this derivative issue would not advance, but would rather 

delay the litigation and would benefit only Defendant [Goldberg] ....” In re U.S. Oil & Gas Litig., 

1988 WL 28544 at * 31. Goldberg has thus failed to establish the third element permitting the 

certification of an interlocutory appeal.4

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that Defendant James L. Goldberg’s 

Motion for Reconsideration or Certification for Interlocutory Appeal, ECF No. [95], and 

Defendant Tory R.J. Hogg’s Motion for Reconsideration, ECF No. [104], are DENIED.

4 Goldberg’s request to stay all proceedings in this case if the Court grants the instant Motion is 

accordingly denied as moot. 

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DONE AND ORDERED in Chambers at Miami, Florida, on March 6, 2024.

___________________________________

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to: Counsel of Record

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