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The SEC shook Kraken down for $30M, but it doesn't mean they had a case

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Kraken agreed to a settlement with the SEC, but that didn’t change the law. Staking does not constitute a security.

The settlement between Kraken (Payward Ventures) and the United States Securities and Exchange Commission set off alarm bells in the crypto community this month. Apparently, Kraken — one of the most compliance-minded crypto exchanges in existence — decided to buy its peace rather than fight with the SEC for years over whether it was offering unregistered “securities” through its staking program. The nature of the settlement is that Kraken neither admitted nor denied the SEC’s allegations, and the existence of the settlement, technically speaking, cannot be used as legal precedent for any argument either side of the issue might present.

That said, the settlement matters, as it will clearly chill crypto staking in the United States. As SEC Chairman Gary Gensler said, “Whether it’s through staking-as-a-service, lending, or other means, crypto intermediaries, when offering investment contracts in exchange for investors’ tokens, need to provide the proper disclosures and safeguards required by our securities laws.” Gensler casts a wide net, indeed, for what the SEC considers to be “investment contracts,” and running staking out of business was perhaps precisely what he had in mind.

Related: Expect the SEC to use its Kraken playbook against staking protocols

That the SEC was successful in pressuring Kraken out of $30 million does not, however, make the agency’s position legally or logically correct. As a preliminary matter, “staking” and “lending” are totally different things. Staking is the process by which one pledges one’s coins or tokens to a proof-of-stake blockchain, either directly or by delegating one’s coins to a third party, for the purpose of securing the network. Stakers are the ones through whom the blockchain’s consensus mechanism operates, as they “vote” on which blocks will be added to the chain. The process is algorithmic, and the reward is automatic when one’s position is electronically “selected” as the validator for a given block.

Settlements are not law. They're a decision that the economics of settling are better than fighting, no more.

The SEC thinks staking-as-a-service is a security. Kraken didn't admit or deny either way.

It may be a tough question, but the SEC hasn't answered it either way today.

— Jake Chervinsky (@jchervinsky) February 9, 2023

Stakers don’t necessarily know who the other stakers are, nor do they need to know, as the fate of one’s stake is dependent only on following the rules of that blockchain as to “liveness” (availability) and other technical considerations. There are risks of “slashing” (losing your coins) for bad behavior or unavailability, but again, these are algorithmic remedies doled out automatically according to transparent rules built into the code. Put simply, in staking, it’s between you and the blockchain, not you and the intermediary.

Lending, in contrast, invokes the entrepreneurial and managerial skill (or lack thereof) of the people to whom you lend. This is a distinctly human enterprise. One does not necessarily know what the borrower is doing with the money; one simply hopes to get it back with a return. This counterparty risk is in part what the securities laws are intended to address. In lending, the relationship is between the lender and the borrower, which relationship that can take all kinds of unexpected turns.

Related: Kraken staking ban is another nail in crypto’s coffin — And that’s a good thing

The reasons why staking arrangements are not “investment contracts” (and thereby “securities”) wer stated eloquently by Coinbase chief legal officer Paul Grewal in a blog post. Put simply, merely serving as an intermediary does not render the underlying economic relationship an “investment contract.” Yet the SEC here does not seem to want to entertain the differences between service providers and counterparties.

It is true that third parties, such as Kraken, serve a custodial role in the staking relationship — that is, they may hold the private keys to the particular coins the client intended to stake. However, serving as a custodian of a fungible asset, especially where such a custodian holds collateral on a 1:1 basis to back every customer account, is a discreet service.

There is nothing to suggest that Kraken, Coinbase or any other staking-as-a-service provider, otherwise uses human judgment, intuition, grit or any other hallmark of one’s entrepreneurial or managerial ability, to advance or inhibit the staker’s purpose. One’s reward does not improve or decline based on how the intermediary performs. There should be (and are) rules and regulations for how custodians function, but possession does not, by itself, a security make.

Ari Good is an attorney whose clients include payments companies, cryptocurrency exchanges and token issuers. His practice areas focus on tax, securities and financial services compliance matters. He received his juris doctor from the DePaul University College of Law in 1997, his Master of Laws in taxation from the University of Florida in 2005, and is presently a candidate for the Executive Master of Laws in securities and financial regulation from the Georgetown University Law Center.

This article is for general information purposes and is not intended to be and should not be taken as legal or investment advice. The views, thoughts, and opinions expressed here are the author’s alone and do not necessarily reflect or represent the views and opinions of Cointelegraph.

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  • 14.10.25 08:46 robertalfred175

    CRYPTO SCAM RECOVERY SUCCESSFUL – A TESTIMONIAL OF LOST PASSWORD TO YOUR DIGITAL WALLET BACK. My name is Robert Alfred, Am from Australia. I’m sharing my experience in the hope that it helps others who have been victims of crypto scams. A few months ago, I fell victim to a fraudulent crypto investment scheme linked to a broker company. I had invested heavily during a time when Bitcoin prices were rising, thinking it was a good opportunity. Unfortunately, I was scammed out of $120,000 AUD and the broker denied me access to my digital wallet and assets. It was a devastating experience that caused many sleepless nights. Crypto scams are increasingly common and often involve fake trading platforms, phishing attacks, and misleading investment opportunities. In my desperation, a friend from the crypto community recommended Capital Crypto Recovery Service, known for helping victims recover lost or stolen funds. After doing some research and reading multiple positive reviews, I reached out to Capital Crypto Recovery. I provided all the necessary information—wallet addresses, transaction history, and communication logs. Their expert team responded immediately and began investigating. Using advanced blockchain tracking techniques, they were able to trace the stolen Dogecoin, identify the scammer’s wallet, and coordinate with relevant authorities to freeze the funds before they could be moved. Incredibly, within 24 hours, Capital Crypto Recovery successfully recovered the majority of my stolen crypto assets. I was beyond relieved and truly grateful. Their professionalism, transparency, and constant communication throughout the process gave me hope during a very difficult time. If you’ve been a victim of a crypto scam, I highly recommend them with full confidence contacting: 📧 Email: [email protected] 📱 Telegram: @Capitalcryptorecover Contact: [email protected] 📞 Call/Text: +1 (336) 390-6684 🌐 Website: https://recovercapital.wixsite.com/capital-crypto-rec-1

  • 15.10.25 18:07 crypto

    Cryptocurrency's digital realm presents many opportunities, but it also conceals complex frauds. It is quite painful to lose your cryptocurrency to scam. You can feel harassed and lost as a result. If you have been the victim of a cryptocurrency scam, this guide explains what to do ASAP. Following these procedures will help you avoid further issues or get your money back. Communication with Marie ([email protected] and WhatsApp: +1 7127594675) can make all the difference.

  • 15.10.25 21:52 harristhomas7376

    "In the crypto world, this is great news I want to share. Last year, I fell victim to a scam disguised as a safe investment option. I have invested in crypto trading platforms for about 10yrs thinking I was ensuring myself a retirement income, only to find that all my assets were either frozen, I believed my assets were secure — until I discovered that my BTC funds had been frozen and withdrawals were impossible. It was a devastating moment when I realized I had been scammed, and I thought my Bitcoin was gone forever, Everything changed when a close friend recommended the Capital Crypto Recover Service. Their professionalism, expertise, and dedication enabled me to recover my lost Bitcoin funds back — more than €560.000 DEM to my BTC wallet. What once felt impossible became a reality thanks to their support. If you have lost Bitcoin through scams, hacking, failed withdrawals, or similar challenges, don’t lose hope. I strongly recommend Capital Crypto Recover Service to anyone seeking a reliable and effective solution for recovering any wallet assets. They have a proven track record of successful reputation in recovering lost password assets for their clients and can help you navigate the process of recovering your funds. Don’t let scammers get away with your hard-earned money – contact Email: [email protected] Phone CALL/Text Number: +1 (336) 390-6684 Contact: [email protected] Website: https://recovercapital.wixsite.com/capital-crypto-rec-1

  • 15.10.25 21:52 harristhomas7376

    "In the crypto world, this is great news I want to share. Last year, I fell victim to a scam disguised as a safe investment option. I have invested in crypto trading platforms for about 10yrs thinking I was ensuring myself a retirement income, only to find that all my assets were either frozen, I believed my assets were secure — until I discovered that my BTC funds had been frozen and withdrawals were impossible. It was a devastating moment when I realized I had been scammed, and I thought my Bitcoin was gone forever, Everything changed when a close friend recommended the Capital Crypto Recover Service. Their professionalism, expertise, and dedication enabled me to recover my lost Bitcoin funds back — more than €560.000 DEM to my BTC wallet. What once felt impossible became a reality thanks to their support. If you have lost Bitcoin through scams, hacking, failed withdrawals, or similar challenges, don’t lose hope. I strongly recommend Capital Crypto Recover Service to anyone seeking a reliable and effective solution for recovering any wallet assets. They have a proven track record of successful reputation in recovering lost password assets for their clients and can help you navigate the process of recovering your funds. Don’t let scammers get away with your hard-earned money – contact Email: [email protected] Phone CALL/Text Number: +1 (336) 390-6684 Contact: [email protected] Website: https://recovercapital.wixsite.com/capital-crypto-rec-1

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