Yesterday, Corp Fin issued yet another statement related to crypto activities. The statement notes:

As part of an effort to provide greater clarity on the application of the federal securities laws to crypto assets, the Division of Corporation Finance is providing its views on certain activities known as “staking” on networks that use proof-of-stake (“PoS”) as a consensus mechanism (“PoS Networks”). Specifically, this statement addresses the staking of crypto assets that are intrinsically linked to the programmatic functioning of a public, permissionless network, and are used to participate in and/or earned for participating in such network’s consensus mechanism or otherwise used to maintain and/or earned for maintaining the technological operation and security of such network. We refer in this statement to these crypto assets as “Covered Crypto Assets” and their staking on PoS Networks as “Protocol Staking.”

The statement goes on to indicate:

It is the Division’s view that “Protocol Staking Activities” (as defined below) in connection with Protocol Staking do not involve the offer and sale of securities within the meaning of Section 2(a)(1) of the Securities Act of 1933 (the “Securities Act”) or Section 3(a)(10) of the Securities Exchange Act of 1934 (the “Exchange Act”).[10] Accordingly, it is the Division’s view that participants in Protocol Staking Activities do not need to register with the Commission transactions under the Securities Act, or fall within one of the Securities Act’s exemptions from registration in connection with these Protocol Staking Activities.

This Staff statement prompted dueling statements with catchy titles from Commissioner Peirce and Commissioner Crenshaw. In her statement, Commissioner Peirce states:

Today’s statement provides welcome clarity for stakers and “staking-as-a-service” providers in the United States. The Division’s statement is applicable to persons who self-stake certain covered crypto assets on a proof-of-stake or delegated proof-of-stake network. It also applies to non-custodial and custodial staking-as-a-service providers that facilitate this type of staking on behalf of others. Additionally, the statement explains that the pairing of certain ancillary services together with non-custodial or custodial staking services, in staff’s view, does not make providing staking services a securities offering. These ancillary services include the provision of slashing coverage, allowing crypto assets to be returned to a staker prior to the end of the protocol’s “unbonding” period, delivering earned rewards based on an alternative rewards payment schedule and in alternative amounts, and aggregating stakers’ crypto assets together for purposes of satisfying a network’s minimum staking requirements.

While Commissioner Crenshaw’s statement notes:

Channeling the old adage of “fake it ‘till you make it,” today’s statement from the Division of Corporation Finance declares that “protocol staking” – locking up crypto tokens in a blockchain protocol to earn rewards – does not involve an investment contract. Therefore, staff concludes, protocol staking activities, whether performed by an individual or a third-party service on behalf of customers, are not securities subject to SEC jurisdiction.

While acknowledging that its statement “does not alter or amend applicable law,” staff ignores how its conclusions conflict with that applicable law. The applicable law to determine whether something is an investment contract is the Howey test. In multiple enforcement actions, the Commission alleged that staking-as-a-service programs were investment contracts under Howey. Two separate courts upheld the legal basis of these allegations. The Commission recently dismissed one of these actions and today, paving the way for this statement on staking, it dismissed the other. But abandonment of these enforcement actions does not erase the underlying court decisions.

It is pretty wild to see this flurry of Staff statements come out in such rapid succession – and to see Commissioners’ statements published about the Staff statements! Somebody grab me the popcorn, this is getting good.

– Dave Lynn