bitcoin, cryptocurrency, blockchain, investment contract, staking, securities, regulation, SEC
Bitcoin, the first blockchain and cryptocurrency (crypto), launched in 2009 when the Bitcoin network opened to the public. A blockchain is a digital ledger technology where transactions are aggregated and permanently recorded into blocks of information. Maintenance of a blockchain is typically conducted by decentralized managers who own and operate network computers (“Nodes”) and serve the functions normally handled by central intermediaries to validate and confirm transactions. All Nodes follow a blockchain protocol. In Bitcoin’s and most cryptos’ cases, this protocol is known as a Proof- of-Work protocol which requires a large amount of energy consumption. Consequently, Proof-of-Stake protocols (“PoS”) were introduced into crypto blockchains as a solution to the power consumption problem.
In light of the advancement of blockchain technology, many have postulated whether PoS validation, a practice known as “Staking,” poses regulatory risks for Node Managers. Although a robust regulatory regime is far from complete, several federal agencies have engaged with the topic of crypto as early as 2014. The Securities and Exchange Commission, the agency that regulates investment contracts, is one of them. Under the Supreme Court’s Howey and Marine Bank Tests, which interpret the Securities Act of 1933, an investment contract is “a contract, transaction, or scheme whereby a person invests her money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party.” Staking arrangements involve individual investors contributing crypto to Staking pools with the expectation of receiving a reward while relying on the efforts of the pool’s Node Manager. A court using the Howey and Marine Bank analyses would find Staking arrangements are investment contracts. Fortunately, developers and Node Managers can charge flat fees, disincentivize large pools, and implement delegation to escape such regulatory classification and scrutiny.
Nicholas E. Gonzalez, Note, Does Cryptocurrency Staking Fall Under SEC Jurisdiction?, 27 Fordham J. Corp. & Fin. L. 521 (2022).