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Why the SEC Crackdown is Good for Staking
March 18, 2023
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Key Takeaways

  • Kraken shutting down its Staking Program and being charged by the SEC for offering and selling unregistered staking-as-a-service securities could set a precedent for other crypto platforms operating in the same manner
  • SEC’s charges against Kraken weren’t a strike against staking but rather against business practices of platforms offering modified staking products, which are considered securities
  • Expanding Qualified Custodial requirements to include crypto drastically reduces the number of crypto platforms that can legally operate, further centralizing power amongst select crypto platforms that become Qualified Custodians
  • Custodial requirements add additional layers of safety for crypto investors as it requires custodial platforms to segregate funds, provide yearly disclosures and public audits, and ensure customer funds are accessible in case of bankruptcy
  • Custodial requirements are likely to reduce the number of custodial crypto platforms operating and adversely push retail and institutions on-chain via non-custodial solutions or running validators, ultimately improving decentralization

Introduction

The SEC has recently implemented a multitude of initiatives regarding staking and stablecoins. It claims its actions shield consumers while enforcing regulatory requirements. Regulatory bodies, including the SEC, hope their new initiatives prevent future crypto frauds. However, many in the crypto sphere worry that regulatory intervention will cause harmful adverse effects. Namely, regulatory red tape will centralize power amongst governments and financial institutions – directly contradicting the decentralized nature of blockchain technology.

SEC’s view and planned actions on staking will have a paramount impact on the industry outlook. Fortunately, Gary Gensler has recognized staking as a legitimate practice to achieve blockchain consensus. However, there are dissenting opinions on crypto platforms’ handling of staking programs, not staking itself. Although Kraken was the first to be charged, other platforms with similar products and operations are likely at risk of being charged.

ETH staking flows initially reacted negatively to SEC’s charges against Kraken but quickly recovered and surged to a weekly high when the Qualified Custodian rule was proposed to include crypto.

Let’s dig into what happened and what it means for staking. In our view, the recent developments are positive for the staking industry.

Kraken Shuts Down its Staking Program

Why did the SEC order Kraken’s Staking Program to be shut down?

The SEC deemed Kraken’s Staking Program as an illegal offering of unregistered securities due to Kraken’s ability to give customers an advantage and higher returns than independent staking.

Several factors about Kraken’s Staking Program led to SEC’s conclusions, including

  • Staking on Kraken was passive for participants; no action required
  • Kraken set staking yields, determined by opaque criteria. Instead, in legitimate staking, software determines yields.
  • A partial portion of customers’ crypto was held as reserve, not staked, to ensure withdrawals.
  • Kraken sent regular investment payouts, whereas legitimate staking does not follow a set schedule.
  • No staking minimums

Can Kraken challenge SEC’s conclusions?

Kraken paid a $30M fine to settle SEC charges, ceasing its Staking Program rather than choosing to fight it in court.

Was the SEC after staking or after Kraken’s business practices?

The SEC complaint did not allege that staking is an offer or sale of securities. Instead, it claimed that Kraken’s Staking Program practices altered the nature of staking and touted features such as easy-to-use platforms, investment returns and payouts.

Staking directly on-chain is unaffected by the SEC’s charges, yet this event could set a precedent for potential action against similarly configured custodial crypto platforms. On-chain staking vs custodial staking is an important distinction that the media seems to skip over.

Staking isn’t a security because:

  • Token owners remain in full ownership of their assets when staking, and can unstake them following the underlying protocol.
  • Stakers are not connected by a common enterprise but by decentralized blockchain networks, hence failing to meet the “common enterprise” element of the Howey test.
  • It’s argued staking services don’t meet the “reasonable expectation of profits” element of the Howey test, which examines whether an asset is purchased for investment returns or personal use. Staking rewards are payments for validating transactions on the blockchain network, not investment returns.
  • Staking services don’t involve rewards based on the “efforts of others” under the Howey test. Service providers are not entrepreneurs, managers, or key contributors to determining customer rewards or the number of rewards received. Instead, the blockchain protocol governs which validator nodes receive rewards and how many, regardless of service providers.

What does this mean for staking providers in the future?

Regulatory scrutiny on centralized staking operations may vary based on the degree of centralization. Recent events have likely increased such scrutiny, though decentralized staking remains unaffected and may see higher demand for a non-custodial approach.

What does this mean for decentralization in the future?

The staking industry’s recent developments reinforce the resilience of decentralized operations, a positive sign for decentralization and the need to reach a decentralized future. On the other hand, Custodial crypto platforms may experience more centralization among less players as the SEC continues its crackdown and suggests extending the Qualified Custodian rule to digital assets.

Expanding the Qualified Custodian Requirements to Include Digital Assets

What are the new proposed rules for Qualified Custodian requirements?

Gary Gensler proposes to enhance the role of Qualified Custodians. The proposal affects registered investment advisers who custody assets (now including digital assets) on behalf of their investors. Ultimately, custodial requirements aim to remove the ability of an investment adviser to pay the proceeds that new investors invested to old investors (aka Ponzi schemes) and guarantee customers access to funds during bankruptcy proceedings. The rule requires advisers and Qualified Custodians to segregate all client assets, including crypto, and forbid advisers from relying on non-Qualified Custodial crypto platforms. By expanding the custody rule to crypto assets, investors working with advisers would receive the same safeguards as any other asset. According to Gary Gensler, most crypto platforms today aren’t Qualified Custodians and would need to overhaul operations. In addition, the new proposals require yearly disclosures, audits, and discretionary trading on investors’ behalf and apply to foreign financial institutions.

Why are crypto platforms likely to face scrutiny in the short term if the proposed custodial requirements are passed?

Today, some crypto trading and lending platforms assert custody over investors’ crypto assets, but that does not necessarily imply they are Qualified Custodians. Instead of appropriately segregating investors’ assets, such platforms have intermingled funds across investors. As a result, if these platforms go bankrupt, as has occurred, investors’ assets frequently become the property of the failed company, leaving investors in a queue at the bankruptcy court. Few crypto platforms can claim they are eligible to be Qualified Custodians.

How would the expanded custodial requirements affect the competitive landscape of crypto platforms and decentralization?

The SEC’s proposed rule would require SEC-registered investment advisers to use only “Qualified Custodians,” which may pose a challenge for advisers utilizing crypto platforms that don’t meet Qualified Custodian operating and disclosure standards. The proposed rule may result in the concentration of assets with a small number of registered custodians in the US, creating a new centralization force in the industry. SEC Commissioner Mark Uyeda also pointed out that trading crypto assets on platforms that are not qualified custodians would violate the proposed rule.

The proposed rules have several implications for the competitive landscape of crypto. First, only a handful of custodians would pass the Qualified Custodian requirements. Second, any new participants would need to seek approval from the SEC for Qualified Custodian status, which is no easy feat. Thirdly, this gives the SEC significant authority and oversight amongst crypto platforms and imposes a centralized governing body. Although not fully in line with the decentralization ethos of blockchains, such a proposal does assure users’ digital assets are safe. If these proposals were in place previously, FTX and Celsius, for example, would not have existed. As an unintended consequence of the new proposal, users will be pushed towards non-custodial, on-chain solutions, ultimately serving crypto for the better and improving decentralization. In addition, over a more extended time period, we believe institutions will opt to run validators to maximize staking rewards and avoid reliance on custodial platforms. Reducing the number of platforms that can legally provide staking through custody-based platforms will further accelerate institutional investors to run validators.

Conclusions

Ultimately, we believe the Kraken crackdown and Qualified Custodian expansion is good for crypto. It sets a standard for custodial platforms and spurs more interest in non-custodial staking. The expanded Custodian definition creates safety nets as users know their funds won’t be misused, stolen, or frozen in case of bankruptcy. Although this limits the number of platforms offering services in the short term, more clarity for participants will pave the way to legitimize digital assets in the eyes of the SEC.

The crypto space is a complex network of stakeholders; every step shifts the teeter-totter of power, favoring different stakeholders at different times. Ultimately, these steps are crucial for crypto’s widespread adoption and transition towards balance and increasing decentralization in the long term.

This is not financial or legal advice.

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One year ago, the FBI raided Polymarket founder Shayne Coplan’s apartment. Now, the college dropout is a billionaire at age 27.

In July, Jeffrey Sprecher, the 70-year-old billionaire CEO of Intercontinental Exchange, the parent company of the New York Stock Exchange, sat at Manhatta, an upscale restaurant in the financial district overlooking the sprawling New York City skyline from the 60th floor. As a sommelier weaved through tables pouring wine, in walked Shayne Coplan—in a T-shirt and jeans, clutching a plastic water bottle and a paper bag with a bagel he’d picked up en route. Sprecher chuckles as he recalls his first impression of the boyish, eccentric entrepreneur: “An old bald guy that works at the New York Stock Exchange, where we require that you wear a suit and tie, next to a mop-headed guy in a T-shirt that's 27.” But Sprecher was fascinated by Polymarket, Coplan’s blockchain-based prediction market, and after dinner, he made his move: “I asked Shayne if he would consider selling us his company.”

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Coplan initially turned down Sprecher’s buyout offer. But discussions led to negotiations and eventually a deal. In October, Intercontinental announced it had invested $2 billion for an up to 25% stake in the company, bringing the young solo founder the balance he was looking for. “We're consumer, we’re viral, we're culture. They’re finance, they’re headless and they’re infrastructure,” Coplan tells Forbes in a recent interview.

At the same time, Coplan announced investments from other billionaires including Figma’s Dylan Field, Zynga’s Mark Pincus, Uber’s Travis Kalanick and hedge fund manager Glenn Dubin. A longtime Red Hot Chili Peppers fan, Coplan even convinced lead singer Anthony Kiedis to invest after a mutual acquaintance brought the musician to Coplan’s apartment one day. “He's buzzing my door, and I’m like, ‘holy shit,'” Coplan recalls, his bright blue eyes widening. “I love their music. A lot of the inspiration [for my work] comes from the music that I listen to.”

Thanks to the deals, Polymarket’s valuation quickly shot to $9 billion, making the 2025 Under 30 alum the world’s youngest self-made billionaire, with an estimated 11% stake worth $1 billion. His reign was short: twenty days later, he was overtaken as the youngest by the three 22-year-old founders of AI startup Mercor.

Young entrepreneurs are minting ten-figure fortunes faster than ever. In addition to the Mercor trio and Coplan, 15 other Under 30 alumni—including ScaleAI cofounder Lucy Guo, Reddit’s Steve Huffman and Cursor’s cofounders—became billionaires this year, while Guo’s cofounder Alexandr Wang and Robinhood’s Vlad Tenev (both former Under 30 honorees) regained their billionaire status after having fallen out of the ranks.

The budding billionaire has long been fascinated by markets and tech. When he was just 14, Coplan emailed the regional Securities and Exchange Commission office to ask how to create new marketplaces. “I did not get a response, but it’s a really funny email,” he says, grinning playfully as he thinks of his younger self. “It just shows that this stuff takes over a decade of percolating in your mind.”

Two years later, Coplan showed up at the offices of internet startup Genius uninvited after multiple emails of his asking for an internship went ignored. At age 16—at least a decade younger than anyone in that office—he secured his first job after making a memorable impression with his “wild curls” and “encyclopedic knowledge of billionaire tech entrepreneurs.” “If he chooses to become a tech entrepreneur, which seems likely, I have no doubt that we’ll be seeing his name again in the press before long,” Chris Glazek, his manager at the time, wrote in Coplan’s college recommendation letter.

Coplan went on to study computer science at NYU, but dropped out in 2017 to work on various crypto projects that never took off. In 2020, he founded Polymarket to create a solution to the “rampant misinformation” he saw in the world: The company’s first market allowed users to bet on when New York City would reopen amid the pandemic. He soon expanded into elections and pop culture happenings, among other events.

But it didn’t take long for the company to butt heads with regulators. In January 2022, Polymarket paid a $1.4 million fine to the Commodity Futures Trading Commission for offering unregistered markets. It was also ordered to block all U.S. users, but activity on Polymarket skyrocketed particularly during the 2024 U.S. presidential election, with bets totaling $3.6 billion. A week after the election, the FBI raided Coplan's apartment and seized his devices as part of an investigation into a possible violation of this agreement. Shortly after, Coplan posted on his X account that he saw the raid as “a last-ditch effort” from the Biden administration “to go after companies they deem to be associated with political opponents.”

In July, the Department of Justice and CFTC dropped the investigations—after which Sprecher reached out to Coplan for dinner—and less than a week later, Polymarket announced it had acquired CFTC-licensed derivatives exchange QCX to prepare for a compliant U.S. launch. QCX applied to be a federally-registered exchange in 2022—an application that was left dormant for three years before receiving approval less than two weeks before the acquisition was announced. When asked about the timing of the deal, Coplan points to CFTC acting chairwoman Caroline Pham, who President Trump tapped to lead the agency in January. “Caroline deserves a lot of credit for getting every single license that had been paused for no reason approved, as acting chairwoman in less than a year,” he says. Coplan had realized an acquisition might be the only way for Polymarket to legally operate in the U.S. as early as 2021 due to the lengthy federal approval process, a source familiar with the deal told Forbes.

Just two months after the acquisition and days after Donald Trump Jr. joined Polymarket’s advisory board, the company received federal approval to launch in the U.S. (Trump Jr. has also served as a strategic advisor to Polymarket’s main competitor Kalshi since January.)

Polymarket’s rapid rise has drawn critics. Dennis Kelleher, co-founder and CEO of Washington-based financial advocacy group Better Markets, told Forbes in an email that the current administration’s deregulation around prediction markets has unlocked a regulatory “loophole” to enable “unregulated gambling” under the CFTC, “which has zero expertise, capacity or resources to regulate and police these markets.” Kelleher added that with backing from the Trump family “who are directly trying to profit on this new gambling den… the massive deregulation and crypto hysteria will almost certainly end badly for the American people.”

Investors and businesses are scrambling to seize the moment of deregulation. “We had opportunities to invest in events markets earlier, but there was a lot of risk,” Sprecher says, listing the regulatory changes in favor of crypto and prediction markets under the current administration. “This was the moment to invest if we wanted to still be early in the space.”

In the last few months, Trump’s Truth Social and sportsbook FanDuel, as well as cryptocurrency exchanges Crypto.com, Coinbase and Gemini all announced their own plans to offer prediction markets. Robinhood CEO Vlad Tenev said prediction markets, which were integrated into its platform in March, were helping drive record activity for the retail brokerage in its third quarter earnings call.

“People are starting to realize right now that the opportunities are endless,” says Dubin, the billionaire hedge fund veteran who invested in Polymarket earlier this year. He points to sports betting companies, which have been regulated by states as gambling activity and taxed accordingly. States like New York can tax up to 51% of sportsbooks’ revenue, but federally-regulated prediction markets can bypass state laws, avoiding taxes and operating in all 50 states. With the realization that prediction markets could upend the sports betting industry—which brought in $13.7 billion in revenue in 2024—businesses are quickly jumping on board despite pushback from state gambling regulators. In October, both Polymarket and Kalshi secured partnerships with sportsbook PrizePicks and the National Hockey League, and Polymarket announced exclusive partnerships with sportsbook DraftKings and the Ultimate Fighting Championship.

The disruption won’t be limited to sports betting. Alongside its investment, Intercontinental’s tens of thousands of institutional clients including large hedge funds and over 750 third-party providers of data will soon have access to Polymarket data, as it gets integrated into Intercontinental’s products such as indices to better inform investment decisions. It also hopes to work with Polymarket to work on initiatives around tokenization—or converting financial assets into digital tokens on blockchain technology—to allow traders on Intercontinental’s exchanges to trade more flexibly at all hours of the day, Sprecher says. What’s more, in November, Google Finance announced it would integrate Polymarket and Kalshi data into its search results, while Yahoo Finance also announced an exclusive partnership with Polymarket.

Despite flashy investors, partnerships and a record $2.4 billion of trading volume in November, Polymarket has yet to launch in the U.S. or turn a profit. Coplan and his investors have hinted at ways the company could make money one day—selling its data, charging fees to users, launching a cryptocurrency token (similar to Ethereum or Bitcoin)—but decline to confirm any specifics. For now, the only thing that’s certain is the bet Coplan is making on himself. “Going for it and having it not pan out is an infinitely better outcome than living your life as a what if,” he says.

Standing across from the New York Stock Exchange building, Coplan tilts his head up as he watches a massive banner with Polymarket’s logo get hoisted onto the exterior of the building. It’s been five years since founding. One year since the FBI raid. He’s taking it all in. “Against all odds,” the bright blue banner reads, rippling in the wind alongside three American flags protruding from the building.

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