Ether’s New ‘Staking’ Model Could Draw SEC Attention

Ethereum’s big software update on Thursday may have turned the second-largest cryptocurrency into a security in the eyes of a top U.S. regulator. Securities and Exchange Commission Chairman Gary Gensler said Thursday that cryptocurrencies and intermediaries that allow holders to “stake” their coins might pass a key test used by courts to determine whether an asset is a security. Known as the Howey test, it examines whether investors expect to earn a return from the work of third parties. “From the coin’s perspective…that’s another indicia that under the Howey test, the investing public is anticipating profits based on the efforts of others,” Mr. Gensler told reporters after a congressional hearing. He said he wasn’t referring to any specific cryptocurrency.

Issuers of securities — a category of assets that includes stocks and bonds — are required to file extensive disclosures with the SEC under laws passed in the 1930s. Exchanges and brokers that facilitate the trading of securities must comply with strict rules designed to protect investors from conflicts of interest. Cryptocurrency issuers and trading platforms face strict liabilities if they sell any assets that are deemed to be securities by the SEC or courts. Staking is one of two ways in which cryptocurrency networks verify transactions. Used by some of the largest cryptocurrencies — including Solana, Cardano and, as of this week, ether — it allows investors to lock up their tokens for a specified amount of time to receive a return.