staking tokens

The SEC’s Division of Corporation Finance has told staff that tokens issued for staking ether are not securities, provided they function only as receipts for the underlying coin. The guidance arrives three years after the same agency fined Kraken $30 million over its US staking program, marking a sharp reversal in enforcement posture toward an activity that once drew lawsuits.

• SEC staff published the FAQ guidance on Friday, September 25, 2026, covering staking receipt tokens and buybacks.
• Kraken paid $30 million in February 2023 and shut its US staking service after advertising returns as high as 21%.
• The Senate failed to pass the Clarity Act this month, leaving crypto oversight without a statutory split between the SEC and CFTC.

• $30M Kraken’s 2023 settlement, the benchmark SEC staking case
• 21% annual return Kraken advertised, cited in SEC’s original complaint
• 16 digital commodities named in the March 17 interpretive release, including ETH
• $2,685 ether’s price near the time of the guidance, per BeInCrypto

The BeInCrypto reported that the Division of Corporation Finance issued the FAQs on crypto assets on Friday, addressing how liquid staking tokens should be treated under federal securities law. Staking lets holders lock up coins to help secure a blockchain in exchange for rewards, and liquid staking services issue a tradable token as a receipt for the locked coins. The FAQs classify that receipt as a “digital tool” rather than a security, so long as the coin behind it is itself a digital commodity.

Staking receipt tokens win digital tool status under new SEC staff FAQs

The guidance leans on the March 17 interpretive release in which the SEC and the Commodity Futures Trading Commission jointly named 16 digital commodities. Ether, trading near $2,685 at the time, was among them. Because ETH already sits outside securities classification under that release, a token that merely evidences a deposit of staked ETH inherits the same treatment.

The FAQ document is explicit about what counts as a mere receipt. The token cannot alter the rights tied to the staked ETH, cannot add extra rewards, and the provider cannot lend, pledge or otherwise reuse the deposited coins.

Staff also addressed a separate scenario: liquid staking providers whose tokens derive value from the “programmatic operation of a crypto system,” rather than simply evidencing a deposit. Those tokens can instead be classified as digital commodities in their own right, the FAQ notes, a distinction that leaves room for disagreement over which category a given liquid staking product falls into.

Kraken’s 21% return pitch drew the $30 million penalty SEC now contrasts with receipts

The staff position stands in direct contrast to the SEC’s 2023 case against Kraken. The SEC’s February 2023 press release detailed how Kraken advertised annual returns as high as 21% through its staking-as-a-service program, conduct the agency said turned the offering into an unregistered securities sale. Kraken paid $30 million and ended its US retail staking service to settle the charges.

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.

Gary Gensler, then SEC chair

Four months later the agency sued Coinbase, calling its staking program an unregistered securities offering. The SEC dropped the Coinbase suit in February 2025. Staff statements in May and August 2025 then concluded that protocol staking and liquid staking generally do not involve securities offerings, setting up Friday’s FAQ as the most detailed articulation of that shift.

Crenshaw’s dissent and the Clarity Act’s Senate failure leave the guidance unsettled

Not every commissioner endorses the new framework. Commissioner Caroline Crenshaw wrote a response titled “Caveat Liquid Staker” arguing the August 2025 statement rested on assumptions that may not match how real staking programs operate. The FAQs themselves carry no binding weight, stating plainly that they represent staff views the Commission has neither approved nor disapproved.

That caveat matters more now. The Clarity Act, a bill meant to divide crypto oversight between the SEC and CFTC by statute, failed in the Senate this month.

BeInCrypto reported in March that analysts believed regulators had already delivered most of what the bill promised through guidance and settlements rather than legislation. The gap those analysts flagged remains: staff guidance, unlike a law, can be withdrawn by a future SEC leadership without a congressional vote.

The BlockWest read. For liquid staking providers and the exchanges that list their tokens, the FAQ is a compliance green light rather than a legal shield. Any provider tempted to advertise fixed yields, the way Kraken did, risks re-triggering the same Howey analysis the SEC applied in 2023. Institutional allocators eyeing staked-ETH products should treat this as staff comfort, not statutory protection, until Congress or a future Commission vote locks it in.

The open question the FAQ does not resolve is which liquid staking tokens count as pure receipts versus digital commodities in their own right, a distinction staff left to facts and circumstances rather than a bright line. With the Clarity Act stalled in the Senate, that determination will keep falling to Division of Corporation Finance staff on a case by case basis until lawmakers revisit the bill or a new Commission majority reconsiders the FAQs altogether.