SEC Charges Against Kraken Identify Specific Tokens as Securities

The complaint is another sign to 401(k) plan fiduciaries to take care with digital asset availability in plans, according to attorneys.

The Securities and Exchange Commission identified 11 crypto tokens as securities in a complaint brought Monday against crypto trading platform Kraken.

The lawsuit brought by the SEC in U.S. District Court for the Northern District of California, San Francisco Division, alleges that Payward Inc. and Payward Ventures Inc., the registered companies behind Kraken, have been operating Kraken as an unregistered securities exchange since at least September 2018. The SEC refers to the tokens traded on Kraken as “crypto asset securities” in the corresponding press release relaying the charges.

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The complaint alleges further that Kraken comingled its assets with that of its customers and also comingled the functions of exchange, broker, dealer and clearing agency in its client services. Kraken comingled a total of $33 billion in cryptocurrency and $5 billion in cash with its own assets, the SEC alleges.

The “comingling of functions” is a common criticism SEC Chairman Gary Gensler has made against actors in the crypto industry.

Plan Fiduciaries, Take Note

401(k) plan fiduciaries should take note of the complaint when it comes to offering cryptocurrency to plan participants, Wagner Law Group partner Kimberly Shaw Elliott wrote in emailed commentary.

“The SEC’s new enforcement activity should be a clear warning to not only unregistered crypto providers and the advisers who recommend crypto investments, but also to retirement plan fiduciaries who approve those investments,” she wrote. “Is it prudent to place faith in the seller or holder of crypto who does not go through the rigors of registration? While some registered broker/dealers are now offering crypto to 401(k) plans through registered exchange-traded funds, a fiduciary must still weigh the risk of loss against the opportunity for gain from these highly volatile investments.”

Shaw Elliott noted a 2022 Department of Labor bulletin warning about the risks of allowing participants to invest in cryptocurrency. The regulator successfully received the dismissal of a lawsuit filed by recordkeeper ForUsAll Inc., which had sought damages for the bulletin’s chilling effect on providing cryptocurrency through the self-service brokerage window.

Philip Moustakis, a partner in Seward & Kissel and a former attorney with the SEC’s enforcement division, says the “threshold question is whether we are dealing with securities” in this case. Because if the tokens in question are not securities, then the SEC cannot bring the other allegations against them.

At various points in the complaint, the SEC asserts that different tokens were “sold as investment contracts,” a key component in determining that an asset is a security. The SEC also notes that the 11 tokens in question were all previously brought as examples of securities in enforcement actions taken against Binance and Coinbase. The SEC stated that it needs “only [to] establish that Kraken has engaged in regulated activities relating to a single crypto asset security.”

The 11 tokens trade under the symbols ADA, ALGO, ATOM, FIL, FLOW, ICP, MANA, MATIC, NEAR, OMG and SOL.

The Howey Test

The SEC alleges in the complaint that: “Based on the public statements of their respective issuers and promoters—at least some of which were rebroadcast by Kraken itself on the Kraken Trading Platform—a reasonable investor would have understood the offer and sale of each of the Kraken-Traded Securities as offers and sales of investment contracts.”

Moustakis says that a fair attorney “could write both sides of the brief” about the tokens’ status, and this case “brings no further clarity” on which tokens are securities.

Though “the Howey Test is fairly clear,” Moustakis says, referring to the legal test for determining if an asset is a security, it can be difficult to apply to crypto because of the nature of blockchain technology. With crypto, “a security one day can be a non-security the next.”

Whether or not the tokens satisfy the Howey Test is the key question, because if they do not, then the other allegations fall outside the SEC’s jurisdiction, the attorney says. Comingling assets is “a no-no in the securities world,” Moustakis says, while also questioning whether cryptocurrency is the securities world.

On the comingling of functions, Moustakis says “federal securities laws break out the functions” of broker, dealer, exchange and clearing agency “to create a series of checks and balances” to protect investors. However, if the tokens are found to not be securities, then this “is an unregulated space.”

Gensler has repeatedly stated that the securities laws and Howey Test are clear enough and that further regulation or other clarification is not needed to bring enforcement actions against the crypto industry.

The PLANADVISER Interview: Jessica Baehr, Head of Group Retirement, Equitable

Baehr discusses why more than 1,000 advisers sitting in ‘little chairs’ in classrooms is key to providing retirement guidance.

The PLANADVISER Interview: Jessica Baehr, Head of Group Retirement, Equitable

After working across various divisions at Equitable Holdings Inc., Jessica Baehr found a sweet spot as head of group retirement about three years ago.

“This is the business that focuses on helping everyday Americans to save for their retirement,” she says. “Whether through our focus on the K-12 educator space or our small business market or our 457(b) government market, this business really does touch the everyday American.”

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Baehr noted that, prior to joining Equitable, she worked in the nonprofit sector, including higher education, so she had experience saving through a 403(b) retirement plan herself.

In an interview with PLANADVISER, the group retirement head discusses the importance Equitable puts on having advisers on the ground to speak with participants and small business owners.

PLANADVISER: Can you talk about the core retirement plan markets for Equitable right now, including your K through 12 educator 403(b) focus?

BAEHR: As you noted, we do focus on the K through 12 market. … That is a particularly unique market because it’s a supplementary retirement plan for teachers and staff, as they often have pensions. The first thing that we really focus on is helping educators understand what their pension is expected to deliver and how a supplementary retirement plan can help them to achieve their income and retirement goals.

That said, we are also really proud of what we do in the small business market. I mentioned 401(k)s, but it really is targeted to small business owners, and that’s something that is core to Equitable, not just in terms of group retirement, but we have our employee benefit offerings, which are focused on the small business space. We also have a unique nonqualified solution within our life insurance business. We feel we’re uniquely positioned and focused on what we can do for small businesses and have a comprehensive suite of solutions to help serve them.

Then I would say we have some adjacent work we do in the 457 space in terms of government plans.

The other main pillar, I would say, is what we’re doing on lifetime income solutions. We were an early leader in that space with our colleagues over at Alliance Bernstein. [The] SECURE 2.0 [Act of 2022] has helped to really accelerate the awareness and the importance of how guaranteed income can help Americans to secure their retirement.

PLANADVISER: You noted that educators often have a pension to fall back on. How do you communicate with them to discuss supplemental retirement savings?

BAEHR: Educators look at their pension as a guaranteed income, and that provides some security. Now, in some respects, that could mean that they don’t fully understand what that’s going to mean—they may think that that’s everything [for their retirement savings]. That’s why we feel it’s so important for them to have an adviser and to work with a financial professional that is dedicated to serving that market.

I do think there’s an element of having a portion of income that is guaranteed that is incredibly valuable, and it does provide peace of mind. To that extent, I would extend that same logic to the traditional [defined contribution] market, where I think it’s the opposite [from educators who have a pension].

[DC participants] think all they need to have is an accumulation focus. But they don’t really have much in terms of the decumulation or guaranteed portion, with the exception of Social Security. And we all know some of the challenges around Social Security.

I feel like it’s almost the opposite end of the spectrum, because you have one group [educators] that has that guaranteed income but may not understand other needs … and then on the other side [DC participants], where [you’re] helping to educate more Americans around the value of an income guarantee.

PLANADVISER: In terms of advising participants, whether educators or at small businesses, how do you foster engagement?

BAEHR: We believe at Equitable that financial professionals play a critical role in supporting clients on their journey. We believe that it’s not only financial wellness, but holistic wellness, because our financial goals are only part of the puzzle.

For us, that comes down to the value of advice. That comes down to the need to have a conversation with a financial professional. I think there’s so much education that’s out there that people can certainly go online to look things up. But it’s really that conversation that is so critical to helping more Americans to really understand what a comprehensive financial plan is that supports their overall holistic goal.

PLANADVISER: How does that look on the ground?

BAEHR: If we’re talking about our K through 12 market, we have about 1,100 advisers who are dedicated to going into public schools. They do it during times that work for educators and staff. It’s sitting down at those tiny chairs in a kindergarten room at 7 a.m., because that may be the only time you can get that individual. Or it’s catching them after school hours or during lunch break. But it’s having that physical presence that has proven to be so important to ensure that you have that personal connection and can have that one-on-one conversation.

If you translate that to the 401(k) and 457 market, because of the fact that we serve that smaller end of the market, that gives us more of an opportunity to have some of those conversations, both through enrollment as well as ongoing with the business owner, as well as their key personnel. What’s different about that market is, oftentimes, they see [the 401(k)] as their only retirement solution. So you tend to get a bit more engagement there.

For us, it all comes back to how an adviser can help provide that insight and can help provide that consultative advice to deliver better outcomes.

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