USA LAW AND PRACTICE Contributed by: Margo H.K. Tank, Michael Fluhr, Era Anagnosti, Kristin Boggiano, David Stier, Liz S. M. Caires, Adam Dubin, Emily Honsa Hicks, Kathleen Birrane and Chezelle McDade, DLA Piper LLP
state regulators where required – generally where there are sales to US persons or persons located in the USA, even if the seller or distributor is located abroad. To the extent the assets constitute securities, initial sellers or distributors must either register the sale with SEC or conduct the sale pursuant to an exemp - tion to the registration requirement. In January 2026, SEC released a statement clarifying the application of federal securities laws to tokenised securities. This statement addressed both issuer-sponsored and third-party-sponsored models. 10.5 Regulation of Blockchain Asset Trading Platforms Cryptocurrency trading platforms have generally been regulated as money transmitters and have registered with state and federal money transmission regulators. To the extent centralised cryptocurrency exchanges trade tokens considered securities, they would be considered securities exchanges and brokers and required to register with SEC. Some cryptocurrency trading platforms have registered as alternative trad - ing systems (ATS) under US securities laws. An ATS must comply with complex SEC regulations and reg - ister as a broker-dealer. Thus far, the activity of these ATSs appears limited in scope and size, and the vast majority of crypto-asset trading occurs on centralised and decentralised trading platforms not registered with SEC. See 6. Marketplaces, Exchanges and Trading Plat- forms and 10.11 Virtual Currencies . 10.6 Staking While the issue remains somewhat unsettled, SEC’s Division of Corporation Finance issued non-binding guidance on the application of federal securities laws to various types of staking activities. The Division opined that staking by a node operator of its own assets and staking by a node operator of third-party assets (even if staked by a custodian holding those assets for and staked at the direction of a beneficial owner) do not involve the offer or sale of securities.
That said, a custodian’s use of discretion in how to stake assets to provide a return (fixed or variable) to the beneficial owner may involve the offer or sale of securities. In several enforcement actions, SEC asserted that such staking-as-a-service constitutes a securities offering subject to federal securities laws, requiring registration for the offer and sale of securities related to staking activities, and registration is also required as a broker. 10.7 Crypto-Related Lending Lending services related to cryptocurrencies are regu - lated at both the state and federal level, though these frameworks are still evolving. If the lending involves digital assets that would be securities or related to commodities and derivative products they would fall under SEC and CFTC jurisdiction respectively, while lending with respect to other types of digital assets such as cryptocurrency would be regulated under various state lending laws. 10.8 Cryptocurrency Derivatives CFTC regulates activities such as sales, trading, and advice in markets for derivatives. No CFTC registration is required for over-the-counter derivative products, provided the parties are eligible contract participants. Retail investors trading in crypto derivative products may use retail derivatives exchanges registered with CFTC. Derivatives on securities would be regulated by SEC. 10.9 Decentralised Finance (DeFi) It remains unclear what regulations govern vari - ous activities and products in DeFi. Considerations include how and whether decentralised activities can be regulated, what level of control or influence there is by a centralised figure, and the nature of the underly - ing asset (eg, collectibles, securities, etc). Regulators and courts have expressed a variety of views on these issues. Treasury published “Illicit Finance Risk Assessment of Decentralised Finance” in 2023, which acknowledged there is “currently no generally accepted definition of DeFi, even among industry participants, or what prod - ucts make a product, service, arrangement or activ -
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