How the SEC’s New Crypto Guidance Could Shape Class Action Recovery
Last month, the U.S. Securities and Exchange Commission (SEC) issued its first formal guidance on cryptocurrency classification, adopting a stance that many categories of digital assets are not inherently subject to federal securities laws.
In a joint release with the Commodity Futures Trading Commission (CFTC), the SEC clarified that only digital or tokenized assets – in which ownership records are maintained partly or wholly via crypto networks – meet its definition of “security.” Further, digital commodities, collectibles, tools, stablecoins, and similar assets are not considered securities, unless they are offered and sold as part of an investment contract.
For institutional investors, the practical question becomes what the SEC’s posture shift means for future class action exposure. Let’s take a closer look at the likely implications.
Between the Lines
Every year in the U.S., we see investment-related class actions and regulatory enforcements that do not involve traditional securities.
Many are antitrust cases alleging that groups of corporate defendants engaged in price-fixing or anticompetitive conduct. However, a growing number of recoveries concern improper or fraudulent issuance of emerging assets, such as cryptocurrency, non-fungible tokens (NFTs), and digital tokens. Within the past two years, FRT has identified several matters involving these financial instruments.
In both antitrust and cryptocurrency cases, private civil suits often trail successful regulatory actions, as plaintiff firms litigating on contingency view these matters as lower risk once regulators have substantiated the core violations. In a crypto context, for example, the SEC may have already determined that certain digital assets are securities that were sold without proper registration. The agency’s new, narrower view of cryptocurrency likely means fewer related enforcement actions and, as a result, fewer “follow-on” class actions.
Equally important is the SEC’s perspective on investment contracts. While cryptocurrency offered or sold as part of investment contracts is considered subject to U.S. securities law, the asset steps outside of federal oversight when the contract terminates. Future enforcements or investor recovery efforts therefore would likely be confined to the investment contract window, rather than a broader period.
Considerations for Investors
While institutional adoption of digital assets has been measured, monitoring a firm’s exposure to relevant class actions and regulatory actions becomes more important with the SEC now clarifying its perspective on cryptocurrency. The guidance both implies a more intentional regulatory treatment of crypto – a notable departure from the agency’s enforcement-focused approach under former SEC Chair Gary Gensler – and comes amid stated plans to issue a formal rule proposal.
At the practical level, antitrust and other non-traditional class actions are often based on data that is difficult to obtain or capture via claim forms, which can create numerous filing challenges for investment operations teams that require time, attention, and specialized expertise. Understanding how to treat different asset classes and where an external partner can add value is often the difference between a successful recovery and a missed opportunity.
As the SEC’s crypto framework continues to evolve, staying current on which cases do and don’t result in meaningful exposure remains a critical piece of sound governance practices.
A Closer Look at the Shareholder Recovery Landscape
FRT’s Securities Class Action Intelligence Report analyzes the trends shaping shareholder class actions in 2026, including specialized recoveries involving SEC enforcements, antitrust matters, and non-standard recovery opportunities in the U.S. and abroad. Complete the form on this page to request a copy.