CFTC hits Kraken with $1.25M in fines over alleged illegal offering

Published at: Sept. 28, 2021

The United States Commodity Futures Trading Commission is ordering crypto exchange Kraken to pay more than $1 million in civil monetary penalties related to allegations the exchange is violating the Commodity Exchange Act.

In a Tuesday statement, the CFTC said U.S.-based crypto exchange Kraken — operating under the name Payward Ventures — has failed to register as a futures commission merchant and is illegally offering margined retail commodity transactions in digital assets. The order requires the exchange to pay a penalty of $1.25 million and “cease and desist from further violations of the Commodity Exchange Act,” the law under which the CFTC derives much of its enforcement power on commodities and futures trading.

“This action is part of the CFTC’s broader effort to protect U.S. customers,” said Vincent McGonagle, acting director of enforcement at the CFTC. “Margined, leveraged or financed digital asset trading offered to retail U.S. customers must occur on properly registered and regulated exchanges in accordance with all applicable laws and regulations.”

The CFTC’s case alleges that Kraken “offered margined retail commodity transactions in digital assets” to ineligible U.S. customers from June 2020 to July 2021. Kraken has since changed its policy on margin trading, but until June 2021, customers needed to close or settle their positions within 28 days. According to the CFTC, these actions represented the company operating illegally, as the transactions did not occur on a designated contract market.

“If repayment was not made within 28 days, Kraken could unilaterally force the margin position to be liquidated,” alleged the CFTC. “Kraken could also initiate a forced liquidation if the value of the collateral dipped below a certain threshold percentage of the total outstanding margin. As a result, actual delivery of the purchased assets failed to occur.”

The enforcement action is seemingly small compared to the size of a major crypto exchange like Kraken — some estimates put the company at a $10-billion valuation, with the monetary penalty representing 0.0125% of that value. In contrast, the CFTC and Financial Crimes Enforcement Network fined crypto derivatives exchange BitMEX $100 million in August.

Dan Berkovitz, the current commissioner of the CFTC and soon to be Securities and Exchange Commission general counsel, has previously described the former’s enforcement actions in the crypto space as “aggressive” but also said the agency was “not necessarily looking for more authority without more resources.” Berkovitz will be leaving the CFTC in October, while U.S. President Joe Biden has tapped Kristin Johnson and Christy Goldsmith Romero to fill two of the empty commissioner seats at the agency.