One of the questions that has accompanied the Securities and Exchange Commission’s changing approach to digital asset regulation is whether a decline in enforcement activity would lead to an increase private plaintiff litigation against cryptocurrency and crypto-adjacent companies.  A July 7, 2026, report by NERA Economic Consulting (NERA) suggests the answer may be more nuanced. While, according to NERA’s analysis, private securities litigation has become a larger share of crypto-related litigation, it has not fully replaced the reduction in SEC enforcement actions.  The changing nature of crypto-related claims could have a significant impact on D&O underwriters operating in the sector. The NERA report provides a useful framework for evaluating the D&O implications of these developments.

A link to the NERA report published by Simona Mola, Ph.D. can be found here.

NERA Findings

The NERA study analyzed 181 federal crypto-related cases filed between January 1, 2021, and May 31, 2026, including 89 SEC enforcement actions and 92 private federal lawsuits. These matters involved a broad range of participants in the digital asset ecosystem, including token issuers, stablecoin providers, cryptocurrency exchanges, DeFi platforms, staking and lending programs, mining operations, NFT projects, and other crypto-market participants.

From 2021 through 2024, SEC enforcement actions represented a significant portion of federal crypto-related filings and contributed to an increase in annual filings from 28 cases in 2021 to 40 cases in 2024. Following the change in administration and the SEC’s reduced focus on crypto enforcement, SEC filing activity declined sharply. NERA reports that the SEC filed 75 crypto-related enforcement actions during Gary Gensler’s tenure (April 2021–January 2025), compared with 11 actions filed between April 21, 2025, and May 31, 2026. Consistent with this decline in SEC activity, total federal crypto-related filings fell from 40 cases in 2024 to 31 cases in 2025.

The report further notes that SEC enforcement actions have been concentrated in token offerings, stablecoins, staking and lending programs, and other crypto investment schemes. NERA found that 68 of the SEC’s 89 enforcement actions (approximately 77%) fell into one of those categories. By contrast, private plaintiffs have pursued a broader array of claims, including actions against cryptocurrency exchanges and trading platforms, mining companies, NFT projects, banks, auditors, promoters, and other service providers throughout the crypto ecosystem.

Discussion

By way of background, the regulatory framework governing digital assets in the United States remains fragmented and continues to evolve. Historically, the SEC has been the primary federal regulator overseeing digital assets that it views as securities and has pursued numerous enforcement actions against cryptocurrency issuers, exchanges, and other industry participants. At the same time, the CFTC has exercised authority over digital assets that qualify as commodities, bringing its own enforcement actions involving fraud, market manipulation, and derivatives-related activities.

The proposed Digital Asset Market CLARITY Act seeks to establish clearer jurisdictional boundaries between the SEC and the CFTC, with many sufficiently decentralized digital assets potentially falling under the CFTC’s oversight. The legislation passed the House with bipartisan support and is currently awaiting Senate action, where negotiations have focused on ethics provisions, decentralized finance (DeFi) oversight, and other proposed amendments. D&O Diary readers may also recall that the GENIUS Act, signed into law on July 18, 2025, established the first federal regulatory framework for payment stablecoins, including reserve, disclosure, and compliance requirements for issuers.

Even as Congress and regulators attempt to provide market participants with greater clarity regarding regulatory oversight and compliance obligations, the recent NERA report indicates that cryptocurrency-related securities claims against digital asset issuers and market participants continue to increase.

From a D&O coverage perspective, the distinction between regulatory enforcement and private securities litigation is important. While SEC proceedings may present threshold coverage issues, securities claims may expose a D&O underwriter to substantial defense expenses, settlements, and long-tail litigation. A decline in regulatory enforcement does not necessarily translate into a reduction in D&O exposure.

In addition, the NERA report’s analysis is consistent with digital asset litigation trends that The D&O Diary has been tracking. Digital asset companies can remain vulnerable to private securities claims when investors challenge the accuracy and completeness of disclosures concerning regulatory risks, business prospects, or other material developments. Coinbase provides a useful example. As The D&O Diary previously noted, the company faced securities and derivative litigation alleging that investors were not adequately informed about regulatory risks and the potential treatment of customer assets in a bankruptcy scenario. The litigation illustrates how disclosure-related claims can arise from market and regulatory developments, independent of the ultimate direction of SEC enforcement policy.

NERA’s findings also align with the themes that The D&O Diary has frequently chronicled regarding governance and control risks in the digital asset sector. One notable example is SafeMoon, a decentralized finance (DeFi) cryptocurrency token launched on the Binance Smart Chain in March 2021. As we discussed here, the alleged SafeMoon liquidity pool fraud highlights how D&O exposures can arise from issues involving fiduciary duties, asset custody, disclosures, and board oversight. These allegations illustrate how governance and control failures can generate significant D&O exposures regardless of shifts in regulatory enforcement priorities.

Viewed in the context of the current securities litigation environment, the NERA report’s findings suggest that the nature of cryptocurrency-related D&O risk may be changing, but not necessarily diminishing. Securities class action filing activity through the first half of 2026 remains elevated despite fluctuations in specific categories of litigation. While regulatory activity against cryptocurrency companies may be declining, the underlying drivers of securities litigation remain. For D&O insurers with cryptocurrency-related exposures, the NERA report may suggest that risk is increasingly tied to disclosure, governance, and oversight issues rather than regulatory enforcement alone.