The SEC instituted settlement proceedings against Kim Kardashian on Monday, alleging that the reality television star and entrepreneur violated the SEC’s anti-touting statute when she failed to disclose compensation that she received in exchange for an Instagram post endorsing cryptocurrency tokens. The promotion, which Kardashian posted to her Instagram account on June 13, 2021, encouraged her 225 million followers to visit a website operated by EthereumMax, an online company that offers and sells digital “Emax tokens.” Kardashian’s Instagram post included an “#AD” hashtag, but failed to disclose that she received $250,000 from EthereumMax in exchange for the promotion.
The SEC’s cease-and-desist order alleges that Kardashian’s post violated Section 17(b) of the Securities Exchange Act of 1934. Section 17(b) prohibits individuals from promoting securities in exchange for compensation without fully disclosing the receipt and amount of the compensation. This anti-touting provision imposes strict liability for any failure to disclose a compensated promotion of a security. The SEC’s recent enforcement of Section 17(b) against individuals promoting cryptocurrency is consistent with its position that most crypto tokens and coins offered for sale may be classified as securities, and may be subject to federal securities laws. It is noteworthy that the SEC did not allege Ms. Kardashian made any material misstatements or omissions in promoting Emax, and no showing of fraud is required when the agency brings a Section 17(b) claim.
As part of her settlement of the SEC’s claim, Kardashian has agreed to pay $250,000 in disgorgement of the payment she received for the Instagram post, plus a $1,000,000 civil penalty, and over $10,000 in interest. Notably, Kardashian is not the first celebrity to end up in hot water with the SEC after testing out the “crypto influencer” market. Several other high-profile individuals have found themselves subject to similar proceedings, including Floyd Mayweather, DJ Khaled, and Steven Seagal. In each action, the SEC alleged that the celebrities failed to disclose fully the compensation that they received in exchange for their endorsements of cryptocurrency, and each of them was required to forfeit any compensation that they received, plus a hefty civil penalty. These recent actions should serve as a cautionary reminder for celebrities and noncelebrities alike who may be approached about endorsing cryptocurrency (or any other security) that any endorsement they make may be subject to federal securities laws.