This past Tuesday, September 21, the chorus calling for more regulation over crypto reached a sort of crescendo.
The SEC
Earlier, in September 14 testimony before the Senate Banking Committee [1], former CFTC and current SEC Chair Gensler noted that cryptocurrencies sit astride several different regulatory regimes, posing broad risks:
“Currently, we just don’t have enough investor protection in crypto finance, issuance, trading, or lending. Frankly, at this time, it’s more like the Wild West or the old world of “buyer beware” that existed before the securities laws ...
On August 27, the Securities and Exchange Commission (“SEC”) issued a broad request for information and comments on “gamification” in financial-market user interfaces, including artificial intelligence and machine learning, among others.
As the Release explains: The SEC requests input on
broker-dealer and investment adviser use of “digital engagement practices” or “DEPs”, including behavioral prompts, differential marketing, game-like features (commonly referred to as “gamification”), and other design elements or features designed to engage ...
The Financial Industry Regulatory Authority (“FINRA”) recently kicked off a “sweep” examination with its August 2021 Targeted Exam Letter on “practices and controls related to the opening of options accounts and related areas, including account supervision, communications and diligence.” The exam covers both self-directed and rep-recommended retail accounts (not institutional or managed accounts) during January 1, 2020 through the present.
The sweep seeks:
- “Written Supervisory Procedures (WSP), compliance manuals and any other written guidance ...
On August 13, 2021, the Financial Industry Regulatory Authority (“FINRA”) issued Regulatory Notice 21-29, collecting guidance on outsourcing and vendor management. The Notice was prompted by increased reliance on outsourcing (especially during COVID), some enforcement actions involving vendor-management issues, and similar proposed inter-agency guidance by banking regulators.
The Notice reminds firms that while they can outsource task or functions, they cannot outsource-away their regulatory compliance obligations. In turn, that means the outsourcing process ...
Since the appointment of Allison Heron Lee as interim SEC chair, the SEC has pushed an ESG agenda in all things from corporate disclosures, to investment companies, international standards and even enforcement. See this blog post here. Those moves have sparked discussion, and sometimes, skepticism. Read more about that in this blog post here.
As April ended, the Street’s other main regulator, FINRA, joined the ESG discussion - but in a different way. Instead of contemplating new prescriptive rules or disclosure taxonomies, FINRA seeks constructive criticism. FINRA asked for ...
Last week, FINRA issued Regulatory Notice 21-16 cautioning member firms against attempting to limit customer claims through language in mandatory pre-dispute arbitration agreements. Rule 2628 prescribes disclosure requirements for arbitration clauses and generally prohibits provisions that contradict other FINRA Rules.
The Notice specifically cautions against several provisions that improperly limit customer claims:
First, firms cannot specify hearing locations, because FINRA Rule 12213 provides the Arbitration Director will. FINRA usually schedules hearings ...
In a March 15, 2021 address to the Center for American Progress, SEC Acting Chair Lee was clear:
No single issue has been more pressing for me than ensuring that the SEC is fully engaged in confronting the risks and opportunities that climate and ESG pose for investors, our financial system, and our economy.
That’s been apparent from the steady stream of climate and ESG-focused initiatives she has been announcing since January. Her reasoning is that because many investors (and indeed asset managers and other market participants) think these issues are significant, then they are:
On March 4, FINRA issued a Regulatory Notice warning member firms not to fall for phishing scam preying on compliance fears. The scam uses a phony email address, supports@finra-online.com, demanding an immediate response to an “attached report” of “regulatory non-compliance.” FINRA doesn’t have a “finra-online” domain and its gTLD is “.org” not “.com”.
Regulatory Notice 21-08 (Mar. 4, 2021) is here.
Thomas K. Potter, III (tpotter@burr.com) is a partner in the Securities Litigation Practice Group at Burr & Forman, LLP. Tom is licensed in Tennessee ...
On March 4, Acting Chair Allison Herren Lee announced the creation of a “Climate and ESG Task Force” of 22 members from across the Enforcement Division:
Consistent with increasing investor focus and reliance on climate and ESG-related disclosure and investment, the Climate and ESG Task Force will develop initiatives to proactively identify ESG-related misconduct. The task force will also coordinate the effective use of Division resources, including through the use of sophisticated data analysis to mine and assess information across registrants, to identify potential ...
The U.S. Securities and Exchange Commission (“SEC”) released its 2021 Examination Priorities on March 3. The Examinations group – elevated last December to Division status (formerly the Office of Compliance Investigations and Examinations (“OCIE”)) -- covered the list of perennial concerns. The 2021 priorities include some new subjects, however, reflecting the policy emphasis of the Biden administration.
“This year, the Division is enhancing its focus on climate and ESG-related risks by examining proxy voting policies and practices to ensure voting aligns ...