It seems that the controversies surrounding SEC’s newly adopted Regulation Best Interest rule (Reg BI), would continue to take center stage, even though it goes into effect next summer. The regulation is the culmination of a decade-long process that started in 2010, immediately after the great recession. The Dodd-Frank Act passed that same year authorized the SEC under section 913 to enact a fiduciary standard and best of interest rule to govern broker-dealers and investment advisors when engaging with private investors.
In the aftermath of the introduction of Reg BI, stakeholders, state regulators, investment advisers and broker-dealers have weighed in on various factors that could undermine or aid its effectiveness.
5 Key Takeaways
- Brokers Dealers required to adhere to new “best interest” standard
- Sets up U.S. Department of Labor (DOL) to synchronize rule-making (later this year)
- Big win for broker dealers → even bigger for financial services
- The New Common Reporting Standards (CRS) Says Broker = Advisor → confusion between broker vs fiduciary advisor
- Reverse focus on protecting brokerage role than consumer = more confusion
However, before we highlight these takeaways, let’s first take a look at the substance of the fiduciary standard clarification rule.
The Takeaways from SEC’s Regulation Best Interest Rule
SEC intends to subject broker-dealers, who currently are only required to meet suitability standards, under fiduciary standards.
On one hand, fiduciary standards presently govern the relationship between financial advisors and their clients. And it expects the former to only offer services that are in the best interest of the latter. On the other hand, suitability standards require brokers to ascertain that the investment they recommend suits their clients.
In essence, the rule looks to extend the fiduciary rule on broker-dealers who are increasingly taking up the roles of financial advisors, when their primary duty is to sell an investment product for a stipulated commission. Under the suitability standard, it is legal for a broker to recommend an investment product that avails him a good commission, so long the product is suitable to the customer.
While this is a given, it also presents a conflict of interest. It’s possible that there are cheaper investment products with similar features to the one the broker recommends, but with a less attractive commission. This conflict of interest is what the Reg BI looks to eliminate, as it requires brokers to place the client’s interest above theirs.
To do this, the rule would enforce brokers to explicitly disclose important information such as incentives and commissions that could influence their recommendations. More so, it would, to an extent, ban industry practices, like incentives in the form of vacations, that could spur brokers to betray the interests of their clients.
Knowing fully well that brokers could find a way around this requirement by disclosing conflict of interests with technical terms or in a voluminous document, the SEC also introduced another requirement that could counter such practices. The requirement states that brokers must outline conflict of interests and their compensation structure in plain English and in a concise manner on a document called form CRS.
Also, brokers would document the history of legal or disciplinary actions taken against the firm offering the investment product or its financial professionals. Another vital feature of the rule is Care Obligation. This requirement entails that financial advisors to make sure that they diligently and carefully ensure that their recommendations are in the best interest of their clients.
The last requirement is the Conflict of interest obligation. It requires the management and mitigation of commissions that could represent a financial conflict of interest.
Dissecting the Implications of The Regulation Best Interest Rule
As expected, critics left and right have dissected SEC’s Reg BI, and the prominent argument that many have brought up is the fogginess of the rule. For one, some critics have condemned SEC’s reluctance to clearly define what it means by “Best interest”, the actions that would suggest that an investment advisor is not compliant, and how to mitigate financial conflict of interest.
Chances are that broker-dealers would look to find a way around this rule, at least until SEC starts enforcing disciplinary actions against non-compliant investment advisors. Besides, Reg BI does not seem to have enforcement muscle. It is unlikely that non-compliance would lead to class action lawsuits and litigations.
Furthermore, there is an outcry that SEC’s rule has done nothing to clarify to investors the roles of Investment advisors and broker-dealers. Note that a majority of brokers-dealers are registered with the SEC. Technically, this means that they could assume the roles of Registered Investment Advisors (RIA), and yet, they are not fiduciaries.
More concerning is the fact that the Form CRS requirement would do little to change the status quo. This notion stems from the fact that studies showed that consumers found it difficult to understand the contents of CRS forms.
While responding to many of the criticisms leveled against Reg BI, SEC’s chairman, Jay Clayton stated that “differing views were expressed regarding whether the standard should be more principles-based or more prescriptive — and in particular, whether to provide a detailed, specific, situation-by-situation definition of ‘best interest’ in the rule text.”
As such, after careful consideration, the agency concluded that the principle-based approach adopted for the rule “is a common and effective approach to addressing issues of duty under law, particularly where the facts and circumstances of individual relationships can vary widely and change over time, including as a result of innovation,”
Judging from the details of Reg BI discussed above, there is no doubt that the rule has elements of the fiduciary rule that the Obama administration proposed through the Department of labor. The difference is that the latter was looking to classify all investment professionals as fiduciaries. In other words, a client could decide to sue his investment advisor or broker once he notices any discrepancies that would suggest that his interests were not best served by the actions of his investment manager.
Recall that this rule hit a roadblock under the present administration, as the securities industry challenged its viability in court. And while DOL has also indicated that it is pushing for a new fiduciary rule, there is no guarantee that its future proposal would have the same grit as the previous one. This assertion is probable, considering the likelihood that Eugene Scalia, the attorney that led the case against DOL’s previous fiduciary rule, would emerge as the new Labor Secretary.
Also, it is important to note that the Certified Financial Planner Board of Standards plans on enforcing an ethics code that would entail that its 84,000 members adhere to fiduciary standards, irrespective of the regulatory frameworks that govern them. Interestingly enough, this code’s implementation date coincides with that of Reg BI’s.
More importantly, some states are contemplating on taking matters into their own hands by imposing separate fiduciary rules that would correct the apparent flaws of Reg BI. For instance, New Jersey’s security bureau has released a rule proposal that explicitly classifies brokers- dealers as fiduciaries. Other states that have taken a similar path are Nevada and Massachusetts.
In response to this development, SEC’s chairman, Jay Clayton, stated that “I and many others believe a patchwork approach to the regulation of the vast market for retail investment advice will increase costs, limit choice for retail investors and make oversight and enforcement more difficult. I am hopeful that our regulatory colleagues will continue to work with us to minimize inconsistencies and maximize the effectiveness of our collective efforts.”
However, regardless of the loopholes of Reg BI, and the controversies that spurred responses from state regulators, I believe that the SEC’s proposal is a step in the right direction in order to protect investors.
For investors, it is a matter of asking the right questions:
- Who pays your broker’s commission?
- How much he gets paid for encouraging you to buy an investment product.
- Are you a fiduciary?
- How does a broker apply investor protection rules?
The information provided here is personal opinion and provides only a subjective opinion of the rules and regulatory guidance provided by the SEC. It should not be read as legal or compliance advice. Consult with your compliance professional for further details.
Disguises, Fake Identities, and an Illegal ICO – The SEC Looks to Lay Charges
The SEC is hard at work ousting, and holding accountable, those in the world of blockchain that have breached securities laws. Most recently, the SEC has turned their attention to an ICO hosted by a pair of companies operated by a duo of devious individuals.
- CG Blockchain Inc.
- BCT Inc.
This pairing of companies was marketed as developing technology to disrupt hedge funds, and the way they operate.
The Ring Leaders
- Boaz Manor (alias ‘Shaun Macdonald)
- Edith Pardo (alias ‘Edith Mehler’)
In all endeavours, it is believed that Boaz Manor was at the helm, with Edith Pardo acting as a ‘front-woman’, deflecting attention from Manor’s past.
In this particular case, the pair of companies, and the aforementioned individuals, are accused of facilitating/hosting a ‘fraudulent and unregistered offering of digital asset securities’.
$30 million worth of these securities were sold to investors, under the guise of a utility token ‘BCT’. Beyond simply selling illegal securities, those responsible flat out lied to their investors on a variety of fronts.
- Fake Identities
- Fake chain of command
- Product state of development
- Product Adoption
- Investments by founders
The list goes on. Simply put, they were not who they said they were, and the companies did not have a developed product gaining traction within the industry.
This next bit is not an everyday occurrence – rather, it was something you would see in a movie. Knowing full well that their activities were in violation of various securities based laws, Manor and Edith Pardo felt it prudent to hide their identities.
In order to do this, and distance themselves from their past activities (more on that, later), the pair went to great lengths. The SEC states,
“During the scheme, Manor employed a number of deceptive devices related to his fake identity and to the concealment of his background and role.”
Some of the tactics used to conceal their identities included dying hair, growing beards, attaining fake identification under the alias ‘Shaun MacDonald’, etc.
There are few reasons to justify hiding one’s identity in the manner that Manor did – either you’ve done something bad, or are doing something bad. In this particular case, Manor is guilty of both.
We’ve discussed the illegalities associated with his actions in the aforementioned ICO, however Manor has a history of such activity. Dating back to 2005 in Canada, Manor was found to be running a fraudulent hedge fund, valued at nearly $750 million.
When light was shed upon his operation, Manor proceeded to flee the great white north, becoming a fugitive in the process. After eventually returning, and completing a prison sentence of 1 year, Manor went on his way, staying out of the limelight until now.
Due to the great lengths gone to by the pair to partake in the aforementioned illegal activities, in addition to the sum of money raised, the SEC is taking a strong stance. The following is an excerpt from their court filing.
“Unless Defendants are restrained and enjoined, they will again engage in the acts, practices, transactions, and courses of business set forth in this Complaint or in acts, practices, transactions, and courses of business of similar type and object.”
The Securities and Exchange Commission is a United Stated based regulatory body, tasked with creating, an enforcing, regulation surrounding securities. The goal of which is to foster and maintain a fair, transparent, and efficient market for all participants.
Chairman, Jay Clayton, currently oversees company operations.
EMURGO Starts New Blockchain Task Force in Uzbekistan
This week, the blockchain arm of Cardano, EMURGO announced the creation of a special task force to assist the Uzbekistani government with security token integration. The newly developed team’s tasks will include researching, developing, and instituting new security token solutions into the market. Additionally, the team will guide Uzbeki officials on the creation of a regulatory framework to support a shift towards digital assets within the country’s financial sector.
News of the new taskforce first emerged via Cardano’s official blog. In the post, the company announced the creation of its new “strategic blockchain task force.” The post took a moment to describe the overall goals of the group. These goals include the development of a legal framework for STOs and security token trading. As such, the team will need to complete its market research in order to determine the best pathway towards providing solutions for the security token market locally.
Given the remarkable size and importance of the task at hand, it’s no surprise to learn that EMURGO made important strategic partnerships. To date, the firm works with the government of Uzbekistan’s National Agency of Project Management (NAPM), Infinity Blockchain Holdings and the KOBEA group.
KOBEA – Blockchain Education
Notably, the Korean-based blockchain firm, KOBEA will assist EMURGO in the development of an educational structure. The new blockchain-based courses will be available at universities and community centers in the very near future. This structure is necessary to further the local markets’ access to blockchain professionals.
Discussing the importance of the partnerships, the CEO of the EMURGO Group, Ken Kodama took a moment to express the “great honor” his firm feels after receiving the official go-ahead with the project. He also explained why Uzbekistan is one of the best places for blockchain development to occur. Notably, he touched on the government’s willingness to push the adoption of new technology. He even stated that “Uzbekistan is more willing than ever to adopt innovation.”
For its part, EMURGO will provide advisory services to the Uzbek government. Additionally, the firm will look into how to best integrate Cardano’s third generation blockchain into infrastructure projects. Blockchain infrastructure projects are on the rise. Despite the unprecedented growth within the sector over the last year, many analysts still see a lack of infrastructure as the main choke point towards full-scale blockchain adoption.
EMURGO and KOBEA
Interestingly, both EMURGO and KOBEA will provide additional insight into the digital asset banking markets. This data, coupled with a new educational initiative across all major Uzbek universities, should provide the country with a treasure trove of highly-trained professionals.
Cardano continues to impress with its 4th generation blockchain’s capabilities. Now, it appears that the firm has caught the attention of more than just your typical crypto investors. Given the sheer magnitude of its latest project, you can expect to see Cardano remain dominant in the crypto space for years to come.
Oklahoma Lawmaker Nathan Dahm Sponsors Bill 1430
On Jan. 15 an Oklahoma Lawmaker by the name of Senator Nathan Dahm introduced Senate Bill 1430. The goal of the bill is to facilitate the creation of a state-chartered financial institution focused solely on digital assets. The newly created crypto depository would be exclusively for government use. Additionally, the depositary would take up the responsibility of providing financial and technical services to government offices utilizing digital assets.
According to recent reports, Senator Nathan Dahm sponsored the bill in a bid to get further blockchain integration into the government. Importantly, the bill will see a Feb. 3 first reading. Notably, this is the latest of three crypto-related bills Senator Dahm has brought forth over the last year.
Oklahoma Has Some Pro-Blockchain Officials
Senator Dahm has been one of the most active politicians in the space. His vocal support for the creation of a functioning and enforceable regulatory framework for tokenized securities received heavy media coverage throughout 2019. For example, on Jan. 25, 2019, he introduced Senate Bill 843. The bill borrowed many aspects from HB 70 that was passed by the Wyoming legislature last year. The overall goal of the new legislation is to help differentiate between open blockchain cryptocurrency transactions and tokenized securities. Unfortunately, there has been no further action taken on this bill.
Additionally, Dahm co-authored Senate Bill 700. This bill focuses on digital signatures and their use within the digital economy moving forward. In essence, the bill modifies the definition of an electronic record and electronic signature to fit the coming digitization of the economy.
Senate Bill 1430 – Oklahoma
While both of these bills could have far-reaching ramifications for crypto use within the state, his latest venture is by far his most advantageous. Senate Bill 1430 Dahm’s authorizes the State Banking Department and the Oklahoma Department of Commerce to work together to research, formulate and develop a new-age financial institution. This state-chartered digital asset bank is to function as Oklahoma’s primary central depository for all virtual currencies used by agencies within the state.
The new financial institution must meet some stringent requirements before its official opening. For one, the bank must integrate into existing banking and financial institution regulations. Also, the institution must encompass the highest level of expertise. In this way, the firm may provide valuable financial and technical services to blockchain and virtual currency innovators and developers moving forward.
Oklahoma – A Blockchain Haven?
These latest development highlight the unbalanced approach by state officials towards blockchain technology. Oklahoma continues to lead the pack in terms of legislation aimed at integrating this game-changing technology. This latest bill should help safely grow this innovative technology within the state.
The data gathered to date surrounding the market will help in the development of next-generation financial products in the future. As it stands today, the plans and implementation strategy submission must occur by July 1 in order for the bill to become effective by Nov. 1, 2020.
Oklahoma – A Step Ahead of the Pack
The decision of lawmakers such as Dahm to continually push for more blockchain adoption is a smart maneuver. The state could see an unprecedented upside if it becomes one of the first to provide a strong regulatory framework to the blockchain space. For now, lawmakers like Dahm continue to push for stronger regulations to promote the adoption of this revolutionary technology.
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- Darius Liu, Chief Operating Officer for iSTOX – Interview Series
- Disguises, Fake Identities, and an Illegal ICO – The SEC Looks to Lay Charges
- EMURGO Starts New Blockchain Task Force in Uzbekistan