Monopoly Money: Facebook Executive Responds to Regulatory Concerns over Proposed Cryptocurrency

A Facebook executive responded to regulatory concerns over the company’s proposed blockchain-based cryptocurrency, “Libra.”

In testimony before the U.S. Senate Committee on Banking, Housing and Urban Affairs, Facebook subsidiary Calibra executive David Marcus emphasized that Facebook will not release Libra until it has addressed regulatory concerns and received the necessary approvals.

Mr. Marcus clarified that, among other things:

– Libra is like cash and will serve as a payment tool, “not as an investment”;

– Libra Reserve will be subject to its respective government’s monetary policies;

– Libra Association does not intend to compete with sovereign currencies or engage in the “monetary policy arena”;

– Facebook will hold a leadership role until the Libra network launches, after which Facebook will have the same voting power as all other members;

– Libra Association will be supervised by the Swiss Financial Markets Supervisory Authority and intends to register as a money services business with the Financial Crimes Enforcement Network;

– Libra will adhere to anti-money laundering and Bank Secrecy Act requirements; and

– Libra Association “cannot . . . and will not” monetize data from the blockchain.

Mr. Marcus outlined the structure and management of Calibra, established “to provide financial services using the Libra Blockchain.” Mr. Marcus distinguished Libra and Calibra, saying that the entities are separate and that they will not exchange individual customer data. Additionally, Mr. Marcus noted that, with exceptions, Calibra will not share customers’ accounts and financial information with Facebook, and that the information will not be used for ad targeting. Facebook said that Calibra will increase user activity on Facebook, thereby generating greater advertising revenue.

COMMENTARY / STEPHEN LOFCHIE

The principal point of the statement was to assert that Libra will be operated in full compliance with all relevant national laws. As to one of the key questions concerning whether Libra coins might be a “security,” Mr. Marcus stated that it would not be because “Libra is a payment tool, not an investment. People will not buy it to hold like they would a stock or bond, expecting it to pay income or increase its value. Libra is like cash.”

Notwithstanding Mr. Marcus’ assertion, Libra raises a number of very difficult (or at least unresolved) legal questions. Unlike “stablecoins” that are completely linked to the value of a single currency (they are just representations of bank deposits), it is intended that Libra will be backed by a reserve of a number of different currencies. The relative proportions of various currencies to be held in the reserve is uncertain. The fact that Libra is not simply a virtual dollar means that, at least under current law, each purchase and sale of a Libra could be a taxable event for U.S. taxpayers. There are also securities law issues raised by, for example, the fact that the determination of the assets to back a Libra will involve discretion as to the purchase and sale of securities.

From a business standpoint, Mr. Marcus suggests that the real market for Libra may be outside of the United States or of any developed economy. Rather, the market for Libra could be principally in countries where the local currency is volatile or where there is significant uncertainty as to the soundness of the banking system. That actually makes a good deal of sense. Consumers in the United States may not have much use in their daily lives for a currency tied to a global basket of other currencies and securities that fluctuates each day, even if not that much, against the dollar. On the other hand, consumers in Venezuela might find such a currency very appealing.

CFS Monetary Measures for June 2019

Today we release CFS monetary and financial measures for June 2019. CFS Divisia M4, which is the broadest and most important measure of money, grew by 4.8% in June 2019 on a year-over-year basis versus 4.6% in May.

For Monetary and Financial Data Release Report:
http://www.centerforfinancialstability.org/amfm/Divisia_Jun19.pdf

For more information about the CFS Divisia indices and the data in Excel:
http://www.centerforfinancialstability.org/amfm_data.php

Bloomberg terminal users can access our monetary and financial statistics by any of the four options:

1) {ALLX DIVM }
2) {ECST T DIVMM4IY}
3) {ECST} –> ‘Monetary Sector’ –> ‘Money Supply’ –> Change Source in top right to ‘Center for Financial Stability’
4) {ECST S US MONEY SUPPLY} –> From source list on left, select ‘Center for Financial Stability’

SEC Chair Jay Clayton Responds to Criticism of Reg. Best Interest

SEC Chair Jay Clayton refuted criticism of the SEC’s recently adopted rulemaking package designed to strengthen protections afforded retail investors on services provided by broker-dealers and investment advisers. The rulemaking package consists of (i) Regulation Best Interest (“Reg. BI”), (ii) the Form CRS Relationship Summary, (iii) an interpretation of investment advisers’ fiduciary duty (the “Fiduciary Interpretation”), and (iv) an interpretation of the “solely incidental” prong of the broker-dealer exclusion under the Advisers Act.

In a speech in Boston, Mr. Clayton responded to seven claims that he believes are inaccurate, asserting that:

1. It is unrealistic to believe that it is possible to eliminate all conflicts of interest, and Reg. BI goes as far as is practicable in addressing broker-dealer conflicts of interest.

2. Reg. BI’s principle-based approach is preferable to a more prescriptive approach to the definition of “best interest,” which assumes that it would be possible to identify the “best” transaction for a particular investor.

3. The Fiduciary Interpretation applicable to investment advisers does not weaken the existing fiduciary duty but, rather, codifies existing SEC practices.

4. The Fiduciary Interpretation does require advisers to “avoid” conflicts.

5. The standards of conduct requirements under Reg. BI and the Fiduciary Interpretation cannot be met by disclosures alone, but require that firms act in the best interest of their customers.

6. Imposing an ongoing monitoring requirement on broker-dealers would not enhance Reg. BI and effectively would impose on them the duty to act as investment advisers.

7. The Form CRS Relationship Summary, along with online education resources, will provide material assistance to retail investors in understanding the duties they are owed by financial service providers.

STEVEN LOFCHIE COMMENTARY

When Regulation Best Interest was proposed, then-Commissioner Stein dissented from the proposal, saying it did not go as far as the DOL’s Fiduciary Rule Proposal; and while Commissioner Jackson voted to allow the proposal to go forward, he also criticized it as not going far enough. This should have served as a warning to Chair Clayton than any regulation that he adopted short of an imitation of the DOL’s Fiduciary Rule was going to be the target of substantial criticism. Chair Clayton proceeded on the basis that there was some middle ground of compromise that would satisfy detractors. That was simply not going to be the case.

Now, in many respects, we have ended up with the worst of all possible situations: (i) the Reg. BI adopting release fails to make any strong intellectual argument for why it is not reasonable to expect that broker-dealers can be fiduciaries to their clients; (ii) Reg. BI fails to make any distinction between sophisticated and unsophisticated natural person clients (treating Warren Buffett no different from a high school dropout); (iii) Reg. BI imposes significant new obligations on broker-dealers that very well may reduce the willingness of broker-dealers to provide “full-service” brokerage to retail investors and instead result in retail investors seeking any level of advice to potentially pay a much higher charge to an investment adviser; (iv) Reg. BI fails to satisfy any of the critics who wanted a fiduciary obligation imposed on broker-dealers; and (v) states are adopting their own “suitability” rules – urged on by Commissioner Jackson – thereby moving U.S. securities regulation away from a unitary system of regulation to a fractured Brexit system. See generally Cadwalader memorandum: Choose One – Best Interest or Full Service (Apr. 26, 2018); see also SEC Adopts Regulation Best Interest (June 6, 2019).

CFS Monetary Measures for May 2019

Today we release CFS monetary and financial measures for May 2019. CFS Divisia M4, which is the broadest and most important measure of money, grew by 4.5% in May 2019 on a year-over-year basis versus 4.4% in April.

For Monetary and Financial Data Release Report:
http://www.centerforfinancialstability.org/amfm/Divisia_May19.pdf

For more information about the CFS Divisia indices and the data in Excel:
http://www.centerforfinancialstability.org/amfm_data.php

Bloomberg terminal users can access our monetary and financial statistics by any of the four options:

1) {ALLX DIVM }
2) {ECST T DIVMM4IY}
3) {ECST} –> ‘Monetary Sector’ –> ‘Money Supply’ –> Change Source in top right to ‘Center for Financial Stability’
4) {ECST S US MONEY SUPPLY} –> From source list on left, select ‘Center for Financial Stability’

SIFMA Dismisses State Fiduciary Proposal; Advocates for a Uniform Federal Standard

SIFMA criticized New Jersey’s proposal to create a state fiduciary standard, calling a federal standard the “optimal approach” compared with an “uneven patchwork” of state laws.

In a comment letter, SIFMA emphasized that Regulation Best Interest (“Reg. BI”) will better protect investors and avoid confusion, as compared to a state-by-state approach. According to SIFMA, New Jersey’s proposal would (i) impose costly and burdensome regulations on firms, (ii) incentivize firms to restrict their brokerage services in New Jersey and (iii) cause many middle-class investor to lose access to advice altogether.

Specifically, SIFMA stated that the proposal would:

create, in certain instances, a burdensome ongoing fiduciary duty;

establish an “impossible ‘best of’ standard for recommendations of account-types, asset transfers, purchases, sales or exchanges of securities, and transaction-based compensation”;

enact requirements duplicative of Reg. BI; and

fail to address certain common brokerage activities, such as principal trading.

SIFMA advised New Jersey to “substantially revis[e]” its proposal to avoid these potential consequences.

COMMENTARY / STEVEN LOFCHIE

The establishment of heavier federal and state burdens on broker-dealers providing clients with recommendations, combined with the potential great diversity of state regulation, is yet another blow to the business model of “full-service brokerage,” in which broker-dealers provide “suitable” recommendations to individual clients and are compensated by their receipt of securities execution fees. If broker-dealers are going to be tasked as fiduciaries in making any recommendation to investors, then they need to consider whether the economics of undertaking this obligation without being expressly compensated for it makes sense. (See generally the Cabinet memorandum Choose One – Best Interest or Full Service.)

Leaving aside the heavier burden the regulators would impose on broker-dealers, the complexity of a 50-state regulatory regime (combined with an already very complex regulatory regime) simply makes things worse for firms registered as broker-dealers. The number of broker-dealers will continue to decline, the ability of investors to obtain intermittent investment recommendations outside of a formal advisory relationship (and the associate fees) will continue to decline, and regulators will continue to bemoan the increased concentration of financial service firms (as if they were not a principal driving force of that concentration). (Cf. CFTC Commissioner Dan Berkovitz Wants Agency to Focus on Competition and Position Limits.)

Staying with the difficulties that will be created by a fifty-state regulatory regime, Commissioner Jackson’s dissent to the adoption of Regulation Best Interest was particularly disappointing. The Commissioner favored an even stricter regime imposed on broker-dealers than Regulation Best Interest provided. However, rather than accept the disappointment of the outcome, and perhaps win the day in another administration, he essentially advocated for each state to go its own way. While this may provide the Commissioner with what he believes to be a victory on this issue, the overall effect on the U.S. economy of this victory and others of a similar nature, not only in the area of financial regulation, is extremely damaging. In effect, it is advocating for a mini-Brexit, with each jurisdiction establishing its own regulatory regime, and so losing the benefit of a single unified market operating under a consistent sent of rules.

The 75th anniversary of Bretton Woods … and Atlantic City

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The Bretton Woods conference, which established the International Monetary Fund and the World Bank, was held from July 1-22, 1944 and remains widely known today, 75 years later. Far less known is the smaller conference that immediately preceded it in Atlantic City, New Jersey, from June 15-30, 1944. Only 17 countries attended, as opposed to 44 at Bretton Woods, and the conference was closed to the press, whereas at Bretton Woods dozens of journalists were present. Not much has ever been written about the Atlantic City conference, in contrast to a number of books and hundreds of articles that have examined Bretton Woods and its legacy.

To commemorate the 70th anniversary of Bretton Woods, in 2014 the Center for Financial Stability held a conference in the same location, the Mount Washington Hotel in Bretton Woods, New Hampshire. The conference featured papers that can be found elsewhere on the CFS Web site and the presentation of The Bretton Woods Transcripts, a book of previously unpublished conference material that I edited with Andrew Rosenberg and that the CFS published.

For the 75th anniversary, the CFS later this year will issue a book edited by me and Gabrielle Canning, a young scholar who, conveniently, is my neighbor. The book, Just before Bretton Woods: The Atlantic City Financial Conference, June 1944, collects American and British archival documents that present a detailed picture of what happened at Atlantic City. The Atlantic City conference developed the draft agreements for the IMF and the World Bank from which the Bretton Woods conference proceeded. It is accurate to say that Atlantic City made the World Bank possible. Whereas there was already an internationally agreed statement on the principles to govern the IMF before Atlantic City, no similar statement existed for the World Bank. At Atlantic City, the two leading delegations, from the United States and Britain, found that their ideas about the Bank were close enough to assemble quickly a draft that was also broadly agreeable to the other countries present.

SEC Commissioner Hester Peirce Says SEC Will Closely Monitor Reg. BI Implementation

SEC Commissioner Hester M. Peirce urged critics “to take a fair look” at what Regulation Best Interest (“Reg. BI”) says before “proclaim[ing] it a success or failure.” She expressed the “agency’s commitment to monitor the [new rule] to ensure that investors in all income and wealth brackets are able to choose either a broker-dealer or an investment adviser.”

In a statement at the Open Meeting on Reg. BI and Related Actions, Ms. Peirce emphasized that there is more work to be done to ensure that the regulation helps investors without inflicting an unnecessary regulatory burden on broker-dealers. She asked firms to keep the SEC informed of any challenges or issues that arise throughout Reg. BI’s implementation. For example, Ms. Peirce raised concerns about small firms and broker-dealers who may be forced to change their names or registration status as a result of Reg. BI.

Ms. Peirce cautioned that the “very ambitious” compliance period will require firms to start their implementations immediately. Ms. Peirce said that the SEC should monitor Reg. BI’s implementation to ensure that, among other things, it does not exacerbate the trend of declining broker-dealers.

Additionally, Ms. Peirce noted improvements in the final Form CRS Relationship Summary and suggested ways to make disclosures more accessible. Specifically, Ms. Peirce encouraged the SEC to utilize online platforms and move away from paper-based documentation.

STEVEN LOFCHIE’S THOUGHTS…

Commissioner Peirce’s statement, while strongly in support of Reg. BI and the related rulemakings, nonetheless raises the issue as to whether the new requirements put further downward pressure on the full-service broker-dealer business model for retail investors. While it is certainly important for the agency to monitor the implementation process, and then determine whether the rule is properly calibrated to preserve the full-service business model, the practical reality is that if the rule has gone too far and materially damages the model, the damage done will likely not be reversible. It will take years of watching for the SEC to make any judgment as to the effect of Reg. BI on the full-service model (and any such judgment will be inherently subjective) and then it would take years more to make any rule revision. Businesses are much more easily destroyed than they are created.

SEC Commissioner Criticizes Agency for Limiting Investor Access to New Products

SEC Commissioner Hester Peirce criticized the agency for limiting investors’ access to new types of investment products. The Commissioner described very slow progress in formalizing and standardizing the treatment of relief for exchange-traded funds (“ETFs”).

In remarks at the ETFs Global Markets Roundtable, Ms. Peirce highlighted the benefits of ETFs in general, saying that they (i) provide investors with a range of investment options, (ii) are easy to enter and exit with low transaction fees and (iii) offer lower operating expenses relative to those of comparable mutual funds. Ms. Peirce observed that the SEC exercises caution with respect to approving new types of ETFs. She noted that the SEC just authorized its first non-fully transparent actively managed ETF after eight years of thinking about it.

Ms. Peirce urged the SEC to move forward with more speed on other requests for exemptive relief for projects. She criticized SEC “indecision” in the treatment of leveraged and inverse ETFs. Ms. Peirce said that after issuing several orders granting two sponsors permissions to operate as leveraged and inverse ETFs, the agency got “cold feet” and has not issued any other permissions. Ms. Peirce added that the agency’s reluctance to permit more competitors to offer geared ETFs is another instance of its curtailing access to an investment product that would be helpful to some investors.

In addition, Ms. Peirce proposed that the Division of Investment Management explore the marketplace’s interest in acquiring exposure to bitcoin and other cryptocurrencies through a registered investment company. She noted that although there is interest from investors and sponsors, the SEC has not yet granted an exemptive application for an ETF or approved a rule permitting the operation of crypto ETFs or other exchange-traded products. She emphasized that she did not believe such ETFs were necessarily a good investment, but added that it ought to be for the market and not the regulators to decide.

LOFCHIE COMMENTARY

Commissioner Peirce highlights fundamental questions that financial regulators must confront. Where should the line be drawn between protecting investors (effectively prohibiting them from buying a variety of risky products) and allowing investors to make their own decisions? This is not a binary decision; it is a line-drawing exercise.

Regulators tend to move toward protection rather than toward allowing investors to make their own decisions based on mandated disclosures. There is a fair amount of empirical evidence to suggest that such protectionism may be a good way to go, at least in the overall and aggregate scheme of things. This is, perhaps, even more true as holders of wealth age and become less capable of making sound decisions.

Yet depriving individuals of economic freedom has aspects that are worrisome. By way of managed ETFs, for example, the government may be depriving investors of choices that might be good for them. Should regulators discourage investors from taking such risk? Should riskier investments not be funded? Is society better or worse off?

Bigger picture, if adults cannot be trusted to make economic decisions, even on the basis of full disclosure, on what basis should they be trusted to make other decisions? By what logic are people who cannot be allowed to make reasonable economic decisions to be trusted to elect political decision makers? Where the line should be drawn is debatable, but permitting failure has to be an option.

OCC Underscores Risks Facing Federal Banking System

In its Semiannual Risk Perspective for Spring 2019, the OCC described the condition of banks as “strong” as far as capital, leverage and short-term performance. The regulators highlighted a number of significant big-picture risks, particularly as to AML compliance and operations and FinTech:

AML. AML-related deficiencies “stem from three primary causes: inadequate customer due diligence and enhanced due diligence, insufficient customer risk identification, and ineffective processes related to suspicious activity monitoring and reporting, including the timeliness and accuracy of Suspicious Activity Report filings. Talent acquisition and staff retention to manage [] compliance programs and associated operations present ongoing challenges, particularly at smaller regional and community banks.”
FinTech. “Rapid developments in FinTech and ‘big tech’ firms, evolving customer preferences, and the popularity of mobile technology applications have significantly changed the way banks operate and consumers conduct their banking and financial activity. . . . [T]he pace of change and the transformative nature of technology may result in a more complex operating environment. . . . Changing business models or offering new products and services can, however, elevate strategic risk when pursued without appropriate corporate governance and risk management. New products, services, or technologies can result in greater reliance on third parties by some banks and a concentration of service providers by the industry as a whole.”

LOFCHIE COMMENTARY

A key takeaway from the OCC’s regulatory comments is that the regulators expect that there is likely to be a material reduction in the number of smaller banks. They are squeezed on the expense end from compliance costs and new technology costs, and squeezed on the revenue end from competition with FinTech firms and customers’ disinterest in traditional banking relationships.

CFS Monetary Measures for April 2019

Today we release CFS monetary and financial measures for April 2019. CFS Divisia M4, which is the broadest and most important measure of money, grew by 4.4% in April 2019 on a year-over-year basis versus 4.2% in March.

For Monetary and Financial Data Release Report:
http://www.centerforfinancialstability.org/amfm/Divisia_Apr19.pdf

For more information about the CFS Divisia indices and the data in Excel:
http://www.centerforfinancialstability.org/amfm_data.php

Bloomberg terminal users can access our monetary and financial statistics by any of the four options:

1) {ALLX DIVM }
2) {ECST T DIVMM4IY}
3) {ECST} –> ‘Monetary Sector’ –> ‘Money Supply’ –> Change Source in top right to ‘Center for Financial Stability’
4) {ECST S US MONEY SUPPLY} –> From source list on left, select ‘Center for Financial Stability’