Securities Industry Commentator by Bill Singer Esq

November 26, 2018
Commissioner Hester M. Peirce addressed the meeting in Switzerland via video from the United States and was not shy about criticizing the United State's regulatory approach before the foreign audience. In part, Peirce argued that:

Let's get the bad stuff out of the way first. The numerous state and federal regulators in the United States have taken a variety of approaches with respect to cryptocurrency, which makes it difficult for entrepreneurs to know what law will apply to their projects. This uncertainty is a natural consequence of our diffuse financial regulatory system. The benefit of such a system is that it allows for experimentation with different regulatory approaches, but the burden of such a system is that operating nationwide often means having to comply with multiple regulatory schemes. Particularly in a space like crypto, which seeks to bring individuals across far-flung distances into a single market, structuring one's business to avoid a burdensome regulatory regime can in itself be a difficult legal exercise with large penalties for getting it wrong.

Regulators are coming to terms with crypto in different ways and do not always coordinate with one another, so the United States is admittedly sending mixed messages. For example, our sister regulator, the Commodity Futures Trading Commission, has allowed the development of crypto-derivatives markets, but the SEC so far has not approved any application to list an exchange-traded product based on cryptocurrencies or crypto-derivatives trade on U.S. exchanges. Each of these exchange-traded products, of course, is considered in light of its own facts and circumstances and the comments we receive, but the themes underlying the rejections so far concern me. There is a discomfort with the underlying markets in which cryptocurrencies trade, a skepticism of the ability of markets to develop organically outside of a traditionally regulated context, and a lack of appreciation for the investor interest in gaining exposure to digital assets as part of a balanced investment portfolio.

The SEC's reaction to these exchange-traded products is not surprising; regulators have an unfortunate habit of allowing their own conservatism and their legitimate fear that they will be blamed when investments go wrong to curtail investors' options. I, however, favor an approach that allows investors -- informed by good information about the relevant exchange-traded product and encouraged to exercise a healthy dose of skepticism -- to choose whether or not to buy the product. I am working on convincing my colleagues.

The SEC, in this area and many others, could do a far better job in providing information to investors. It has been a real honor for me to be able to talk with entrepreneurs involved in the digital assets space, but doing so also has made me aware of how difficult it is for people who are not used to interacting with the agency to understand what is happening inside our black box. . .
When it comes to FINRA public customer arbitrations, you sort of expect that the respondent brokerage firm and its registered representatives will put up a spirited defense. The thing with "spirited," however, is that it sometimes takes on the hue of hardball -- replete with excessive motions, foot draggin', and whatever tricks a given lawyer has in his or her bag. Similarly, you sort of expect that the claimant customer will be eager to get a hearing date, and will show up on time and at the appointed place. In a recent FINRA arbitration, we are confronted with the oddity of no-show claimants and their lawyer. Even more puzzling, when a beleaguered FINRA arbitrator sanctioned those parties for their failures to appear, the beneficiary stockbroker pulled another vanishing act of his own. It's all very bizarre. Some might say comical. Others may say infuriating.