Securities Industry Commentator by Bill Singer Esq

May 17, 2022

In "The Love Song of J. Alfred Prufrock," T.S. Eliot laments: "I have measured out my life with coffee spoons." In a recent federal lawsuit involving a $15 million claim against Edward Jones, a District Court laments that the Plaintiff failed to measure out his Complaint in numbered paragraphs or different counts. Alas, the Court lacks the lilting prose of the poet.

An Indictment was unsealed in the United States District Court for the Southern District of New York ("SDNY") charging Gregoire Tournant, the Chief Investment Officer and co-lead Portfolio Manager for a series of private investment funds managed by Allianz Global Investors U.S. LLC ("AGI"), with securities fraud, investment adviser fraud and obstruction of justice offenses in connection with a scheme to defraud investors. Also, Trevor Taylor and Stephen Bond-Nelson pled guilty to Informations filed in SDNY and are cooperating with the government. Pursuant to a Plea AGI will plead guilty to securities fraud in connection with this fraudulent scheme, and pay over $3 billion in restitution, a criminal fine of approximately $2.3 billion, and forfeit approximately $463 million to the government. As alleged in part in the DOJ Release:

Between 2014 and 2020, Gregoire Tournant, the defendant, was the Chief Investment Officer of a set of private funds at AGI known as the Structured Alpha Funds. These funds were marketed largely to institutional investors, including pension funds for workers all across America. As alleged, Tournant and his co-conspirators misled these investors into believing that the funds were protected from a sudden stock market crash with particular hedges. But in late 2015, as the cost of those promised hedges increased, Tournant decided to lie and secretly buy cheaper hedges that provided much less protection to investors. As alleged, Tournant and his co-conspirators also provided investors with altered documents that were sent to investors to hide the true riskiness of the funds' investments, including that they were buying cheaper hedges.

In March 2020, following the onset of market dislocations brought on by the COVID-19 pandemic, the funds lost in excess of $7 billion in market value, including over $3.2 billion in principal, faced margin calls and redemption requests, and ultimately were shut down. More than 100 institutional investors, representing more than 100,000 individuals, were victims of this scheme. These institutional investors included, among others, pension funds for teachers in Arkansas, laborers in Alaska, bus drivers and subway conductors in New York City, as well as religious organizations, engineers, and other individuals, universities and charitable organizations across the United States.

The scheme alleged was an egregious, long-running and extensive fraud that went undetected for years. It occurred at a very profitable component of AGI - one that accounted for 25% of AGI's revenue in recent years, which amounted to hundreds of millions of dollars. As alleged, one of the ways Tournant carried out the fraud was by marketing the fact that he worked for a well-respected financial institution, AGI, which is a part of the Allianz SE (Allianz) family. Allianz is one of the world's largest financial services companies and one of the world's largest insurance companies. Tournant touted the protections provided by the funds' position within the global Allianz corporate structure, calling Allianz a "master cop" that would ensure that Tournant followed the risk guidelines promised to investors.

Despite Tournant's claim that Allianz acted as a "master cop" looking over his shoulder, no one at AGI or Allianz was verifying that Tournant and his colleagues were actually adhering to the investment strategies promised to investors. No risk or compliance personnel at AGI verified, attempted to verify or were responsible for verifying that Tournant and his colleagues were purchasing hedging positions within the range that was represented to investors. Much of this historic fraud was made possible because AGI's control environment was not designed to verify that Tournant and his co-conspirators were telling investors the truth. Because AGI, a registered investment adviser, failed to provide meaningful oversight, Tournant and his co-conspirators were able to deceive investors about the risks they were taking with their money.

In addition, as alleged, in the summer of 2020, after the onset of the pandemic and in order to cover up the fraudulent scheme, Tournant attempted to obstruct an investigation by the U.S. Securities and Exchange Commission (SEC) into the circumstances that led to the losses in March 2020., the SEC charged Allianz Global Investors U.S. LLC ("AGI US") and Portfolio Mangers Gregoire P. Tourant, Trevor L. Taylor, and Stephen G. Bond-Nelson with concealing the downside risks of a complex options trading strategy they called "Structured Alpha," which had been marketed and sold to about 114 institutional investors, including pension funds for teachers, clergy, bus drivers, engineers, and other individuals.  The SEC Complaint alleged that following the March 2020/ COVID-19 market crash, the Structured Alpha strategy lost billions of dollars as a result of AGI US and the portfolio managers' misconduct. As alleged in part in the SEC Release:

Defendants reduced losses under a market crash scenario in one risk report sent to investors from negative 42.1505489755747% to negative 4.1505489755747% -- by simply dropping the single digit 2.  In another example, defendants "smoothed" performance data sent to investors by reducing losses on one day from negative 18.2607085709004% to negative 9.2607085709004% -- this time by cutting the number 18 in half.  

When the 2020 COVID-related market volatility revealed that AGI US and the defendants had misled investors about the fund's level of risk, the fund suffered catastrophic losses and investors lost billions; the defendants all the while profited from their deception. The complaint further alleges that Tournant, Taylor, and Bond-Nelson then made multiple, ultimately unsuccessful, efforts to conceal their misconduct from the SEC, including false testimony and meetings in vacant construction sites to discuss sending their assets overseas.

. . . 

AGI US admitted that its conduct violated the federal securities laws and agreed to a cease-and-desist order, a censure and payment of $315.2 million in disgorgement, $34 million in prejudgment interest, and a $675 million civil penalty, a portion of which will be distributed to certain investors, with the amount of disgorgement and prejudgment interest deemed satisfied by amounts it paid to the U.S. Department of Justice as part of an integrated, global resolution. In a parallel criminal proceeding, the U.S. Attorney's Office for the Southern District of New York today announced criminal charges for similar conduct against AGI US, Tournant, Taylor, and Bond-Nelson.  As part of the parallel criminal proceeding, AGI US, Taylor and Bond-Nelson have agreed to guilty pleas. 

The SEC's complaint seeks permanent injunctions, disgorgement plus interest, and penalties against Tournant, Taylor, and Bond-Nelson. In addition, the complaint seeks an officer and director bar against Tournant. Taylor and Bond-Nelson have agreed to the entry of partial judgments against them in which they consent to injunctive relief with monetary relief to be determined by the court in the future. These settlements are subject to court approval. Taylor and Bond-Nelson also agreed to associational and penny stock bars.

As a consequence of the guilty plea, AGI US is automatically and immediately disqualified from providing advisory services to US registered investment funds for the next ten years, and will exit the business of conducting these fund services.  To avoid disruptions to these funds and for the protection of the fund investors, the SEC will allow a brief transition period solely to transition these services to another investment adviser.  The transition period will be ten weeks for the US mutual funds that AGI US sub-advises and four months for the US closed-end funds that AGI US advises.

READ: The SEC Orders Instituting Proceedings, Making Findings, and Imposing Remedial Sanctions:
  • Taylor
  • Bond-Nelson
  • Allianz
In a Complaint filed in the United States District Court for the Eastern District of New York, Moises Luis Zagala Gonzalez (Zagala) a/k/a "Nosophoros," "Aesculapius" and "Nebuchadnezzar,"was charged with attempted computer intrusions and conspiracy to commit computer intrusions.  In a truly fascinating narrative, the DOJ Release alleges in part that:

As charged in the criminal complaint, Zagala, a 55-year-old cardiologist who resides in Ciudad Bolivar, Venezuela, has designed multiple ransomware tools-malicious software that cybercriminals use to extort money from companies, nonprofits and other institutions, by encrypting those files and then demanding a ransom for the decryption keys.  Zagala sold or rented out his software to hackers who used it to attack computer networks. 

One of Zagala's early products, a ransomware tool called "Jigsaw v. 2," had, in Zagala's description, a "Doomsday" counter that kept track of how many times the user had attempted to eradicate the ransomware.  Zagala wrote: "If the user kills the ransomware too many times, then its clear he won't pay so better erase the whole hard drive."

Beginning in late 2019, Zagala began advertising a new tool online-a "Private Ransomware Builder" he called "Thanos."  The name of the software appears to be a reference to a fictional cartoon villain named Thanos, who is responsible for destroying half of all life in the universe, as well as a reference to the figure "Thanatos" from Greek mythology, who is associated with death.  The Thanos software allowed its users to create their own unique ransomware software, which they could then use or rent for use by other cybercriminals.  The user interface for the Thanos software is shown below:[1]

Screenshot of Zagala's program

The screenshot shows, on the right-hand side, an area for "Recovery Information," in which the user can create a customized ransom note.  Other options include a "data stealer" that specifies the types of files that the ransomware program should steal from the victim computer, an "anti-VM" option to defeat the testing enviornments used by security researchers, and an option, as advertised, to make the ransomware program "self-delete." 

Rather than simply sell the Thanos software, Zagala allowed individuals to pay for it in two ways.  First, a criminal could buy a "license" to use the software for a certain period of time.  The Thanos software was designed to make periodic contact with a server in Charlotte, North Carolina that Zagala controlled for the purpose of confirming that the user had an active license.[2]  Alternatively, a Thanos customer could join what Zagala called an "affiliate program," in which he provided a user access to the Thanos builder in exchange for a share of the profits from Ransomware attacks.  Zagala received payment both in fiat currency and cryptocurrency, including Monero and Bitcoin.

Zagala advertised the Thanos software on various online forums frequented by cybercriminals, using screennames that referred to Greek mythology.  His two preferred nicknames were "Aesculapius," referring to the ancient Greek god of medicine, and "Nosophoros," meaning "disease-bearing" in Greek.  In public advertisements for the program, Zagala bragged that ransomware made using Thanos was nearly undetectable by antivirus programs, and that "once encryption is done," the ransomware would "delete itself," making detection and recovery "almost impossible" for the victim. 

In private chats with customers, Zagala explained to them how to deploy his ransomware products-how to design a ransom note, steal passwords from victim computers, and set a Bitcoin address for ransom payments.  As Zagala explained to one customer, discussing Jigsaw: "Victim 1 pays at the given btc [Bitcoin] address and decrypts his files."  Zagala also noted that "there is a punishment. . . [i]f user reboots.  For every rerun it will punish you with 1000 files deleted."  After Zagala explained all the features of the software, the customer replied: "Sir, I really need to say this . . . You are the best developer ever."  Zagala responded: "Thank you that is nice to hear[.]  Im very flattered and proud."  Zagala had only one request: "If you have time and its not too much trouble to you please describe your experience with me" in an online review.

On or about May 1, 2020, a confidential human source of the FBI (CHS-1) discussed joining Zagala's "affiliate program."  Zagala responded: "Not for now.  Don't have spots."  But Zagala offered to license the software to CHS-1 for $500 a month with "basic options," or $800 with "full options." 

On or about October 7, 2020, CHS-1 asked Zagala how to establish an affiliate program of his own using Thanos.  Zagala responded with a short tutorial on how to set up a ransomware crew.  He explained that CHS-1 should find people "versed. . . in LAN hacking" and supply them with a version of the Thanos ransomware that was programmed to expire after a given period of time.[3]  Zagala said that he personally had "a maximum of between 10-20" affiliates at a given time, and "sometimes only 5."  He added that hackers approached him for his software after they had gained access to a victim network:  "they come with access to [b]ig LAN, I check and then I accept[.]  they lock several big networks and we wait. . . .If you lock networks without tape or cloud (backups)[,] almost all pay[.]" 

Zagala further explained that, sometimes, a victim network turned out to have an unexpected backup: "so no point in locking because they have backups, so in that case we only exfiltrate data," referring to stealing victim information.  Zagala further added that he had an associate who "knows how to corrupt tapes," meaning backups, and how to "disable[] AV," meaning antivirus software.  Finally, Zagala offered to give CHS-1 an additional two weeks free after CHS-1's one-month license expired, explaining "because 1 month is too little for this business. . .sometimes you need to work a lot to get good profit."

Zagala's customers favorably reviewed his products.  One individual posted a message praising Thanos in July 2020, writing "i bought the ransomware from nosophoros and it is very powerful," and claiming that he had used Zagala's ransomware to infect a network of approximately 3000 computers.  And, in December 2020, another user wrote a post in Russian: "We have been working with this product for over a month now, we have a good profit!  Best support I've met."  Zagala has publicly discussed his knowledge that his clients used his software to commit ransomware attacks, including by linking to a news story about an Iranian state-sponsored hacking group's use of Thanos to attack Israeli companies.

In or around November 2021, Zagala began using a third screenname - "Nebuchadnezzar."  In chats with a second confidential source of the FBI (CHS-2), Zagala stated that he had switched aliases to preserve "OPSEC. . . operational security" because "malware analysts are all over me." 

On or about May 3, 2022, law enforcement agents conducted a voluntary interview of a relative of Zagala who resides in Florida and whose PayPal account was used by Zagala to receive illicit proceeds.  The individual confirmed that Zagala resides in Venezuela and had taught himself computer programming.  The individual also showed agents contact information for Zagala in his phone that matched the registered email for malicious infrastructure associated with the Thanos malware. . . .

. . .
[1] On September 14, 2020, an FBI agent surreptitiously purchased a license for Thanos from Zagala, and downloaded the software. 

[2] This server has been taken offline.

[3] "LAN" stands for "local area network" and refers to a computer network that interconnects computers within a limited area such as an office building

In a Complaint filed in the United States District Court for the Southern District of New York, the SEC charged  Defendants StraightPath Venture Partners LLC, StraightPath Management LLC, Brian K. Martinsen, Michael A. Castillero, Francine A. Lanaia, and Eric D. Lachow with violating antifraud and other provisions of the federal securities laws. SDNY issued an Order freezing the assets of Martinsen, Castillero, Lanaia, StraightPath Venture Partners, and StraightPath Management; and the Order temporarily enjoins the Defendants from violating these provisions of the federal securities laws and orders them not to destroy any additional relevant documents. As alleged in part in the SEC Release:

[T]he defendants, running an unregistered broker-dealer with a vast network of sales agents, raised at least $410 million from more than 2,200 investors from November 2017 through February 2022.  The SEC also alleges that the defendants repeatedly told investors that each investment would be kept separate and that they were charging no upfront fees, but the defendants freely commingled investor funds, paid themselves more than $75 million, and paid their sales agents nearly $48 million from illegal, undisclosed markups on the pre-IPO shares that were, in some cases, as high as 100 percent.  The SEC alleges that a share deficit exists of at least $14 million across the funds.  The defendants also allegedly concealed from investors that two of the three founders, Castillero and Lanaia, ran the funds despite being barred from the brokerage industry.  When SEC staff sought copies of the emails sent by the defendants' sales agents during its investigation, rather than producing them, Castillero and Martinsen allegedly deleted them from their servers and texted that "an a***hole regulator would have a field day" with a particular e-mail.
After a six-day jury trial in the United States District Court for the District of Massachusetts, Hassan A. Abbas was convicted of one count of money laundering conspiracy, one count of money laundering, two counts of unlawful monetary transactions and two counts of wire fraud. As alleged in part in the DOJ Release:

Between June 2017 and January 2019, Abbas and others defrauded victims through a series of romance, business email compromise (BEC), and other scams designed to trick victims into wiring monies to bank accounts they controlled. A BEC scheme is a sophisticated fraud often targeting individuals and businesses involved in wire transfer payments. The fraud is carried out by compromising and/or "spoofing" legitimate business email accounts through social engineering or computer intrusion techniques, to cause victims to transfer funds to accounts controlled by the scammers. In romance scams, perpetrators generally create fictitious online personas to develop online romantic relationships with individuals in the U.S., and then leverage those relationships to obtain money and/or property. 

Abbas created sham corporate entities and opened bank accounts in the name of those entities. Under false pretenses, both individual and corporate victims were then instructed to wire funds into the accounts Abbas controlled. Some victims were in the process of buying homes and believed the funds were for that purpose, including two Massachusetts victims who were tricked into wiring money to an individual they believed was their real estate broker. Others, including a third Massachusetts victim, believed they were transferring funds on behalf of or for the benefit of their romantic partners. Corporate victims were targeted as part of the scheme as well and were deceived into remitting invoice payments to the accounts Abbas controlled. 

Shortly after receiving the victim funds, Abbas transferred the funds to overseas accounts, domestic personal accounts or spent the funds on personal expenses.  

FINRA Fines and Suspends Rep for Private Securities Transactions
In the Matter of Sanjay Bhargava, Respondent (FINRA AWC 2020066655701)
For the purpose of proposing a settlement of rule violations alleged by the Financial Industry Regulatory Authority ("FINRA"), without admitting or denying the findings, prior to a regulatory hearing, and without an adjudication of any issue, Sanjay Bhargava, submitted a Letter of Acceptance, Waiver and Consent ("AWC"), which FINRA accepted. The AWC asserts that Sanjay Bhargava was first registered in 2003, and by 2011, he was registered with Securities America, Inc. In accordance with the terms of the AWC, FINRA imposed upon Sanjay Bhargava a $5,000 fine and a three-month suspension from associating with any FINRA member in all capacities.  As alleged in part in the AWC:

In 2011, Bhargava and another registered representative, Broker 1, became associated with Securities America. Broker 1 was also a certified public accountant, and Bhargava would occasionally refer clients to Broker 1 for accounting and tax services. 

In November 2018, Broker 1 established a limited liability company for the purpose of pooling investment funds to invest in a private placement offering issued by Company A, which specializes in preserving and operating historic real estate. This Company A offering (the Offering) related to a hotel located in Salt Lake City, Utah, and offered the possibility of tax credits for investors who qualified. 

While Broker 1 was the manager of the LLC, Bhargava played a role in establishing the relationship between Company A and Broker 1. In November 2018, Bhargava communicated with Company A regarding the Offering, and discussed how investors in Broker 1's LLC would become investors in Company A's Offering. Bhargava also discussed the Offering with some individuals. 

On November 23, 2018, Bhargava forwarded offering documents for the LLC to six individuals, none of whom were Securities America customers. These six individuals ultimately invested $341,250 in the LLC. While Bhargava participated in these private securities transactions, he did not receive any compensation related to the LLC or the Offering. 

On December 9, 2018, Bhargava completed annual compliance attestations at Securities America in which he misrepresented that he did not engage in any private securities transactions since his last attestation. 

Therefore, Bhargava violated FINRA Rules 3280 and 2010.

Thank you, Melanie. My thanks to the state securities regulators in the audience and to the North American Securities Administrators Association (NASAA) for your vital work to protect investors.

As is customary, I'd like to note that my views are my own, and I'm not speaking on behalf of the Commission or SEC staff.

Today, you've asked me to talk about investor protection in a digital age.

The topic gets me thinking about grocery stores.

When you visit a grocery store, do you notice that you travel around the outer aisles to find the fruits and vegetables, but the candy, gum, and chips are waiting for you near the cash register?

By design, grocery stores tap into our behavioral psychology, activating our impulses to purchase things we may not need. Research has shown that impulsive purchases account for 62% of supermarket sales.[1] A bit of evidence: all those bags of gummy bears I've purchased in my day.

These stores serve the public, and they also have a profit incentive. Thus, they may tempt us with products that serve their interests rather than ours, and use the latest technology and research to do so.[2] Many consumers recognize this.

When instead we seek advice from an investment professional, that expectation changes. If you are a broker-dealer or an investment adviser-including if you provide your services digitally through an investment platform-when you provide advice, you have to act in the best interests of us, your clients, and not place your own interests ahead of our interests.[3]

As my mom, Jane Gensler, might have said it, you have to put your client's interests first. You can't dangle gummy bears over an investor's shopping cart, so to speak-even if the latest technologies might make it all the more easy, subtle, and profitable to do so.

My mom would have been right, because there's something distinctive about finance. Investment professionals are dealing with other people's money. That's why brokers and advisers have to comply with specific duties-standards on care, loyalty, best interest, and best execution.

The challenge is to make sure that brokers and advisers live up to their obligations and the trust that's been placed in them.

This challenge is not new, nor is the digital age.

The technological advances of the 1990s, namely the internet, allowed anyone to execute a transaction online. Among other factors, that shift created further incentives for brokers to restyle themselves as advisers.[4]

By the naughts, investors found it difficult to see the difference between brokers and advisers, the services they offer, and the disparate standards required of those professionals.[5] After smartphones came around, investors might have started to believe that the difference between brokers and advisers might merely be tapping one part of their screen versus another.

In 2019, the SEC addressed this blurring and these disparities through rulemaking on Regulation Best Interest (Reg BI) for broker-dealers and through an interpretation of the fiduciary standard for investment advisers (IA fiduciary standard). [6] These set forth in clear terms the responsibilities that these investment professionals owe to investors when providing advice.

These responsibilities matter for tens of millions of investors. Think about them: the college graduate paying off her student loans; the parents-in-waiting saving for that new house with a crib; the grandparents living off their nest egg.

Our current digital age of the 2020s raises additional challenges for investors. It's dangling over their shopping carts. Through new technologies, investors-who at the time might not even be seeking advice-may be getting nudged toward those gummy bears.

Digital Engagement Practices

I think what we're living through in the 2020s is as transformative as the 1990s was with the internet. What I'm referencing is the use of predictive data analytics, built upon artificial intelligence and machine learning, tapping into the veritable explosion of data on every one of us.

Coupled with differential marketing, differential pricing, and individually tailored behavioral prompts, these technologies-what we've called digital engagement practices (DEPs)-are increasingly shaping many parts of our economy.

Conflicts of Interest

Finance is no exception. Predictive data analytics and other DEPs are evolving the way that brokers and advisers engage with investors, including through robo-advisers, brokerage apps, and wealth management apps.[7]

As a thought experiment, imagine if the grocery store were a virtual experience. Imagine if the store rearranged its inventory, shelving, and pricing for each shopper who visited the store, each time they visited that store, down to the impulse items by the register. The precision with which the store could nudge you toward certain purchases-and the algorithms behind those nudges-could be powerful and profitable.

That thought experiment may not have fully come to finance yet. Through using DEPs, however, robo-advisers, brokerage apps, and wealth management apps increasingly can narrowly target each consumer with specific marketing, pricing, and nudges.

This raises a number of questions. In the case of online investment platforms, when they use certain DEPs, what are they optimizing for? Are they optimizing for the investor's benefits, including risk appetite and returns? Or are they prioritizing other factors, including the platform's revenue or performance?

When investment professionals offer advice or recommendations, including when they are using DEPs, our standards are clear-they must not place their own interests ahead of the investor's interests.[8]

This new digital world raises questions. Is a behavioral nudge-the gummy bears dangled above your cart, the flashing "options trading" button when you create a brokerage account-a recommendation?

Further, when do behavioral nudges take on attributes similar enough to advice or recommendations such that related investor protections are needed? The nature of certain steers raises questions between what is and isn't advice or a recommendation.


A related issue is bias, and how people-regardless of race, color, religion, national origin, sex, age, disability, and other factors-receive fair access and prices in the financial markets.[9]

How can we help ensure that new developments in analytics don't instead reinforce societal inequities?

The underlying data used in these analytic models could be based upon data that reflects historical biases, along with underlying features that may be proxies for protected characteristics, like race and gender.

As investment platforms rely on increasingly sophisticated data analytics, I believe that it will be appropriate to safeguard against algorithmically fortifying such biases.

Systemic Risk-Concentration

Further, today's new forms of predictive data analytics raise issues for financial stability through herding, interconnectedness, and possible greater concentration in our capital markets.

With respect to concentration, we have seen that sophisticated data analytics-and what's called network economics-have led to highly-concentrated platforms in a range of sectors. For example, last year, 92% of internet searches were logged on a single search platform.[10]

Today, though we still see significant competition on the front-end among brokerage apps, there is less so on the back-end.

More specifically, the provision of market making by wholesalers, paying for order flow, has already become relatively concentrated. For example, during GameStop events last year, 88% of internalized dollar volume in January 2021 was executed by three wholesalers.[11]

To protect investors in a digital age and best promote competition, what might we do if and as greater concentration emerges in finance? We've also seen growing concentration in the investment management field.

Generally speaking, the narrower and more concentrated a particular part of the market, the less robust the competition. Thus, I've asked staff to examine how to improve efficiency and competition throughout our markets.

Best Interest

Under Reg BI and the IA fiduciary standard, when a broker or an adviser provides advice, digitally or otherwise, they must act in the best interests of their clients, and not place their own interests ahead of their clients' interests.[12]

These words matter to investors. They should have meaning for brokers and advisers as well. Thus, I've asked our Divisions of Investment Management, Trading and Markets, Examinations, and Enforcement to help ensure that investment professionals live up to these obligations.

The SEC staff published a bulletin in March regarding Reg BI and the IA fiduciary standard. The bulletin addressed account recommendations, including rollover recommendations, and focused on three core points.[13]

First, brokers and advisers need to prevent their own interests from inappropriately influencing their recommendations and advice. If they can't do that, they have decisions to make-eliminate the conflict, don't give the advice, or find some other way to ensure that they don't put their interests ahead of the retail investor's interests.

Second, in order to offer recommendations and advice in the best interest of the investor, brokers and advisers need to consider reasonably-available alternatives. This needs to be a meaningful evaluation.

Third, as part of that analysis, brokers and advisers need to consider costs and risks to investors. While it is true that they don't always have to recommend the lowest-cost option, they must have a reasonable basis to believe a higher-cost recommendation nonetheless is in the investor's best interests.

The staff is considering additional bulletins that would further provide their views on each of these three points.

Brokers and advisers have a critical role to play in all of this. Disclosure is important but not sufficient when it comes to acting in a retail investor's best interest. Firms need to take investor protection and compliance obligations seriously, reining in or curing any conflicts and really delivering the best interest advice that investors so need and deserve.

That's how we get the best out of best interest.

Crypto Markets

Discussing investor protection in a digital age, I'd be remiss not saying a few words on the crypto markets. I'm reminded of Joseph Dolley, the Kansas Banking Commissioner who pioneered investor protection.[14]

Over the past year, several bank executives have shared their concerns with me about the sheer number of depositors who have moved money from their bank accounts into crypto-related exchanges and wallets.

When I first heard this, I remembered Mr. Dolley's story from a century ago. As banking commissioner, Mr. Dolley heard similar stories from local bank executives. People were withdrawing money from their bank accounts to purchase securities from hucksters and scammers across the state. Mr. Dolley knew something had to be done.

His calls for investor protection led to blue-sky laws across many states. This led to the founding of NASAA in 1919. All of this happened in an earlier era of rapidly-changing technology.

As I hear from bank executives about their customers shifting their savings to speculative crypto assets, I think of how Mr. Dolley responded to a clear need to protect investors as technology and finance changed.

I think there's a need to bring greater investor protection to these crypto markets. Central to that are crypto trading and lending platforms, where investors buy, sell, and lend around $100 billion of crypto assets a day.[15]

As it relates to crypto tokens, if investors are putting money behind a group of entrepreneurs raising money from the public in anticipation of profits, that's the hallmark of an investment contract or a security under our jurisdiction.

The crypto-related events in recent weeks have highlighted yet again how important it is to protect investors in this highly speculative asset class.


In conclusion, when new technologies comes along, the need for investor protection doesn't go away. It comes down to what my mom might have said. You can't simply dangle gummy bears . . . or crypto tokens. . . over an investor's shopping cart.

You have to put your client's interests first.

Thank you.

[1] See Journal of Retailing and Consumer Services, "Impulsive Purchasing in Grocery Shopping: Do the Shopping Companions Matter?" (May 2021), available at

[2] See Institute of Electrical and Electronics Engineers, "The Impacts of E-Payment System and Impulsive Buying to Purchase Intention in E-commerce" (Oct. 2, 2020), available at

[3] See U.S. Securities and Exchange Commission, "Regulation Best Interest: The Broker-Dealer Standard of Conduct" (Sept. 10, 2019), available at See U.S. Securities and Exchange Commission, "Commission Interpretation Regarding Standard of Conduct for Investment Advisers" (Jul. 12, 2019), available at See U.S. Securities and Exchange Commission, "Regulation Best Interest, Form CRS and Related Interpretations" (March 30, 2022), available at See U.S. Securities and Exchange Commission Staff, "Staff Bulletin: Standards of Conduct for Broker-Dealers and Investment Advisers Account Recommendations for Retail Investors" (March 30, 2022), available at

[4] See U.S. Securities and Exchange Commission, "Study on Investment Advisers and Broker-Dealers" (Jan. 2011), available at See The Rand Institute for Civil Justice, "Investor and Industry Perspectives on Investment Advisers and Broker-Dealers" (Jan. 2008), available at

[5] See U.S. Securities and Exchange Commission, "Study on Investment Advisers and Broker-Dealers" (Jan. 2011), available at See U.S. Securities and Exchange Commission, "Investor and Industry Perspectives on Investment Advisers and Broker-Dealers" (Jan. 2008), available at

[6] See Footnote 3. See also U.S. Securities and Exchange Commission, "Regulation Best Interest, Form CRS and Related Interpretations" (March 30, 2022), available at

[7] See Gary Gensler, "Prepared Remarks before the Investor Advisory Committee" (March 10, 2022), available at

[8] See Footnote 3.

[9] See Gary Gensler, "Prepared Remarks before the Investor Advisory Committee" (March 10, 2022), available at See Gary Gensler, "Prepared Remarks at SEC Speaks" (Oct. 12, 2021), available at

[10] See StatCounter, available at

[11] See U.S. Securities and Exchange Commission Staff, "Staff Report on Equity and Options Market Structure Conditions in Early 2021" (Oct. 14, 2021), available at

[12] See Footnote 3.

[13] See U.S. Securities and Exchange Commission Staff, "Staff Bulletin: Standards of Conduct for Broker-Dealers and Investment Advisers Account Recommendations for Retail Investors" (March 30, 2022), available at

[14] See"Kansas Blue Sky Laws,"available at

[15] See Gary Gensler, "Prepared Remarks of Gary Gensler on Crypto Markets at the Penn Law Markets Association Annual Conference" (April 4, 2022), available at