Category:Finance & Banking
The Committee on Foreign Investment Publishes Its First Ever Guidelines
On October 20, 2022, the panel that reviews foreign investment in the United States for national security concerns published its first ever enforcement guidelines. The Committee on Foreign Investment (CFIUS) in the United States, has never had written guidelines on this topic. While this is the first guidance issued by CFIUS, the guidelines reflect the increased focus on monitoring and enforcement which has been evident since the passage of the Foreign Investment Risk Review Modernization Act of 2018. This continues the trend toward more enforcement relating to foreign investments and more concern surrounding compliance with terms of agreements meant to mitigate national security risks.
The OFAC Continues to Enforce Strict Sanctions on Cryptocurrency Mixers
Recently the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC) added Tornado Cash to its Specially Designated National List. As part of enforcement efforts, the list contains individuals and companies that have been owned or transacted with targeted countries or organizations that may prove to be a threat to the United States. This action gives rise to questions regarding “secondary” sanctions/designated risk, and the effect this policy has on smart contracts and other protocols.
Single-Stock ETFs: The Debate Over Suitability
While Exchange-Traded Funds (ETFs) were introduced in the early 1990’s, the investment product skyrocketed in popularity throughout the 2000’s. In fact, only one ETF existed in 1993 before the market subsequently expanded to 102 funds in 2002, and then to 1,000 funds by 2009. There currently exists more than 7,602 ETFs globally, and their popularity among investors has prompted the creation of numerous other Exchange-Traded Products (ETPs). While ETFs are the most prominent form of ETPs, fund issuers have introduced a myriad of products that vary in terms of volatility, complexity, and investor suitability. Hence, regulators and financial professionals have continued to warn the investing public of the risks involved with purchasing complex ETPs, such as single-stock ETFs, without sufficiently understanding how the products operate.
The SEC’s Regulation Best Interest: Purposes, Components, and Criticisms
In 2019, the U.S. Securities and Exchange Commission (SEC) adopted Regulation Best Interest (“Reg BI”). Reg BI is a standard of conduct that applies to broker-dealers (a firm in the business of selling securities) and persons associated with broker-dealers when making a recommendation of a certain investment strategy or securities transaction to a retail customer. The SEC gave broker-dealers a time window to implement this new law into firm policies and procedures, and while no regulatory action happened in the first few years of its enactment, the SEC brought its first action in June of this year and FINRA brought its first in October of this year. This makes it especially important for broker-dealer firms to ensure they are presently in compliance with the standards set forth in Reg BI.
The Legal Fight for Student Debt Forgiveness Is Underway
In August, President Joe Biden announced that his administration would be implementing a one-time student loan debt relief program for Americans with student loan debt. Since the announcement, the administration has posted guidance on the Department of Education’s website that explains the plan in detail and attempts to answer some FAQs. The website outlining the plan states that $10,000 worth of debt would be forgiven for Americans making less than $125,000 a year who have outstanding federal student loans. For those who received Pell Grants to pay for college, up to $20,000 worth of student loan debt would be forgiven. The website states that “the Administration will launch a simple application in October” that must be completed by the end of the year to determine whether borrowers qualify for debt forgiveness. That application is now available on the Federal Student Aid website.
Facing the Fire: A Lesson on Whistleblower Protections
For compliance programs to be effective, bad behavior must be reported internally to management and an avenue must exist to report externally to regulators and the media. For whistleblowers to be willing to come forward, it is critical that they are protected.
Our American Government: a Self-Serving Entity?
As of September 2022, the current Congress has an approval rating of just 17% – an ignominious reality – and a series of recent investigations won’t serve to ease the mounting public frustration. Insider recently identified at least 72 members of Congress in noncompliance with the Stop Trading on Congressional Knowledge Act (STOCK). This revelation – among others – has prompted a push for the enactment of more stringent congressional stockholding limitations.
Mismanagement of Client Data Results in a $35 Million Fine for Large Investment Company
Juhi Desai Associate Editor Loyola University Chicago School of Law, JD 2024 Morgan Stanley Smith Barney (“Morgan Stanley”), a leading investment company, found itself in hot water after complaints of a data breach. In 2015, Morgan Stanley allegedly auctioned off devices that contained sensitive information. On September 20, 2022, the U.S. Securities and Exchange Commission …
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Regulating the Unregulated: Where is Cryptocurrency Headed?
While over 10 years have passed since Satoshi Nakamoto first introduced Bitcoin, digital currencies continue to remain unregulated by financial authorities despite a number of challenges that have plagued consumers and the government: the Silk Road, fraud, and various other financial crimes. Additionally, many consumers invest in cryptocurrencies because they are not controlled by any central government monetary policies. However, cryptocurrency investors are also at risk of their money losing its value when the market takes a tumble, as evidenced by the recent current cryptocurrency downturn. Despite these continued challenges, imposing regulations on cryptocurrencies has proven to be difficult. Until President Biden’s Executive Order, issued on March 9th of this year, the White House steered clear of recognizing digital assets as a valid form of currency. The President’s Order explicitly recognized the need for research and policy implementation across various government agencies in order to shape the way cryptocurrencies are regulated.
Jarksey v. SEC and the Future of Administrative Adjudications
On May 18, 2022, the United States Court of Appeals for the Fifth Circuit issued a novel and divisive decision that greatly restricts the administrative enforcement powers of the SEC and its use of Administrative Law Judges (ALJs) in Jarksey v. SEC. Although much deliberation has been had over the implications and immediate impact of this ruling, the takeaway is that the Securities and Exchange Commission (SEC) may be facing significant challenges to its internal enforcement procedures in the near future.