On May 4, 2024, Robinhood Markets, Inc. (NASDAQ: HOOD) announced that its cryptocurrency trading division, Robinhood Crypto, had been served with a Wells notice from the U.S. Securities and Exchange Commission (SEC). The news sent ripples through the market, prompting concerns among investors and stakeholders. But what exactly does this mean for Robinhood and its investors?
A Wells notice is not a confirmation of guilt but rather a formal notification from the SEC indicating its intent to recommend enforcement action against a company or individual. In Robinhood’s case, the SEC alleges potential violations of Sections 15(a) and 17A of the Securities Exchange Act of 1934, as amended. This notice follows a prior SEC investigation into Robinhood Crypto’s cryptocurrency listings, custody practices, and platform operations.
Dan Gallagher, Robinhood’s chief legal, compliance, and corporate affairs officer, emphasized the company’s stance, stating, “We firmly believe that the assets listed on our platform are not securities and we look forward to engaging with the SEC to make clear just how weak any case against Robinhood Crypto would be.” Despite the Wells notice, Robinhood remains resolute in its position regarding the nature of the assets listed on its platform.
The receipt of a Wells notice can have multifaceted implications for both the company and its investors. From a financial perspective, Robinhood could face increased legal costs associated with defending against potential enforcement actions. Moreover, the company’s reputation may suffer, potentially leading to decreased investor confidence and stock price volatility. However, it’s essential to note that a Wells notice does not guarantee the ultimate filing of enforcement actions, and the outcome of any regulatory proceedings remains uncertain.
Following the announcement, Robinhood’s stock experienced a brief downturn in pre-market trading, dropping as much as 9%. However, the stock quickly rebounded after the opening bell. Year-to-date, Robinhood’s stock has seen substantial growth, up more than 43%, while bitcoin futures have climbed over 50%. The market’s reaction underscores the uncertainty surrounding the potential implications of the Wells notice on Robinhood’s future performance.
As Robinhood prepares to navigate the regulatory landscape in response to the Wells notice, investors should closely monitor developments and assess the potential impact on the company’s operations and financial health. While uncertainties loom, Robinhood’s proactive approach and commitment to engaging with the SEC signal its intent to address regulatory concerns head-on. Ultimately, the resolution of this matter will shape the trajectory of Robinhood’s journey in the crypto space and its relationship with investors moving forward.
The long-awaited arrival of SEC-approved bitcoin exchange-traded funds (ETFs) promises to open the floodgates for mainstream investor exposure to the world’s largest cryptocurrency. After years of rejections and delays, the SEC appears ready to finally allow spot bitcoin ETFs that hold the digital asset directly.
This stamp of regulatory approval positions bitcoin to go fully mainstream in 2024. Financial advisors can now more easily allocate client assets into bitcoin through the familiar ETF wrapper. Major financial institutions and retirement accounts like 401(k)s will likely broaden access as well.
For crypto-curious investors, a spot bitcoin ETF offers a simpler way to gain exposure without dealing with digital wallets and exchanges. But navigating this new ETF landscape won’t be easy. Here’s what investors need to know:
Shop Around for Fees
Dozens of issuers have spot bitcoin ETF filings awaiting SEC approval. With so much competition, expense ratios are plunging. Several issuers like ARK Invest and Bitwise have waived fees completely for six months. Others range from 0.25% to over 1%. Pay close attention to fee structures, which will vary greatly between issuers.
Monitor Premiums and Discounts
While bitcoin itself is highly liquid, new ETFs may deviate from their net asset value or trading price. Factors like redemption policies and authorized participant rules could cause ETF shares to trade at small premiums initially. Keep an eye on premium/discount behavior, favoring ETFs that demonstrate efficient trading and tight spreads.
Consider Futures-Based ETFs Too
Spot bitcoin ETFs remove the futures curve drama, but don’t ignore futures-based funds. The ProShares Bitcoin Strategy ETF (BITO) has built a solid track record since launching in October 2021. Futures-based strategies could still make sense for tactical traders and institutional investors, despite added complexity.
Temper Short-Term Expectations
Bitcoin ETFs are unlikely to immediately trigger massive inflows from retail and institutional investors. Assets may reach $10 billion this year, but that’s tiny compared to bitcoin’s $900 billion market cap. Widespread adoption will take time as investors wait and see how these new products function.
Beware the Crypto Bubble
While bitcoin has rebounded from its 2022 lows, speculative excess still persists. Hundreds of altcoins with no utility or differentiators have billion dollar valuations. Cryptocurrency markets remain prone to volatility and hype cycles. ETFs offer exposure, but be wary of parabolic rallies.
Think Long-Term Store of Value
The bitcoin blockchain and protocol aren’t going away. Only 21 million BTC can ever be mined. Consider using ETFs as part of a diversified portfolio focused on bitcoin’s potential as a long-term store of value, similar to gold. But also be prepared for 50%+ drawdowns during times of market stress.
Look Beyond Bitcoin
Bitcoin ETFs are just the beginning. The SEC has yet to approve ETFs holding other major cryptocurrencies like ether and solana. If these are eventually permitted, diversified crypto ETFs could become an enticing one-stop shop. Institutional investors are already trading cryptocurrency index funds tracking a basket of assets.
Understand the Tax Implications
Cryptocurrency remains subject to complex U.S. tax rules that classify it as property. Investors must pay capital gains taxes whenever selling at a profit, including cashing out of ETFs at a higher bitcoin price. Long-term tax rates are more favorable. Financial advisors can help craft tax-smart crypto strategies.
See How Institutions Respond
Large asset managers and financial institutions will need time to evaluate these new products before allowing clients access. Their embrace could drive billions in inflows. But if major players bar access or remain cautious, retail adoption may lag. Pay attention to their stance.
Approval of spot bitcoin ETFs removes a huge roadblock to mainstream crypto investment. But it’s still early days. As investors navigate this rapidly evolving landscape, following prudent portfolio strategies and avoiding FOMO will be key to capitalizing on this milestone.
The US Securities and Exchange Commission (SEC) has implemented a major shift in the $26 trillion US Treasury market, adopting new regulations aimed at reducing systemic risk by forcing more trades through clearing houses. This overhaul, approved on December 13th, 2023, marks the most significant change to this global benchmark for assets in decades.
The Need for Reform:
In recent years, the Treasury market has experienced periods of volatility and liquidity concerns. The COVID-19 pandemic in 2020 highlighted these vulnerabilities, as liquidity all but evaporated during the initial market panic. This prompted calls for reform, with the SEC identifying the need to increase transparency and reduce counterparty risk.
Central Clearing: The Centerpiece of Reform:
The core of the SEC’s new rules revolves around central clearing. A central clearinghouse acts as the intermediary for every transaction, assuming the role of both buyer and seller. This ensures that trades are completed even if one party defaults, significantly minimizing risk.
The new regulations mandate that a broader range of Treasury transactions now be centrally cleared. This includes cash Treasury transactions as well as repurchase agreements (“repos”), which are short-term loans backed by Treasuries. Additionally, clearing houses must implement stricter risk management practices and maintain separate collateral for their members and their customers.
Phased Implementation:
Recognizing the complexity of implementing such a significant change, the SEC has provided a phased approach. Clearing houses have until March 2025 to comply with the new risk management and asset protection requirements. They will have until December 2025 to begin clearing cash market Treasury transactions and June 2026 for repo transactions. Similarly, members of clearing houses have until December 2025 and June 2026, respectively, to begin clearing these transactions.
Industry Concerns and Potential Impact:
While the SEC’s initiative aims to enhance the safety and stability of the Treasury market, some industry participants have voiced concerns. The primary concern revolves around the potential increase in costs associated with central clearing. Clearing houses charge fees for their services, which could be passed on to market participants. Additionally, the requirement for additional margin, which serves to limit risk, could also lead to higher costs.
Another concern is the potential impact on liquidity. Some critics argue that mandatory clearing could lead to a decrease in liquidity, particularly during times of market stress. This is because central clearing adds another layer of bureaucracy to the transaction process, which could discourage some market participants from trading.
Furthermore, there are concerns about the potential concentration of risk in clearing houses. If a major clearing house were to fail, it could have a devastating impact on the entire financial system. To mitigate this risk, the SEC has implemented stricter capital and risk management requirements for clearing houses.
The Road Ahead:
The implementation of these new regulations will undoubtedly impact the US Treasury market. While the long-term effects remain to be seen, the SEC’s goal is to create a safer and more resilient market for all participants. The phased approach allows for a smoother transition, giving market participants time to adjust to the new requirements.
The success of these reforms will depend on several factors, including the effectiveness of implementation by clearing houses and market participants, the ongoing monitoring and oversight by the SEC, and the overall economic environment. Only time will tell whether these changes will achieve their intended goal of enhancing the stability and efficiency of the US Treasury market.
Additional Considerations:
The SEC’s decision to exempt certain transactions, such as those between broker-dealers and hedge funds, has garnered mixed reactions. Some argue that this creates loopholes and undermines the effectiveness of the reforms. Others contend that it is a necessary concession to address industry concerns and avoid stifling market activity.
The implementation of these new rules will also require close collaboration between the SEC, clearing houses, and market participants. Clear communication and education will be essential to ensuring a smooth transition and maximizing the benefits of these reforms.
Ultimately, the success of these changes will hinge on their ability to strike a delicate balance between enhancing safety and maintaining market efficiency. Only time will tell if this major overhaul of the US Treasury market will ultimately achieve its intended objectives.
Securities regulators have leverage risks in the multi-trillion dollar US Treasuries market back under the microscope. Recent remarks by Securities and Exchange Commission (SEC) Chair Gary Gensler signaled renewed urgency around curtailing destabilizing trading practices in the world’s largest bond market.
In a speech to financial executives, Gensler emphasized the systemic dangers posed by excessive leverage use among institutional government bond traders. He pointed to stresses witnessed during this year’s regional banking turmoil as a reminder of such hazards manifesting and causing wider contagion.
Regulators worry traders combining high leverage with speculative strategies in Treasuries could trigger severe market dysfunction during times of volatility. This could then spill over to wreak havoc in the broader financial system given Treasuries’ status as a global haven asset class.
Gensler advocated for SEC proposals intended to impose tighter control over leverage and trading risks. These include requiring central clearing for Treasuries transactions and designating large proprietary trading institutions as broker-dealers subject to higher regulatory standards.
The SEC chief argues such reforms are vital to counterbalance the threat of destabilizing blowups in a foundational market underpinning global finance.
Among the riskier trading plays under scrutiny is the so-called basis trade where leverage magnifies bets exploiting slight pricing variations between Treasury futures and underlying bonds. While providing liquidity, regulators fret the strategy’s extensive borrowing leaves it vulnerable to violent unwinding in turbulent markets.
Warnings around the basis trade have intensified given concentration of risks among influential bond trading heavyweights. US regulators demand greater visibility into leverage levels across systemically-important markets to be able to detect emerging hazards.
Overseas authorities are also tightening oversight of leveraged strategies. The Bank of England recently floated measures to restrain risk-taking in British government bond markets that could destabilize the financial system.
However, Wall Street defenders argue the basis trade fulfills a valuable role in greasing trading and provides resilience during crises. They point to the strategy weathering last decade’s pandemic-induced mayhem in markets without mishap.
But SEC leadership remains unconvinced current patchwork regulation provides sufficient safeguards against excessive risk-taking. They emphasize the over-the-counter nature of Treasuries trading allows huge leverage buildup outside the purview of watchdogs.
Hence the regulatory push for greater transparency from large leveraged investors to facilitate continuous monitoring for dangers to system stability. Furthermore, shorter settlement timelines being phased in are meant to curb risk accumulation in the opaque Treasury secondary market.
While largely supportive of the abbreviated settlement schedule, Gensler noted challenges still abound on the foreign exchange side that demand close tracking.
Overall, the revived warnings from America’s top securities regulator underscore enduring concerns post-2008 crisis reforms did not fully address leverage-fueled excess in Treasury markets. Keeping a tight leash on potentially destabilizing trading practices remains a clear priority for policymakers focused on securing the financial system against shocks.
The SEC May be Poised to Become more Accommodating to Cryptocurrency
In what is being reported as a developing story that can significantly impact securities and crypto regulation, rumors are circulating that SEC Chair Gary Gensler may be on the way out as head of the agency. The reports are pointing to Hester Pierce as the most likely person to replace him. How would this impact public markets and the future state of cryptocurrency regulation? We discuss these questions and thoughts below.
Background
Whale (@whalechart) is a crypto news provider with an account on the microblogging platform X. It is widely respected, with 363,000 followers. Whale announced this morning (August 14), “SEC Commissioner Hester Peirce is being considered to replace Gary Gensler as the head of the regulatory agency.” This small post (or tweet) has triggered waves of speculation about the upcoming course of securities regulation for both registered products and cryptocurrencies like Bitcoin.
Ms. Peirce is known for her strong support of innovation and outside-the-box thinking. She has been a commissioner of the SEC since 2018, appointed by President Trump. Pierce is a former academic and lawyer who has specialized in securities law and financial regulation. She is known for her views on the regulation of cryptocurrencies and other emerging technologies.
What the SEC May Look Like Under Hester Pierce
Peirce, who has a reputation as being pro-innovation, has been a bold advocate for embracing disruptive technologies like cryptocurrencies and blockchain. If the rumors are accurate and she does find her way to the position of top securities cop, it could signal a shift towards a more accommodating regulatory stance, with a leader whose thoughts on fintech and digital assets are known.
If the days are indeed numbered for the SEC’s current head Gary Gensler, the traditional and digital asset markets would mainly view this as a positive. President Biden’s appointee, Gary Gensler, has been a catalyst behind the intensified scrutiny and rule-making within the overall cryptocurrency realm. His time in the position has led the SEC’s tightening its grip on digital asset exchanges and clamping down on many Initial Coin Offerings (ICOs).
Gensler has been acting to protect consumers, but many critics argue that the SEC under his lead, has been led to too much interference in free markets. With Peirce potentially in the drivers seat, the probability of the regulator embracing crypto assets in a less restrictive way increases dramatically.
Those impacted the most by a changed SEC head have weighed in already with diverse ideologies and opinions. Advocates assert that her penchant for innovation could sow the seeds for heightened financial growth. They contend that a friendlier regulatory outlook might be the medicine needed to embolden new ideas and investors to explore new opportunities – this, they say, could give the economy a lift.
Those opposed to a Hester Peirce nomination warn against a looser regulatory environment that could leave investors exposed to heightened risks. Their call is for the SEC to remain a vigilant guardian of investor interests, standing as a wall against potential deceit or market manipulation.
As the news regarding Peirce’s probable elevation continues to spread on social media and in articles like this, the pressing question many market participants are trying to discern is, will the SEC take a gentler road to new tech innovations or will it hold overly tight to its role concerning investor safety? If the change happens, there could be a celebratory bump in the value of crypto assets and others.
Image: Gary Gensler on Bloomberg TV, July 27, 2023
SEC Chairman Pushes for More Crypto Cops on the Beat
Gary Gensler, the SEC chair, was asked on Bloomberg TV whether the efforts to protect the consumer related to cryptocurrency are complicated by non-compliance and lack of growth in the agency’s staff. Gensler discussed the need for more enforcement of current laws and lively debate with Congress to create new rules, “the capital markets really wouldn’t work without cops on the beat and rules of the road,” replied the SEC chair.
During his discussion on July 27, the head of the SEC demonstrated the Commission is still taking aim at the crypto markets despite what is seen as legal setbacks related to its authority. Gensler said that the cryptocurrency sector remains underhanded and unregulated. “The securities laws are there to protect you, and this is a field rife with fraud, rife with hucksters. There are good-faith actors as well, but there are far too many that aren’t.”
The overall theme of the conversation is that the crypto asset class lacks adequate protections for investors.
Gensler calmly appealed to investors not to assume that they are getting full protection despite the securities laws applied to many tokens in the crypto space. “A lot of investors should be aware that it’s not only a highly speculative asset class, it’s also one that they currently should not assume they are getting the protections of the securities law,” he said. He alleged that some crypto platforms were “co-mingling and trading against” investors.
As it relates to crypto exchanges and how they operate, the SEC chair said crypto violates laws that other exchanges abide by. “You as investors are not getting the full, fair, and truthful disclosure, and the platforms and intermediaries are doing things that we would never in a day allow or think the New York Stock Exchange or NASDAQ would do,” declared Gensler.
Earlier this month, a U.S. judge ruled that Ripple did not break securities law by selling its XRP token on public exchanges. The decision sent positive ripples through the entire crypto market and sent the value of XRP soaring. If tokens can not be deemed securities, transactions within the asset class may not fall under the SEC at all. This leaves open the question of who will regulate and oversee crypto and its exchanges.
Take Away
SEC chair Gary Gensler warned investors in late July about the lack of regulation for cryptocurrencies. He told Bloomberg TV the sector was rife with “fraud” and “hucksters,” leaving investors at risk. Gensler made listeners aware that some crypto platforms were “co-mingling and trading against” investors.
It is likely that there will ultimately be regulation handed down from Congress and enforced by an agency, which may include self-regulation, but after the Ripple decision, the oversight will not automatically be from the SEC. It appears Gary Gensler has taken to the interview circuit in order to sway opinion in favor of the SEC.
What if you bought a new home in what has historically been a trouble-free neighborhood? You are not one to take big risks with your family or belongings so you also pay extra for what are expected to be the best locks, install a security camera, motion detector lights, and build a state-of-the-art fence behind which sits your German shepherd named Patton. The first week after you move in, a town representative comes by and tells you that they are worried about your safety, so you and everyone else in town must also spend a little money each month on an alarm system they approve of. To you, even this small amount of money is a waste as Patton is generally always on the job, you have ample protection in other ways, and the extra money is better spent on dog food.
This is what many investors feel the SEC has just done by changing the already extremely low-risk rules for money market funds this week. These investors believe they already had ample safety in the “cash” allocation and may have already given up return in order to secure that safety. So the forced added layer of protection to MM funds, which have in over five decades only seen two funds in the asset class inch down in value, is an example of a regulator forcing them to pay for the protection they don’t need.
Money Market Fund Background
Money market funds are governed by the SEC under rule 2a-7 of the Investment Company Act of 1940. These rules are very specific in defining the underlying assets in the fund. The most common use of MM funds, and the restrictions governing the holdings, is to provide a very liquid alternative that can be viewed as cash among your other investments. Fund families at times use their MM funds as a funnel or gateway investment from which they hope to have investors venture beyond to other higher fee offerings.
Money market funds, typically purchased through a broker, are not insured, but the extremely high credit quality of underlying securities required by the SEC, along with the very short average maturity required by the SEC, along with the amount each fund is required by the SEC to hold in overnight investments, has provided investors with a very low-risk harbor for balances that may be used as savings, or as a parking place while waiting for more aggressive investment opportunities.
Unlike other mutual funds, where investors buy shares and over time the share price changes, money market funds shares are valued at $1.00. When the underlying investments accrue or pay interest, the non-fee portion of income is credited to account holders as a share dividend, always valued at $1.00. In this way it is designed to feel like a bank savings account. This minimal risk, savers to the tune of trillions of dollars, endure in exchange for higher returns than available in a bank passbook account, and the convenience of transferring money to purchase other investments.
What is the risk of a 2a-7 money market fund breaking the buck? You can count on two fingers. Since the first money market fund came to market in 1971, it has briefly occurred in two funds, and no investors lost money.
The first time a MM fund broke the buck was in 1994, a fund named Community Bankers U.S. Government Money Market Fund saw it’s NAV plummet from $1.00 to $0.96. This was after financial engineers at top Wall Street investment banks created derivative instruments that were far from liquid, and stopped accruing interest if markets didn’t perform as expected. Imagine being the first MM fund manager in history to drop below $1.00 because you disregarded prudence.
The second time was in 2008. The Reserve Primary Fund held Lehman Brothers commercial paper (very short-term notes). On September 16th of that year the fund company announced it had suffered losses in the fund to the extent that assets fell below $1.00 per share to $0.97.
The U.S. Treasury Department guaranteed the $1.00 share price in 2008 to prevent a run on MM funds. And in both occurrences, fund companies, in order to restore faith in their other products, made sure money fund holders were whole by redeeming shares when requested at $1.00.
SEC New Rules for Money Funds Beginning October 2023
In 2010 The SEC created new rules to enhance transparency, liquidity, and bolster the credit quality of MM funds. Despite having only experienced two brief brushes with breaking the buck.
The new rules for 2a-7 SEC-regulated money funds (any fund with “money” in the title is regulated under 2a-7) included that daily maturities must equal at least 10% of the fund. And further, each week at least 30% of the fund notes need to mature. The weighted average maturity of all holdings in any non-government MM fund can not extend longer than 60 days, down from 90 days. The rules essentially were a safe cash alternative and made it super safe, and along the way, they rduced average return to the investors.
A reminder, there has not been an incident since the new rules, but there was some concern in 2020 as the financial system took measures in response to the novel coronavirus.
On July 12, 2023 the SEC announced it has decided that investors in MM funds need to be protected even better. Or perhaps it is better protecting the fund industry by adding extra safety measures that they all have to play by, giving none a real competitive advantage, and increasing their competitiveness against FDIC insure bank money funds. Either way, it is sure to lower, once again, the interest rates paid on the average MM fund. Considering interest rate compounding and the time value of money, investors this coming October will begin “paying” more for protections than they are probably worth.
The SEC explained its reasons for the added protection.“Money market funds – nearly $6 trillion in size today – provide millions of Americans with a deposit alternative to traditional bank accounts,” said SEC Chair Gary Gensler. “Money market funds, though, have a potential structural liquidity mismatch. As a result, when markets enter times of stress, some investors – fearing dilution or illiquidity – may try to escape the bear. This can lead to large amounts of rapid redemptions. Left unchecked, such stress can undermine these critical funds. I support this adoption because it will enhance these funds’ resiliency and ability to protect against dilution. Taken together, the rules will make money market funds more resilient, liquid, and transparent, including in times of stress. That benefits investors.”
The SEC finalized the most recent amendments to Rule 2a-7 on July 12, 2023. The amendments are designed to improve the resilience and transparency of money market funds by:
Requiring money market funds to impose a mandatory liquidity fee of 2% when daily net redemptions exceed 5% of total assets.
Increasing the minimum daily liquid asset requirement from 10% to 15% of total assets
Increasing the minimum weekly liquid asset requirement from 30% to 35% of total asset
Giving money market fund boards the discretion to impose a liquidity fee if daily net redemptions exceed 2.5% of total assets.
Beginning in October 1, 2023, money market funds will also disclose more information about their liquidity risk, including the daily and weekly liquid asset requirements, the amount of liquidity fees imposed, and the reasons for imposing liquidity fees.
What Could the Impact Be?
In economics, everything has an impact. To address redemption costs and liquidity concerns, the amendments will require institutional prime and institutional tax-exempt money market funds to impose liquidity fees when a fund experiences daily net redemptions exceeding 5 percent of net assets, unless the fund’s liquidity costs are de minimis. This alone could cause investors to try to be first to the door if trouble is perceived thereby increasing the number of runs on these low-risk funds. The shorter average maturity, and higher percentage of holdings held maturing in one day and seven days will also reduce earnings in a normal sloping yield curve environment.
In addition, the amendments will require any non-government money market fund to impose a discretionary liquidity fee if the board determines that a fee is in the best interest of the fund. This could be perceived as the funds management punishing investors for expecting a MM fund to provide liquidity on demand. It could also have the impact of funds taking more chances, as the fund manager knows that if a sudden withdrawal spree occurs and a large percentage of their holdings have gone down in value, they can charge customers for wanting their money.
Take Away
When it comes to investing, risk versus return is a top consideration. Many investors know this and are concerned that regulatory bodies try to protect investors from the downside of risk. By doing this they shield investors from the benefits of risk. It can be argued that some IPOs may not be suitable for every investor, but should ultra-safe money market funds be further shored up at an ongoing cost in return, to reduce the unlikely day when they may lose 3 cents a share? Write to me and let me know what you think.
Why Issuer-Sponsored Research Has Become a Priority in the UK (and US)
Why are the United Kingdom, The United States, and other countries providing an atmosphere that helps promote company-sponsored research?
Last year the SEC issued a report that was required by Congress on issues affecting the investment research of small companies. Last week the UK accepted, in its entirety, a recommendation on issuer-sponsored research. Both countries recognize the needs of investors, issuers, and the overall economy. Investors and issuers ought to be particularly interested in these changes and how they’ll improve the financial system.
Investment Research
Research is like the grease in the capital markets that keeps money from being stuck. It can be categorized into three types: sell-side research, buy-side research, and independent research.
Sell-side research is provided by full-service broker-dealers for clients to consume.
Buy-side research is created by institutional money managers for in-house use to help them make investment decisions on the money they manage.
Independent research is provided by firms that are neither broker-dealers nor institutional money managers, this service is paid for by investors or at no cost to investors as the company that has issued the security has sponsored the analysis.
Analysts often specialize in a specific industry and will regularly provide research on companies within that industry. This research includes written reports that discuss market developments, financial projections, target prices, and overall ratings or recommendations (such as buy, hold, or sell). The specific content and terminology used in research reports will vary.
These research reports can be published at any time, especially in response to important corporate events like earnings releases. While sell-side and buy-side research may have limited distribution, independent research is more widely available to money management firms and individual investors.
Research helps investors gain clarity about a company and its prospects. It can provide interpretations of significant events related to the company, such as media coverage or predictions from other analysts. Individual investors can also benefit from research reports by using them as part of their overall investment decision-making process.
In addition to producing written research reports, research providers may also assist issuers by arranging meetings or conference calls between investors and the senior management of companies. These roadshows help allow better understanding and communication between investors and the companies they may be interested in.
Overall, research is essential in the capital markets, it provides valuable information and insights that help investors make informed decisions about their investments. It helps reduce uncertainty and allows investors to assess the potential risks and rewards associated with different investment opportunities.
Analysts can also introduce or express their opinions about specific of covered companies using other forums such as video interviews, print media, or investor/issuer conferences. Additionally, sell-side analysts who work for broker-dealers that offer investment banking services may, within regulatory guidelines, be involved in investment banking transactions.
Benefits to Issuer
Research helps investors by discovering and delivering important information about companies. Well-rounded investors consider research an important part of the information they use to make investment decisions, including staying up to date on analyst forecasts for the company and industry, management forecasts, earnings announcements, and SEC filings. This fosters improved liquidity, which benefits price discovery and execution on demand.
According to the Congressionally mandated SEC report titled Staff Report on the Issues Affecting the Provision of and Reliance Upon Investment Research Into Small Issuers, research coverage of a company positively affects the liquidity of its stocks. When a company loses analyst coverage, its stock liquidity can decrease. This decrease in liquidity is more pronounced for smaller companies with fewer analysts covering them. Research coverage also helps investors recognize and pay attention to companies, which affects their value. Investor attention can be gained by engaging research and analysis firms to initiate coverage to gain investor attention.
Excerpt from the Securities and Exchange Committee Report, February 2022, (page 11):
“Studies have shown that research coverage of an issuer is positively related to its stock liquidity and that a reduction in research coverage of an issuer may reduce its stock liquidity. For instance, one study found that issuers that lose analyst coverage for at least one year suffer a ‘significant deterioration in bid-ask spreads, trading volumes, and institutional presence.’
Other studies have found that the reason for this deterioration is that decreases in analyst coverage increases information asymmetry, which can cause issuers to switch to financing that is less sensitive to information asymmetry, including decreasing their use of equity and long-term debt, or cause issuers to decrease their total investment (e.g., capital, research and development and acquisition expenditures) and financing. This decline in liquidity was shown in one study to be more significantly pronounced for smaller issuers, issuers with relatively less analyst coverage, and issuers with a bigger increase in information asymmetry resulting from the loss of an analyst.”
According to the SEC report, research analysts also serve as a comfortable third-party mechanism by monitoring a company’s management. Their scrutiny increases transparency and makes it harder for managers to engage in self-dealing activities. Analysts monitor financial statements, ask questions during earnings announcement conference calls, and distribute information to investors, helping detect any misconduct by management.
When a company loses analyst coverage, according to an SEC review, markets anticipate an increase in agency costs, such as the misuse of cash reserves by managers. The number of analysts covering a company is related to the compensation of chief executive officers and the likelihood of value-destructive corporate acquisitions. Decreased analyst monitoring is also associated with increased earnings management by companies.
The UK Goes All In
On July 10, 2023, the UK formally announced they are on a mission to improve capital markets. A large segment of the new, self-imposed mandate includes the consensus that investment research is an important part of the UK public capital markets and that the availability and quality of expert analyst research is significant in attracting (and retaining) issuers and investors. The Chancellor of the Exchequer is adopting seven action items aimed at “protecting and developing the UK as a centre of excellence for investment research.”
The report states that introducing a research platform to help generate research would help improve research coverage and would help promote a greater interest in smaller cap companies where there is currently a scarcity of research coverage.
The plan is to allow additional optionality for paying for investment research. And would address some of the unintended consequences of the MiFID II unbundling requirements, this aims to increase choices regarding payment for research to permit asset managers to pay for research on a bundled basis and to ensure that UK investment managers remain able to procure research from elsewhere, particularly from the US.
Retail investors have always been at a disadvantage, the UK mission supports greater access to investment research for retail investors, helping to level the playing field.
In developing a research platform open to all, the UK wishes to involve academic institutions and explore situations to strengthen the collaboration between universities and the capital markets ecosystem.
By providing rules, boundaries, and guidelines, the UK believes it can support issuer-sponsored research by implementing a code of conduct.
The Uk wishes to clarify aspects of the UK regulatory regime for investment analysis or better define it to help simplify access to investment research.
And the last on the UK’s “To Do” list is to review the rules relating to investment research in the context of IPOs with the following points to consider:
Changing the FCA Conduct of Business Rules, introduced in 2018, designed to encourage unconnected research analysts to produce research in connection with IPOs. These rules have not had the desired effect of increasing IPO coverage by unconnected analysts but have consequentially extended the UK IPO timetable, putting the UK at a competitive disadvantage.
Making IPO-connected analyst research available on a basis similar to the prospectus so that all investors can access the same information.
Lower the current restrictions on analysts meeting potential IPO candidates prior to an investment bank being mandated on the IPO are also seen as putting the UK at a disadvantage to other listing venues.
Take Away
Investor access to investment research is important to the capital markets system as it helps money to flow much more easily where needed. Offerings that are better understood and have an additional layer of third-party oversight can attract more needed capital. This reality has been echoed by the SEC and the UK regulatory bodies.
Third-party investment analysis particularly helps smaller companies that may be less understood, as studies show, research coverage improves liquidity among small cap stocks. Investors, particularly retail, benefit from unbiased research and are more likely to make decisions on companies they believe they have a firm understanding of.
All in all, the UK and US authorities understand research provides valuable benefits to investors and the market as a whole. It enhances stock liquidity, increases investor recognition of companies, and serves as an external governance mechanism by monitoring and deterring managerial misconduct.
To have free access to small and microcap company research from the veteran equity analysts at Noble Capital Markets, sign-up here. If you are responsible for the investor relations of a company that may benefit from well-respected coverage, please contact Channelchek here for more information on company-sponsored research.
Image: Securities and Exchange Commission, March 2019 (Flickr)
Is this the Most Aggressive SEC Ever? Former Commission Head Thinks So
Gary Gensler was nominated head of the Securities and Exchange Commission just after SEC Chairman Jay Clayton stepped down on December 23, 2020. Cryptocurrency exchanges welcomed the incoming Chair’s appointment as “Gensler unites a pro-regulation history with a pro-crypto viewpoint, and could finally implement the regulatory clarity many in the industry have desired,” said an opinion piece published in Coinbase two months after. It has now been two years, and Chair Gensler’s predecessor, in his new role, shared his views and criticisms this week.
Former SEC chairman Jay Clayton, who is now working in the private sector, said he believes government regulators could do a much better job serving investors and the broader financial markets. The comments came during an address (June 7) in Orlando as he spoke at the BNY Mellon Pershing Insite 23 Conference. In his talk, Clayton highlighted big differences between the SEC under the Biden administration in comparison to the Trump presidency.
“I think it’s pretty clear we’re in a very highly business-skeptical and commercial-skeptical regulatory environment,” he said. “Any time you go to extremes, either way, you get more bad than good.”
Clayton, is now the nonexecutive chair at Apollo Global Management, a large alternative asset manager. He held the position of SEC chairman from May 2017 through December 2020. He believes the regulatory whiplash leaves anyone participating in the financial markets with more questions than answers.
“People don’t know what is really happening, how long it is going to last, and what they should do about it,” he said in reference to what has been described as the most aggressive SEC ever.
Clayton acknowledged that his business is with an alternative investment house, and that he might be accused of “talking his book” as a representative of a firm that manages private investments, but explained that he believes retail class investors are being locked out of suitable investments. He believes there should be a democratization of alternative investments, which has been an SEC focus. The accredited investor policies may not be best for the average person planning for the future.
“Capital formation these days largely comes from outside the public markets, yet the investing public is largely held outside those private markets,” he said. “All investors should have access to a portfolio that looks like a well-managed pension fund. With the help of a lot of the people in this room, I think we’re going to be able to do it,” he optimistically said addressing the large group from the wealth management industry.
He called on investment management firms to do their part to help regulators by making an effort to create products that are more broadly suited to the full universe of investors. Clayton took particular issue with the current accreditation rules. Saying the 40-year-old accredited investor rule doesn’t jive with today’s reality, an environment where individual investors are largely responsible for their own retirement income.
The former SEC head pointed out what he thought to be absurd, mentioning qualified retirement accounts (401k, 403b, IRAs) that give retail investors access to highly liquid mutual funds and perhaps ETFs, but not less liquid investments that would be better suited for long-term investing objectives.
“You’re paying for liquidity that you don’t need and can’t access,” Clayton said. “Pick a target-date fund, for example, why wouldn’t there be a sliver of privates or alternatives in there? If I’m a 401(k) investor, I should be able to get something that looks like a Calpers portfolio. Why wouldn’t you have a 10% slice of privates in your retirement portfolio when you’re 50 years old?” He said referring to the large institution managing the California teachers retirement portfolio.
Take Away
The former SEC head Jay Clayton believes that the sharp move from lowering regulatoryinvestment hurdles, to erecting the most aggressive in history under the current leadership of Gary Gensler, is bad for investors. He doesn’t argue strongly for either side, as much as he is against sudden changes and the impact it has on investors.
Clayton also supports alternative funds for the average retail investor, especially as it relates to long-term savings such as retirement accounts.
Insite23, the investor conference Jay Clayton was addressing in Orlando, FL, draws wealth management professionals from across the US. This coming December, the Channelchek-sponsored investor conference, NobleCon19 will be held in Boca Raton, Fl. This annual conference, in its 19th year, draws institutional and self-directed investors from beyond the US, who wish to attend presentations, breakout sessions, and panel discussions with CEOs, and even former government leaders. Those attending this year’s NobleCon will get to assess lesser-known investment opportunities along with the current investment climate. Attendees can look forward to two days filled with actionable opportunities explained by those with direct knowledge at the company’s helm.
For information on attending Nobecon19, sponsoring, or presenting, click here.
Gary Gensler’s SEC Files 13 Charges Against Changpeng Zhao and His Company Binance
In a pair of press releases, one from the Securities and Exchange Commission, and the other from Binance, the world’s largest cryptocurrency exchange, there were charges, allegations and answers fired back and forth. The SEC named the founder and CEO of Binance, Changpeng Zhao as a defendant in the suit. Binance quickly shot back how disappointed Binance is that 13 complaints were filed against the company.
Allegations
The SEC press release indicates that they are suing Binance and founder Changpeng Zhao for misusing customers’ funds and for diverting funds to a trading entity that Zhao controlled called Sigma Chain. It further charges Sigma Chain for engaging in fraudulent trading that made Binance’s volume appear larger than it actually was.
Among the charges, Binance is also supposed to have concealed that it commingled billions of dollars in customer assets, sending them to a third-party, Merit Peak, which was owned by Zhao.
The SEC filed the case in federal court in the District of Columbia. Binance engaged in “blatant disregard of the federal securities laws and the investor and market protections these laws provide,” the regulator wrote in its court complaint.
Binance said in a written statement that it intends to defend its platform and denied allegations that user assets on the Binance.US platform were ever at risk. “All user assets on Binance and Binance affiliate platforms, including Binance.US, are safe and secure, and we will vigorously defend against any allegations to the contrary,” the company said. Binance.US also said it would defend itself against the litigation.
Binance alleges that because of their size, they are a target for the US regulator. The company expressed concerns through a press release that despite cooperating with the SEC, that a reasonable amount of time was not given on the most recent 26 different requests, and that they may have been intentionally burdensome. Binance said that despite its willingness to do whatever was necessary to address the US regulator’s concerns and take whatever reasonable steps they could, the SEC would not share any evidence it might have regarding its purported concerns, and the SEC rejected attempts at engagement, instead going straight to court. “It is now clear to us that the SEC’s goal here was never to protect investors, as the SEC has claimed—if that were indeed the case, the SEC would have thoughtfully engaged with us on the facts and in our efforts to demonstrate the safety and security of the Binance,” according to a company statement.
Channelchek will continue to follow and report on major news impacting this case and others of interest to the investment world. Various sources indicate that there does not appear to be any type of a run by customers from Binance, there are some reports that it is business as usual. Register here to receive our daily emails.
The Details of the Hindenberg Research Report Include Serious Allegations
A legal face-off may be brewing as Block (SQ), the other company co-founded by Jack Dorsey, calls on the SEC for what Block calls an “inaccurate report.” The report Block (formerly Square) is referring to was released by Hindenberg Research on March 23. The research contends that Dorsey’s fintech company showed, “willingness to facilitate fraud against consumers and the government, avoid regulation, dress up predatory loans and fees as revolutionary technology, and mislead investors with inflated metrics.”
What is each side claiming, and what is the responsibility in releasing a report that may take Hindenberg into a fight with a company with a $44 billion market cap?
Who’s Involved?
Block is a financial technology company specializing in mobile payments founded in 2009 by Jack Dorsey and Jim McKelvey. The company’s flagship product is a small, square-shaped credit card reader that plugs into a smartphone or tablet and allows businesses to accept credit and debit card payments. Block has added other financial products and services, including point-of-sale software, payroll processing, and business loans.
Hindenburg Research provides investors with investigative research and analysis for the purpose of helping them identify potential risks or fraudulent practices in publicly traded companies. They are described as a short-selling, research-based firm. The Research is often considered within the context of its short-position investment strategy.
Image: Block’s flagship product – Nat’l Museum of American History Smithsonian Institution (Flickr)
What is Hindenberg’s Claim?
The research firm with a reputation of looking below the surface for trouble at firms, says Block is not what it claims to be. According to the Hindenberg report, the Dorsey-founded firm claims to have developed a frictionless and magical financial technology. The mission of this technology, the report quotes Block as saying is to empower the “unbanked” and the “underbanked.”
Hindenberg says that over two years of investigation that involved dozens of interviews with former employees that Block has systematically taken advantage of the demographics it claims to be helping. This refers to the stated mission of helping the underbanked. Instead, the research firm says this stands in conflict with, “the company’s willingness to facilitate fraud against consumers and the government, avoid regulation, and dress up predatory loans and fees as revolutionary technology, and mislead investors with inflated metrics.”
The two years of investigation also indicated that Block severely overstated its user counts and has understated its customer acquisition costs. This information, the report says, is based on former employees’ estimation that 40%-75% of accounts they reviewed were fake, involved in fraud, or were additional accounts tied to a single individual.
They claim a key metric that investors use to value the company are unclear. That is, how many individuals are on the Cash App. The report accuses the company reporting of misleading “transacting active” metrics filled with fake and duplicate accounts. Hindenberg says, “Block can and should clarify to investors an estimate on how many unique people actually use Cash App.”
Hindenberg said the app is used for illegal activity and points to all the rap songs written about engaging in illegal activity, activity made possible with the help of the app. The research company even made a compilation video to demonstrate this point (link to video under “Sources” below).
A line in one of the songs is, “I paid them hitters through Cash App.” Heritage contests that Block paid to promote the video for the song called “Cash App” which described paying contract killers through the app. The song’s artist was later arrested for attempted murder.
According to the Hindenberg report, Block’s Cash App was also cited “by far” as the top app used in reported U.S. sex trafficking, according to a leading non-profit organization. Multiple Department of Justice complaints outline how Cash App has been used to facilitate sex trafficking, including sex trafficking of minors.
Beyond alleged facilitation of payment for crimes, the platform, former employees contend, is overrun with scam accounts and fake users. Examples of obvious distortions of user numbers is that “Jack Dorsey” has multiple fake accounts, including some that appear aimed at scamming Cash App users. “Elon Musk” and “Donald Trump” who have dozens of accounts in their names. Hindenberg contends they tested this flaw, “we ordered a Cash Card under our obviously fake Donald Trump account, checking to see if Cash App’s compliance would take issue—the card promptly arrived in the mail,” they gave as an example.
Block’s Response
Not to be dissed, management at Block called out the threatening press release. “We intend to work with the SEC and explore legal action against Hindenburg Research for the factually inaccurate and misleading report they shared about our Cash App business today.”
The Dorsey founded firm suggested that the research firm wrote the report for dubious reasons and that it may be part of an orchestrated reverse pump and dump, “Hindenburg is known for these types of attacks, which are designed solely to allow short sellers to profit from a declined stock price. We have reviewed the full report in the context of our own data and believe it’s designed to deceive and confuse investors.”
The company than comforted stakeholders saying, “we are a highly regulated public company with regular disclosures, and are confident in our products, reporting, compliance programs, and controls. We will not be distracted by typical short seller tactics.”
There’s Smoke, is There Fire?
Are the initial disparaging claims against Block’s business accurate? Is there merit to what Block says of Hindenberg Research? As Block may be seeking a legal remedy, it is unlikely that either party will be very vocal from here.
For investors, it’s logical that both parties cannot be right at the same time. One of the parties is overstating truth. If Block is indeed working with the SEC, this truth should eventually surface.
Social Media and Stock Message Boards Again Help Amplify Market Manipulators
There is an ongoing government investigation after the Securities and Exchange Commission (SEC) charged seven podcasters and social media influencers with stock market manipulation. The benefit to those charged totals near $114 million as they allegedly ran a pump while they were dumping scheme. According to the SEC, the charges are against eight Twitter users that also used stock trading message boards on Discord, and a podcast to promote specific stocks to “hundreds of thousands of followers.” Meanwhile, they are said to have quietly sold into the run-up they helped create in the stocks’ prices.
The fraud they are being charged with began at the dawn of the pandemic in January 2020 and involved participants from various locations, including defendants from Texas, California, New Jersey, and Florida.
The main podcaster named in the case (Knight) is suspected of and also charged in the illicit trading scheme as having used influence to promote the others as expert traders, according to the SEC. Among the most called upon stocks used in the alleged scheme were Gamestop (GME), and AMC Theaters (AMC) – two darlings of newer investors that saw a rise in popularity beginning during the stimulus check, lockdown period in 2020. This period in market history helped usher in many brand new investors with time to listen to podcasts, follow social media posts, enjoy market-related memes, and benefit from a rising overall market.
Source: SEC.gov
The criminal charges include conspiracy to commit securities fraud and, for several of the defendants, multiple counts of securities fraud. Each of the charges carries a maximum possible sentence of 25 years in prison. The Justice Department simultaneously filed separate criminal fraud charges against the defendants, the SEC said.
The SEC’s complaint calls for the US District Court for the Southern District of Texas to impose fines and to require that the defendants give up their allegedly ill-gotten gains, along with a ban on future misconduct.
The SEC’s Summary of the Scheme
From the SECs court filing:
The Defendants engaged in a long-running fraudulent scheme to manipulate
securities by publishing false and misleading information in online stock-trading forums, on
podcasts, and through their Twitter accounts. The Primary Defendants, aided and abetted by
Knight, engaged in a pattern of conduct, sometimes referred to as “scalping,” in which they
recommended the purchase of a particular stock without disclosing their intent to sell that stock.
They generally executed their scheme in three phases. First, one or more of the Primary
Defendants identified a security to manipulate (the “Selected Stock”) and purchased shares of
that particular security. By sharing the name of the Selected Stock among some or all of the
group, the Defendants provided each other with the opportunity to purchase shares at lower
prices prior to the manipulation. Next, they promoted the stock to their followers on podcasts
and/or social media platforms in order to generate demand and inflate the share price. Typically,
the Primary Defendants announced price targets, teased upcoming news about the company,
and/or stated their intention to buy shares or hold their current positions for longer periods.
Finally, after promoting the stock to their followers in these ways, the Primary Defendants sold
their shares into the demand generated by their recommendations. When the scheme succeeded,
the Primary Defendants were able to sell their shares at higher prices and make profits. In order
to cover up their scheme and continue perpetrating it, the Primary Defendants at various points
deleted old tweets and Discord chats, and lied to their followers about the reasons why particular
stock picks were followed by declines in the prices of those stocks, obscuring their own roles in
causing losses among their followers and other retail investors.
None of the Primary Defendants disclosed that they were either planning to sell,
or were actively selling, a Selected Stock while recommending that their followers buy it. Nor
did any of the Primary Defendants disclose that they were coordinating with each other to
manipulate the price and volume of trading in the stocks they were promoting. Moreover, the
Primary Defendants’ deception extended beyond their omissions and outright lies about their
intentions regarding, and views about, the securities they were promoting. For instance,
sometimes they peddled false or misleading news about particular stocks through social media or
podcast interviews. On some occasions, the Primary Defendants lied about losing money on a
particular stock when in reality they had profited handsomely, in order to generate trust among
their followers—trust that was necessary to perpetuate the scheme and ensure that their followers
would continue to purchase shares based on their future recommendations. Indeed, in private
chats and surreptitiously recorded conversations, they bragged and laughed about making profits
at the expense of their followers.
Defendants’ specific roles in the fraudulent scheme varied depending on the
timeframe and the specific security at issue. Typically, only a subset of the Primary Defendants
participated in the manipulation of a particular stock. Those Primary Defendants would agree on
a Selected Stock in which they would each establish a position (i.e., “load” or “load up” on the
stock). After loading up on the Selected Stock, most, if not all, of the Primary Defendants who
had established positions in that stock would recommend it to their followers. The Primary
Defendants often referred to “swinging” or taking a “swing” position in the stock, by which they
conveyed to their followers that they intended to hold onto the stock for at least a day and likely
longer. As the primary defendants involved in the deceptive heralding of a particular stock
often informed other defendants of their plans, those not directly promoting the stock could,
and many times did, take advantage of the advanced knowledge by purchasing the Selected Security, in
advance of the promotion, and selling the Selected Security at inflated prices that resulted from
the promotion. Over the course of the ongoing scheme, all of the primary defendants, aided and
abetted by Knight, engaged in this conduct, participating directly in scalping and other deceptive
conduct, and all of the Defendants profited from the knowledge that others were doing so.
The Primary Defendants deceptively promoted stocks through three channels:
stock-trading forums on Discord; podcasts; and Twitter.
Take Away
Fraud in the securities market is almost as old as the markets themselves. While the SEC exists to protect investors, the best person to protect oneself is yourself. When consuming investment advice, ask yourself how well you know where the advice is coming from. What is the persons background, for example, are they credentialed with a CFA or guided by the responsibilities that FINRA registrations enforce. Are they ranked by a third-party entity as to their stature?
The alleged pump and dump scheme being investigated and prosecuted by the SEC only exists because people tend to follow the crowd, after-all crowds seem safe. Successful long-term investing often involves more thought than following others into a trade. There are true stock analysts that can help investors sort through all the opportunities, but in the end, the individual investor still needs top ask if it makes sense, does it feel right, and it is likely to match investment goals.
On December 15, Channelchek along with veteran stock analysts, provided registered users of Channelchek their thoughts on a select few companies they cover. If you were not able to attend live, register for Channelchek emails (no cost) now to learn when these extremely insightful presentations will be available online. At a minimum, I promise one will immediately see the difference between a stock market social media influencer and how they make recommendations (tout stocks), and professional equity analysts that ignores hype and instead drills down to best assess the future prospects of a company. Sign up for Channelchek notifications here.
The Mid-Term Elections are Just One of the SEC’s Concerns
The mid-term elections have the potential to alter the course of the markets. It’s easy to recognize how the possible outcomes can cause changes to the overall economy, including industry sectors, fuel prices, and perhaps even national debt levels. But, one area that is less obvious could also impact investors in a big way, regulation. As election day is now days away, many regulatory changes that have been in the works are quickly coming to a head, with the expectations there may be a change in priorities, power, and philosophy. The push to get things through in the coming days may still be undermined by the U.S. system. Here’s why.
The U.S. Government at Work
Federal regulators are in scramble-mode working to finalize proposed rules before what appears will be a change in the balance of power in the legislative branch. The possibility that there may be a Republican-controlled Congress or the expected idea that the democrats will lose control over one of the branches of Congress would soften their ability to institute their aggressive agendas. As the agencies refine their proposals, they also have to be mindful that it isn’t just the new Congress that will be evaluating new regulations. The Supreme Court has recently taken a heightened interest in agencies overstepping their charter, that interest is likely to continue.
It’s easy to see how Congress whose job it is to decide where money is spent, can dampen the agenda of the Department of Education (DOE), Internal Revenue Service (IRS), Food and Drug Administration (FDA), or Gary Gensler’s plans at the Securities and Exchange Commission (SEC). But, the Supreme Court is also more than a casual observer and has shown how willing it is to make sure everyone stays in their defined lanes.
Recent SEC Initiatives
The SEC has a three-part mission that includes protecting investors, maintaining fair, orderly, and efficient markets, and facilitating capital formation. Under Gary Gensler, it has been working overtime to impact the changing marketplaces. The initiatives are considered by some to be beyond the scope of the SEC’s lawful mission.
Gensler, who was appointed by President Biden, has been extremely active. The former Chairman of the U.S. Commodities Futures Trading Commission (CFTC) and MIT economics professor is proposing or finalizing dozens of regulations. Some are minor alterations to existing rules, but many are complete redesigns of how they are handled now. This redesign may make it past an unenthusiastic Congress, as they have more pressing priorities, but they may experience an aggressive halt from the country’s Judicial branch.
Recent Supreme Court Actions
In June of 2022, the Supreme Court decided W. Virginia v. EPA. The decision struck down an EPA regulation fighting climate change. The decision was made based on the grounds that the rule violated the “major questions doctrine.” The Court had never used that term before, but it seemed evident that the court might use the term and intent of the phrase should it be called on to review other federal agencies and commissions.
The Court has the authority and now recent precedent to unwind regulation that goes beyond the original intent of Congress when an agency was created or any subsequent legal grants of authority. The 6-3 ruling against the EPA explained the Clean Air Act, designed for new power plant emissions, did not extend to existing plants requiring them to shift to wind or solar. It’s a nod by the Court to keep bureaucracies from growing beyond the express original legal reason for being.
The ruling also is relevant in that it looked at Congress’s unwillingness to legislate and legitimize the way that the agency chose to regulate. One Justice in a concurring opinion wrote the decision was in part based on whether the agency was “intruding” in a traditional area of state law.
How it Could Impact Investors
Under the major questions doctrine, several SEC efforts may become far more difficult.
One high-profile SEC goal involves environmental initiatives. Climate change activists have supported the SEC’s proposal to require companies to increase their disclosure of anticipated climate risks. But it would be difficult for the SEC to weigh its mission against this initiative and easily demonstrate that anyone has a great impact on the other (orderly markets, investor protection, capital formation). If environmental initiatives are to be carried out, they will need to be enacted by the representatives elected to legislate on behalf of citizens.
It is easy to see how priorities focusing more on fiscal restraint rather than environmental awareness could alter the investors playing field with a power change in the Capital building.
The so-called greening of Wall Street is just one example of how the elections will impact the coming year’s winners and losers in the stock market. Consider the SEC’s proposed rules for swaps, which are financial instruments that some investors use to speculate on securities. The SEC’s suggested rule would require public disclosure within a day of these transactions to the public. The proposed rule can be considered an unprecedented intervention in this multi-trillion-dollar market. The argument is strengthened by the reality that Congress could have authorized disclosure in the 2010 Dodd-Frank Act, but did not. The Supreme Court would be expected to rule on behalf of the laws as written.
Another SEC initiative also at risk is the proposed rule on “beneficial” ownership. Such a definition is important for a host of reporting obligations. The SEC is considering expanding what counts as ownership. But questions of ownership have long been a matter of state concern. Gorsuch may have something to say about the SEC’s effort to expand the definition.
Another example is Kim Kardashian, who was ordered by the SEC to pay a fine for having touted a cryptocurrency on her Instagram account and the compensation she failed to disclose. The SEC has been in a battle with other financial overseers of the U.S. financial system to regulate and control digital currencies, which may or may not meet the definitions of a security or other language that legally created the commission.
Take Away
Regulatory agencies, including the SEC, are likely to have to contend with increased barriers with both the only branch of government that makes both laws and spends money and the branch that deciphers and enforces laws. Rather than argue if this is what should be, or if it slows down progress when wearing one’s investor hat,” investors may only want to consider what industries and what companies within those industries will be the winners and losers – then how does that fit into your overall portfolio strategy.
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