Why Blockchain Custody Is So Difficult—Paths Forward?

In the first post on this topic, we provided a simple answer to a question posed by the Director of the SEC’s Division of Investment Management (the “Division”):

To the extent a fund plans to hold cryptocurrency directly, how would it satisfy the custody requirements of the 1940 Act and relevant rules?”

Our simple answer was to treat cryptocurrencies as “financial assets” under Article 8 of the Uniform Commercial Code. In the second post, we explained how this simple answer may be hard to implement when it comes to trading cryptocurrencies, because their markets require trades to settle in the next block. Thus, rather than a custodian implementing a portfolio manager’s instruction to settle a trade, a portfolio manager trading a cryptocurrency will normally need to have immediate control over the transfer of the cryptocurrency, which is inconsistent with the custody requirements of the Investment Company Act of 1940 (the “1940 Act”).

In this post, we consider three potential solutions to the dilemma faced by an investment company that must hold cryptocurrency in compliance with the custody requirements of the 1940 Act while allowing its adviser to trade the cryptocurrency.

Why Blockchain Custody Is So Difficult—A Hard Part

By Stephen A. Keen and Alexandra Kambouris Alberstadt on August 20, 2018 Posted in Compliance, Cybersecurity, Registered Investment Companies

In our previous post, we provided a simple answer to the following question posed by Director Dalia Blass of the SEC’s Division of Investment Management:

To the extent a fund plans to hold cryptocurrency directly, how would it satisfy the custody requirements of the 1940 Act and relevant rules?”

Our simple answer was to treat cryptocurrencies as “financial assets” under Article 8 of the Uniform Commercial Code. But, as Director Blass knows, this is not the end of the questions relating to custody. Her letter included additional questions, such as:

If the fund may take delivery of cryptocurrencies in settlement, what plans would it have in place to provide for the custody of the cryptocurrency?”

This question relates to a core operation of investment companies: trading.

PROPOSED ETF RULE: AN OVERVIEW

By Todd P. Zerega and Thomas Ahmadifar on August 16, 2018 Posted in Compliance, Exchange Traded Funds, Registered Investment Companies

On June 28, 2018, the U.S. Securities and Exchange Commission (“SEC”) proposed a new rule for exchange-traded funds (“ETFs”). Proposed Rule 6c-11 (the “Proposed Rule”) would impose a more streamlined process for new ETFs, and create more standardized compliance requirements for existing ETFs. This is the first in a series of posts on the new Proposed Rule, its requirements, and next steps for the Proposed Rule.

Why Blockchain Custody Is So Difficult—The Simple Part

By Stephen A. Keen and Alexandra Kambouris Alberstadt on August 16, 2018 Posted in Compliance, Cybersecurity, Registered Investment Companies

“There are no easy answers, but there are simple answers.”—President Reagan

In a January 2018 letter to the ICI and SIFMA, Director Dalia Blass of the SEC’s Division of Investment Management posed the following question, among many others:

To the extent a fund plans to hold cryptocurrency directly, how would it satisfy the custody requirements of the 1940 Act and relevant rules?”

There is a simple answer to this: “Just like our custodian satisfies these requirements with respect to most other financial assets held in our securities account.” But structural differences between cryptocurrencies and more traditional financial assets may make this harder than it sounds.

Best Interest or Disinterest—How Should We Label the Duties of an Investment Adviser?

By Stephen A. Keen on June 6, 2018 Posted in Compliance, Fiduciary Issues, U.S. Advisor Regulation

At lunch with my broker the other day (my tab naturally), I asked the waiter for a hamburger and soda, but my broker interjected and told him to bring me a kale salad, no dressing, and a carrot and beet smoothie. “I’m supposed to look after your best interest,” my broker said, “and you’re clearly a bit overweight. By the way, I have scheduled an hour with your personal trainer after lunch.” I couldn’t deny it; this was all in my “best interest.” Continue Reading

The SEC’s Fiduciary Rule Proposal — Implications for Investment Advisers (Part 4)

By Gwendolyn A. Williamson, Matthew S. Williams and Thomas Ahmadifar on May 21, 2018 Posted in Compliance, Dodd-Frank Act and FSOC, Fiduciary Issues, U.S. Advisor Regulation

Welcome back for Part 4, the final installment in our discussion of the SEC’s April 18, 2018 fiduciary rulemaking proposal (the “Proposal”). We will summarize the SEC’s proposed Regulation Best Interest (“Regulation BI”), which seeks to create a “best interest” fiduciary duty standard for broker‑dealer relationships with retail customers. We will then delve into some of the specific requirements and open questions surrounding the regulation.

The SEC’s Fiduciary Rule Proposal — Implications for Investment Advisers (Part 3)

By Gwendolyn A. Williamson, Alexandra Kambouris Alberstadt, Matthew S. Williams and Thomas Ahmadifar on May 11, 2018 Posted in Compliance, Dodd-Frank Act and FSOC, Fiduciary Issues, U.S. Advisor Regulation

Welcome back for Part 3 of our discussion of the SEC’s April 18, 2018, fiduciary rulemaking proposal (the “Proposal”). Here, we dive into the SEC’s proposed Form CRS Relationship Summary and its proposed amendments to Form ADV. We also discuss the proposed rulemaking to restrict broker‑dealers’ use of the term “adviser” and variations thereof.

The SEC’s Fiduciary Rule Proposal — Implications for Investment Advisers (Part 2)

By Gwendolyn A. Williamson, Alexandra Kambouris Alberstadt, Matthew S. Williams and Thomas Ahmadifar on May 3, 2018 Posted in Compliance, Dodd-Frank Act and FSOC, Fiduciary Issues, U.S. Advisor Regulation

This post continues our discussion of the SEC’s April 18, 2018, fiduciary rulemaking proposal (the “Proposal”). Here we address the Proposed Interpretation Regarding Standard of Conduct for Investment Advisers and Request for Comment on Enhancing Investment Adviser Regulation portion of the Proposal which would, in sum, (i) restate advisers’ fiduciary duties under the Advisers Act and (ii) impose a variety of new requirements on advisers similar to those applicable to broker-dealers.

The SEC’s Fiduciary Rule Proposal – Implications for Investment Advisers (Part 1)

By Gwendolyn A. Williamson, Alexandra Kambouris Alberstadt, Matthew S. Williams and Thomas Ahmadifar on April 23, 2018 Posted in Compliance, Dodd-Frank Act and FSOC, Fiduciary Issues, U.S. Advisor Regulation

On April 18, 2018, the SEC held an open meeting where it approved the long‑awaited and much-discussed fiduciary rulemaking proposal package. The proposal primarily recommends disclosure- and principles and procedures-based rules, and has garnered three main criticisms: (1) it would establish a “best interest” standard without defining the term; (2) while intending to provide clarity, it would likely generate litigation around the scope of the restated investment adviser fiduciary duty; and (3) it fails to cover how a new “relationship summary” disclosure would function in the robo-adviser context. Part one of this series provides a high‑level overview of the recent history behind the proposal and summarizes its key provisions. Forthcoming posts will discuss the proposal in greater detail and suggest key takeaways for investment advisers. Continue Reading

Ask and Ye Shall Receive: OCIE’s 2018 Examination Priorities – Part 2 of 2

By Gwendolyn A. Williamson and Alexandra Kambouris Alberstadt on February 16, 2018 Posted in Compliance, Cybersecurity, Registered Investment Companies, U.S. Advisor Regulation

This post continues our discussion of the 2018 examination priorities and guiding principles published by the SEC’s Office of Compliance Inspections and Examination (“OCIE”) on February 7. Continue Reading