Persuasive Public Comment Helps Mold the Final Rule The Securities and Exchange Commission (SEC) has adopted a new rule, rule 10c-1, to increase transparency in the securities lending market. The rule requires certain persons to report information about securities loans to a registered national securities association (RNSA). The RNSA will then make certain information publicly […]
This blog tells the untold story of how securities lenders in March 2021 became more than simply a source of liquidity to markets. Lenders organized their de facto market posse when their securities lending agents and custodians set in motion the chain of contractions that brought down Archegos’ massive fraud. It was their automated ceiling on total credit extension – share inventory buffers — that led, in a very short time, to traders’ discovery, surveillance, and opposition to the manipulation.
In March 2021, Archegos Capital Management, a family office run by Bill Hwang, collapsed in a spectacular fashion, leaving its counterparties with over $10 billion in losses. The collapse of Archegos was one of the largest hedge fund failures in history, and it has since been the subject of intense scrutiny by regulators and law enforcement.
In early 2022, the Securities and Exchange Commission (SEC) proposed several significant changes to Regulations 13D and 13G, which require certain persons to disclose their beneficial ownership of equity securities. These changes seek to improve the transparency and timeliness of beneficial ownership reporting and to make it easier for investors to access and understand this information.
In its recently updated regulatory flexibility agenda, the Securities and Exchange Commission has announced its regulatory priorities for 2023. A mix of old and new business, the Commission’s 2023 plans include finalizing 29 existing proposals and placing 23 new proposals up for consideration. In a January 4, 2023 press release announcing the updated agenda, SEC Chairman Gary Gensler stated that the agency’s agenda “reflects the need to modernize our ruleset, moving deliberately to update our rules in light of ever-changing technologies and business models in the securities markets.” Regulatory flexibility agendas are aspirational, and the SEC’s rulemaking agenda could change throughout the year.
On November 2, 2022, the Securities and Exchange Commission (SEC) finalized the first of its market data rule proposals. The amendments to form N-PX bring greater detail, consistency, and usability to the proxy voting information reported by mutual funds. These changes came in response to investors, who have said for nearly twenty years that they would benefit from more readily usable information and greater details.
The Common Domain Model (CDM), the International Securities Lending Association’s (ISLA) ambitious securities lending standardization project, is a step closer to reality. And industry leaders already see opportunities for application. In a report jointly produced with Linklaters, ISLA outlined the project’s progress since its launch in 2021 and described how the CDM lays the foundation for distributed ledger (DLT)-based smart contracts to remake the securities lending landscape.
In February of 2022, the Securities and Exchange Commission proposed new disclosures to provide more transparency into institutional investors’ short-selling activity. According to Chairman Gensler, collecting more granular data from large short sellers “would help us to better oversee the markets and understand the role short selling may play in market events.” Despite these lofty goals, industry commenters are raising serious questions about whether some elements of the proposed new disclosure regime are structurally and technologically feasible.
A collection of the globe’s most significant securities trade associations joined forces to file a comprehensive response to the Basel Committee on Banking Supervision’s (BCBS) second public consultation on the prudential treatment of banks’ crypto-asset exposures. The September 30, 2022, letter voiced support for the design of the crypto-asset exposure framework proposed by BIS in its June 10, 2021, initial and follow-up June 30, 2022, consultations.
In moving to shorten the U.S. securities settlement cycle by one day to T+1, the Securities and Exchange Commission appears to have hit on something upon which virtually everyone can agree. Judging by the comments to the SEC’s T+1 proposal, everyone from State Street to the Cornell Securities Law Clinic agrees that moving to T+1 is both desirable and beneficial to risk management in the long run. That said, despite this rare moment of accord between the regulator and the regulated, according to some commenters, some parts of the proposed implementation need attention, fine-tuning, or reconsideration.
The Securities and Exchange Commission (SEC) filed a civil lawsuit against Archegos Capital Management, its founder, and several other individuals in April 2022. The SEC alleges that Archegos engaged in a fraudulent scheme to manipulate the market for the securities of the issuers that represented Archegos’s top 10 holdings, both through purchases of the issuers’ securities and entry into total return swaps referencing those issuers.
The Securities and Exchange Commission’s controversial securities lending disclosure proposal (Proposal) sought public input on 97 questions and received a substantial body of feedback during the initial 30-day comment period. Drawing sharp rebukes, most responses from trade associations for lenders and borrowers focused on the ambiguous scope of rule 10c-1, the feasibility of the proposed 15-minute reporting regime, lopsided cost and technology burdens, and the risks of reverse engineering posed by the public disclosure provisions.
On Friday, February 25, 2022, the Securities and Exchange Commission (SEC) proposed its latest round of GameStop rule proposals. In addition to enhanced public disclosures of short sales by institutional investors, the Commission announced a 30-day extension of the comment period on its sweeping securities lending disclosure proposal, Rule 10c-1, and technical amendments to the “consolidated audit tape” regulations.
While real-time settlement is still something that may happen far in the future, perhaps on the Starship Enterprise, T+1 is now imminent. On February 9, 2022, the Securities and Exchange Commission proposed to make T+1 a reality. The proposal aimed at reducing risks in clearance and settlement seeks comment on shortening the current T+2 standard settlement cycle for most broker-dealer transactions by one day to T+1.
Widespread adoption of central bank digital currencies (CBDC) could revolutionize cross-border payments by reducing friction and making it possible for T+1 or even T+0 settlement of cross-border trades. The Fed’s Digital Currency discussion paper is the central bank’s first step in a public discussion with stakeholders about a digital dollar, as we described in our January 25 post. But what would such a cross-border payment system look like? Is it enough to mimic the traditional systems of SWIFT, DTCC, and others? Or does the unprecedented interoperability and technology of CBDCs force obsolesce on the current systems?
A discussion paper published on January 20th invites the public to explore with the U.S. Federal Reserve Board the creation of a digital version of the U.S. dollar. A Central Bank Digital Currency (CBDC) backed by the Federal Reserve would be designed, according to the Fed’s paper, to compete with cryptocurrencies like Bitcoin and Ethereum. Comments are due by May 20, 2022.
The Securities and Exchange Commission’s (SEC) securities lending disclosure proposal has drawn sharp rebuke from both securities lenders and borrowers. Lending principals criticized the proposal on everything from cost, lack of clarity, and overbroad scope to the rule’s general inequity. They also warned of a host of potential unintended consequences that could work against the very transparency the rule proposal was intended to foster. Some of the highlights are summarized below.
“The best trader I ever knew was broken when he took over a dying friend’s book. Everyone knew the book and turned on him.” Born in 1899, Henry Goldberg was the oldest trader on the floor of the New York Stock Exchange when I interviewed him in 1985. He answered my questions about trading expertise during an NYSE-sanctioned survey to find possible use cases for artificial intelligence.
If the Securities and Exchange Commission approves the many industry requests for delay of its proposed 10c-1 reporting rule for securities loans, leaders in the Global Association of Securities Lending Associations (GASLA) should move quickly to create a more efficient and lower cost disclosure regime. Congress will not allow the SEC to ignore recent academic charges of rampant cross-border tax evasion and negligent proxy voting by index funds. Collective action is required to craft a disclosure system that improves on the SEC’s proposal.
The European Commission has reached agreement with legislators and financial trade groups on a digitized infrastructure to reshape the EU and, by extension, the global securities markets for a generation. The resolution affects all transactions involving EU securities, including securities loans, by (1) green-lighting the Distributed Ledger Pilot Regime, an effort to foster fintech innovation in the EU, and (2) delaying mandatory buy-ins, a highly contentious aspect of the ongoing sweeping reforms to the EU’s securities settlement system.