Commissioner Peirce continues to challenge the SEC's lack of clarity on the application of the Howey test to ICOs. While it is true that the SEC did issue a position paper on the Howey Test and ICOs , the purpose of the position paper seems largely to assert broad jurisdiction (lest the SEC be subject to the retrospective accusation of having missed something). In particular, the SEC in that position paper failed even to attempt to define the most important legal question under Howey; i.e.,…

Chair Jay Clayton's SEC has not generally acted to reduce regulatory burdens (though Commissioner Peirce has certainly been a strong advocate for questioning the benefit of those burdens). The major exception to the SEC's caution has been as to costs imposed on SEC-registered issuers. This is the second rule proposal in a week put forward by the SEC to reduce the costs of issuer disclosure. See (May 3, 2019). Notably, Commissioner Jackson dissented as to the issuance of both proposals, and…

It is a lesson constantly repeated that trading companies run the risk of being blown up by their employees when they fail to separate the activity of trading from the activity of valuing the portfolio. See, e.g., (Aug. 5, 1994). No matter how criminal, it is a predictable behavior that a trader who has lost a boatload of money will try to hide the loss and will double down, hoping to make it back. (Sometimes the double down may succeed, and no one ever hears about it. Other times, the firm…

While it is to the good that the regulators may expand the availability of FDICIA's netting provisions, it remains unclear why the Federal Reserve Board thinks there should be any limitation at all. The netting of financial exposures between counterparts is simply sensible, and it is no less sensible for the little guys than it is for the big guys.