Gary Gensler, chair of the U.S. Securities and Exchange Commission (Evelyn Hockstein-Pool/Getty Images)
The U.S. Securities and Exchange Commission (SEC) went too far when itproposed a new ruledemanding investment firms safeguard all of their clientsâ assets â including crypto â with approved custodians, according to an array of critics not often in alignment.
The securities regulator said the expanded requirement for how registered investment advisers keep customer assets should extend to pretty much everything the firms are in charge of. While the February proposal explicitly folded in cryptocurrency, it also included other assets in a move that drew loud objections from organizations that arenât always on the same side as the crypto industry â financial giant JPMorgan and the Small Business Administration (SBA) among them.
As the two-month public comment period expired this week the SBA argued the SEC âdrastically underestimates potential impactsâ from its proposal, according toa letter from senior SBA lawyerswho said the cost of the âsweeping changesâ could threaten smaller investment advisers and force them to merge with others or get out of the business.
The proposed rule, which canât be finalized until after the SEC has reviewed all of these outside comments, said any assets entrusted to investment advisers need to be held with âqualified custodians,â which generally means a chartered bank or trust company, a broker-dealer registered with the SEC or a futures commission merchant registered with the Commodity Futures Trading Commission (CFTC).
SEC Chair Gary Gensler, who said the rule âwould help ensure that advisers donât inappropriately use, lose, or abuse investorsâ assets,â was quick to point out the crypto platforms that now maintain custody of investorsâ assets donât fit in.
âBased upon how crypto platforms generally operate, investment advisers cannot rely on them as qualified custodians,â Gensler said, suggesting the rule would effectively sever the investment firms from the crypto industry.
From Wall Street, executives atJPMorgan accused the SECof taking an âoverly broad approachâ that âwould disrupt a significant portion of the operations in the financial markets which have been well-functioning for many years,â according to their comment letter.
The U.S. securities industryâs chief lobbying group, the Securities Industry and Financial Markets Association, called it âjurisdictional overreach, resulting in indirect and inappropriate regulationâ and argued a number of asset classes â such as repurchase agreements, securities loans, derivatives and annuities â may be fundamentally unable to meet some of the requirements the SEC has in mind.
And from the crypto sector, investment firm a16z said, âWe believe this proposed prohibition to be illegal, infeasible, and dangerous.â The letter signed by several executives suggested investment advisers would find the rule almost impossible to comply with, because it âlargely failed to consider the logistics of how custody works for many crypto assets, the economics underpinning crypto asset markets, and even the basic statistics and other data that should inform a considered regulatory approach.â
After the SEC first proposed the rule, statements from crypto platforms such as Anchorage Digital Bank and state-chartered trusts including Coinbaseâs Custody Trust Co. andBitGoinsistedtheyâd definitely qualifyas proper custodians. The state-chartered trust companies in the crypto sector are still eager to find out whether they can get on the list as qualified custodians.
Marc DâAnnunzio, the general counsel of Bakkt Holdings Inc., which has a trust subsidiary licensed in New York,saidthat if the state-chartered firms were excluded, âwe fear that consumers and investors will be less protected and will have limited choices for custody services to protect their assets.â
The New York Department of Financial Services (NYDFS) also weighed in, pointing out that in the absence of similar federal oversight, its system for regulating trust companies that specialize in crypto is the best way to ensure theyâll be safe custodians.
âPreserving this structure would be in the best interest of consumers, allowing them to maintain existing relationships and current holdings with best-in-class custody providers, who in turn are subject to the industry-leading prudential regulation and supervision of DFS,âwrote the regulatorâs general counsel, Peter Dean. Cutting those off âwould run the risk of pushing novel activities into unregulated spaces, including offshore.â
The recent drama of some crypto-affiliated banks shutting down and one of the industryâs major platforms â FTX â crashing into the ground may also leave traditional gatekeepers such as banks shy about crypto custody.