The Gap Between The Crypto Industry And Regulators Has Never Been Wider

For the past five years, cryptocurrency entrepreneurs have been in fierce disagreement with U.S. regulators over an existential question: whether certain digital assets are securities, or investment contracts that need to be registered with the Securities and Exchange Commission. The stakes are high–if a cryptocurrency is deemed a security in a U.S. court, it basically dies in the American crypto ecosystem. That’s because it can’t currently be traded on any cryptocurrency exchange, since none of them has a national securities exchange license.

Two weeks ago, the SEC filed a complaint in federal court asserting that nine tokens available to trade on Coinbase were securities, and the decree initially sounded like a step toward more regulatory clarity. But the SEC didn’t explain what makes the tokens different from other cryptocurrencies, and after the complaint came out, Coinbase published a blog post titled, “Coinbase does not list securities. End of story.” The episode was just the latest sign that the gap between the industry and regulators has never been bigger.

“The SEC chairman has publicly asserted that digital assets other than bitcoin are securities,” says Jai Massari, a former partner at law firm Davis Polk and now chief legal officer at blockchain startup Lightspark. Yet crypto companies have “necessarily taken the position that digital assets are generally not securities,” she says. It’s a stunning place for an industry to be, with near 100% disagreement between regulators and companies on a foundational question. “How this plays out in the coming months will shape the future of much of the existing crypto industry,” Massari says.

Until now, the SEC has kept an arms-length distance from defining which cryptocurrencies are securities, providing ambiguous guidance in public and private meetings with companies, according to securities lawyers Forbes spoke with. In its recent claim that nine Coinbase-listed tokens are securities, it invoked a set of guidelines called the Howey Test to make its argument. But the test is too vague and malleable to produce clear results, Massari and Davis Polk partner Joe Hall have written. Meanwhile, the cryptocurrency industry has kept marching forward with the implicit belief that few digital assets are securities.

In January 2021, when President Biden selected Gary Gensler as the new chairman of the SEC, many in the industry pointed out that Gensler had taught a blockchain course at MIT and hoped he’d provide more regulatory clarity on which digital assets are securities. But that hasn’t happened, and it’s largely because of the political muck Gensler would find himself in if he did so, says Joe Hall, who has been a Davis Polk partner for 23 years and has been working on crypto regulation since 2013.

“When there’s a trillion-dollar market, any SEC chairman has to know that if he or she wades into that, it can be completely consuming and put them in the middle of a food fight between traditional financial services and crypto companies. Those are the worst kinds of fights to be in,” he says. “You have vested interests on both sides. It can consume an incredible amount of time and resources … you have to deal with your overlords on Capitol Hill.”

The “Pottery Barn rule”—a principle of “you break it, you buy it”–also exacerbates the situation for regulators. If the SEC says a certain cryptocurrency isn’t a security, it’s treated like an endorsement, attorneys say. Later on, if something goes awry with the asset and consumers lose a lot of money, Gensler will be heavily criticized by congressional oversight committees and the media, according to Hall.

“It’s easy to criticize the SEC from the outside,” Hall adds. “But I know exactly why they’re doing it. There is just no benefit from the point of view of an individual to stick your neck out and actually try to solve the problem. It’s much easier to bring enforcement actions against people for violating the laws.” An SEC spokesperson declined to comment for this article.

As crypto companies keep operating despite the risk of SEC enforcement actions, Hall doesn’t think those businesses are acting naively, or that they believe they can safely ignore what the SEC is doing. For better or worse, they’re just moving ahead despite the risks and uncertainty. “If you weren’t willing to live with regulatory uncertainty, there’s just no way you could operate in the business,” he says.

More recently, crypto companies have developed the financial strength and confidence to go head to head with the SEC. In late June, crypto asset manager Grayscale sued the SEC for failing to allow the company to convert the Grayscale Bitcoin Investment Trust (GBTC), a bitcoin-based investment vehicle that it released in 2013, into a spot bitcoin exchange-traded fund (ETF), which would make the investment more accessible to the average U.S. investor.

How will the fundamental disagreement between regulators and the industry get resolved? “There’s no point in hoping that anyone at the SEC or a change in guard will result in the cavalry riding in,” Hall says. “We really need to turn to Congress to solve it.”

I lead our fintech coverage at Forbes and also cover crypto. I edit our annual Fintech 50 and 30 Under 30 for fintech, and I’ve written frequently about leadership and corporate

Source: The Gap Between The Crypto Industry And Regulators Has Never Been Wider

Critics by

There are a number of technology and finance experts who say that cryptocurrency is a purely speculative asset, and one that serves no real purpose. And this month, a group of them wrote a letter to leaders in Congress, asking that they: “Ensure that individuals in the U.S. and elsewhere are not left vulnerable to predatory finance, fraud, and systemic economic risks in the name of technological potential which does not exist.”

One of the signatories was Molly White, a software engineer who runs the blog Web3 Is Going Just Great, which documents instances of fraud and catastrophe in the crypto universe. And she is not a fan of the new bill. “It is very much what I think the cryptocurrency industry was hoping to see from regulators, which is a very limited set of regulations applied to the industry,” she said.

Some in the industry have responded positively so far. The Crypto Council for Innovation called it a significant step forward, and the Blockchain Association called it a “milestone moment.”

White says cryptocurrencies aren’t like traditional commodities like wheat or oil, so the CFTC shouldn’t be the main regulatory muscle.”Cryptocurrencies are more like securities because people broadly put money into them hoping for a return on their investment,” White said. “And when someone is engaging with something as an investment, that’s a good sign that it should go to the SEC.”

What’s more, White said the CFTC simply wasn’t equipped to handle the workload — even if the bill allows the CFTC to impose a fee on digital asset exchanges to help fund its large role.”There would need to be a major change in the amount of resources going to the CFTC for them to suddenly take on this enormous and much broader set of issues than they’ve dealt with in the past,” she said. “And the SEC is frankly just more experienced in this field already.”

Related contents:

Crypto regulation: US and UK regulators join hands Cryptopolitan

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ProShares ETF Targets Bitcoin Selloff

BITI, which seeks to obtain exposure through bitcoin futures contracts, will track the opposite performance of the S&P CME Bitcoin Futures Index each day. The launch comes as Bitcoin and other cryptocurrencies have struggled in sympathy with the broader stock market, which is contending with scorching-hot inflation.

The world’s largest cryptocurrency is currently trading around $20,000 per coin on Monday, well off its 52-week high of $68,990.90 hit last year, after briefly falling to a 52-week low of $17,601.58 per coin over the weekend. “As recent times have shown, bitcoin can drop in value,” ProShares CEO Michael Sapir said in a statement. “BITI affords investors who believe that the price of bitcoin will drop with an opportunity to potentially profit or to hedge their cryptocurrency holdings.”

ProShares will also launch BITIX on Tuesday, a mutual fund with the same investment objective as BITI. “With the additions of BITI and BITIX, ProShares and ProFunds will be the only fund families in the U.S. offering funds that allow investors to express their view on the direction of bitcoin — no matter whether they believe the price will go up or down,” Sapir added.

Ticker Security Last Change Change %
BITO PROSHARES TRUST BITCOIN STRATEGY ETF 12.95 +0.23 +1.81%

The launch of BITI and BITIX comes after ProShares launched BITO, the first U.S. bitcoin-linked ETF, in October 2021, which attracted more than $1 billion in assets from the public in just two days. The firm also launched the first bitcoin-linked mutual fund, BTCFX, in July 2021.  ProShares, which offers one of the largest lineups of ETFs, manages more than $50 billion in assets in partnership with its affiliates.

Eight months after establishing the first U.S. bitcoin futures ETF, ProShares plans to launch the first short bitcoin-linked ETF on Tuesday in the U.S., the provider of investment products announced Monday. The ProShares Short Bitcoin Strategy, which will trade on the New York Stock Exchange under the ticker BITI, is designed to give investors a way to profit from declines in the price of the cryptocurrency. It will have an expense ratio of 0.95%.

Bitcoin fell to new a new 2022 low over the weekend of $17,601.58, according to Coin Metrics, after six months of declines amid the broader sell-off in risk assets. “As recent times have shown, bitcoin can drop in value,” ProShares CEO Michael Sapir said in a news release Monday. “BITI affords investors who believe that the price of bitcoin will drop with an opportunity to potentially profit or to hedge their cryptocurrency holdings. BITI enables investors to conveniently obtain short exposure to bitcoin through buying an ETF in a traditional brokerage account.”

BITI will be the first ETF of its kind in the U.S. Horizons ETFs has a short bitcoin ETF listed on the Toronto Stock Exchange. ProShares said BITI is designed to deliver the opposite of the performance of the S&P CME Bitcoin Futures Index and that it seeks to obtain exposure through bitcoin futures contracts. How well-timed the launch is remains to be seen. Markets remain fraught with uncertainty as investors await next steps from the Federal Reserve and signs of peaking inflation, but many are still speculating about the crypto market being at or near a bottom.

On Monday, bitcoin sat about 70% from its all-time high, which it hit in early November just a couple weeks after ProShares launched the Bitcoin Strategy ETF (BITO). Bitcoin quickly reversed lower, and has been falling since then.

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ETFs vs. Mutual Funds: How They Differ

Exchange-traded funds, or ETFs, and mutual funds are both investment products that represent a basket or collection of securities.”They provide investors access to underlying investments, like stocks or bonds, and generally provide more diversification than a single stock or bond,” said Wendy Liebowitz, vice president and branch leader at Fidelity Investments.

However, there are a few key differences between ETFs and mutual funds to keep in mind before investing. Here’s what you need to know:

ETFs differ in how they are traded

Greg McBride, chief financial analyst at Bankrate.com, explained that mutual funds only trade once per day, after the market close at a price based on the value of all the fund’s assets less the expenses. ETFs, as the name implies, McBride said, trade on an exchange and this means investors can buy or sell throughout the trading day at a price that fluctuates as the prices of the underlying investments change.

“Many fund companies offer both a mutual fund and an ETF version of the same investment, and the ETF is typically the lower-cost option in terms of expense ratio,” he said. “Just make sure your brokerage permits you to invest commission-free, as any brokerage commissions erase the modest expense advantage of ETFs.”

ETFs are more passive

Todd Rosenbluth, head of research at VettaFi, explained that similar to mutual funds, ETFs provide investors with the benefits of diversification, by owning stocks or bonds from numerous companies.

“However, most ETFs outperform mutual funds in the same investment style as they cost less and passively track an index like the S&P 500 or the Russell 2000 Index rather than try to pick winners but end up with laggards,” Rosenbluth said. “Most ETFs available track an index and are passively managed, while most mutual funds are actively managed with the team picking through a larger universe of investments.”

ETFs generally cost less

The fees you pay to purchase ETFs tend to be lower than mutual funds, but this does vary depending on the investments. A significant reason it’s cheaper is that an ETF is a passive fund.”ETFs tend to have a lower cost of ownership, with expense ratios often less than 0.20%, while mutual funds are often five times as expensive,” said Rosenbluth.

ETFs can offer tax advantages

Another difference to consider is tax efficiency. “Generally, holding an ETF in a taxable account will generate less tax liabilities than if you held a similarly structured mutual fund in the same account,” said Liebowitz with Fidelity Investments. Although both are subject to capital gains and dividend income tax, Liebowitz said ETFs generally have fewer taxable events than mutual funds.

Understand the ramifications of investing

Liebowitz stated it is important to review the portfolio fundamentals of any fund before investing. “While an ETF and mutual fund might have the same investment objective or investment ‘style,’ the composition of each fund could vary, so investors should compare the annual turnover ratio, concentration risk, expense ratio, and other risk factors to determine if it is right for them and what they are trying to achieve with their investment,” she said.

Despite their differences, Liebowitz explained that both mutual funds and ETFs can offer investors exposure to a diversified basket of securities to help meet their financial goals and objectives – and it doesn’t have to be one or the other. “Investors should pick the best choice for their specific investing needs, keeping their time horizon, risk tolerance, financial circumstance, and short- and long-term goals in mind before making any investment decision,” added Liebowitz.

Source: ETFs vs. mutual funds: How they differ | Fox Business

Critics by InvestorVanguard

ETFs and mutual funds both come with built-in diversification. One fund could include tens, hundreds, or even thousands of individual stocks or bonds in a single fund. So if 1 stock or bond is doing poorly, there’s a chance that another is doing well. That could help reduce your risk—and your overall losses.

ETFs and mutual funds both give you access to a wide variety of U.S. and international stocks and bonds. You can invest broadly (for example, a total market fund) or narrowly (for example, a high-dividend stock fund or a sector fund)—or anywhere in between. It all depends on your personal goals and investing style.

ETFs and mutual funds are managed by experts. Those experts choose and monitor the stocks or bonds the funds invest in, saving you time and effort. Although most ETFs—and many mutual funds—are index funds, the portfolio managers are still there to make sure the funds don’t stray from their target indexes.

An ETF could be more suitable for you. You can buy an ETF for the price of 1 share—commonly referred to as the ETF’s market price. Depending on the ETF, that price could be as little as $50 or as much as a few hundred dollars. A mutual fund may not be a suitable investment. Mutual fund minimum initial investments aren’t based on the fund’s share price. Instead, they’re a flat dollar amount. Most Vanguard mutual funds have a $3,000 minimum. That would buy you 30 shares of a hypothetical fund with a net asset value (NAV) of $100 per share.

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What Is ESG’s Significance To Business Leaders?

No matter where you sit in a business, you’ll likely have heard of environmental, social, and governance (ESG). Your peers in finance, legal/compliance, and risk will have heard of it a lot. And we’ll all be hearing a lot more about it in the coming years. But ESG can mean a lot of different things, depending on who is saying it and the context in which they’re saying it, which leads to confusion.

What Is ESG?

Essentially, ESG denotes the qualitative and quantitative data that either:

  • describes a business’s environmental status, societal characteristics, and corporate governance (thus ‘E’ for environment, ‘S’ for social and ‘G’ for governance) or …
  • … reflects a business’s or sector’s or investment’s exposure to, and management of, environmental-, social-, or governance-related risks.

The data points can vary, but the World Economic Forum and Sustainability Accounting Standards Board provide common lists.

The Significance For Businesses

Interest in ESG started with arguments such as those of Harvard economist Michael Porter that businesses (and capitalism as a whole) benefit from thinking about value generation beyond the purely economic — that is, businesses should focus their value generation on all of their stakeholders (including communities, employees, and customers), not just shareholders or owners.

This broader interpretation of value would provide for longer-term competitiveness, profit, and business health, because it both drives down risk and makes the most of scarce resources. In fact, it was the investment community that coined the term, as they sought to widen their analysis to nonfinancial factors

This broader understanding of value generation has worked its way into the echelons of corporate management; even the cradle of Milton “profit is everything” Friedman, the University of Chicago Booth School of Business, teaches ESG.

ESG performance, the managerial decisions that drive it, and the data points that reflect it have become a form of proxy measurement on the quality of a business’s management, right alongside its financial data. Naturally, they have then become a matter of board attention, leaders’ attention, and operational discussions, with supporting functions, processes, and technologies across a company.

ESG now features much more prominently in just about every company’s key strategic discussions, especially at its highest levels. As the battle over Exxon last year and McDonald’s right now show, these decisions determine the futures of companies. And Elon Musk’s recent ESG post on Twitter, meant to disparage the term, reveals its importance even in companies that resist its influence.

Expect ESG to become more important, driven especially by climate change and scrutiny of capitalism’s social impact but also by companies’ efforts to seek competitive advantage and differentiation and investors’ desire to incorporate nonfinancial analysis for better returns.

ESG investing, despite the criticisms, is becoming increasingly popular and is most likely to be an investing approach used by millennials. Morgan Stanley Bank (NYSE: MS) recently conducted a survey that found that nearly 90% of millennial investors were interested in pursuing investments that more closely reflect the values they hold.

By 2018, approximately $12 trillion worth of investment assets were selected using a socially responsible investing strategy. As millennials begin to comprise a larger segment of the total pool of investors, you can expect ESG investing to expand right along with them.

The financial services industry’s responded to the growing demand for ESG investments by making moves such as offering ESG-focused exchange-traded funds (ETFs). Both of the two largest ETF providers – BlackRock and Vanguard – offer clients a choice of ESG-focused funds. BlackRock added six new ESG funds in 2020, and its equity investment team now includes a Head of Sustainable Investing. Brokerage firms now customarily offer stock analysis employing ESG investment strategies, and robo-advisors such as Wealthfront can be set to seek out socially responsible investments.

Although ESG metrics are not currently a required part of financial reports for publicly traded companies, a growing number of companies are proudly including them in their reported statements or a separately issued document. Increasingly there is consensus among many regulators that some form of standardized ESG disclosures will be required of publicly-traded companies on most major global stock exchanges.

Each of the three elements of ESG investing – environmental, social, and corporate governance – comprises a number of criteria that may be considered, either by socially responsible investors or by companies aiming to adopt a more ESG-friendly operational stance.

While many ESG criteria are rather subjective (such as evaluations of “diversity” or “inclusion”), moves are occurring on several fronts that are designed to provide more objective, credible ratings of a company’s performance in terms of ESG policies and actions.

In the past, a company’s standing in terms of ESG has often depended less on substantive practices and more on how good the company’s public relations department is. Businesses such as AccountAbility offer ESG consulting services for companies that want to implement broad ESG-friendly policies and practices.

Environmental criteria include a company’s use of renewable energy sources, its waste management program, how it handles potential problems of air or water pollution arising from its operations, deforestation issues (if applicable), and its attitude and actions around climate change issues.

Other possible environmental issues include raw material sourcing (e.g., does the company use fair trade suppliers and organic ingredients?) and whether a company follows biodiversity practices on land it owns or controls.

Social criteria cover a vast range of potential issues. There are many separate social aspects of ESG, but all of them are essentially about social relationships. One of the key relationships for a company, from the point of view of many socially responsible investors, is its relationship with its employees. Following is a brief rundown of just some of the issues that may be considered when examining how a company handles its social relationships:

  • Is employee pay fair, or perhaps even generous, compared to comparable jobs or similar positions throughout the industry? What type of retirement plans are employees offered? Does the company contribute to the employee retirement plans?
  • In addition to basic wages or salary, what benefits or perks are employees provided with? With ESG-concerned investors, it can make a big difference in the evaluation of your company if, for example, you do things such as providing a free, very lavish buffet lunch for all employees every Friday – or provide other types of benefits that aren’t common at all workplaces, such as an on-site fitness center.
  • Workplace policies regarding diversity, inclusion, and prevention of sexual harassment are also frequently considered.
  • Employee training and education programs; for example, does your company provide financial support for continuing or higher education and/or flexible working hours for employees pursuing further education; what opportunities exist for employees to be trained in new job skills at the company that will qualify them for higher-paying positions?
  • What level of employee engagement with management is there? How much input do employees have in determining operational procedures within their respective departments?
  • The level of employee turnover
  • What’s the company’s mission statement? Is it socially relevant and beneficial to society?
  • How well are customer relationships managed? Does the company engage with customers on social media? How responsive and efficient is the customer service department? Does the company have a negative history of consumer protection issues, such as product recalls?
  • Does the company take a public or political stance on human rights issues? Does it donate money to charitable causes?

Governance, in the context of ESG, is essentially about how a company is managed by those in the top floor executive offices. How well do executive management and the board of directors attend to the interests of the company’s various stakeholders – employees, suppliers, shareholders, and customers? Does the company give back to the community where it is located?

Financial and accounting transparency and full and honest financial reporting are often considered key elements of good corporate governance. Also important are board members acting in a genuine fiduciary relationship with stockholders and being careful to avoid conflicts of interest with that duty. Are the board members and company executives a diverse and inclusive group?

The issue of executive compensation is a primary focus of many ESG investors, who, for example, don’t tend to favor multi-million-dollar bonuses for executives while the company imposes a salary freeze in effect for all other employees. Is extra compensation for executives appropriately tied to increasing the long-term value, viability, and profitability of the business?

An example of how responsible corporate governance is put into practice can be seen in the policies of the company, Intuit (NASDAQ: INTU). One of the company’s corporate policies that is aimed at helping to ensure that company executives take on a strong vested interest in the company’s ongoing success, rather than just in earning some quarterly bonus, is a rule that requires the top-level chief executive officer to maintain stock ownership equivalent in value to ten times their annual salary.

In addition, executive bonuses depend on more than just revenue or income – factors such as employee, shareholder, and customer satisfaction are also part of the calculation.

Forrester (Nasdaq: FORR) is one of the most influential research and advisory firms in the world. We help leaders across technology, marketing, customer

Source: What Is ESG’s Significance To Business Leaders?

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