ThinkAdvisor (April 21, 2021) – What You Need to Know

• The SEC and CFTC are to establish a digital asset working group under the Eliminate Barriers to Innovation Act.
• The Senior Security Act requires that the SEC set up a senior investor task force.
• The Investor Choice Act would allow investors to choose between arbitration and court.

The House passed late Tuesday several bipartisan financial services bills to address the burgeoning digital assets space, senior financial fraud and insider trading.

The Eliminate Barriers to Innovation Act, H.R. 1602, requires the Securities and Exchange Commission and Commodity Futures Trading Commission to establish a digital asset working group to ensure collaboration between regulators and the private sector to foster innovation.

The bill, introduced by Rep. Patrick McHenry of North Carolina, ranking Republican on the House Financial Services Committee, “is the first step in opening up the dialogue between our regulators and market participants and move to needed clarity” on digital assets, McHenry said in a statement.

The Promoting Transparent Standards for Corporate Insiders Act, H.R. 1528, also passed the House and requires that the SEC study whether the agency’s insider trading rule, Rule 10b-5, should be amended. The bill is designed to protect retail investors and the market from illicit insider trading, while ensuring that the rules governing insider trading are clear, fair and not prohibitively onerous.

The Senior Security Act of 2021, H.R. 1565, requires that the SEC set up a senior investor task force to protect against the increasing instances of financial exploitation of senior investors.

Arbitration Bill Floated
Legislation was also reintroduced in mid-April, the Investor Choice Act of 2021, to allow investors to choose between arbitration and court if a dispute arises as well as allow class-action lawsuits.

David Meyer, president of the Public Investors Arbitration Bar Association, said in a recent statement that “investors who are customers of brokerage firms have been at a severe disadvantage for decades now by being forced into the single avenue of mandatory arbitration.”

Investors who are customers of registered investment advisors, Meyer said, “are typically forced into arbitration forums that are cost-prohibitive and not well suited to handle investment disputes. Those of us who fight in the trenches every day for investors seeking relief from financial advisor abuses know all too well that the Investor Choice Act of 2021 is urgently needed.”

Arbitration, Meyer continued, “has its upsides and FINRA has made great improvements to its dispute resolution forum for brokers and brokerage firms over the past 20 years. However, when an investor has a dispute with a registered investment advisor (as opposed to a broker or brokerage firm), they are usually forced into other arbitration forums which have not made the same improvements, and which are often cost prohibitive. Investors may be left with no justice at all, and firms are not held accountable for their misconduct.”

Ken Bentsen, president and CEO of the Securities Industry and Financial Markets Association, said in another statement that “SIFMA believes we should preserve the current enforceability of arbitration clauses in customer contracts and therefore strongly opposes any effort to ban them.”

The securities arbitration system “has worked effectively for decades because it is subject to public oversight, regulatory oversight by multiple independent regulators, and rules of procedure that are designed to benefit investors,” Bentsen said. “Pre-dispute arbitration agreements are a vital component of this system. Such agreements help shape the public policy in favor of arbitration that has been recognized by both Congress and the U.S. Supreme Court.”