FINRA’s Blockchain Symposium on Distributed Ledger ( Blockchain Technology)
Posted by Laura Anthony, Esq. on August 29, 2017
FINRA’s Blockchain Symposium on Distributed Ledger ( Blockchain Technology)- On July 13, 2017, FINRA held a Blockchain Symposium to assess the use of distributed ledger technology (DLT) (i.e. blockchain) in the financial industry. The symposium followed FINRA’s January 2017 report on DLT and its implications for the securities industry. In recent years, over $1 billion has been invested by various market participants to explore the use of DLT in the financial services industry. Although the level and speed of disruption to current systems remains debated, it is universally agreed that DLT will be utilized in the securities industry. DLT has the potential to completely change business models and practices and as such, regulators realize the necessity to be actively engaged to prepare for the new regime. On a positive note, FINRA views DLT as having the potential to provide investors with greater access to services and transparency and to provide firms with increased operational efficiencies and enhanced risk management.
Many aspects of FINRA’s rules and areas of responsibilities can be impacted by DLT, including, for example, clearing arrangements (it is thought that DLT can eliminate middle-market participants involved in the clearing process), recordkeeping requirements, and trade and order reporting and processing. In addition, FINRA rules, such as those related to financial condition, verification of assets, anti-money laundering, know-your-customer, supervision and surveillance, fees and commissions, payment to unregistered persons, customer confirmations, materiality impact on business operations, and business continuity plans also may to be impacted depending on the nature of the DLT application.
DLT is already being used in the securities markets in the form of initial cryptocurrency offerings (ICO’s) and in states that have passed corporate statutes allowing for the use of the technology to maintain corporate and shareholder records. Many of the top transfer agents are within months of beta testing blockchain technology for shareholder recordkeeping.
On July 25, 2017, the SEC issued a report on an investigation related to an ICO by the DAO and statements by the Divisions of Corporation Finance and Enforcement related to the investigative report. Although I will cover the report and statements separately in the coming weeks, the SEC concluded that the fundamental tenets related to the definition of a security apply and that cryptocurrencies and tokens that fall within that definition are securities, subject to SEC regulations, regardless of the title or form they may take. The definition of a security is guided by the Howey Test, which I’ve covered in prior Lawcast series.
FINRA’s report on DLT is broken down into three sections including: (i) overview of distributed ledger technology; (ii) DLT securities industry applications and potential impact; and (iii) factors to consider when implementing DLT. FINRA also discussed regulatory requirements and potential changes related to DLT. I will summarize each section with my usual commentary and input.