Emergence of Crypto Funds and regulatory hurdles with listed ETF’s
Cryptocurrency
is growing into a viable alternative asset class. The earliest adopters, mostly FinTech
entrepreneurs, alternative hedge fund managers and/or VC investors, are pouring
money into crypto exchanges, blockchain based businesses, and now private funds.
These new
digital assets, known by keywords such as, decentralized technology, Blockchain, algorithms,
utility tokens, or security tokens, has
prompted a surge in pooled investments in cryptocurrency (“Private Crypto Funds”).
Autonomous
Next, a fintech research firm, estimates that the current number of global private
crypto funds to be more than 250. https://next.autonomous.com/cryptofundlist
The
level of crypto interest is also growing on the retail side. In the last year alone, the surge in crypto enthusiasm
can be correlated to the wild (10X) swing in bitcoin prices from $2k to nearly
$20K (bitcoin prices are tad below the
$7,000 mark as of this post on 6/19/18).
In 2017,
global investor capital prompted a surge in crypto-based fundraising activities,
such an initial
coin offerings (ICO’s) and/or security token sales (STO’s).
Ethereum,
the second largest cryptocurrency by market cap, is a programming language that
allows developers to run or create applications on its blockchain-based algorithm. In short, Blockchain is a distributed ledger
technology that can send data/transactions from one party to another. Traditionally, in the financial markets, transactions
are processed through an intermediary (centralized network). Blockchain, in its decentralized capabilities,
is causing a major paradigm shift in terms of potential applicability on a massive
scale.
Are Crypto funds only open to Private investors?
Short answer: Yes. In the U.S, private
(accredited investors) are allowed to purchase into a crypto-structured fund(s)
through a securities
exemption known as Regulation D.
Reg. D
enables entrepreneurs or fund managers to sell/market a structured securities
exempt product “Private Crypto Funds” without going through the scrutiny (or
current futile attempts) of registering as a mutual fund or ETF.
In June 2018, Coinbase,
the largest U.S. cryptocurrency exchange, announced its plans to launch a
crypto index fund for accredited and institutional investors.
Definition. Regulation
D of the Securities Act, an accredited investor is a:
Financial
Institution (e.g. Banks, broker-dealers, SEC registrants);
Business
Development Company;
Non-Profit or
Trust (with assets of more than $5 million);
Net Worth (single/joint) (> $1 million);
Net Worth (single/joint) (> $1 million);
Natural
Person with $200K income (last two years);
Joint
couple with $300k income (last two years);
Private
crypto fund investments should continue to grow without further regulatory and/or
registration hurdles.
Are Crypto Funds closed to Public investors?
Short answer: Yes. Innovation comes
with regulatory roadblocks. In 2013, Winklevoss
Twin’s Bitcoin Trust ETF, was the first of such attempts made for a registered crypto
investment fund. Ultimately, the SEC
blocked this filing in a March 10, 2017 ruling.
According
to Bloomberg, other ETF players such as Direxion, Exchange Listed Funds,
ProShares, and VanEck also dropped its attempts of fund registration. The article also noted that more than
15-crypto based ETF registrations were filed during this period. Notably,
all attempts of crypto-based ETF’s were blocked by the SEC.
The
retail market can still purchase cryptocurrency without a fund. Over the last year, retail investors flocked
to open crypto brokerage accounts on a number of global exchanges, including
Coinbase. Last November, Coinbase’s user
base exceeded popular equities-brokerage firm, Charles Schwab (10.6 million v.11.7 million users).
Interestingly,
crypto brokerage accounts are not regulated in the same fashion of traditional
brokerage accounts (SEC/FINRA/SIPC/MSRB) in the U.S.
Crypto investments for advisors and
broker-dealers
Viable asset class doesn’t necessarily equate to a suitable one. The emergence of Crypto assets poises a suitability
challenge for traditional financial institutions (e.g. mutual funds,
broker-dealers, investment advisors). Crypto
market volatility, as seen over the last year, is off the charts. For most advisors, making a client recommendation
into this market is out of the
question.
Secondly,
the underlying value of these instruments are not based on traditional
securities performance metrics, such a P.E., Price to Book, Debt-equity, or
even those metrics of other alternatives, such as commodities. With that said, some advisory/broker-dealer networks are looking for a workaround to gain exposure to the underlying blockchain technology.
In May 2018, LPL Financial launched a separately management account product “Blockchain Innovators Portfolio,” to provide its investors a means to purchase equities in companies that are adopting blockchain technology.
In May 2018, LPL Financial launched a separately management account product “Blockchain Innovators Portfolio,” to provide its investors a means to purchase equities in companies that are adopting blockchain technology.
Crypto investments may turn out to be a viable alternative space for
an advisor or brokers accredited investor, extreme risk tolerant, and/or
wealthy investor base. As it seems, the
appetite for risk could not be higher for some private investor markets.
Determining
Suitability
Using FINRA Rule 2111 as an example, broker dealers
are required to use a risk-based assessment for making recommendations in
securities products based on:
Reasonable Basis – are the risks/rewards
appropriate given the client’s objectives.
Customer Specific – are the recommendations
specific to the customer.
Quantitative – does the costs/fees outweigh benefits for
the clients.
Both advisors and broker-dealers
must provide documentation to justify any recommendations made to its
clients. Among other things, this
documentation comes in the form of an investment policy statement and/or collection
of the following:
Financial status - What is the client’s debt/income
ratio?
Existing assets – Total list (e.g. house,
stocks, bonds, income producing vehicles),
Tax status - Future/current tax obligations?
Age – Is the client near or far from retirement?
Investment objectives – Is client seeking an aggressive,
growth, or passive portfolio?
Liquidity requirements – Does client need access to
money (“fiat currency”) sooner or later?
Time horizon – When does client expect to achieve
results?
Risk tolerance – Does client like safe investments,
in-between, or like to live on wild side?,
Investment experience – How familiar is client with
securities products/investing?
Eyes on the first Cryptocurrency ETF approval in the U.S.
The first
SEC-approved Crypto ETF seems like a reasonable assumption given the commissions
announcement in hiring “Crypto Chief” Valerie
Szczepanik to Associate
Director of the Division of Corporation Finance and Senior Advisor for Digital
Assets and Innovation.
Ms.
Szcepanik’s role will include providing an operational and regulatory framework
of crypto applicability within U.S. securities laws.
In a June
8th interview with ETF.com, John Hyland of Bitwise Asset Management,
believes that the Securities and Exchange Commission (“SEC”) is close to the
launch of the first U.S. listed crypto ETF.
Notably,
Mr. Hyland was a major player in the first oil and commodity-based ETF’s to hit
the market in the U.S. His firm already
opened a private cryptocurrency fund for accredited investors. http://www.etf.com/sections/features-and-news/hyland-1st-bitcoin-etf-closer-reality
SEC Chairman’s thoughts on Crypto for the public
In a
December 2017 press release, SEC chairman Jay Clayton expressed a cautious, but
optimistic tone for the emerging crypto/ICO space and its underlying blockchain
technology.
In an
exercise of caution, Clayton expressed a need for providing mechanisms to
protect retail investors from the inherent risks of the new technology, such as
hacks, data thefts, and scam operations.
Overall,
the SEC recognizes the need to support innovation and entrepreneurial growth. Over the last few years, the SEC has provided
main street investors with an opportunity for exposure to innovative investment
vehicles, such as crowdfunding. In doing
so, the commission extended its Reg D. definitions, which previously served
only accredited investors, to allow the general public to invest in other
businesses and/or startups (Reg. CF and
Reg. A+).
Summary: Lastly,
the regulatory future is uncertain, but the SEC will likely push ahead in its
crypto oversight initiatives for investor protection and to foster growth in
blockchain industry. Based on
congressional initiatives such as H.R. 835, an ETF and/or other alternative crypto
product(s) may show up sooner than we think.
In its current form, crypto volatility and market risk provides little
incentive for a traditional investment manager to recommend these products to
most of its client base.
Moreover,
alternative investment managers, who offer these products to its accredited
investor base should provide (or obtain) full disclosures of the crypto’s
inherent risks and divergences between other private/alternative securities. Given its popularity, more private fund
products should be in the pipeline for this investor base.
In other
blogs, we will discuss future considerations in the blockchain space, such as
AML, KYC, crypto fund registration, cybersecurity, and more.
Disclaimer: Investing in cryptocurrency carries inherent risks. This article is not intended to be an endorsement
for investing in any securities or crypto investments, but rather a presentation
of an emerging asset class for illustrative purposes only. This disclaimer also serves as a reminder
that past performance of cryptocurrencies is not indicative of future
results. We recommend that you consider
referring to a qualified investment professional for future insight into crypto
funds, suitability, and its inherent risks. We serve many qualified investment professionals
that can help you to build a viable investment strategy.
Check
our blog: www.mycomplianceblog.com for more compliance-related news.
For more inquiries, please contact:
Cory Roberson
Roberson Ventures Group, LLC.
2950 Buskirk Ave, Suite 300, Walnut Creek, CA 94597
Phone: 650-305-2688
Email: cory@robersonconsults.com or cory@riareview.com
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