April 2012 – Page 3 – Compliance Building

Crowdfunding the Crowdfunders

With President Obama set to sign the Jumpstart Our Business Startups Act on Thursday, it seems the race is on to create a crowdfunding portal and to start making money. Crowdfunding has been around for a long time and the use of a crowdfunding portal dates back several years. Now there is a crowdfunding accreditation program and a trade association.

Crowdsourcing.org has launched the Crowdfunding Accreditation for Platform Standards program to promote the adoption of best practices. Eight platforms have obtained the green ribbon since the program started on March 21:

David Marlett announced the formation of the National Crowdfunding Association, “the professional organization of all companies and individuals with an interest in crowdfunding. The NCFA is charged with “supporting, educating and protecting the American crowdfunding industry.” According to the press release, over “fifty companies and individuals dedicated to the nascent crowdfunding industry came together to form the association.

Mr. Marlett claims to have launched the first crowdfunding agency on March 21, 2012 and is now the executive director of the National Crowdfunding Association. They even have twitter accounts, Facebook pages, and blogs. (Does that make it real?)

Over on the transcedant Quora, questions keep coming on Crowdfunding: Crowdfunding will explode after the JOBS Act passes. How can I invest in a crowdfunding site?

My original thought on crowdfunding was a line from Groucho Marx, “Please accept my resignation. I don’t care to belong to any club that will have me as a member.” if these investments and opportunities are so good, why hasn’t a professional investor delivered the funding? Why would the company want my $1,000? Maybe they are not that good? Maybe they are inexperienced? Maybe they are just looking to make a quick buck?

In looking at the race to create crowdfunding portals and associations of portals I have the same concerns. There are plenty of existing sites and existing companies that could easily choose to dominate the marketplace, if they so choose. The Securities and Exchange Commission has to craft a regulatory structure to deal with the CROWDFUND Act. That will take months.

For now it seems there will be tussle for attention in the space. The megaphones are out. There will be losses.

A Conversation with Paul Volcker

In a night out that only a compliance geek would love, I spent Monday night listening to Malcolm Salter talk with Paul Volcker, former Chairman of the Federal Reserve. Harvard University’s Edmond J. Safra Center for Ethics and the Center’s director, Lawrence Lessig, hosted the event in the Ames Courtroom at Harvard Law School. The topic, as you might expect, was Implementing Financial Reform

It was clear that Mr. Volcker is a supporter of traditional commercial banking. He stated that they are essential to commerce. Their core functions of taking deposits, making loans, and operating the payment system are essential and need to be protected. There is a price for that protection: government oversight and restrictions.

The 2008 crisis came from non-banks. Hedge funds and investment banks touted their efficiency, lack of regulatory oversight, brilliant managers, and best financial engineers. In 1998 they invented Credit Default Swaps. They blew themselves up.

There were $60 trillion of CDS instruments insuring $6 trillion of loans. Today there are $700 trillion of the greater category of derivatives. That is an order of magnitude larger that the world’s GDP.

Mr. Volker was quick to point out that proprietary trading was not the cause of the 2008 crisis, it was the origination of many, many bad home loans to people who could not repay them. However, proprietary trading did play a role.

Mr. Salter pulled out a thick binder contained the proposed Volcker Rule. (I did the same thing at the PEI CFO Forum.) But Mr. Volcker found that disingenuous. The rule itself is only about 35 pages and the rest of the binder contained the commentary and thousands of questions posed by regulators.

Mr. Volcker compared the current rule on proprietary trading to a rule on Truth in Lending that he implemented while he was Chairman of the Federal Reserve. The initial draft from his staff was 170 pages, he sent it back with a requirement that it be no more than 100 pages. He wanted it simpler and they delivered. To his surprise, most of the industry comments were to have more details in the rule.

It became apparent to me that Mr. Volcker was advocate of a principle-based oversight rather than a rules-based oversight. The more rules there are, the more gamesmanship that the industry will engage in. He pointed to the example of Barclays and Deutsche Bank re-shaping their US subsidiaries so they would no longer be classified as bank holding companies. He thinks it will be relatively easy for regulators to spot proprietary trading by focusing on volume an volatility.

Switching topics, Mr. Volcker pointed out that the standards for bank capital requirements were another part of the 2008 crisis. Under the regulatory capital requirements, banks were not required to set much capital aside for mortgages and sovereign debt. There is some backlash in the Volcker rule because it allows proprietary trading in US government securities, but not in non-US sovereign debt. That has been the case for many years, going back to Glass-Steagall. The problem is drawing the line between which sovereign debt is safe and which is not.

Mr. Volcker does not think that the proposed rule is on a deathwatch. Rule-making is inherently complex and this is a complex area. To add to the complexity, several government agencies are involved in the rule. He also pointed out that much more lobbying and money is involved in the rule-making process than when he was Chairman of the Fed. You want industry responses to rules. The difficult part is when that response is coupled with a campaign contribution to Congress.

Circling back to the ethics aspect (the event was sponsored by the Center for Ethics), Mr. Volcker pointed out that proprietary trading causes an inherent conflict of interest with your customers. The trader is no longer acting as a broker, pulling a buyer and seller together. The proprietary trading bank is buying and selling for its inventory.

Proprietary trading creates a conflict in the compensation structure. Traders get paid on short-term gains, often before the trade’s economic effect is fully realized. That outsized and short-term compensation becomes a siren song for bankers looking for fatter wallets, causing them to take bigger risks. (Like, say originating sub-prime loans and reselling them.)

Additional materials:

Steps to Determine if an Investor is Accredited

Private funds will be able to advertise and solicit for investor, provided all of the investors are “accredited investors.” The Jumpstart Our Business Startups Act will dramatically change the way capital raising for private funds operates.

The drawback is the loss of 35 non-accredited investors in the fund. That exception has been eliminated. Funds will need to wait until the Securities and Exchange Commission issues the rules under Section 201 of the JOBS Act.

Part of those rules may be a mandated approach to determine if someone is an accredited investor.

“Such rules shall require the issuer to take reasonable steps to verify that purchasers of the securities are accredited investors, using such methods as determined by the Commission.”

The SEC may take the opportunity to mandate an approach to validate an investor’s financial standing. As with most regulations, it could clear up uncertainty or create a paperwork headache (or both).

Will you need a copy of an investor’s W-2? A certified financial statement? Those are reasonable requests. However it would create much more personal information that would need to be safeguarded by the fund sponsor.

There is the possibility that the mandated approach would also address the requirements to determine if an investor is “qualified client” under the Investment Advisers Act or a “qualified purchaser” under the Investment Company Act.

We will have to wait and see what comes out of 100 F Street.

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