Description:

Technology is redefining financial services—including the way actors make and settle payments, raise capital, extend loans, and memorialize increasingly complex relationships. At the same time, new innovations—from cryptocurrencies to marketplace lending, robo-advising, and mobile payments—are creating novel regulatory issues for anti-money laundering requirements and cybersecurity. This Nutshell provides an overview of some the key developments reshaping finance—and the rules deployed to oversee them.

Chris Brummer’s Fintech Nutshell has been named by BookAuthority one of the 20 Best New Fintech Books to Read in 2020!

Contents:

TABLE OF CASES

Introduction. Regulating Financial Innovation • A Short History of Fintech • Fintech 1.0 and Liberalization in the 1980s–2000s • The 2008 Financial Crisis • What’s “New” About Today’s Fintech? • New Data • Automation, Artificial Intelligence, and Learning • Disintermediation of Incumbent Architectures • Federal Fintech Regulators • The Role of States in Fintech • The Regulatory Toolbox • Formal Statutes and Regulations • Enforcement • Informal Guidance • Pilots • Licenses • Regulatory Sandboxes • The Organization of the Book

Chapter 1. Crowdfunding • Types of Crowdfunding • The JOBS Act • Regulation Crowdfunding • Disclosure Requirements for Regulation CF Offerings • Periodic Disclosure Requirements for Regulation CF Issuers • Issuer Advertising and Investor Communications • Investor Prudential Limitations and Resale Restrictions • Intermediary Licensing and Operations: Funding Portals and Broker-Dealers • Funding Portals • Broker-Dealers • Investor Education and Communications • Intermediaries and the Regulation CF Offering Process • Fraud Prevention • Exemption from Section 12(g) of the Exchange Act of 1934 • Bad Actor Disqualifications • Regulation A+ • Tier 1 and Tier 2 Offerings • The Regulation A+ Offering Process • Form 1-A • “Testing the Waters” and Gun Jumpin • Periodic Disclosure Obligations • Annual Reports • Semi-Annual Reports • Current Reports • Termination of Reporting Requirements • Prudential Limitations • Eligible Issuers and Disqualification Procedures • Exemption from Section 12(g) of the Exchange Act • State Preemption and Coordinated Review • Regulation A+ Resales and Secondary Trading • Regulation D Crowdfunding • Rule 504 Offerings • Rule 506 Offerings • 506(b) • 506(c) • Regulation D Resales • Bad Actor Disqualifications • Intrastate Offerings

Chapter 2. Digital Assets • Three Uses of Digital Assets • Digital Currencies as “Money” • Digital Utility Tokens • Digital Security Tokens • Distributed Ledgers, Blockchains, and Consensus Mechanisms • Bitcoin, Ethereum, and XRP • Bitcoin, Ethereum, and XRP • A World of Altcoins • Stablecoins • Digital Asset Forks • Blockchain Governance • Fifty-One Percent Attacks • Initial Coin Offerings • The Regulatory Framework for Digital Assets: The SEC • Digital Assets as “Stocks” and “Bonds” • Digital Assets as “Investment Contracts” • Bitcoin and the Howey Test • Ether and the Howey Test • Ripple and the Howey Test • ICOs (and ICO Tokens) as Securities • Security Tokens • Digital Utility Tokens • ICO Registration and the SAFT Framework • Criticisms of the SAFT Framework • The Reves Test • Digital Asset Exchanges/Trading Platforms • State-Regulated “Exchanges” • Federally Regulated Alternative Trading Systems • National Securities Exchanges • Decentralized Digital Asset Trading Venues • Digital Wallets • Digital Asset Investment Funds • Open-End Funds • Exchange Traded Funds • Closed End Funds • Exchange Traded Products • Non-SEC Registered “Funds” • Regulation of Investment Funds • The Regulatory Framework for Crypto Assets: The CFTC • The CFTC’s Authority to Regulate “Commodity Interests” • Digital Asset Derivatives as Commodity Interests • Leveraged Commodity Transactions • The CFTC’s Antifraud Authority • Section 4 of the CEA • Section 6(c)(1) of the CEA and Regulation1(a) • CFTC’s Anti-Manipulation Authority • The CFTC’s Regulation of Derivatives Exchanges and Digital Asset Futures • Self-Certification and New Digital Asset Product Launches • A Final Word on CFTC Oversight and Digital Asset Spot Markets • Central Bank Digital Currencies

Chapter 3. Robo-Advisors • A Statutory Outline • Robo-Advisors and the Investment Adviser Act • What Are Investment Advisers? • Investment Advisers as Fiduciaries • Registration Process and Disclosures for Robo-Advisors • Client Disclosures • Advertising Restrictions • Antifraud Obligations and Enforcement • Suitability Requirements • Suitability and the Investment Company Act • The Duty of Best Execution . Effective Compliance Programs • Robo-Advisors and the Exchange Act of 1934 • Regulation Best Interest • Suitability • The Duty of Best Execution • Cybersecurity

Chapter 4. High Frequency Trading • The Traditional (Human) Stock Exchange Infrastructure • The Electronification of Markets—and the New Role of Speed • The Dangers of Speed, and Automated Trading • Defining High Frequency Trading • HFT Strategies Pertinent to Regulation • Federal Rules Relevant to HFT • Rules Against Market Manipulation, Fraud, and Spoofing • Exchange Act of 1934’s Prohibition Against Deceptive Devices • Enforcement of the Prohibition Against Deceptive Devices • Sarbanes-Oxley and FERA • Enforcement of Sarbanes-Oxley • Commodity Exchange Act and DoddFrank Act • Structural Regulations • Protecting the Market Against Systemic Risks • Circuit Breakers • Restrictions on Extreme Trade Executions: Limit up-Limit Down and Stub Quotes • Maintaining a Level Playing Field • Market Access Rule • Direct Feed Access and CoLocation • Monitoring Mechanisms • State Laws • Public-Private Regime

Chapter 5. Marketplace Lending • Online Lending Business Models • Balance Sheet Lending • Marketplace Platform Lending • Hybrid Models • Payday Loans • Usury Laws: How Much Interest Can an Online Lender Charge Across State Lines? • Madden v. Midland Funding • “True Lenders” • State Licensing and Federal Preemption • Consumer Protection Laws • Truth in Lending Act • Electronic Funds Transfer Act • Disclosures • Electronic Loan Repayments • Prohibitions Against Unfair, Deceptive, and Abusive Acts and Practices • Fair Credit Reporting Act • Adverse Decision Disclosure Requirements • Pricing Disclosure Requirements • Information-Sharing Restrictions • The Protection of Applicant Information Under the Gramm-Leach Bliley Act • Debt Collection • Fair Debt Collection Practices Act • RICO • Criminal RICO Violations • Civil RICO Violations • Equal Credit Opportunity Act • ECOA’s Disparate Treatment and Impact Prohibitions • Adverse Decision Disclosure Requirements • Who Is Covered by ECOA? • Contract Formation and the E-Sign Act • Military Lending Act • Vendor Liability as an Institution-Affiliated Party • Securities Laws Considerations • Platform Notes as “Investment Contracts” • Platform Notes as “Notes” • Disclosure and Registration Requirements • Risk Retention Requirements • Investment Company Act • Investment Advisers Act.

Chapter 6. Mobile Payments • Mobile Devices, Payment Cards, and the Law • The Truth in Lending Act and Regulation Z • TILA’s Scope • Truth in Lending Act Disclosures • Consumer Protections Under TILA • The CARD Act • Electronic Fund Transfer Act and Regulation E • Disclosures Under EFTA • Model Clauses for Initial Disclosures • Consumer Protections Under EFTA • Debit Cards with Hybrid Credit Features • The Prepaid Rule • Stored Value Devices and EFTA • Disclosure Requirements Under the Prepaid Rule • Consumer Protection Under the Prepaid Rule • Prepaid Cards with Hybrid Credit Features • Automated Clearing House Transactions • Unfair, Deceptive, or Abusive Practices: UDAP and UDAAP • Unfair Acts or Practices • Deceptive Acts or Practices • Abusive Acts or Practices • UDAP/UDAAP Enforcement • UDAP/UDAAP and Cybersecurity • Fair Credit Reporting Act • Federal Regulations for Deposit Brokers • Federal Bank Secrecy Act • State Money Transmitter Laws

Chapter 7. Anti-Money Laundering and Compliance • Reporting Requirements Under the Bank Secrecy Act • Currency Transaction Reports • Form 8300 • Currency and Monetary Instrument Reports • Suspicious Activity Reports • Foreign Bank Account Reports • The PATRIOT Act • Customer Identification Verification • AML Programs • Designated Compliance Officer • Special Due Diligence • Office of Foreign Assets Control Compliance • Penalties for Violating the BSA • The BSA and Non-Bank “Financial Institutions” • Money Services Businesses • Prepaid Access Providers • Marketplace Lending • Broker-Dealers • Robo Advisors • Crowdfunding Portals • Virtual Currencies and the Bank Secrecy Act: The Framework • Users • Exchangers • Administrators • Applying the BSA Framework to Virtual Currency and ICO Transactions • Selling Virtual Currencies on One’s Own Account • FATF Guidelines and the “Travel Rule”

Chapter 8. Cybersecurity • Defining Cybersecurity • Cybersecurity Frameworks • The Federal “Cooperative” Framework: Cybersecurity Act of 5 • The Federal Trade Commission Act’s UDAP Prohibitions • FTC v. Wyndham Worldwide • LabMD v. FTC • FTC Guidance • The Dodd-Frank Act’s UDAAP Prohibitions • Gramm-Leach-Bliley Act • FTC Safeguards Rule • SEC Safeguards Rule • Interagency Guidelines for Banking Agencies • FCRA and FACTA Disposal Rules • Identity Theft Red Flags Rules • SEC Guidance and Compliance Obligations • Investment Advisers and Investment Companies • Broker-Dealers • Self-Regulatory Organizations • Transfer Agents • Contractual and Self-Regulatory Obligations • FINRA Enforcement • Payment Card Standards • State Law • Data Breach, Data Security, and Data Disposal Laws • Common Law • Financial Sector-Specific Laws

INDEX

About the Author:

Chris Brummer, Georgetown University Law Center

Target Audience:

Students and academicians of financial law.