Investor Protection Regulations

• In this chapter, the term “investor protection” pertains to laws and rules designed to guarantee that investors receive comprehensive information about their financial investments before engaging in transactions.
• EU and US have strict investor protection laws. Firms operating in these regions must have strong risk controls to minimize violations. Major penalties by banks and investment firms have resulted from such violations.
• Financial compliance falls under Basel’s taxonomy for operational risk as “Clients, Products and Business Practices” (CPBP). Compliance with investor protections falls under subcategories 4.1 (Suitability, Disclosure & Fiduciary) or 4.2 (Improper Business or Market Practices).
• Investor protection mechanisms prevent misrepresentation and establish accountability for fraudulent activities. They enable cross-jurisdictional cooperation between regulators and require strict KYC filings. Investor protection and AML legislations are interconnected.

MIFID and MIFID II

• Markets in Financial Instruments Directive (MIFID) is an EU Directive (2004/39/EC) that became effective in November 2007. It is a central regulation for financial market activities, ensuring high investor protection. MIFID mandates business conduct and organizational requirements for investment firms and regulated markets. It enforces regulatory reporting, trade transparency obligations to prevent market abuse and defines rules for public trading of financial instruments. MIFID was effective from 2007 to 2018.
• The 2008 financial crisis highlighted the need for a stronger regulatory framework to enhance investor protection and address new trading platforms. In June 2014, the European Commission introduced new rules, MIFID II and MIFIR, which revised the MIFID framework. MIFID II reinforces investor protection and mandates public disclosure of trading data, as well as disclosure of transaction data to regulators.
• MIFIR is a stronger version of the original regulation, addressing incentive structures and investment activities of financial firms. It covers the following –
  • Remuneration of traders, advisors, and conflicts of interest
  • Communication to customers to be fair and non-misleading
  • Definition and independence of investment advice
  • Sales process and product governance
  • Best execution of trades for the clients
  • Dealings with eligible counterparties

MIFID mandates business conduct and organizational requirements for investment firms and regulated markets. It enforces regulatory reporting, trade transparency obligations to prevent market abuse and defines rules for public trading of financial instruments. MIFID was effective from 2007 to 2018.

DODD Frank – The Investor Protection Act

• The Investor Protection Act is a part of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2009 in the US. It was introduced in response to the 2007 financial crisis to prevent its recurrence. The act created a committee to consult the SEC on regulatory priorities, including new financial products and trading strategies, and increased whistleblower protection.
• The Dodd-Frank Act regulates various areas of investor protection, including the trading of OTC derivatives. The SEC and the CFTC oversee the regulation of OTC trading, and firms must use clearinghouses for derivatives transactions under the act. The Dodd-Frank Act also aims to promote greater financial market stability by establishing federal oversight, creating a financial stability oversight council, and reorganizing financial regulation.
• The Dodd-Frank Act includes the Volcker Rule, which aims to prevent commercial banks from engaging in speculative activities and proprietary trading for profit. It also limits banks’ investments in hedge funds and private equity funds. Additionally, the act created the Consumer Financial Protection Bureau (CFPB) as an independent financial regulator to oversee consumer finance markets such as mortgages, student loans, and credit cards.

Compliance Risk Management In Investment Activities

• Compliance breaches in financial market activities are
  • a form of internal fraud when intentional, and
  • an outcome of human error or faulty policies when unintentional.
• Controls to prevent internal fraud also apply to the prevention of errors, except for deterrent controls. Similar drivers of internal fraud, such as poor employee engagement, dissatisfaction, or weak ethics culture, also increase the risk of compliance breaches and market abuse.
• There are several other factors that can contribute to compliance risks in market activities, including –
  • Information asymmetry, where retail investors may not have the same level of knowledge as the financial institutions they are investing with.
  • Conflicts of interest, particularly with traders who are simultaneously trading for both clients and their own firm.
  • Economic conditions, such as increased market volatility, that can lead to a higher number of transactions and potentially make it easier to conceal abnormal transactions or insider trading.
• Compliance risk management pertains to the prevention and management of compliance breaches related to investment activities. To ensure the proper behavior in investment activities and financial market operations, it is necessary to implement effective controls such as employee and trade monitoring and supervision, robust middle-office and back-office functions, comprehensive policies and procedures, employee training, and a strong ethics culture. This should be supported by consistent processes for screening and training employees and third parties during the onboarding process.

Case Studies

• Statistics and Record Fines Cases for Investor Protection Violations
  • US fines for investor protection violations totaled nearly $82 billion over 6,612 penalty records from 2000 to 2022. The most significant individual penalty of $11.15 billion was imposed on UBS in July 2008 for misrepresenting auction rate securities to investors. UBS was required to buy back $11 billion in securities and pay $150 million in penalties as part of the resolution of multi-state litigation.
  • Spoofing, or manipulating market prices by entering and canceling orders, is a violation of investor protection laws. JP Morgan was fined a record $920 million by the CFTC in September 2020 for spoofing in precious metals and US Treasury markets. The charges included “manipulative and deceptive conduct and spoofing that spanned at least eight years and involved hundreds of thousands of spoof orders in precious metals”.
  • Before investor protection regulations, practices like spoofing were deemed acceptable, but the case study shows how opinions and regulations have evolved over time.
• FINRA Fines Deutsche Bank Securities, Inc. $ 2 Million for Best Execution Violations
  • The Financial Industry Regulatory Authority (FINRA) is a US regulatory agency dedicated to investor protection and market integrity, overseeing brokerage firms. FINRA Rule 5310 requires firms to seek the most favorable terms reasonably available for a customer’s orders, including criteria such as price improvement and speed of execution.
  • From 2014 to 2018, Deutsche Bank Securities was found by FINRA to be using its smart order router to route customer orders to exchanges through the “SuperX ping” preference, causing execution delays and lower fill rates for customers’ market orders. Deutsche Bank Securities did not change its routing arrangement or assess price improvement opportunities for direct exchange orders despite being aware of the issue.
  • Also, Deutsche Bank Securities did not fully disclose its relationship with the markets it routed orders to, including the trading rebates it received. The firm’s reports were vague about these rebates, providing no details on the amount per share or order. There was no evidence that the firm passed on these rebates to its customers who were entitled to receive them.
  • Deutsche Bank Securities settled the fine without admitting or denying FINRA’s findings.
  • When firms engage in non-compliant practices for profit, regulators typically impose punitive fines that exceed the benefits gained. These fines serve as a deterrent for future non-compliance and signal to peer firms that they should adjust their processes and monitoring practices to ensure compliance.