Edward Eisert

Senior Counsel

New York


Read full biography at www.orrick.com
Edward G. Eisert, a senior counsel in the New York office, is a member of the Corporate Group. He focuses his practice on investment management, financial products and regulatory compliance.

He represents U.S. and non-U.S. domiciled financial institutions in a wide array of matters spanning his practice specialties. Ed’s experience includes the structuring and re-structuring of private investment funds and other financial products; the formation and operations of investment advisers and broker-dealers; cross-border broker-dealer, investment adviser and bank regulatory issues; and advice regarding applications of blockchain technology and the regulation of digital assets.

Before joining Orrick, Ed was the General Corporate Counsel of Fiduciary Trust Company International, a subsidiary of Franklin Templeton Investments, and also served as the initial AML Compliance Officer of Fiduciary Trust.

Posts by: Edward Eisert

SEC Staff Observation from Examinations of Investment Advisers

 

On July 23, the Securities and Exchange Commission (SEC) Office of Compliance Inspections and Examinations (OCIE) published a Risk Alert on its “Observations from Examinations of Investment Advisers: Compliance, Supervision, and Disclosure of Conflicts of Interest.” The purpose of this Risk Alert is to raise awareness of certain compliance issues that OCIE observed by sharing the Staff’s observations from these examinations. The Risk Alert provides a good summary of the Staff’s observations across a broad range of compliance topics, but emphasized its specific observations relating to employees or prospective employees with disciplinary histories. As stated by the Staff: “the key takeaway is that OCIE encourages advisers, when designing and implementing their compliance and supervision frameworks, to consider the risks presented by hiring and employing supervised persons with disciplinary histories and adopt policies and procedures to address those risks.” Risk Alert.

Settlements of SEC Registration Charges with Two ICO Issuers Serve as Warning and Compliance Models

 

On November 16, the Securities Exchange Commission (“SEC“) announced settled charges against two companies that sold digital tokens in initial coin offerings (“ICOs“). According to the Press Release announcing these settlements, these are the Commission’s first cases imposing civil penalties solely for ICO securities offering registration violations. The remedies agreed to include the return of funds to harmed investors, the registration of the tokens as securities under the Securities Exchange Act of 1934, the filing of periodic reports with the Commission, and the payment of $ 250,000 as a monetary penalty. READ MORE

SEC Charges EtherDelta Founder with Operating an Unregistered Securities Exchange

 

On November 8, the Securities and Exchange Commission (“SEC“) announced that it has settled charges against Zachary Coburn, the founder of EtherDelta, a digital token trading platform. Significantly, this is the SEC’s first enforcement action based on findings that such a platform operated as an unregistered national securities exchange. The SEC has previously brought enforcement actions relating to unregistered broker-dealers and unregistered Initial Coin Offerings (“ICOs“), including some of the tokens traded on EtherDelta.

According to the SEC’s order, EtherDelta is an online platform for secondary market trading of ERC20 tokens, a type of blockchain-based token commonly issued in ICOs. The order found that Coburn caused EtherDelta to operate as an unregistered national securities exchange.

As stated in the Press Release and Order, EtherDelta provided a marketplace for bringing together buyers and sellers for digital asset securities through the combined use of an order book, a website that displayed orders, and a “smart contract” run on the Ethereum blockchain. Most notably, over an 18-month period, EtherDelta’s users executed more than 3.6 million orders for ERC20 tokens, including tokens that are securities under the federal securities law. Notably, the SEC did not identify the specific tokens it found to be securities or the salient characteristics thereof.

Therefore, EtherDelta acted as an online national securities exchange and was required to register with the SEC or qualify for an exemption.

The SEC’s investigation is ongoing.

DFS Authorizes Coinbase Global, Inc. to Form Coinbase Custody Trust Company LLC

 

On October 23, the Superintendent of the New York State Department of Financial Services (“DFS“) announced that the DFS has approved the application of Coinbase Custody Trust Company LLC, a wholly-owned subsidiary of Coinbase Global, Inc., to operate as a limited purpose trust company. The announcement also notes that Coinbase Inc. has held Money Transmitter and Virtual Currency licenses from DFS since January 2017 and DFS approved Coinbase Trust to offer secure custody services for six of the largest virtual currencies: Bitcoin, Bitcoin Cash, Ethereum, Ether Classic, XRP and Litecoin. Release.

CFTC Proposes to Streamline Regulations for Commodity Pool Operators and Commodity Trading Advisors

 

On October 9, the Commodity Futures Trading Commission (“CFTC“) unanimously approved proposed rules as a part of its KISS initiative to simplify regulations for commodity pool operators (“CPOs“) and commodity trading advisors (“CTAs“). The KISS initiative “requested public input on simplifying and modernizing the agency’s regulations to make them less burdensome and costly, while maintaining their regulatory benefits.” READ MORE

SEC Disapproves the Listing and Trading of Nine Bitcoin Related Exchange Traded Products

 

On August 22, 2018, the SEC released three Orders, acting through authority delegated to the Division of Trading and Markets, that disapproved: (i) a proposed rule change application by NYSE Acra, Inc. that would have permitted it to list and trade the shares of the ProShares Bitcoin ETF and the ProShares Short Bitcoin ETF; (ii) a proposed rule change application by NYSE Acra, Inc. that would have permitted it to list and trade shares of five exchange-traded products of the Direxion Shares ETF Trust II; and (iii) a proposed rule change application by the Cboe BZX Exchange, Inc. that would have permitted it to list and trade two classes of shares of funds of the GraniteShares ETP Trust. READ MORE

FINRA Requests Comment on Financial Technology Innovation in the Broker-Dealer Industry

 

On July 30, 2018, the Financial Industry Regulatory Authority (“FINRA“) published a Special Notice, in response to requests from the public, “seeking comments on how FINRA can support fintech development consistent with [its] mission.” In addition, FINRA requested “specific comment on certain fintech areas, including the provision of data aggregation services, supervisory processes concerning the use of artificial intelligence, and the development of a taxonomy-based machine-readable rulebook.” READ MORE

SEC Overrules Proposed Rule Change by BZX to List and Trade Shares of the Winklevoss Bitcoin Trust

 

On July 26, 2018, the Securities and Exchange Commission (“SEC“), over the objection of Commissioner Peirce, disapproved a proposed rule change application by the Bats BZX Exchange, Inc. (“BZX“) that would have permitted it to list and trade shares of the Winklevoss Bitcoin Trust. This Order, effectively, reaffirmed and superseded the action taken by the SEC on March 10, 2017, acting through authority delegated to the Division of Trading and Markets, that denied a similar application. In issuing its July 26 Order, the SEC determined that BZX had “not met its burden under the [Securities Exchange of 1934] and the Commission’s Rules of Practice to demonstrate that its proposal is consistent with the requirements of the Exchange Section 6(b)(5), in particular the requirement that its rules be designed to prevent fraudulent and manipulative acts and practices.”

Federal Regulators Issue Key Guidance on Fintech Issues

 

On July 30, 2018, the U.S. Department of the Treasury (“Treasury“) and the Office of the Comptroller of the Currency (“OCC“) provided important guidance on a broad range of issues confronting the fintech industry. Treasury released a long-awaited report titled A Financial System That Creates Economic Opportunities: Nonbank Financials, Fintech, and Innovation (the “Treasury Report“).

Following a specific recommendation in the Treasury Report, the OCC formally announced that it would begin to accept applications for special purpose national bank charters, and it provided guidance on the procedures and standards that would govern such applications through the issuance of a Licensing Manual Supplement for Special Purpose National Banks (the “Manual Supplement“). Taken together, the Treasury Report and the OCC announcement reinforce the commitment of the federal government to promote the growth of the fintech industry. Click here to read the full Orrick-authored alert.

SEC Adopts Rules to Enhance Transparency and Oversight of Alternative Trading Systems

 

On July 18, 2018, the Securities and Exchange Commission (“SEC“) voted to adopt amendments to Regulation ATS to enhance operational transparency and regulatory oversight of alternative trading systems (“ATSs”) that trade stocks listed on a national securities exchange.

Certain ATSs will be required to file detailed public disclosures on new Form ATS-N. According to the SEC: “these disclosures are designed to allow market participants to assess potential conflicts of interest and risks of information leakage arising from the ATS-related activities of the ATS’s broker-dealer operator and its affiliates.” Secondarily, the disclosures are intended to inform market participants about how the ATS operates, including order types and market data used on the ATS, fees, the ATS’s execution and priority procedures, and any procedures to segment orders on the ATS.

According to the Fact Sheet published with its Press Release, the SEC stated:

The enhanced disclosures are also designed to enable market participants to compare an NMS Stock ATS to other trading venues and better evaluate the ATS as a potential destination for their orders.

Specifically, Form ATS-N will require an NMS Stock ATS to disclose information regarding:

  • Information about its broker-dealer operator, including identifying information and ownership.
  • ATS-related activities of its broker-dealer operator, and the broker-dealer operator’s affiliates.
  • The manner of operations of the NMS Stock ATS.

The amendments will be published on the Commission’s website and in the Federal Register and will become effective 60 days from the date of publication in the Federal Register. An NMS Stock ATS that is operating pursuant to an initial operation report on Form ATS as of January 7, 2019 will be required to file a Form ATS-N no earlier than January 7, 2019 and no later than February 8, 2019. As of January 7, 2019, an entity seeking to operate as an NMS Stock ATS will be required to file a Form ATS-N.