A PLAYBOOK
FOR BENEFICIAL OWNERS
Facing T+1 and the SEC’s Disclosure Agenda
A Project by Advanced Securities Consulting LLC, CSFME.org and FTI Consulting
INTRODUCTION
Rather than wholesale retooling or replacing legacy systems to comply with more rapid reporting and settlement, we propose to focus on the power of pooled data and new technologies in the areas of greatest vulnerabilities, in particular, recalls and fails. Beneficial owners face a regulatory agenda proposing more rapid settlement and market data reporting. These changes pose untenable challenges for lending programs.
THE STUDY
We propose a study employing transaction-level securities lending data to develop:
- A model data trust demonstrating a more efficient reporting under proposed 10c-1 that provides better value to lenders
- Ranges for recalls to prevent fails and allow for effective proxy voting. (Individualized ranges and fail metrics for sponsors)
- A better understanding of data communications and transaction flows for buy-to-cover reporting (affirm/confirm)
A PLAYBOOK
The ultimate product of the study will be a "playbook" focused on the needs of beneficial owners, demonstrating how items 1, 2, and 3 can be "bolted" onto legacy systems to solve the challenges the reporting and settlement regimes will present to lenders, their agents, and their custodians.
METHODOLOGY
Banks, brokers, and institutional investors are studying less costly alternatives to comply with the proposed Rule 10c-1. As designed, a regulatory sandbox would enable trading clusters to map their loans end-to-end using universal transaction identifiers (UTI). The newly enriched SWIFT 20022 messaging protocol will also be tested to link all nodes of the securities finance ecosystem, providing investors with “not only the rates for such transactions,” said the SEC proposal, “but also any signals that rates provide, e.g., that changes in supply and demand for a particular security may indicate an increase in short sales of that security.”
Ed Blount
In August, 2022, the U.S. Patent and Trademark office granted to Ed Blount the first smart contract patent in securities finance, for recalling securities loans using real-time risk profiles on a blockchain. Two decades earlier, Mr. Blount created “Lending Pit,” the first online pricing service for securities loans at Astec Analytics, a firm he founded that is now a division of FIS. More recently, Mr. Blount has testified as an expert in securities finance before all three branches of the U.S. federal government. His chapter on “Securities Finance Disputes,” in which he advised on courtroom standards for expert analysis and report-writing, was published in 2017 in the Sixth Edition of the Litigation Services Handbook. Mr. Blount has degrees from New York University, Pepperdine University, and Fordham University. But, above all, Ed Blount is a proud former U.S. Marine officer.
David Schwartz
David Schwartz is the Executive Director of the Center for the Study of Financial Market Evolution. His business and legal career spans 30 years and includes work in both the public and private sectors. Mr. Schwartz has served as Treasurer of the County of Kauai, Executive Director of the Kauai Economic Development Board, and Senior Managing Director at Advanced Securities Consulting, LLC. Previous to that, he held positions as Senior Counsel at the Securities and Exchange Commission and the Mutual Fund Directors Forum and was an associate at the Washington, DC firm K&L Gates, where he specialized in risk management, corporate governance, and the regulation of financial services and products, including regulated investment companies. Mr. Schwartz earned his BBA at Texas Tech University and his Juris Doctor degree at the University of Texas School of Law. He is an attorney licensed to practice in Texas and the District of Columbia and is admitted to practice before the United States Supreme Court and the United States Tax Court. He is also a Certified Public Accountant licensed in Texas.
DATA
Data fields from the "Industry Playbook" of the service providers do not necessarily reflect the most significant data elements to beneficial owners. The study will create a stock loan database focused on data most meaningful to beneficial owners' lending programs.
BACKGROUND
A data trust provides independent, fiduciary stewardship of data
Data Trusts are an approach to safeguarding and making decisions about data in a similar way that trusts have been used to look after and make decisions about other forms of assets in the past.
With Data Trusts, the independent person, group or entity stewarding the data takes on a fiduciary duty. Fiduciary duty involves stewarding data with impartiality, prudence, transparency and undivided loyalty.
Features of Data Trusts:
- Takes the concept of a legal trust and applies it to data
- Facilitates the sharing of data
- Ensures the data is properly managed from a privacy standpoint, and isn’t monopolized
- Facilitates data quality and uniformity
- Can be used as a regulatory tool that enables innovation
A wholesale shift to T+1 will likely increase the risk of trade settlement fails, which will lead to more cash penalties. If firms are to avoid costly settlement fails, they must improve their visibility and transparency into the securities transaction lifecycle. Access to a central source of data and tracking transactions throughout the entire securities lifecycle will be vital to facilitating settlement efficiencies. We have chosen to conduct our primary research to complement pre-existing explorations on this topic. Both quantitative, beneficial owners, lending agents, and surrounding networks will be required to allow for better data representation.
The systems currently supporting the securities lending business in the US market are not designed to accommodate same-day settlement. As such, the advent of T+0 settlement would require developing costly new systems using emerging solutions, such as DLT, that enable the real-time movement of securities across market participants and platforms. Employing the right combination of new technologies can reshape and transform securities lending transaction chains making T+1 and T+0 possible and practical. The pool of industry data from the adoption of DLT platforms will yield additional metrics and insights into complete transaction lifecycle not previously possible under siloed and fragmented transactions.
The SEC’s securities lending disclosure proposal clarifies that data vendors cannot resolve the information asymmetry in the securities lending market because their business models rely upon keeping access to the data somewhat restrictive to enhance the comprehensiveness of the data, but also limiting who has access.
Comment Letters to the SEC: Proposed Rule: Reporting of Securities Loans
CSFME meeting with the SEC staff on Proposed Rule: Reporting of Securities Loans [Release No. 34-93613; File No. S7-18-21], April 26, 2022 https://www.sec.gov/comments/s7-18-21/s71821-20126846-287566.pdf
Ed Blount, Comment letter to the SEC on Proposed Rule: Reporting of Securities Loans [Release No. 34-93613; File No. S7-18-21], November 1, 2022 https://www.sec.gov/comments/s7-18-21/s71821-20150128-316327.pdf;
Ed Blount, Comment letter to the SEC on Proposed Rule: Reporting of Securities Loans [Release No. 34-93613; File No. S7-18-21], April 26, 2022; https://www.sec.gov/comments/s7-18-21/s71821-20146484-311684.pdf;
Edmon W. Blount, Executive Director, Advanced Securities Consulting LLC, Comment letter to the SEC on Proposed Rule: Reporting of Securities Loans [Release No. 34-93613; File No. S7-18-21], https://www.sec.gov/comments/s7-18-21/s71821-20111696-265030.pdf;
David Schwartz, Comment letter to the SEC on Proposed Rule: Reporting of Securities Loans [Release No. 34-93613; File No. S7-18-21], March 17, 2022 https://www.sec.gov/comments/s7-18-21/s71821-20119858-272649.pdf;
David Schwartz, Comment letter to the SEC on Proposed Rule: Reporting of Securities Loans [Release No. 34-93613; File No. S7-18-21], January 7, 2022 https://www.sec.gov/comments/s7-18-21/s71821-20111702-265034.pdf
Podcasts
Ed Blount, “The Impact of Data-Based Models on Financial Markets,” RMA Podcast, June 7, 2021 https://www.rmahq.org/the-impact-of-data-based-models-on-financial-markets/;
Blount, Edmon W., “Restoring Trust in Markets: RMA Podcast Series,” June 7, 2021 https://csfme.org/Full_Article/restoring-trust-in-markets-rma-podcast-series;
“Surprise! Market Theories Fail in Real-World Tests,” RMA Podcast, April 17, 2017 https://www.rmahq.org/surprise-market-theories-fail-in-real-world-tests/
Analysis and Commentary
Schwartz, David. “Is T+1 Something We Can All Agree On?” Center for the Study of Financial Market Evolution, 6 October 2022, https://csfme.org/Full_Article/is-t1-something-we-can-all-agree-on;
Schwartz, David. “Common Domain Model Paves the Way to the Future” Center for the Study of Financial Market Evolution, November 17, 2022 https://csfme.org/Full_Article/common-domain-model-paves-the-way-to-the-future;
Schwartz, David. “Serious Doubts About the SEC’s Short Sale Proposals.” Center for the Study of Financial Market Evolution, 30 September 2022, https://csfme.org/Full_Article/serious-doubts-about-the-secs-short-sale-proposals;
Schwartz, David. “SEC Gets an “Earful” on Securities Lending and Short-selling Disclosure Proposals.” Center for the Study of Financial Market Evolution, 3 March 2022, https://csfme.org/Full_Article/sec-gets-an-earful-on-securities-lending-and-short-selling-disclosure-proposals;
Schwartz, David. “Lenders and Borrowers Sound off on the SEC’s Disclosure Proposal.” Center for the Study of Financial Market Evolution, 22 January 2022, https://csfme.org/Full_Article/lenders-and-borrowers-sound-off-on-the-secs-disclosure-proposal;
Schwartz, David. “New Trends in Data Ownership – Center for the Study of Financial …” CSFME, 15 November 2021, https://csfme.org/Full_Article/new-trends-in-data-ownership;
CSFME, ”Reddit Trading and Resilience in U.S. Equity Finance,” Mar. 30, 2021, https://csfme.org/Full_Article/reddit-trading-and-resilience-in-us-equity-finance-4
Advanced Securities Consulting LLC and the Center for the Study of Financial Market Evolution have over thirty years of experience in quantitative analysis of financial transactions and applying statistical and quantitative methods.
More about ASC: https://advsecurities.com/Expertise/Expert-Testimony-Litigation-Support
More about CSFME: https://csfme.org/ActivitiesEngagements
ASC and CSFME have assembled a team of highly educated and experienced experts to design and execute our research plan.
Ed Blount
Ed Blount serves as an advisor to financial regulators and trade associations on capital markets issues, as well as a consultant to law firms on securities litigation matters. Blount has worked in the securities markets for 35 years, first with Citibank, Bankers Trust, and ASTEC Consulting. He is now Executive Director of the Center for Study of Financial Market Evolution (CSFME), a non-profit research group he founded in 2006, and President of Advanced Securities Consulting, LLC. Both firms are based in Washington, D.C.
In March 2011, the U.S. Senate invited Ed Blount to testify as the only independent witness for the securities lending community during a hearing before the Special Committee on Aging. In September 2009, Blount testified on similar subjects before the Chairman and Commissioners of the SEC.
Blount’s paper on the collapse of Bear Stearns and Lehman Brothers, “Liability Dynamics: A New Framework for Counterparty Risk Management?”, was published in the March, 2009 issue of the Risk Management Association (RMA) Journal. In April, 2007, he presented "The Impact of Short Sales and Securities Lending on Capital Market Portfolios: 1990 through 2006," at the IMF-World Bank conference in Moscow, Russia. In 2006, Blount co-authored "Managing Liquidity Risks in Cash-based Lending Programs," in Securities Finance: Lending and Repurchase Agreements, edited by Frank Fabozzi and published by Wiley.
The CSFME’s investigative report, “Borrowed Proxy Abuse: Real or Not?”, was presented to the SEC in October 2010. It reported the results of CSFME’s analysis of over one billion loan records from eight banks, averaging $2 trillion annually -- or 90% of all U.S. securities loans from 2005 through 2008. CSFME consulted with the Risk Management Association and Securities Industry Financial Markets Association to test the allegations of widespread proxy abuse that had been published by academic researchers in 2005.
Since 1980, Ed Blount has been a writer and contributing editor of the ABA Banking Journal of the American Bankers Association. In many published articles, Blount has conducted in-depth interviews with senior officials of the SEC, Federal Reserve Board of Governors, Federal Reserve Bank of New York, Bank for International Settlements, Basel Committee on Banking Supervision, European Commission, European Central Bank and the Swiss Private Bankers Association.
In 1992, one of Blount’s prior firms was the first investment consultancy to benchmark securities lending programs, by forming a research cooperative that grew to more than 250 institutional investors, 30 bank agents and 50 broker-dealers. Blount introduced Lending Pit as the first pricing service for securities loans on the Internet in 2004. By 2007, when Blount sold the business to a Fortune 500 company, traders were receiving daily borrowing rates on over 90,000 securities.
A former U.S. Marine Captain, Blount has degrees from Fordham University, Pepperdine University and New York University. He is a member of the Executive Committee of Fordham’s President’s Council. A frequent speaker at industry conferences worldwide, Blount serves on the Advisory Board of the Mutual Fund Directors Forum and the Institutional Investor Task Force of Broadridge Financial Solutions, Inc. He was inducted into Asset International’s Securities Services Hall of Fame in June 2009.
David Schwartz
David Schwartz advises regulators and financial institutions on legal, tax, and financial accounting issues. His business and legal career spans 30 years and includes work in both the public and private sectors. Mr. Schwartz’s practice centers on risk management, corporate governance, and the regulation of financial services and products, including regulated investment companies.
As Senior Counsel at the Mutual Fund Directors Forum, a not-for-profit membership organization formed at the behest of the SEC to promote sound corporate governance principles for mutual fund independent directors, Mr. Schwartz assembled working groups of industry experts to assist him in crafting practical guidance for board governance of mutual fund risk and board oversight of securities lending programs . The resulting documents, "Risk Principles for Fund Directors," published in 2010, and "Practical Guidance for Fund Directors on the Oversight of Securities Lending," published in 2011, are considered the industry’s seminal works on their respective topics, and have been praised by the SEC and the fund industry.
While at the Forum, Mr. Schwartz organized and presented a series of educational conferences for fund directors in conjunction with Columbia University Law School on the topics of risk oversight and risk management, including the oversight of fund securities lending programs and funds’ use of derivative instruments:
- Risk Principles for Fund Directors, June 2009.
- Funds’ Use of Derivatives, November 2007.
- Securities Lending: Micromanagement v. Effective Oversight, January 2006.
Mr. Schwartz has spoken extensively on risk governance, and published articles on the topic, including:
- “Risk Governance and Mutual Fund Directors,” Practical Compliance & Risk Management for the Securities Industry, May-June 2011 Issue.
- “Directors Should Confront Risk Governance Head On,” Board IQ, August 18, 2009
As an associate in the Washington, DC office of Kirkpatrick & Lockhart LLP, Mr. Schwartz advised clients on regulatory issues applicable to investment companies, including mutual funds, insurance company products, hedge funds, as well as investment advisers and their affiliates.
In 2001, Mr. Schwartz joined the U.S. Securities and Exchange Commission as Senior Counsel in the Division of Investment Management where he was primarily responsible for drafting investment management rule proposals and providing regulatory advice on investment company regulatory issues to the Division’s Director and the Commission.
Prior to obtaining his law degree, Mr. Schwartz was an auditor with Ernst & Young LLP providing financial audit assurance services to public and private retirement plans, the airline and commercial construction industries, and public broadcasting and other not-for-profit organizations.
Mr. Schwartz earned his BBA in Accounting (Magna Cum Laude) from Texas Tech University and his Juris Doctor (with honors) from the University of Texas School of Law. Mr. Schwartz is licensed to practice law in Texas and District of Columbia, and is admitted to practice before the United States Supreme Court and the United States Tax Court. He is also is a Certified Public Accountant licensed in Texas.
FTI Consulting
Over the last 40 years, FTI Consulting has grown to become a market-leading global consulting firm that brings together distinct capabilities and experts to serve as the trusted advisor to clients when they are facing their greatest opportunities and challenges. Each practice is a leader in its own right, staffed with experts recognized for the depth of their knowledge and a track record of making an impact. Collectively, FTI Consulting offers a comprehensive suite of services designed to assist clients across the business cycle—from proactive risk management to the ability to respond rapidly to unexpected crises and dynamic environments.
Eric Poer
Eric Poer is the Co-Leader of the Securities Accounting and Regulatory Enforcement practice for FTI Consulting. He has more than 20 years of experience providing attorneys and clients with complex dispute consulting, forensic accounting, and investigatory engagements as well as deposition and trial testimony.
Mr. Poer brings to his clients an array of services designed to help organizations and individuals address critical issues in litigation and to mitigate risk, enhance corporate governance and improve performance. He directs large-scale financial investigative assignments including forensic accounting investigations, financial fraud investigations and white collar crime investigations.
Mr. Poer’s background as an accountant includes performing financial statement audits of publicly and privately held companies and providing merger, acquisition, and divestiture services. He also has considerable experience in labor and employment disputes and investigations.
Mr. Poer’s litigation and dispute advisory services experience includes assisting domestic and international clients in high-stakes commercial and securities litigation dispute disputes. He assists in-house and external counsel in matters involving accounting analysis and the economics and financial analyses of complex transactions and damages resulting from a variety of civil claims. Additionally, Mr. Poer has extensive experience providing expert witness testimony in more than 35 securities and commercial litigation matters.
Prior to joining FTI Consulting, Mr. Poer worked on complex litigation and investigative matters at LECG and was also a Financial Statement Auditor at KPMG, which is an internationally recognized public accounting firm. Before joining KPMG, he worked at Arthur Andersen and UBS financial services.
Mr. Poer has served as an adjunct professor at Golden Gate University where he instructs a post-graduate forensic accounting course on conducting independent corporate financial investigations.
Certifications
- Certified Public Accountant (CPA), Oregon and California
- Certified Fraud Examiner (CFE)
- Certified in Financial Forensics (CFF)
- Accredited in Business Valuation (ABV)
Associations
- American Institute of Certified Public Accountants (AICPA)
- Association of Certified Fraud Examiners (ACFE)
- Forensic Accounting Advisory Board, Golden Gate University
- Oregon Society of Certified Public Accountants (OSCPA)
Education
- B.S., Public Finance, Indiana University
Tiko V. Shah
Tiko V. Shah is a Managing Director in the FTI Consulting Forensic & Litigation Consulting segment and is based in San Francisco. Mr. Shah has more than 20 years of professional experience in calculating complex economic damages and in litigation consulting.
Mr. Shah has provided expert trial and deposition testimony regarding economic damages and has calculated damages and provided litigation consulting support in matters in a variety of litigation contexts including securities and finance, valuation, intellectual property, antitrust, class action shareholder suits, and complex damages. Mr. Shah has experience in a wide range of industries, including securities, pharmaceuticals, automotive, municipal finance, military equipment, telecommunications, internet, semiconductors, manufacturing, telecommunications, banking, and consumer products.
Mr. Shah has an M.B.A. in finance and marketing from the Wharton School of Business, an M.S. in accounting from New York University, and a B.A. in economics from Yale University. In addition, Mr. Shah has successfully passed the CPA exam.
Before joining FTI Consulting, Mr. Shah worked as a principal at LECG in the Emeryville and San Francisco offices.
Education
- B.A., Economics, Yale University
- M.S., Accounting, New York University
- M.B.A., Finance and Marketing, University of Pennsylvania (Wharton)