Category: Wealth Management and Robo-Advisers

K&L Gates Adds Leading FinTech Partners
Massachusetts issues guidelines for using third-party robo-advisers
Asia Region Funds Passport memorandum signed
FCA Encouragement for Roboadvice
U.S. Regulatory Scrutiny of Robo-Advisers and Other Providers of Digital Investment Advice
Providing digital advice to retail clients
Australian Government gets more FinTech friendly
Salesforce is all in on Fintech
Payment Services and Money Transfer in the FinTech Space: What is Next?
Robo-Advice Risks and Benefits

K&L Gates Adds Leading FinTech Partners

Global law firm K&L Gates welcomes Judith Rinearson and Linda C. Odom as partners in the firm’s FinTech and Consumer Financial Services practices. Rinearson joins K&L Gates’ New York and London offices, and Odom, joins the Washington, D.C. office.  “Judie Rinearson and Linda Odom are highly respected authorities in numerous key regulatory and commercial areas within the FinTech ecosystem,” stated Robert Zinn, co-leader of K&L Gates’ global corporate and transactional practice area as well as of the firm’s market-leading global FinTech practice.

To read our full press release please click here.

Massachusetts issues guidelines for using third-party robo-advisers

By Susan P. Altman and C. Todd Gibson

In April 2016, the Massachusetts Securities Division issued a policy statement with respect to the fiduciary obligations of state-registered advisers providing robo-advice.  The MSD has now issued further regulatory guidance in a new Policy Statement with respect to the use of third-party robo-advisers by state-registered investment advisers.  The MSD noted the significant growth in popularity of third-party robo-advisers and the increasing number of state-registered investment advisers working with third-party robo-advisers.

The new guidance describes minimum disclosure that state-registered investment advisers using third-party robo-advisers must provide to investors in order to meet Massachusetts regulatory requirements, including:

  • Clearly identifying the robo-advisers and explaining their services;
  • Notifying investors that, when applicable, they could get the services directly from the robo-adviser without paying additional fees to the state-registered investment adviser;
  • Describing the value provided to the investor by the state-registered investment adviser;
  • Specifically identifying the services the state-registered adviser cannot perform, such as having no ability to access, select, change or customize the portfolio structure or investment products at the robo-adviser;
  • Identifying limitations of available investment products offered to the client through the robo-adviser; and
  • Using customized, easy-to-understand disclosure language.

Most importantly perhaps, the investment advisers must charge an advisory fee that is reasonable in light of fees charged by others providing essentially the same services.  An investor is usually charged a fee by both the investment adviser and the robo-adviser based on a percentage of the investor’s assets under management.  Massachusetts state-regulated advisers will have to demonstrate the value behind the fees they charge on top of the robo-adviser’s fees, such as specialized knowledge of the products or the investor’s personal circumstances.

The Policy Statement can be found here.

Asia Region Funds Passport memorandum signed

By Jim Bulling and Michelle Chasser

After 6 years of international negotiation, Australia has signed the Asia Region Funds Passport’s Memorandum of Cooperation with Japan, South Korea and New Zealand. Other countries which have been involved in the negotiations but are yet to sign include Singapore, Thailand and the Philippines.

The Passport facilitates the cross border offering of eligible collective investment schemes in participating countries. Australian Minister for Small Business and Assistant Treasurer, Kelly O’Dwyer, said “The Passport will create a single market for managed funds encompassing economies across the region”.

FinTech businesses which utilise managed funds, such as marketplace lenders and some robo-advisers, and are regulated in a participating country may be able to use the Passport to offer managed funds in other participating countries without needing to go through local licensing and registration processes.

The Memorandum of Cooperation comes into effect on 30 June 2016 and can be found here.

FCA Encouragement for Roboadvice

By Jacob Ghanty

The UK’s Financial Conduct Authority published its final report on the Financial Advice Market Review on 14 March, which stated that there is a “clear need for intervention by the regulator and the government” to aid the provision of new and more cost-effective ways of delivering financial advice and guidance. The FAMR sets out recommendations to address concerns relating to the affordability and accessibility of financial advice, which includes recommendations to help firms develop automated “robo-advice” models.  In the linked article, first published in E-Finance & Payments Law & Policy, Jacob Ghanty expresses his views on robo-advice developments.


U.S. Regulatory Scrutiny of Robo-Advisers and Other Providers of Digital Investment Advice

By C. Todd Gibson

Recently, regulators in the US have issued guidance with respect to providers of automated investment advice, including robo-advisers.  On April 1, the Massachusetts Securities Division (“MSD”) issued guidance questioning whether a Massachusetts state-registered robo-adviser could fulfil its fiduciary obligations without some element of human-provided services (including initial and ongoing due diligence), stating that the registration of such advisers would be reviewed on a case-by-case basis.  Of particular concern to the MSD were “fully-automated” robo-advisers, characterized as those that: 1) do not meet with or conduct significant (or any) due diligence on a client, 2) provide investment advice that is minimally personalized, 3) may fail to meet the high standard of care that is imposed on the appropriateness of investment advisers’ investment decision-making, and 4) specifically decline the obligation to act in a client’s best interests.

FINRA, the US self-regulatory organization for broker-dealers, also recently published a report after having discussions with member firms and others with respect to the use of “digital investment advice.”  Although the report did not purport to create any new legal requirements or change any existing regulatory obligations for brokers, FINRA identified certain practices they believe brokers should consider when using digital tools.  The report focused on digital tools (including robo-advice) used by firms to perform client services.

US investment advisers, through application of the anti-fraud provisions of the Investment Advisers Act of 1940 and interpretations of US courts and regulators, owe a general fiduciary duty to their clients.  With the recent proliferation and growth of complex, automated investment advice, regulators are becoming more focused on the use of such tools in the context of existing regulatory and fiduciary obligations.

The MSD policy statement can be found here and the FINRA report can be found here.

Providing digital advice to retail clients

By Jim Bulling and Michelle Chasser

The Australian Securities and Investments Commission (ASIC) has released a draft guide on digital financial product advice for consultation. The draft guide does not introduce new regulatory concepts but clarifies some of the uncertainties that have arisen about how existing obligations will apply to robo-advisers.

Generally, robo-advice is provided using algorithms and without the involvement of a natural person. To ensure that consumers are provided with competent advice ASIC is proposing that at least one manager who is used to demonstrate the organisational competence of the licensee (Responsible Manager) must meet the training and competence standards applicable to natural persons who provide advice to retail clients.

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Australian Government gets more FinTech friendly

By Jim Bulling and Michelle Chasser

The Australian Government has released its responses to the industry’s priorities for fintech development which it has called “Backing Australian FinTech”. As well as affirming existing commitments, such as introducing a crowd sourced equity funding (CSEF) framework and an incubator support programme, the paper includes a number of initiatives that the Government proposes to undertake. New developments include:

  • introduction of an entrepreneur visa in November 2016 for foreign entrepreneurs with innovative ideas and financial backing from a third party;
  • possibly increasing the asset and turnover eligibility threshold for CSEF to A$25 million and reducing cooling off periods for investors to 48 hours;
  • consultation on a potential framework for crowd sourced debt funding;
  • increasing the maximum fund size of Early Stage Venture Capital Limited Partnerships (ESVCLPs) to A$200 million and providing a 10% tax offset on capital invested;
  • introduction of a mechanism to allow Innovation Australia to issue binding advice in relation to the definition of ineligible activities for ESVCLPs;
  • Productivity Commission inquiry into options for improving access to comprehensive credit reporting (CCR) data;
  • a regulatory guide for robo-advice providers;
  • possibly allowing licensed insurance brokers to sell insurance policies from unauthorised foreign insurers where they offer consumers a better price and appropriate consumer protection;
  • possibly applying anti-money laundering laws to digital currencies;
  • a commitment to address the ‘double taxation’ of using digital currency to purchase goods already subject to the Goods and Services Tax (GST);
  • establishment of a new Cyber Security Growth Centre; and
  • a ‘regulatory sandbox’ in Australia to allow FinTech start-ups to test their products and business models.

Backing Australian FinTech indicates that 2016 will be a busy year for fintech regulation in Australia.

Read Backing Australian FinTech here.

Salesforce is all in on Fintech

By Cameron Abbott and Simon Ly

Salesforce wants to get in on the Fintech act, recently announcing the public launch of “Financial Services Cloud”. This is a service that allows financial advisors to be more productive with relevant client information.

The service aims to better position advisors in “managing client life goals, household relationships and client profiles from a connected platform”. Financial Services Cloud has a variety of features including portfolio management, prospecting and data management whilst also assisting with compliance with new and proposed regulatory changes. These features leverage areas which Salesforce is historically strong in, namely automation and analytics.

While start-ups abound, Salesforce clearly wants to bring its pedigree to the table to work with large established market participants. This new offering is certainly likely to be sold strongly to Salesforce’s existing customers, including Goldman Sachs, Deutsch Bank and Merrill Lynch.

With Financial Services Cloud, it will be interesting to see if this takes over from in-person meetings that customers may have with their advisors, which can be both clunky and time consuming. Salesforce seeks to provide some real data-driven insight into investment decisions that will give customers more of an understanding of their personal wealth whilst increasing the oversight on wealth advisors.

You can find out more from Simon Mulcahy (General Manager of Financial Services, Salesforce) here.

Payment Services and Money Transfer in the FinTech Space: What is Next?

By Jacob Ghanty and Tom Wallace

On 23 February 2016 our London office hosted a seminar discussing the future of payments and money transfer and the opportunities and challenges for businesses in this space, featuring talks from leading industry experts Anthony Watson of Uphold Inc. and Jean-Stéphane Gourévitch of, alongside our partners Jacob Ghanty and Tom Wallace. Find a link to the audio recording and slides of the event here.

Robo-Advice Risks and Benefits

By Jim Bulling and Michelle Chasser

The Joint Committee of the European Supervisory Authorities (JCESA) is considering what regulations, if any, will be required for robo-advice throughout the European Union (EU). JCESA has released a discussion paper on automation in financial advice to assist it evaluate how robo-advice is currently being used in the EU and its potential growth in banking, securities and insurance. The discussion paper highlights what the JCESA identify as the main potential benefits and risks to both consumers and financial institutions which offer some form of robo-advice.

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