FINRA to sweep crypto-related communications by broker-dealers

The announcement, made Monday, requests broker-dealers provide all retail communications on crypto assets made to 25 or more investors by them and their affiliates from July 1 to Sept. 30. Retail communications cover any electronic interaction and include written communications, video, social media posts, mobile applications, and websites. Communications covered by the sweep would be related to a service involving the holding or transaction of crypto assets, FINRA said.

The sweep comes as the Department of Justice (DOJ), Commodity Futures Trading Commission, and Securities and Exchange Commission each have indicated a desire within their agencies to oversee various portions of the crypto marketplace. The DOJ established a national cryptocurrency enforcement team. Although calls for increased regulation have been made for some time by regulators and legislators, the urgency to follow through might increase following the collapse of one of the world’s largest cryptocurrency exchanges, FTX, earlier this month.

“[B]roker-dealers in general should be mindful of their crypto-related activities going forward, given the increased regulatory scrutiny such activities will likely face,” said a Wednesday blog post by law firm Morgan Lewis authored by Partners Ignacio Sandoval and Amy Natterson Kroll and Of Counsel Sarah Riddell.

Broker-dealers regulated by FINRA must produce each communication within the time frame, noting the date it was made public, the crypto asset it referred to, whether it was filed with FINRA’s advertising regulation department, and whether it was approved by a registered principal of the firm.

FINRA has also requested firms provide written supervisory procedures regarding crypto asset communications, which include review, approval, recordkeeping, and dissemination; compliance policies, training manuals, bulletins, and any other written guidance on crypto asset communications; and contracts or written agreements between a broker-dealer and affiliates regarding the latter’s creation and dissemination of such communications, as well as how the affiliate determines which of the broker-dealer’s customers will receive the communications.

Portions of FINRA’s sweep are unclear, and broker-dealers should be “thoughtful” in their response, the Morgan Lewis post said.

“It is unclear which communications FINRA will consider involving a broker-dealer affiliate, especially where entities use similar names,” the post said.