Remarks at SEC Speaks: Increasing Product Complexity: What’s at Stake?
Feb. 23, 2018
Good morning. Thank you, Bill [Hinman] for that kind introduction.
As always, it is a pleasure to be with you today at SEC Speaks.
Before I continue, I will remind you that the views I express here today are my own and may not necessarily reflect those of my fellow Commissioners, or of the staff of the Commission.
It’s my understanding that this is the 47th year of SEC Speaks. Much has changed in our capital markets since 1972. Computers now allow investors to access a myriad of investment options from common equity to complex financial instruments within minutes. Both large and small investors have more investment options at their fingertips—and I mean that literally—than ever before. Computers also allow financial products to be developed and sold more quickly than ever before. This high rate of financial innovation and engineering can be beneficial, but it also can present challenges. I still remember the ashen faces of the Secretary of the Treasury and the Chair of the Federal Reserve when they came to the Senate Banking Committee seeking authorization for a massive federal government intervention during the financial crisis. Financial engineering of complex institutional investment products (such as credit default swaps and collateralized debt obligations) were at the heart of the financial crisis.
Now, over a decade later, we live in the ‘era of the possible.’ Advances in financial innovation and engineering have enabled the development of new and even more complex financial products. These advances have also allowed the rapid proliferation of these products into the hands of retail investors.
We know we can build products that take advantage of our technological and engineering capabilities. But the question should not be: “Can we develop and sell to investors a product that does XYZ?” The question ought to be “Should we develop or sell to investors a product that does XYZ?”
Allow me for a moment, to take you back in time more than 100 million years—to the Jurassic and Cretaceous periods—when dinosaurs roamed the earth. You can imagine that these remarkable forms of life looked spectacular from a distance, but up close they were probably quite frightening. Steven Spielberg’s movie, Jurassic Park, paints the picture well. To the park guests, the prehistoric animals were jaw-droppingly majestic, at least from a distance. Up close, however, some of the dinosaurs were unpredictable, if not outright scary. The scientists that created them did not fully understand their capabilities, the unintended effects, or the collateral damage that would inevitably ensue. The scientists failed to control the park because of what boiled down to a misunderstanding of their highly engineered breeding process. As Dr. Alan Grant noted in the movie, “life found a way.”
By referencing Jurassic Park, I am not suggesting that every complex product is equivalent to a tyrannosaurus rex or velociraptor—that is, something scary, dangerous, and unpredictable. All investments have at least some risk. And I recognize that there is a sliding scale of complexity. But what I would like to do is ask whether certain products are appropriate for all investors? How are these products being sold, particularly to retail customers? Even if the disclosure is perfectly clear, does it appropriately inform investor decision-making? If the Jurassic Park guests really understood what could go wrong, do you think they would go on the tour?
Although strategies involving derivatives may date back to at least the 6th century B.C., when the Greek philosopher Thales bought options on olive presses, they have gotten much more esoteric and complex since then. Products, strategies, and structures using derivatives can range in complexity now, from covered call strategies on the “simpler side” to the far more exotic. Things like straddles, strangles, iron condors, iron butterflies, twin-win notes, worst of notes, and buffered super track notes come to mind. It seems like the more odd the name, the more complex the product.
Of course, derivatives in general can be risk-moderators and even necessary tools for businesses and financial professionals. Some would say structured products or derivatives give certainty to financial risk. Others would say they are “financial weapons of mass destruction.” While both may be true in their own right, I would ask: Should certain complex and esoteric products or strategies be targeted to retail investors? In today’s world, virtually anyone—retail investors alongside financial professionals—has access to any number of different products, services, strategies, and exposures. And if they can’t get direct access, there’s sure to be a vehicle that gets them there indirectly.
Take, for instance, over-the-counter structured notes linked to bespoke indices. The index methodologies on which these products are based often involve some form of calculus or advanced math. The imbedded fees can be mind-numbingly complicated. Notably, the underlying investments can include instruments that would not be available to a retail investor directly. Despite this, these products are often sold to retail investors by financial professionals who make a lot of money by selling complex products. What’s more, it’s not even clear that all of these financial professionals fully understand the products they are selling.
Complex products are also readily available to retail investors in the form of exchange traded products. We all have read the headlines about the VIX futures-based products over the last few weeks. The VIX, as you know, is an index that seeks to measure implied stock market volatility. Investors can gain exposure to the VIX in several ways, including through futures. The VIX-based products in the headlines are based on an index of futures. And that index of futures is based on a second index, which is the VIX. The VIX, in turn, is derived from the price of options referencing a third index whose components are domestic equities. So, the values of these exchange-traded products are based on a combination of futures, options, and three indices. Quite the maze.
What troubles me, is that often-times complex products fall into the hands of people who don’t fully understand them. For certain of these products, the intention may be to market them to only institutional investors. And maybe the products often work as intended. But how does this play out in practice? Do retail investors have access to these products? Do their brokers sell these products after a frank discussion about the potential outcomes and the risks? Do investors understand that the products are trading tools and not long-term investments? Are investors aware they bear credit risk by purchasing these products? Or that the exposure they are getting might not actually reflect the exposure they seek? Is it even possible to have disclosure that adequately describes how these products work?
We also have seen a rise in leveraged and complex passive investment strategies. While index investing traditionally has been seen as rather bland, its rise in popularity has been a cattle call to financial engineers. So, index investing has gone from tracking broad-based indices like the S&P 500 to the new frontier in innovation. With nearly one-third of investment company assets under management, many of these funds track indices reflecting much more than the traditional methodologies that we are all familiar with. Today, indices have bespoke algorithmic methodologies and frequent rebalancing. They can look more like active management than a purely passive instrument. Complexities abound. Do investors know these funds are subject to more than just market risk? Are they aware of the added complexities?
Investors can lose money, or even a lot of money, but that’s not the issue. What concerns me is the disconnect between what investors actually understand and what they really need to understand in order to have a fighting chance at using these products the way they are designed to be used.
A big part of the Commission’s mission is to protect investors. Even after issuers improve disclosure, is that disclosure enough? Do investors really understand what they are getting into? As I have said before, disclosure may only be one piece of the puzzle.
Unfortunately, study after study has shown that many retail investors lack basic financial literacy. One response has been to try to improve financial education. This is a noble pursuit, and we should certainly continue to serve the public in this way. Anecdotally, some studies have shown that financial education, when given close in time to an investor’s decision, can have some impact. However, other studies have shown that attempting to improve general financial literacy often does not work to improve outcomes or subsequent behavior. This is an area we should continue to understand and strengthen.
The Commission has also brought enforcement actions relating to the purchase and sale of complex products. For example, in one case, the Commission charged a large financial institution for supervisory failures related to the sale of reverse convertible notes to retail investors. In another, the Commission charged a different large financial institution for misleading retail investors when selling structured notes. Furthermore, the Commission and FINRA have brought a number of enforcement actions related to the sales practices of inverse and leveraged ETFs. However, the Commission continues to see abuses relating to the purchase and sale of complex products.
So, how do we deal with this multifaceted problem? I think there are several answers.
First, the Commission, FINRA, and the Exchanges need the ability to understand the full impact of these complex products on investors and our markets. We certainly must finalize the consolidated audit trail—the CAT—the Commission’s Hubble telescope into the securities markets. The CAT will be a critical tool for overseeing the capital markets and will better allow the Commission and the self-regulatory organizations (SROs) to catch up with the industry’s rapidly evolving technical sophistication. To date, there have been many hurdles that have delayed the development and deployment of the CAT. However, it appears that progress is being made by the SROs. I remain hopeful that progress will soon be tangibly observable. There should be no doubt that completion of the CAT is imperative.
In addition, the Exchanges that list complex products must be able to effectively surveil for problems. If they are unable to do so, should they even be listing the products in the first place? And if there is a problem with a product they listed, shouldn’t we require them to have the equivalent of smoke detectors and fire extinguishers, and to keep the exit doors clear?
Finally, part of the solution must come from industry professionals and gatekeepers. This includes lawyers, accountants, exchanges, investment advisors, broker-dealers, and others. Gatekeepers are on the front lines. They are charged with advising clients on their investments or how to comply with the law. Or perhaps they are listing products with the public interest in mind. All gatekeepers need to remember that there are real people behind each account number, who are saving for college, retirement, or any number of financial goals. Gatekeepers should be part of the solution, not part of the problem.
I will leave you with one last quote from Jurassic Park. It comes at the point in the film when the guests are debating the validity of what John Hammond, the park’s owner, has created. Dr. Ian Malcom forcefully explains to Hammond as follows:
I’ll tell you the problem with the scientific power that you’re using here, it didn't require any discipline to attain it. You read what others had done and you took the next step. . . . You stood on the shoulders of geniuses to accomplish something as fast as you could, and before you even knew what you had, you patented it, and packaged it, and slapped it on a plastic lunchbox, and now . . . . you’re selling it . . . .
John Hammond replies to the criticism by saying “I don't think you're giving us our due credit. Our scientists have done things which nobody’s ever done before,” to which Dr. Malcolm responds, “yeah, but your scientists were so preoccupied with whether or not they could that they didn’t stop to think if they should.”
The question should be the same here—
not can we create complex and esoteric products,
but should we?
Let’s stop and think, before we repeat the mistakes of the past.
 Jurassic Park (Universal Pictures 1993).
 See Joe Weisenthal, The Story Of The First-Ever Options Trade In Recorded History, Business Insider, Mar. 4, 2012, available at http://www.businessinsider.com/the-story-of-the-first-ever-options-trade-in-recorded-history-2012-3; see also Instreet Investment Limited, Structured Products Have Been With Us For A Long Time – And That’s Because They Provide Certainty, Apr. 30, 2013, available at http://www.instreet.com.au/content/structured-products-have-been-us-long-time-%E2%80%93-and-that%E2%80%99s-because-they-provide-certainty (“The history of derivatives, of which structured products are a repackaged form for the retail and institution market, can be traced back to the Old Testament, with the reason they were relevant then the same reason why they are relevant today.”) See Andrew M. Chisholm, Derivatives Demystified: A Step-by-Step Guide to Forwards, Futures, Swaps and Options 5 (John Wiley & Sons, Ltd., 2d. ed. 2010) (referencing tulip mania in 16th century Holland when futures and options on tulips were first traded); Alfred Steinherr, Derivatives: The Wild Beast of Finance: A Path to Effective Globalisation? (John Wiley & Sons, Ltd. 2000) (1998) [hereinafter “Steinherr”] (offering a brief history of complex instruments, and noting that “[b]oth convertible securities and preferred stock are early hybrids of pure equity and pure debt. Much of the financial engineering of recent years has refined and generali[z]ed this cross-breeding”).
 See Steinherr (giving a brief history of derivatives, explaining that the final step to managing risk is derivatives and financial engineering, and noting that “[t]he last thirty years [prior to 2000] have been a period of exceptionally profound and prolific financial innovations”).
 See generally id.
 Berkshire Hathaway Inc., 2002 Annual Report 15 (2003), available at http://www.berkshirehathaway.com/2002ar/2002ar.pdf.
 See Gauthier Vincent, Jared Goldstein & Sean Cunniff, Disruptive Trends In Wealth Management 10 (Deloitte Development LLC 2015), available at https://www2.deloitte.com/content/dam/Deloitte/us/Documents/strategy/us-cons-disruptors-in-wealth-mgmt-final.pdf (“Increasingly retail investors expect the same access to potentially high yield asset classes and strategies as wealthier, accredited investors.”).
 As of year-end 2014, there were approximately 24,000 structured products outstanding in the United States and now there are around 40,000. Structured Retail Products, USA Database Analysis: Outstanding Products (database last updated Feb. 14, 2018), www.Structuredretailproducts.com (click on “Analysis” and select “USA” in “Select database” field).
 See e.g., Press Release, U.S. Securities & Exchange Commission, Merrill Lynch Paying $10 Million Penalty for Misleading Investors in Structured Notes, at 6-8, Jun. 23, 2016, available at https://www.sec.gov/news/pressrelease/2016-129.html (giving an idea in the Appendix of the math involved in the product).
 See generally id.; Jill E. Fisch, Tess Wilkinson-Ryan & Kristin Firth, Presentation: The Knowledge Gap in Workplace Retirement Investing and the Role of Professional Advisors, University of Pennsylvania Law School, at 19 (last visited Feb. 22, 2018), available at http://gflec.org/wp-content/uploads/2017/05/Fisch-financial-literacy-for-GW.pdf?x87657 (showing that even advisors answered certain very basic questions incorrectly almost one-third of the time).
 See e.g., Luke Kawa & Tracy Alloway, How Two Tiny Volatility Products Helped Fuel the Sudden Stock Slump, Bloomberg, Feb.? ?07?, ?2018?, available at https://www.bloomberg.com/news/articles/2018-02-07/how-two-tiny-volatility-products-helped-fuel-sudden-stock-slump; Rachel Evans & Carolina Wilson, This Is the Market’s Latest Problem Child, Bloomberg, Feb. 8, 2018, available at https://www.bloomberg.com/news/articles/2018-02-08/spotlight-turns-to-etf-problem-children-after-volatility-blow-up; Stephen Gandel, Banks Can’t Sell Grenades Without Some Blowback, Bloomberg Businessweek, Feb. 14, 2018, available at https://www.bloomberg.com/news/articles/2018-02-14/banks-like-credit-suisse-can-t-sell-grenades-without-blowback.
 See e.g., ProShares Trust II, Prospectus (Rule 424(b)(3) Filing), at 1 (Feb. 15, 2018), available at http://www.proshares.com/media/prospectus/proshares_trust_ii_prospectus_s3b3.pdf?param=1519361687579; Credit Suisse AG, Prospectus (Rule 424(b)(2) Filing), at 4 (Jan. 29, 2018), available at http://app.velocitysharesetns.com/files/prospectus/CS_VIX_VelocityShares_ETN_
 See e.g., Patrick Winters, Credit Suisse CEO Says Note That Crashed Meant for Hedge Funds, Bloomberg, Feb.? ?14?, ?2018, available at https://www.bloomberg.com/news/articles/2018-02-14/credit-suisse-ceo-says-note-that-crashed-meant-for-hedge-funds.
 See e.g., Matt Levine, Inverse Volatility Products Almost Worked, Bloomberg, Feb.? ?9, ?2018, available at https://www.bloomberg.com/view/articles/2018-02-09/inverse-volatility-products-almost-worked; see also Jiajun Lu, Cboe addressed concerns over VIX derivative products, Futures, Stock Commodity, Options and Forex Strategies for the Modern Trader, Feb. 8 2018, available at http://www.futuresmag.com/2018/02/08/cboe-addressed-concerns-over-vix-derivative-products (“Cboe leaders made the point that the VIX acted as it was designed to.”).
 See Press Release, U.S. Securities & Exchange Commission, UBS to Pay $19.5 Million Settlement Involving Notes Linked to Currency Index: Case Is Agency’s First Against an Issuer of Retail Structured Notes (Oct. 13, 2015), available at https://www.sec.gov/news/pressrelease/2015-238.html (noting that an issuer “agreed to settle the SEC’s charges that it misled U.S. investors in structured notes . . . by falsely stating that the investment relied on a ‘transparent’ and ‘systematic’ currency trading strategy using ‘market prices’ to calculate the financial instruments underlying the index, when undisclosed hedging trades by [the issuer] reduced the index price by about five percent”); see also Daylian M. Cain, George Loewenstein & Don A. Moore, When Sunlight Fails to Disinfect: Understanding the Perverse Effects of Disclosing Conflicts of Interest, 37 J. OF CONSUMER RES. 836 (Feb. 1, 2011), available at https://www.cmu.edu/dietrich/sds/docs/loewenstein/WhenSunLightFails.pdf (“advisors with conflicts of interest will give more-biased advice under conditions with disclosure than without disclosure”).
 See Investor Alert, Financial Industry Regulatory Authority, Structured Notes With Principal Protection: Note the Terms of Your Investment, last updated June 2, 2011, available at http://www.finra.org/investors/alerts/structured-notes-principal-protection-note-terms-your-investment (“Remember that any principal guarantee is subject to the creditworthiness of the guarantor, which is generally the securities firm that structures and issues the note.”).
 ETFtrends, VIX ETFs: An Imperfect Hedge, Yahoo!, Feb. 21, 2013, https://finance.yahoo.com/news/vix-etfs-imperfect-hedge-150919196.html (noting that “investors need to keep in mind that these ETFs are designed to track CBOE Volatility Index futures contracts, not the VIX spot price. It’s a very important difference”).
 Jill E. Fisch, Tess Wilkinson-Ryan & Kristin Firth, Presentation: The Knowledge Gap in Workplace Retirement Investing and the Role of Professional Advisors, University of Pennsylvania Law School, at 2 (last visited Feb. 22, 2018), available at http://gflec.org/wp-content/uploads/2017/05/Fisch-financial-literacy-for-GW.pdf?x87657 (noting that “[i]nvestors do not look at even very simple disclosures”).
 See, e.g., Lewis Braham, Leveraged ETFs Raise the Ante, Barron’s, Apr. 8, 2017, available at https://www.barrons.com/articles/leveraged-etfs-raise-the-ante-1491627055.
 See generally Landon Thomas Jr., Vanguard Is Growing Faster Than Everybody Else Combined, N.Y. Times (Apr. 14, 2017), available at https://www.nytimes.com/2017/04/14/business/mutfund/vanguard-mutual-index-funds-growth.html?_r=1.
 See generally Joe Nocera, Index Funds Are Finally Sexy. What a Shame., Bloomberg, Apr. 25, 2017, available at https://www.bloomberg.com/view/articles/2017-04-25/index-funds-are-finally-sexy-what-a-shame.
 Trevor Hunnicutt, Index Funds to Surpass Active Fund Assets in U.S. by 2024: Moody's, Reuters, Feb. 2, 2017, available at https://www.reuters.com/article/us-funds-passive/index-funds-to-surpass-active-fund-assets-in-u-s-by-2024-moodys-idUSKBN15H1PN (also noting that “[i]ndex funds will grab more than half the assets in the investment-management business by 2024”).
 Richard A. Ferri, Don't Be Fooled By SPINdex Funds, Forbes, Dec. 14, 2009, available at https://www.forbes.com/2009/12/14/active-managers-index-funds-etfs-personal-finance-richard-ferri.html#3e3656497e66 (“The lineup of newfangled index funds and ETFs that has been launched in recent years is not your traditional low-cost, benchmark-index variety that we all know and love. Rather, these are heavy duty “beat the market” active management strategies, complete with high fees and high turnover.”); see also Dan McCrum, Indices Favour Discretion in Applying Rules, Financial Times, Aug. 20, 2015, available at http://www.ft.com/cms/s/0/129e9582-471d-11e5-af2f-4d6e0e5eda22.html (explaining that some indices favor discretion when applying their methodologies); Andrew Lo, What is an Index? (Working draft Oct. 12, 2015), available at https://alo.mit.edu/wp-content/uploads/2015/10/index_5.pdf (arguing that a new name, “dynamic indexes” be given to certain non-market-capitalization-weighted indices that satisfy three properties, namely: “(1) it is completely transparent; (2) it is investable; and (3) it is systematic, i.e., it is entirely rules-based and contains no judgment or unique investment skill.”).
 See Staff Comment Letter sent to certain financial institutions by the Office of Capital Markets Trends on February 21, 2013, which can be located by searching for the term “pricing and value of structured notes” via various search engines.
 See Commissioner Kara M. Stein, “Address at Investment Company Institute’s 2017 Securities Law Developments Conference,” Remarks at Investment Company Institute 2017 Securities Law Developments Conference, Dec. 7, 2017, available at https://www.sec.gov/news/speech/stein-ici-securities-law-developments-conference-2017.
 See e.g., Staff of the U.S. Securities & Exchange Commission, Study Regarding Financial Literacy Among Investors, Aug. 2012 (noting that “Studies reviewed by the Library of Congress indicate that U.S. retail investors lack basic financial literacy”), available at https://www.sec.gov/news/studies/2012/917-financial-literacy-study-part1.pdf.
 See Investor Bulletin, U.S. Securities & Exchange Commission, Structured Notes, Jan. 12, 2015, available at https://www.sec.gov/oiea/investor-alerts-bulletins/ib_structurednotes.html; Investor Bulletin, U.S. Securities & Exchange Commission, Exchange Traded Notes (ETNs), Dec. 1, 2015, available at https://www.sec.gov/oiea/investor-alerts-bulletins/ib_etn.html; Investor Bulletin, U.S. Securities & Exchange Commission, Variable Annuities—An Introduction, Nov. 2015, available at https://www.sec.gov/files/ib_var_annuities.pdf; Investor Alert, Financial Industry Regulatory Authority, Structured Notes With Principal Protection: Note the Terms of Your Investment, Jun. 2, 2011, available at http://www.finra.org/investors/alerts/structured-notes-principal-protection-note-terms-your-investment; see also Investor Alert, U.S. Securities & Exchange Commission, Leveraged and Inverse ETFs: Specialized Products with Extra Risks for Buy-and-Hold Investors, Aug. 1, 2009, available at https://www.sec.gov/investor/pubs/leveragedetfs-alert.htm.
 See e.g., Daniel Fernandes, John G. Lynch, Jr. & Richard G. Netemeyer, Financial Literacy, Financial Education, and Downstream Financial Behaviors, Management Science, at 30 (Aug. 2014), available at https://www.researchgate.net/profile/Daniel_Fernandes6/publication/259763070_Financial_
Literacy_Financial_Education_and_Downstream_Financial_Behaviors/links/54ad6dc30cf2213c5fe3f890/Financial-Literacy-Financial-Education-and-Downstream-Financial-Behaviors.pdf?origin=publication_detail (“Moreover, our findings . . . showing decay of effects of financial education interventions imply that content knowledge may be better conveyed via “just-in-time” financial education tied to a particular decision, enhancing perceived relevance and minimizing forgetting.”).
 See e.g., Lewis Mandell & Linda Schmid Klein, The Impact of Financial Literacy Education on Subsequent Financial Behavior, 20 J. of Fin. Counseling and Planning 15, 15 (2009), available at https://www.afcpe.org/assets/pdf/lewis_mandell_linda_schmid_klein.pdf (“This study examined the differential impact on 79 high school students of a personal financial management course completed 1 to 4 years earlier. . . . The findings indicated that those who took the course were no more financially literate than those who had not.”).
 See Press Release, U.S. Securities & Exchange Commission, SEC Charges UBS With Supervisory Failures in Sale of Complex Products to Retail Investors, Sep. 28, 2016, available at https://www.sec.gov/news/pressrelease/2016-197.html.
 See Press Release, U.S. Securities & Exchange Commission, Merrill Lynch Paying $10 Million Penalty for Misleading Investors in Structured Notes, Jun. 23, 2016, available at https://www.sec.gov/news/pressrelease/2016-129.html
 See Press Release, U.S. Securities & Exchange Comm., Morgan Stanley Settles Charges Related to ETF Investments (Feb. 14, 2017), available at https://www.sec.gov/news/pressrelease/2017-46.html (noting that the bank “did not adequately implement its policies and procedures to ensure that clients understood the risks involved with purchasing inverse ETFs”); Press Release, Financial Industry Regulatory Authority, FINRA Sanctions Four Firms $9.1 Million for Sales of Leveraged and Inverse Exchange-Traded Funds (May 1, 2012), available at http://www.finra.org/newsroom/2012/finra-sanctions-four-firms-91-million-sales-leveraged-and-inverse-exchange-traded.
 Saule T. Omarova, License to Deal: Mandatory Approval of Complex Financial Products, 90 Wash. U. L. Rev. 63, 65 (“Complex financial instruments, markets, and institutions create levels of opacity, interdependence, and unpredictability which significantly increase the potential for market inefficiency and systemic failure of dangerous proportions. Complexity enables private market actors to engage in excessive financial speculation and tax and regulatory arbitrage, which further increase systemic risk and contribute little to productive economic growth.”) (internal citations omitted), available at https://openscholarship.wustl.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=3712&context=law_lawreview; id. at 67 (advancing a policy proposal for changing the process of approval of complex financial products, including the requirement for the financial institution to prove the social and commercial utility of a product, a firm’s ability to manage risks and monitor market dynamics and a finding that the product would not pose an unacceptable systematic risk or raise other public policy concerns.).
 See also Chairman Jay Clayton, “Opening Remarks at the Securities Regulation Institute,” Jan. 22, 2018, available at https://www.sec.gov/news/speech/speech-clayton-012218 (Chairman Clayton discussing expectations for professionals).
 Jurassic Park (Universal Pictures 1993).