Jai R. Massari

Ms. Massari is a partner in Davis Polk's Financial Institutions Group and the trading and markets practice. [Full Bio]

Latest Articles

Last week, the SEC staff published new detailed guidance on its views of when a digital asset may be considered a security, in the form of two documents:  a guidance “framework” issued by the SEC’s Strategic Hub for Innovation and Financial Technology and a no-action letter from the SEC’s Division of Corporation Finance. The Framework for “Investment Contract” Analysis of Digital Assets sets out “a framework for analyzing whether a digital asset is an investment…
On April 1, 2019, new cybersecurity requirements outlined in the NFA’s Interpretive Notice to NFA Compliance Rules 2-9, 2-36 and 2-49 will come into effect.  These new requirements apply to NFA Members, including registered futures commission merchants, commodity trading advisors, commodity pool operators, introducing brokers, retail foreign exchange dealers, and swap dealers.  Perhaps the most significant new obligation is the imposition of onerous breach notification requirements. The full blog post is available at our Cyber…
On April 1, 2019, new cybersecurity requirements outlined in the NFA’s Interpretive Notice to NFA Compliance Rules 2-9, 2-36 and 2-49 will come into effect.  These new requirements apply to NFA Members, including registered futures commission merchants, commodity trading advisors, commodity pool operators, introducing brokers, retail foreign exchange dealers, and swap dealers.  They are designed to “establish general requirements relating to Members’ information systems security programs (ISSPs) but leave the exact form of an ISSP…
The move away from a one-size-fits-all regulatory framework based on asset size continues. On October 31, the Federal Reserve proposed a rule to implement Section 401 of the Economic Growth, Regulatory Relief and Consumer Protection Act, tailoring enhanced prudential standards for firms with $100 billion or more in total consolidated assets, and the three U.S. banking agencies proposed corresponding tailoring of their Basel III capital and liquidity rules. Overall, the proposals would: for U.S. GSIBs,…
After a several-year pause, the CFTC is again re-assessing its approach to cross-border regulation of swap activities. The CFTC’s current approach is embodied in various rulemakings, guidance, orders, and agreements with non-U.S. regulators that have been adopted, issued, and entered into since 2013. The CFTC has, over the past several years, periodically sought to adjust or re-evaluate its approach to cross-border swaps regulation, including in a 2016 Proposed Cross-Border Rule. CFTC Chairman Giancarlo has…
On October 11, 2018, the SEC reopened the comment period and requested additional comments for previously proposed rules relating to capital, margin, and segregation requirements for security-based swap dealers (“SBSDs”), major security-based swap participants (“MSBSPs,” and together with SBSDs, “SBS Entities”) and, in some cases, broker-dealers.  The rules, most of which were initially proposed six years ago, would establish: capital and margin requirements for non-bank SBS Entities (the federal banking regulators adopted capital and margin…
It is no secret that the United States lags behind other countries in the development of a national real-time payments infrastructure.[1]  There are, of course, explanations for this lag, including widespread participation in the existing infrastructure rails and the existence of many different stakeholder interests limiting consensus over reforms.  So far, the Federal Reserve has been cautious, using its powers of moral suasion and its intellectual firepower to bring together stakeholders to start…
The regulation and operations of virtual currency exchanges are again in the spotlight, due to the new report issued by the Office of the New York Attorney General (OAG).  The report, which follows the April launch by the OAG of its Virtual Markets Integrity Initiative (VMII), describes in detail the results of the OAG’s “fact-finding inquiry into the policies and practices of platforms used by consumers” (discussed in an earlier Blockchain Bulletin). The…
After a several month lull that led some to question the SEC’s focus on crypto enforcement, this week saw a spate of enforcement activity involving crypto assets: several SEC enforcement actions, an SEC trading suspension order, the first FINRA cryptocurrency enforcement action, and a preliminary court decision consistent with the view that ICO tokens may be (and perhaps often are) securities.  These actions give life to SEC Chairman Clayton’s statement that “to the extent something…
The FTC is expanding its enforcement efforts for fintech, particularly in the areas of online and small-business lending, payments, and cryptocurrencies.  At a recent event in Washington, D.C., the FTC’s Director of Consumer Protection, Andrew Smith, stated, “Commissioners are really interested in [fintech].  Finance will be a steady part of our diet, and in particular fintech, ’cause that’s where the new entrants to the marketplace are and that’s where the action is.” Because the FTC…