Firms will have to evaluate whether it is worthwhile to continue to offer certain products subject to the new rule in the State of New York given the associated regulatory risks. Leaving aside the costs of compliance, which look substantial, it would seem very difficult to demonstrate compliance; and thus, a firm may leave itself open to material liability.

It is not unusual for the Democratic Commissioners to vote in dissent of SEC rule proposals and adoptions; in fact, they have done so routinely. However, in virtually all, or perhaps all, cases, the dissents have always been because the Democratic Commissioners favored the adoption of stronger rules (as in the case of Regulation Best Interest) or opposed the liberalization of existing rules (as in the case of  ).

What is seemingly odd about these dissents is that the two…

The SEC's proposed ETF exemptive rule is a recognition that ETFs have become a "plain-vanilla" form of transaction, even if any individual ETF may be based on a unique investment thesis.

Notably, leveraged ETFs cannot benefit from the exemptive rule (they still will be required to obtain individual exemptive orders). Commissioners Stein and Jackson issued statements expressing skepticism as to the benefits of such ETFs.

Well-intended rules may have negative consequences. In this case, the potential fines — and the potential for public embarrassment for accepting an account that appears in any way AML-uncertain — far outweigh any ordinary business gain from accepting the account. It is not so clear how the regulators can be very tough on AML failures and at the same time motivate financial institutions to accept accounts that appear in any way AML-risky.