SEC Considers Banning Payment for Order Flow

The U.S. Securities and Exchange Commission (SEC) is considering a full ban on the payment for order flow (PFOF). The reason is that this practice creates “an inherent conflict of interest,” according to SEC Chairman Gary Gensler, in a recent interview with Barron’s.

Payment for order flow (PFOF) has become a hot topic in 2021 mainly in relation to Robinhood Markets, Inc. (HOOD), which has enjoyed meteoric success, leading to a highly anticipated initial public offering (IPO). Robinhood has been able to attract a large and growing number of brokerage clients through its practice of charging no commissions on trades. Instead, Robinhood derives its revenues mainly through PFOF, which essentially are rebates from the market makers that execute trades for its clients.

Gensler’s Concerns

“They get the data, they get the first look, they get to match off buyers and sellers out of that order flow,” Gensler said regarding the market makers that pay for order flow. “That may not be the most efficient markets for the 2020s,” he added.

Gensler did not indicate whether the SEC has found examples of PFOF causing harm to investors. However, he has mentioned in the past that the U.K., Canada, and Australia are among the countries that have banned PFOF.

“Also on the table is how do we move more of this market to transparency,” Gensler remarked. He continued: “Transparency benefits competition, and efficiency of markets. Transparency benefits investors.”

Specifically, Gensler is concerned that about half of all trading is now done away from the exchanges, and even some trading on the exchanges is opaque, with systems of rebates that look similar to PFOF. He sees this decline in transparency as working against the goal of maintaining “fair, orderly, and efficient markets.”

Congressional Scrutiny of Robinhood and PFOF

The Committee on Financial Services of the United States House of Representatives held a virtual hearing on Feb. 18, 2021, in which PFOF, as practiced by Robinhood, was a major topic of discussion. In general, Democratic members of the committee questioned whether this practice resulted in inferior execution prices for individual brokerage clients, while also expressing concerns that Robinhood’s commission-free model encouraged excessive trading that could be injurious to its clients in the long run.

Robinhood CEO Vlad Tenev and Citadel LLC Kenneth Griffin refuted these charges in their testimony. Citadel is the primary market-making firm utilized by Robinhood, and Griffin asserted that his firm offers superior execution prices to these clients, better than the exchanges. Tenev said that “Citadel offers superior execution quality” and that Robinhood automatically will route trades away from Citadel if other market makers offer better execution. Moreover, he also offered statistics indicating that most Robinhood clients are long-term investors rather than active traders.

Nonetheless, the SEC reached a settlement with Robinhood in 2020 over PFOF. The agency had charged the Robinhood with making inadequate disclosures to clients and with receiving a much higher portion of the market maker’s spread in its PFOF deals from 2015 to 2018 than did other brokerage firms.

Warren Buffett and Charlie Munger Weigh In

During the Berkshire Hathaway Inc. (BRK.A, BRK.B) annual meeting on May 1, 2021, CEO Warren Buffett and Executive Vice Chairman Charlie Munger both offered negative comments about trading apps such as Robinhood in response to a question. Buffett opined that they are adding to the gambling problem in the markets and expressed skepticism about their revenue models. Munger decried these apps as “Godawful … deeply wrong … we don’t want to sell things that are bad for people … [by running lotteries] the states are just as bad as Robinhood … they pushed the Mafia aside.”