What Are Flash Orders, and How Might Regulation Curtail the Ability of Hedge Funds Employing High-Frequency Trading Strategies to Profit from Such Orders?
Hedge Fund Law Report
While much ado has been made of flash orders in the news lately, little focus has been placed on the mechanics of flash orders, the legal and regulatory basis for flash orders, who is trading based on flash orders, and the benefits and downsides of flash orders for both investors and the market. Because of the likelihood that the Securities and Exchange Commission (SEC) will take action to regulate or eliminate the use of flash orders, the debate over these issues is particularly relevant. There is some question as to whether the SEC will amend current regulations to eliminate flash orders altogether, or whether additional requirements could be imposed on flash orders that would satisfy regulators’ needs for transparency while still leaving flash orders in place. In addition, because hedge funds and other firms may have already invested in the technology necessary to execute flash orders or planned to invest in such technology, understanding the debate and the potential outcome of SEC regulation may enable hedge funds to allocate resources in light of likely regulatory outcomes. This article offers a comprehensive overview and analysis of issues raised by flash orders, including: a description of what flash orders are; the legal basis for flash orders; recent challenges to flash orders from Senator Charles Schumer and the SEC’s response; the upside to hedge funds and others of flash orders; the downside; the likelihood of regulation and the shape such regulation may take; and the implications of the foregoing for hedge funds and their managers.