Financial Stability Board Publishes Responses to Consultation on Proposed Reforms of the Forex Market

On August 20, the Financial Stability Board (FSB) published responses to its consultation in respect of proposed reforms in the forex market.  The consultation was launched on July 15 and recommended reforms relating to: (i) the calculation methodology of the WMR benchmark rates; (ii) the publication of reference rates by central banks; (iii) market infrastructure in relation to the execution of fix trades; and (iv) the behavior of market participants around the time of the major forex benchmarks.

The FSB intends to provide final conclusions and recommendations to the Brisbane G20 Leaders Summit in November 2014. Responses.

ESMA Publishes Responses to Consultation on the Clearing Obligation Under EMIR

On August 19, ESMA published a list of responses received in respect of its first consultation on the clearing obligation relating to draft regulatory technical standards (RTS) for the clearing of interest rate swaps under EU Regulation 648/2012 on OTC derivative transactions, central counterparties and trade repositories (EMIR).  The first consultation was published on July 11 and proposed that basis swaps, fixed-to-float interest rate swaps, forward rate agreements and overnight index swaps should be subject to central clearing.

ESMA will use the responses received to draft its final RTS which will then be subject to endorsement by the European Commission. Responses.

RBS Settles MBS Claims with Assured

On August 14, RBS Securities reached a deal with Assured Guaranty Municipal Corp. to settle a lawsuit alleging misrepresentations concerning the collateral underlying a US$291 million securitization.  The complaint alleged that Assured anticipated paying US$100 million in claims pursuant to the monoline insurance policy it issued in connection with the securitization.  In light of the settlement, Judge Ronnie Abrams of the United States District Court for the Southern District of New York dismissed Assured’s suit with prejudice, with the stipulation that Assured may restore the suit within 30 days if the settlement is not finalized.  The amount and terms of the settlement were not disclosed.  Order.

Bank of America and U.S. Bank Reach Settlement With Investors

On August 18, Judge Katherine Forrest of the United States District Court for the Southern District of New York terminated a pending motion for class certification in light of a settlement in principle reached between a class of RMBS investors and Bank of America N.A. and U.S. Bank N.A., the trustees for the RMBS trusts.  Plaintiffs had alleged that Bank of America and U.S. Bank allowed incomplete or defective loan files as well as loans with underwriting errors to remain in the loan pool, despite their statutory duty as trustees to have such loans repurchased from the trusts.  The amount and terms of the settlement were not disclosed.  Order.

Breach of Contract Claims against J.P. Morgan and EMC Dismissed as Time-Barred

On August 19, in an oral ruling from the bench, Vice Chancellor J. Travis Laster of the Delaware Chancery Court dismissed as time-barred loan repurchase claims brought by U.S. Bank as trustee of an RMBS trust against JPMorgan and EMC Mortgage.  U.S. Bank alleged that EMC misrepresented the quality of more than US$500 million worth of mortgages that were sold to the trust in 2006 and that both EMC and JPMorgan, which took over as the servicers of the trust in 2011, failed to notify the trustee of the faulty loans.  Vice Chancellor Laster, following the Delaware Chancery Court’s 2012 decision in Central Mortgage Co. v. Mortgage Stanley Capital Holdings LLC., held that Delaware’s three-year statute of limitations for breach of contract claims began to run on the day the allegedly false representations were made.  He held that the contract’s accrual provision could not extend the statute of limitations and that no other tolling doctrines applied to render plaintiff’s claims timely.  He also held that the alleged failure to notify claim was derivative of the underlying claim for breach of representation and subject to the same limitations period.  Vice Chancellor Laster did not dismiss U.S. Bank’s claims for unjust enrichment and failure to provide documents, finding them well pled and not time barred.  Hearing Transcript.

Goldman Reaches Settlement with FHFA

On August 22, Goldman Sachs and FHFA announced a US$3.15 billion settlement of claims brought by FHFA against Goldman in two separate lawsuits related to RMBS purchased by Fannie Mae and Freddie Mac between 2005 and 2007.  FHFA, as conservator for Fannie Mae and Freddie Mac, asserted claims for violations of federal and state securities law on the basis of alleged material misrepresentations or omissions in the offering documents for the RMBS sold to Fannie Mae and Freddie Mac.  As part of the settlement, Goldman is repurchasing most of the RMBS at issue.  Goldman did not admit any liability or wrongdoing as part of the settlement.  Fannie Mae AgreementFreddie Mac Agreement.

Guaranty Bank RMBS Lawsuits Dismissed As Time-Barred

Judge Sam Sparks of the United States District Court for the Western District of Texas granted judgment to defendants in two related cases filed by the FDIC on behalf Guaranty Bank (now defunct) arising out of Guaranty Bank’s purchases in 2004 and 2005 of US$2.1 billion in RMBS.  Defendants Goldman Sachs, Deutsche Bank, Merrill Lynch and RBS Securities sought judgment on the pleadings that the FDIC’s claims were time barred under the Texas Securities Act’s five-year statute of repose.  The court agreed, holding that under the Supreme Court’s recent decision in CTS Corp. v. Waldburger the FDIC Extender Statute did not preempt the Texas statute of repose.  Goldman/DB OrderMerrill/RBS Order.

SEC Launches Municipal Advisor Exam Initiative

On August 19, the SEC Announced a Municipal Advisor Exam Initiative for newly registered municipal advisors.  This “presence” exam initiative appears to be similar in scope and purpose to the “presence” examinations that the SEC has been conducting of investment advisers that were newly registered as a result of the implementation of the Dodd-Frank-Act.

SEC rules that took effect on July 1 generally require municipal advisors to register with the SEC under the final registration process during a four-month phase-in period by October 31. The examinations are designed to establish a presence with the newly regulated municipal advisors.  Over the next two years, the SEC Staff plans to examine a significant percentage of these advisors using an approach that focuses on identified risks.  Areas targeted for scrutiny may include the municipal advisor’s compliance with its fiduciary duty to its municipal entity clients, books and recordkeeping obligations, disclosure, fair dealing, supervision, and employee qualifications and training. Press Release.

Rating Agency Developments

On August 21, Moody’s released its global methodology for monitoring and rating property and casualty insurers. Report.

On August 21, Moody’s released its global methodology for monitoring and rating life insurers. Report.

On August 20, Fitch released its global ratings criteria for monitoring and rating toll roads, bridges, and tunnels. Report.

On August 18, DBRS requested comment on global methodology for rating finance companies. Report.

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OCC Releases Revised Comptroller’s Handbook

On August 20, the OCC released an updated booklet providing guidance to examiners and bankers on assessing and managing the risks associated with merchant processing activities. The booklet replaces the earlier version issued in December 2001. The booklet addresses a variety of topics including, among others, data security standards in the payment card industry for merchants and processors.  Press ReleaseUpdated Booklet.