Industry Developments

CFTC Launches LabCFTC as Major Fintech Initiative

 

On May 17, 2017, the Commodity Futures Trading Commission (“CFTC“) approved the creation of LabCFTC, which it describes as “a new initiative aimed at promoting responsible fintech innovation to improve the quality, resiliency and competitiveness of the markets the CFTC oversees.” LabCFTC will also “look to accelerate CFTC engagement with fintech and RegTech solutions that may enable the CFTC to carry out its mission responsibilities more effectively and efficiently.”

The CFTC intends for LabCFTC to be the agency’s focal point to promote fintech innovation and fair competition by making the CFTC more accessible to fintech innovators and serve as a platform to inform the CFTC’s understanding of new technologies. Moreover, the CFTC intends that LabCFTC will be an information source for the CFTC and its staff on responsible innovation that may influence policy development. For more information regarding LabCFTC click here.

The CFTC identified the following Core LabCFTC Components:

  • GuidePoint: GuidePoint is a new dedicated point of contact for fintech innovators to engage with the CFTC, learn about the CFTC’s regulatory framework and obtain feedback and information on the implementation of innovative technology ideas for the market. The CFTC believes that such feedback may include information that, particularly at an early stage, could help innovators/entities save time and money by helping them understand relevant regulations and the CFTC’s oversight approach.
  • CFTC 2.0: A new initiative to foster and help promote the adoption of new technology within the CFTC’s own mission activities through collaboration with fintech industry and CFTC market participants.

The CFTC intends that LabCFTC will facilitate:

  • Through proactive engagement with the innovator community, a better understanding in the CFTC of how new innovations interact with the regulatory and supervisory framework and identification of areas where the framework could better support responsible innovation.
  • Collaboration among the fintech industry and CFTC market participants that facilitate responsible market innovation and promote the use of technology within the CFTC; CFTC participation in studies and research that facilitate responsible innovation in the markets and promote the use of technology within the agency.
  • Cooperation with financial regulators at home and overseas.
  • Monitoring of trends and developments to ensure that CFTC’s regulatory framework supports – and does not unduly impede – responsible technological innovation.
  • Information sharing about applications of fintech, including potential use cases, benefits, risks and solutions.

Engagement with academia, students and professionals on applications of FinTech relevant in the CFTC space.

Changes Proposed to CAS and STACR Programs

 

On May 8, 2017, Fannie Mae and Freddie Mac announced that they are considering certain changes to the structure of their CAS and STACR note programs in order to widen the investor base for the notes through which they transfer credit risk to the private sector. The proposed changes to CAS and STACR will also require certain changes to the tax structure of Fannie and Freddie MBS issuances. The intention is, despite the changes to the MBS tax structure, to preserve TBA eligibility of the MBS.

As proposed, a REMIC tax election will be made on mortgage loans purchased by Fannie and Freddie and put into their MBS. As a result, the MBS would, for tax purposes, represent ownership interests in REMIC regular interests rather than in mortgage loans. The CAS/STACR notes would also represent ownership of REMIC regular interests issued by new CAS/STACR trusts, which will make the CAS and STACR notes more attractive to REITs and foreign investors. The new structure would also eliminate Fannie and Freddie counterparty risk in the credit risk transfer programs.

Fact Sheets and FAQs are linked to the Press Releases. Press Release (Fannie). Press Release (Freddie).

CFTC Proposes to Amend Rules Governing Chief Compliance Officer Duties and Annual Reports for Certain Registrants

 

On May 3, 2017, the U.S. Commodity Futures Trading Commission (CFTC) announced that it will publish in the Federal Register proposed amendments to Part 3 of its regulations. The proposed amendments would (1) define “senior officer” in Regulation 3.1; (2) clarify the duties of a Chief Compliance Officer (“CCO“) of a futures commission merchant, swap dealer, or major swap participant; and (3) modify the CCO annual report’s content and submission requirements. The comment period ends 60 days after the proposal’s publication in the Federal Register. Press Release. Proposal.

Rating Agency Developments

 

On May 3, 2017, DBRS issued a report entitled Rating Canadian Public Hospitals. Report.

On May 3, 2017, Fitch issued a report entitled Global Structured Finance Rating Criteria. Report.

On May 3, 2017, Moody’s proposed limited updates to its approach for rating US and Canadian conduit/fusion CMBS. Report.

On May 3, 2017, Moody’s proposed changes to its approach to rating asset-backed commercial paper. Report.

On April 28, 2017, DBRS issued a report entitled Operational Risk Assessments for Canadian Structured Finance. Report.

On April 27, 2017, Fitch issued a report entitled Non-Financial Corporates Hybrids Treatment and Notching Criteria. Report.

On April 27, 2017, Fitch issued a report entitled Global Money Market Fund Rating Criteria. Report.

NCUA Enters $445 Million Settlement with UBS in Lawsuit Alleging Untrue Statements in Connection with Sale of RMBS

 

On April 25, 2017, the National Credit Union Administration (“NCUA“), as liquidating agent for U.S. Central Federal Credit Union and Western Corporate Federal Credit Union, voluntarily dismissed its complaint against UBS Securities, LLC (“UBS“) and Mortgage Asset Securitization, Inc., in the United States District Court for the District of Kansas following a settlement between the parties. Under the terms of the settlement, UBS agreed to pay $445 million to end the NCUA’s five-year old lawsuit (the filing of the lawsuit was covered here). The NCUA’s suit involved claims for losses suffered by the two failed credit unions from allegedly untrue statements and omissions of fact by UBS regarding RMBS that it underwrote and sold. This settlement is in addition to the $79.3 million the NCUA also recovered from UBS in April 2016 for RMBS losses suffered by two other defunct credit unions. Voluntary Dismissal.

CFPB Finalizes Effective Date Extension for Prepaid Accounts Rule

 

On April 20, 2017, the Bureau of Consumer Financial Protection (CFPB) issued a final rule to delay the October 1, 2017 effective date of the rule governing Prepaid Accounts Under the Electronic Fund Transfer Act (Regulation E) and the Truth in Lending Act (Regulation Z) by six months, to April 1, 2018. Report. Rule.

New York Court Dismisses Royal Park’s RMBS Cases for Lack of Standing

 

On April 12, 2017, Judge Charles E. Ramos of the New York State Supreme Court for New York County dismissed Royal Park’s RMBS lawsuits alleging fraud and other tort causes of action against Morgan Stanley, Deutsche Bank, Credit Suisse and UBS due to lack of standing. Royal Park had acquired the RMBS certificates from another entity via a portfolio transfer agreement (“PTA“), which transferred the “right, title and interest in and to” the certificates. The defendants argued that New York procedural law governed the issue of standing and that under New York law, the right to bring tort claims would not automatically transfer with the certificates absent an outward expression of an intent to do so. Royal Park argued that the court should apply Belgium procedural law to the standing issue because Belgium law governed the PTA. The court held that New York law governed the issue of standing and that since the PTA unambiguously only transferred the “right, title and interest in and to” the certificates, it did not expressly assign the right to bring tort claims, and Royal Park thus lacked standing to bring its claims. Order.

SEC Adopts Jobs Act Amendments

 

On April 5, the Securities and Exchange Commission (“SEC“) announced that it has adopted amendments to increase the amount of money companies can raise through crowdfunding to adjust for inflation. It also approved amendments that adjust for inflation a threshold used to determine eligibility for benefits offered to “emerging growth companies” (“EGCs“) under the Jumpstart Our Business Startups (JOBS) Act.

The SEC is required to make inflation adjustments to certain JOBS Act rules at least once every five years after it was enacted on April 5, 2012. In addition to the inflation adjustments, the SEC adopted technical amendments to conform several rules and forms to amendments made to the Securities Act of 1933 (“Securities Act“) and the Securities Exchange Act of 1934 (“Exchange Act“) by Title I of the JOBS Act. The Commission approved the new thresholds on March 31. They will become effective when they are published in the Federal Register.

The Commission provided a helpful chart that sets out the inflation-adjusted amounts for the maximum amount of offerings and investment limits, specifically: (i) the maximum aggregate amount an issuer can sell in a 12-month period; (ii) the threshold for assessing an investor’s annual income or net worth to determine investment limits; (iii) the lower threshold of Regulation Crowdfunding securities permitted to be sold to an investor if annual income or net worth is less than the adjusted thresholds; (iv) the maximum amount that can be sold to an investor under Regulation Crowdfunding in a 12-month period; and (v) the inflation-adjusted amounts for determining financial statement requirements.

Also, pursuant to sections of the Securities Act and the Exchange Act added by the JOBS Act, which define the term “emerging growth company,” every five years the Commission is directed to index the annual gross revenue amount used to determine EGC status to inflation. To carry out this statutory directive, the SEC has adopted amendments to Securities Act Rule 405 and Exchange Act Rule 12b-2 to include a definition for EGC that reflects an inflation-adjusted annual gross revenue threshold. Press Release.

Rating Agency Developments

 

On April 4, 2017, DBRS updated its methodology for rating U.S. residential mortgage-backed securities (RMBS). Report.

On April 4, 2017, DBRS published its methodology for rating U.S. Property Assessed Clean Energy (PACE) securitizations. Report.

On April 4, 2017, DBRS published its methodology for rating structured finance CDO restructurings. Report.

On April 4, 2017, Moody’s published its ratings methodology for assessing companies in the equipment and transportation rental industry. Report.

On March 31, 2017, DBRS published its master methodology for assessing European structured finance. Report.

On March 30, 2017, Fitch updated its rating criteria for U.S. public finance tender option bonds. Report.

On March 30, 2017, Moody’s updated its ratings methodology for market value collateralized loan obligations (MV CLOs). Report.