On March 24, Judge Laura Taylor Swain of the United States District Court for the Southern District of New York granted Defendants’ motion to dismiss an action filed by the FDIC, as receiver for two failed banks, related to RMBS certificates that the banks purchased. The court held the FDIC’s federal Securities Act claims to be untimely because they were filed outside of the statute of repose period provided by Section 13 of the Securities Act. The court further held that the “Extender Provision” of FIRREA does not preempt the statute of repose set forth in Section 13. The court held that the Extender Provision was indistinguishable from a similar provision in CERCLA that the Supreme Court recently held, in CTS Corp. v. Waldburger, did not preempt statutes of repose. Order.
On November 17, Bank of America and Merrill Lynch settled securities claims brought by the FDIC related to RMBS sold to United Western Bank. The FDIC, as the receiver for United Western Bank, alleged claims under the Securities Act of 1933 and the Colorado Securities Act against Bank of America, Merrill Lynch, Morgan Stanley, and RBS Securities related to $110 million in RMBS. The case against Morgan Stanley and RBS remains pending. Stipulation.
On November 18, the Federal Reserve Board, the FDIC and the OCC proposed clarifications to the revised regulatory capital rules adopted by the agencies in July 2013. The proposal applies to large internationally active banking organizations that currently determine their regulatory capital ratios under the advanced approaches rule. Release.
November 19, the FDIC announced the release of the first in a series of three new technical assistance videos developed to assist bank employees in meeting regulatory requirements. The new videos will address compliance with certain mortgage rules issued by the Consumer Financial Protection Bureau. Release. Video Series.
On October 21 and 22, the Fed, HUD, FDIC, FHFA, OCC, and SEC jointly approved final risk retention rules. The final rules, which implement Section 941 of Dodd Frank, generally follow the re-proposed rules issued in August 2013, mandating that sponsors retain at least 5% of the credit risk in asset-backed securities transactions. Generally, risk may be retained by holding either a horizontal or avertical slice of issued securities, while additional options are available for specific types of securitizations. The rules will apply toresidential mortgage-backed securities one year after publication in the Federal Register, and will apply to all other asset classes two years after publication. Final Rules. Joint Release.
On August 29, Judge Louis L. Stanton of the United States District Court for the Southern District of New York granted a motion by JPMorgan, Citigroup and several other banks for judgment on the pleadings, dismissing a lawsuit filed by the FDIC, as receiver for Colonial Bank, involving US$388 million in RMBS. Defendants sought judgment on the pleadings that the FDIC’s claims under the Securities Act of 1933 were time barred by the three-year statute of repose applicable to such claims. FDIC argued that the Extender Statute, which extends the limitation period for the FDIC to assert claims to three years after the FDIC is appointed as receiver, tolled the time within which it had to assert its claims. Judge Stanton agreed with the defendants, holding that under the Supreme Court’s decision in CTS Corp. v. Waldburger, the FDIC Extender Statute applied only to statutes of limitation and did not alter the applicable statute of repose. Order.
On September 3, the Fed, the Farm Credit Administration, the FDIC, the FHFA, and the OCC sought comment on a proposed rule to establish margin requirements for swap dealers, major swap participants, security-based swap dealers and major security-based swap participants as required by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act). The proposed rule would establish minimum requirements for the exchange of initial and variation margin between covered swap entities and their counterparties to non-cleared swaps and non-cleared security-based swaps. The margin requirements mandated by the Dodd-Frank Act are intended to address a number of weaknesses in the regulation and structure of the swap markets that were revealed during the recent financial crisis. The requirements are intended to reduce risk, increase transparency, and promote market integrity. Proposed Rule.
On September 3, the FDIC, the Fed, and the OCC finalized the Liquidity Coverage Ratio rule to strengthen the liquidity positions of large financial institutions. The rule will for the, first time, create a standardized minimum liquidity requirement for large and internationally active banking organizations. Each institution will be required to hold high quality, liquid assets (HQLA) such as central bank reserves and government and corporate debt that can be converted easily and quickly into cash in an amount equal to or greater than its projected cash outflows minus its projected cash inflows during a 30-day stress period. The ratio of the firm’s liquid assets to its projected net cash outflow is its “liquidity coverage ratio,” or LCR. Final Rule.
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 Order. Merrill/RBS Order.