SEC Proposes Amending the Definition of “Accredited Investor”

 

On December 18, the Securities and Exchange Commission by a three to two vote, voted to propose amendments to the definition of “accredited investor,” one of the principal tests applied under the federal securities laws for determining who is eligible to participate in transactions that are not required to be registered with the SEC. Such transactions are commonly referred to as “private capital markets” transactions. In the words of the SEC, the proposal “seeks to update and improve the definition to more effectively identify institutional and individual investors that have the knowledge and expertise to participate in our private capital markets.”

In announcing the proposal, Jay Clayton, Chairman of the SEC, asserted that: “The current test for individual accredited investor status takes a binary approach to who does and does not qualify based only a person’s income or net worth. . . The proposal would add other means for natural persons to qualify to participate in our private capital markets based on established, clear measures of financial sophistication . . . .” For example, natural persons could qualify as accredited investors based on their professional knowledge and experience, as evidenced by them having obtained professional certifications. Another welcomed aspect of the proposal highlighted by the Chairman is that it “specifically recognizes that certain organizations, such as tribal governments, should not be restricted from participating in private capital markets” transactions if they meet certain investment thresholds. Proposed Rule.

 

Posted in SEC

Treasury Releases Final Regulations to Reform National Security Reviews for Certain Foreign Investments and Other Transactions in the United States

 

On January 13, the U.S. Department of the Treasury issued two final regulations that aim to modernize the investment review process to address national security issues posed by certain foreign investments and real estate transactions. The regulations implement the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA) and broaden the authority of the CFIUS to review even non-controlling foreign investments into U.S. businesses that are involved in critical technology, infrastructure, or personal data. Release.

 

CFTC’s Division of Market Oversight Supplements No-Action Relief to SEFs and DCMs from Certain CFTC Regulations for Correction of Errors

 

On January 8, the Commodity Futures Trading Commission (CFTC) Division of Market Oversight issued a no-action letter that provides an alternative error correction process by which swap execution facilities (SEFs) and designated contract markets (DCMs) may permit counterparties to determine that an error has occurred and correct the error, subject to ex post facto review by the SEF or DCM. The no-action letter supplements the relief provided in CFTC Letter 17-27, which provided relief from certain CFTC regulations to permit SEFs and DCMs to correct clerical or operational errors discovered after a swap has been cleared. CFTC Release.

HUD Releases Proposed Affirmatively Furthering Fair Housing Rule

 

On January 7, the Department of Housing and Urban Development (HUD) published its proposed Affirmatively Furthering Fair Housing rule (AFFH Rule). The proposed AFFH Rule would replace the AFFH Rule that was finalized in 2015 to provide a process for evaluating local jurisdictions’ compliance with the Fair Housing Act’s requirement that HUD funding be used to affirmatively further fair housing. The proposed AFFH Rule revises the 2015 definition of “affirmatively furthering fair housing”, develops metrics to compare jurisdictions and requires jurisdictions to identify steps they will take over five years to comply with AFFH Rule requirements. Comments on the proposed AFFH Rule are due 60 days after publication in the Federal Register. HUD Release. Proposed Rule.

SEC Office of Compliance Inspections and Examinations Announces 2020 Examination Priorities

 

On January 7, the SEC Office of Compliance Inspections and Examinations announced its 2020 examination priorities, which include a focus on risks related to retail investors (including seniors and those saving for retirement), market infrastructure, information security, anti-money laundering programs and financial technology (including digital assets and electronic investment advice), among others. The SEC publishes its examination priorities annually to enhance the transparency of its examination program and to provide insights into its risk-based approach, including the areas it believes present potential risks to investors and the integrity of the U.S. capital markets. SEC Release.

 

 

CFTC Issues Advisory Regarding Chief Compliance Officer Annual Report Requirements

 

On December 4, the CFTC issued an advisory (Staff Advisory 19-24) providing further guidance on certain requirements applicable to swap dealers, futures commission merchants and major swap participants (collectively, Registrants) in connection with the preparation and submission of chief compliance officer annual compliance reports (CCO Annual Reports) pursuant to CFTC Regulation 3.3. The CFTC had previously issued: (i) a final rule governing CCO Annual Reports in 2012; (ii) a related staff advisory in 2014; (iii) a final rule modifying certain regulations related to the CCO Annual Report requirements in December 2018; and (iv) guidance focused on certain of those requirements in December 2018.

After reviewing CCO Annual Reports submitted for the 2018 fiscal year, the Division of Swap Dealer and Intermediary Oversight (DSIO) of the CFTC issued Staff Advisory 19-24 to provide additional guidance to Registrants regarding the CCO Annual Report requirements. Staff Advisory 19-24 addresses the following areas of the CCO Annual Report: (i) areas for improvement; (ii) financial, managerial, operational, and staffing resources; (iii) material non-compliance issues; (iv) furnishing the annual report and related matters; (v) the certification requirement; (vi) compliance with the Volcker Rule; and (vii) other miscellaneous items. The Advisory also notes that, if a Registrant files a CCO Annual Report that DSIO staff determines is noncompliant, the Registrant may be required to file a corrected CCO Annual Report pursuant to CFTC Regulation 3.3(f)(4). Release.

CFTC Unanimously Passes Final Rule Affecting Formulation, Amendment or Repeal of Commission’s Rules and Regulations

 

On December 10, the U.S. Commodity Futures Trading Commission (CFTC) approved a final rule eliminating the provisions of the Commission’s Regulations that established the formulation, amendment or repeal of its rules or regulations. The CFTC unanimously passed the final rule, with rule makers stating these provisions were unnecessary because the CFTC’s rulemaking process is governed by the Administrative Procedure Act. Rule.

The EU’s Whistleblowing Directive

 

On November 26, Directive (EU) 2019/1937 of the European Parliament (EP) and of the Council of October 23 (the “Directive“) on the protection of persons who report breaches of Union law was published in the Official Journal.

Background

In light of recent information scandals including Cambridge Analytica, the Panama Papers and Luxleaks, the European Commission (EC) sought to introduce a unified measure granting protection to persons who report breaches of Union Law. These scandals have highlighted how crucial whislteblowers can be in uncovering unlawful activities, and the European Union (EU) has introduced the Directive to strengthen the enforcement of Union law and protect the freedom of expression of the whistleblower when interviewed on this topic, as explained by Maria Mollica, the EU Commission’s Policy Officer. While various Member States have addressed whistleblower protection in their own national legislation, the protection is often restricted to specific areas and thus the Directive attempts to unify and harmonize the approach taken by all Member States.

The Directive

Protection is afforded to whistleblowers to the extent they fall within the definition of “reporting person,” a natural person who reports or publicly discloses information on breaches acquired in the context of his or her work-related activities (Article 5(7)). In turn, this disclosure extents to information “including reasonable suspicions, about actual or potential breaches, which occurred or are very likely to occur in the organization in which the reporting person works or has worked or in another organization with which the reporting person is or was in contact through his or her work, and about attempts to conceal such breaches.” “Breaches” refers to any act or omission that is unlawful and relate to the Union or defeat the object or purpose of the rules in the Union (Article 5(1) and (2)).

It applies to businesses which employ at least 50 employees and they are required to implement internal channels to facilitate the reporting.

In terms of its scope, the Council of the European Union (EUCO) explains in a press release that “the new rules will cover areas such as public procurement, financial services, prevention of money laundering, public health, etc. For legal certainty, a list of all EU legislative instruments covered is included in an annex to the directive.” Further, regarding the protection awarded to reporting persons, it is stated that “the rules introduces safeguards to protect whistle-blowers from retaliation, such as being suspended, demoted and intimidated. Those assisting whistle-blowers, such as colleagues and relatives, are also protected. The directive also includes a list of support measures which will be put in place for whistleblowers.”

Next Steps

On November 26, the directive was published in the Official Journal and it will enter into force on December 16. Member States then have two years from that date to implement its terms and transpose its requirements into national legislation. Press Release. Legislative Text.

SEC Proposes Rule to Enhance Regulation of Use of Derivatives

 

On November 25, the Securities and Exchange Commission (SEC) voted to propose new rules and rule amendments to update the existing regulations on the use of derivatives by registered investment companies and business development companies. The proposed rule change would regulate the ability of certain funds to enter into derivatives transactions creating future payment obligations in order to obtain leverage, subject to certain risk limitations. The SEC also proposed new sales practice rules: Rule 15a-2 under the ’34 Act and Rule 211(h)-1 under the Investment Advisers Act of 1940. There will be an open comment period on the proposed rules for period of 60 days. Release. Proposed Rule.

 

Federal Bank Regulatory Agencies Issue Final Rule on Treatment of High Volatility Commercial Real Estate

 

On November 19, the Office of the Comptroller of the Currency (OCC), the Federal Deposit Insurance Corporation (FDIC) and the Federal Reserve Board (FRB) implemented a final rule addressing high volatility commercial real estate (HVCRE).  The rule aims to clarify the definition of HVCRE exposure and the treatment of credit facilities financing one- to four-family residential properties and land development. Banking institutions will have the option to maintain their current capital treatment for acquisition, development or construction loans originated between January 1, 2015 and the effective date of the final rule on April 1, 2020. FDIC ReleaseFRB ReleaseOCC Release.