On November 9, 2017, the Securities and Exchange Commission (“SEC“) announced the formation and first members of its Fixed Income Market Structure Advisory Committee.
According to the announcement, the committee, whose initial focus will be on the corporate bond and municipal securities markets, will provide advice to the Commission on the efficiency and resiliency of these markets and will identify opportunities for regulation.
The entire announcement can be found here.
On October 26, 2017, the Securities and Exchange Commission (“SEC”) announced that, “following consultation with European authorities, and in response to concerns that investors could lose access to valuable research, the staff of the U.S. Securities and Exchange Commission issued three related no-action letters. These letters are designed to provide market participants with greater certainty regarding their U.S. regulated activities as they engage in efforts to comply with the European Union’s (EU) Markets in Financial Instruments Directive (MiFID II) in advance of the Jan. 3, 2018, implementation date.”
According to the SEC, the no-action relief “provides a path for market participants to comply with the research requirements of MiFID II in a manner that is consistent with the U.S. federal securities laws. More specifically, and subject to various terms and conditions: (1) broker-dealers, on a temporary basis, may receive research payments from money managers in hard dollars or from advisory clients’ research payment accounts; (2) money managers may continue to aggregate orders for mutual funds and other clients; and (3) money managers may continue to rely on an existing safe harbor when paying broker-dealers for research and brokerage.”
The Press Release announcing these developments can be found here.
On October 26, 2017, the Office of Financial Research (“OFR”), an arm of the Treasury Department, issued a Report of its Director that challenges the standard set forth in the Dodd-Frank Act for determining which entities are systemically important and should be subject to the supervision of the Federal Reserve because their failure would pose the greatest risk to financial stability.
A new OFR viewpoint, “Size Alone is Not Sufficient to Identify Systemically Important Banks,” argues that a multifactor approach is superior to considering asset size alone to assess a bank’s systemic importance.
The Report observes that regulators already use such an approach to identify global systemically important banks (“G-SIBs”). They consider size and four other factors to measure a bank’s systemic importance: (1) interconnectedness, (2) substitutability, (3) complexity, and (4) cross-jurisdictional activity. The eight G-SIBs based in the United States face the most stringent standards.
The Report further notes that the OFR’s analysis indicates that a multifactor approach could replace the $50 billion asset-size threshold that some U.S. regulations use to identify U.S. banks that are not G-SIBs, but warrant enhanced regulation.
The Report asserts that such an approach could identify a much smaller group of non-G-SIB banks for enhanced prudential standards. Relatively large but less-systemic U.S. institutions might no longer face regulatory costs disproportionate to their importance. Smaller banks that play unique roles in U.S. markets, are more complex, or rely on short-term wholesale funding could continue to face higher standards.
On October 6, 2017, the Department of the Treasury released its Second Report on the Administration’s Core Principles of Financial Regulation which details how to streamline and reform the U.S. regulatory system for the capital markets. The Report is titled A Financial System that Creates Economic Opportunities and is in response to Executive Order 13772 issued by President Trump on February 3rd, which calls on the Treasury to identify laws and regulations that are inconsistent with a set of Core Principles of financial regulation.
The Treasury found that the federal financial regulatory framework and processes could be improved, among other things, by:
Click here to view the full text Report. Click here to view the fact sheet for the Report.
On August 24, 2017, the New York State Department of Financial Services (“NY DFS“) issued a Notice of Hearing and Statement of Charges to the New York Branch of Habib Bank Limited and Habib Bank Limited, the largest bank in Pakistan, based upon its determination that “compliance failures at the New York Branch are serious, persistent and apparently affect the entire Habib banking enterprise.” The NY DFS asserted that the Bank’s compliance function is dangerously weak and indicates “a fundamental lack of understanding of the need for a vigorous compliance infrastructure, and the dangerous absence of attention by Habib Bank’s senior management for the state of compliance at the New York Branch.” The deficiencies cited include the New York Branch’s failure to comply with New York and Federal laws and regulations concerning anti-money laundering (“AML“) compliance, including the Bank Secrecy Act.
The Superintendent is seeking to impose a civil monetary penalty upon the Respondents in an amount of up to approximately $620 million.
A hearing is scheduled for September 27, 2017, before the NY DFS’s Deputy Superintendent for Compliance. The Bank is contesting the NY DFS’s allegations and has indicated that it plans to challenge the penalty and surrender its DFS banking license, thus eliminating its only U.S. branch.
On August 24, 2017, the NY DFS also issued two companion orders. One expands the scope of a review of prior transactions for AML and sanctions issues that was already underway under the terms of an earlier consent order; the other outlines the conditions under which the Bank could surrender its NY DFS banking license, including the retention of a consultant selected by NY DFS to ensure the orderly wind down of the Bank’s New York Branch. Read more here.
On August 8, 2017, the Federal Reserve Board and Federal Deposit Insurance Corp. extended the deadline for 19 foreign banks and two domestic bank holding companies to file their next round of “living wills” detailing how they can be speedily and safely wound down in the event of a crisis. The new deadline for these firms to file their updated resolution plans is December 31, 2018, giving them an additional year “to address any supervisory guidance in their next plan submissions,” the regulators said in a statement. HSBC Holdings plc, the Toronto-Dominion Bank and Banco Santander SA are among the foreign banks receiving the extension, while the domestic group comprises CIT Group Inc. and Citizens Financial Group Inc. The resolution plans, also known as living wills, outline how the banks could be taken apart safely through the bankruptcy process if they are hit with a financial shock. The public portions of the plans provide an overview; more details about the banks’ structure and funding, as well as plans for failure, are kept confidential at the Fed and the FDIC. The other foreign banks covered by the extension are Banco Bilbao Vizcaya Argentaria SA, Bank of China Ltd., Bank of Montreal, BNP Paribas, BPCE, Coöperatieve Rabobank UA, Crédit Agricole SA, Industrial and Commercial Bank of China Ltd., Mitsubishi UFJ Financial Group Inc., Mizuho Financial Group Inc., Royal Bank of Canada, Société Générale, Standard Chartered PLC, Sumitomo Mitsui Financial Group Inc., the Bank of Nova Scotia and the Norinchukin Bank. The Fed and FDIC also said that two additional smaller foreign firms, Canara Bank and Mercantil Servicios Financieros CA, will be allowed to file reduced-content resolution plans going forward. These firms already submitted previous plans that have filled in regulators on the essentials of their limited U.S. operations, regulators said. Tuesday’s extension comes after the Fed and FDIC granted a living will extension last month to American International Group Inc. and Prudential Financial Inc., two nonbank companies that have been designated systemically important financial institutions by the Financial Stability Oversight Council and are subject to extra oversight. They were originally required to submit their plans by the end of December 2017, but now have until December 31, 2018, the Fed and the FDIC said.
On August 2, 2017, the Office of the Comptroller of the Currency (“OCC“) issued a public notice that it is seeking public input on revising the final regulation implementing section 619 of the Dodd–Frank Wall Street Reform and Consumer Protection Act of 2010 (commonly known as the Volcker Rule).
The Notice, to be published in the Federal Register, solicits public input on whether certain aspects of the implementing regulation should be revised to better accomplish the purposes of section 619 while decreasing the compliance burden on banking entities and fostering economic growth. In particular, the OCC invites input on ways to tailor the rule’s requirements and clarify key provisions that define prohibited and permissible activities. The agency also seeks input on how the federal regulatory agencies could implement the existing rule more effectively without revising the regulation. The OCC noted that: “This is one piece of a larger interagency effort to improve the rule.”
The OCC requests that respondents provide any comments within 45 days of publication in the Federal Register. Release.
On June 1, 2017, Securities and Exchange Commission (“SEC“) Chairman Jay Clayton issued a statement (the “Statement“) soliciting public comments from retail investors and other interested parties on standards of conduct for investment advisers and broker-dealers. The Statement was, in part, in response to the announcement by the Department of Labor that it intends to issue a Request for Information regarding various aspects of its fiduciary rule and its desire to engage with the SEC as each agency pursues its own ongoing analysis of these standards.
The Statement sets forth an extensive, detailed list of questions and issues on which comments are requested. To facilitate the SEC’s assessment of the issues, the Statement announced that a webform and email box are now available for members of the public to make their views on these issues known in advance of any future SEC action.
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:
The CFTC intends that LabCFTC will facilitate:
Engagement with academia, students and professionals on applications of FinTech relevant in the CFTC space.
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.
