Amendment to MiFID II – European Commission Adopts Delegated Regulation Amending Systematic Internaliser Definition

 

The European Commission published the text of a Delegated Regulation amending Delegated Regulation (EU) 2017/565 in relation to the specification of the definition of systematic internalisers on August 28, 2017.

The Delegated Regulation (EU) 2017/565 supplements the MiFID II Directive (2014/65/EU) in relation to the organizational requirements and operating conditions for investment firms and defined terms.

Following perceived ambiguities in relation to the meaning of “trading on own account when executing client orders,” the Commission launched a public consultation on the Delegated Regulation in June 2017. Concerns raised during the consultation have been addressed by the introduction of a new recital and amending article 16a, which clarifies the scope of matching arrangements that are considered dealing on own account.

The Delegated Regulation was adopted on August 28, 2017, and will now need to be considered by the Council of the EU and the European Parliament. Provided neither of the Council or Parliament objects, the Delegated Regulation will be published in the Official Journal of the EU and will enter into force on the day after its publication.

NY DFS Charges the NY Branch of Habib Bank and Habib Bank Limited for Compliance Failures

 

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.

CFPB Issues Final Rule Temporarily Raising Reporting Threshold for Home Equity Loans Under Home Mortgage Act Rules

 

On August 24, 2017, the Consumer Financial Protection Bureau (the “CFPB“) issued a new rule that amends the 2015 updates to the Home Mortgage Act (“HMDA“) rules. Under the HMDA rules that are scheduled to take effect in January 2018, financial institutions would have been required to report home‑equity lines of credit if they made 100 such loans in each of the last two years. The new final rule issued by the CFPB increases the threshold from 100 loans to 500 loans through 2018 and 2019 while the CFPB considers whether to make a permanent adjustment. Read more here.

Rating Agency Developments

 

On August 31, 2017, S&P published its methodology for rating U.S. Credit Card Securitizations. Report.

On August 31, 2017, S&P published a Table of Contents to its Structured Finance Criteria. Report.

On August 31, 2017, Moody’s published its approach to rating SME Balance Sheet Securitizations. Report.

On August 31, 2017, Moody’s published a proposed revised framework to its approach to Mapping Ratings and Scores Provided by Third-Party Entities. Report.

On August 31, 2017, Moody’s published its approach to rating Corporate Synthetic Collateralized Loan Obligations. Report.

On August 31, 2017, Moody’s published its global approach to rating Collateralized Loan Obligations. Report.

On August 29, 2017, Moody’s published its global approach to rating Municipal and Sub-Sovereign CDOs. Report.

On August 24, 2017, DBRS published an update to its rating methodology for Companies in the Mining Industry. Report.

On August 24, 2017, DBRS published an update to its rating methodology for Container Terminal Operators. Report.

On August 24, 2017, Fitch published an update to its rating criteria for Global Rental Fleet ABS. Release.

Federal Reserve Seeks Comments on LIBOR Alternatives

 

On August 24, 2017, the U.S. Federal Reserve requested public comments on a plan for the New York Federal Reserve and the Office of Financial Research to come up with three reference rates based on U.S. Treasuries-backed repurchase agreements (repos). The proposed rates are to be called:

  • Tri-party General Collateral Rate (TGCR)
  • Broad General Collateral Rate (BGCR)
  • Secured Overnight Financing Rate (SOFR)

The most comprehensive of the rates, SOFR, would be a broad measure of overnight Treasury financing transactions and was selected by the Alternative Reference Rates Committee (ARRC) as a U.S. dollar LIBOR alternative. LIBOR is a benchmark for $350 trillion worth of financial products worldwide, including $150 trillion in derivatives.

Public comments on these proposed rates are requested within 60 days of publication in the Federal Register, which is expected shortly, according to a Federal Reserve Board press release. To read the press release, click here.

Federal Banking Agencies Propose Extension of Certain Capital Rule Transitions

 

On August 22, 2017, in preparation for a forthcoming proposal that would simplify regulatory capital requirements, federal banking regulators proposed a rule that would extend the existing transitional capital treatment for certain regulatory capital deductions and risk weights. The extension would apply to banking organizations that are not subject to the agencies’ advanced approach to capital rules, which are generally those with less than $250 billion in total consolidated assets and less than $10 billion in total foreign exposure. Comments on this proposal will be accepted for 30 days after publication in the Federal Register. FDIC Press Release. Federal Reserve Press Release. OCC Press Release. Proposal.

S.D.N.Y. Denies Plaintiffs’ Sampling Motion in Consolidated Actions Against RMBS Trustee

 

On August 21, 2017, Judge Katherine Polk Failla of the United States District Court for the Southern District of New York upheld a magistrate’s order denying plaintiff-certificateholders’ motion to attempt to prove their claims by re-underwriting a sample of the loans at issue in a consolidated action against Wells Fargo Bank, National Association, in its capacity as RMBS trustee. Judge Failla, after reviewing the magistrate’s order for clear error, affirmed that under the governing agreements, to prevail on a breach of contract claim against an RMBS trustee with respect to the loans underlying the trust, Plaintiffs must demonstrate a breach on a loan-by-loan and trust-by-trust basis. Accordingly, Plaintiffs cannot utilize sampling in their efforts to prove that the RMBS trustee breached its contractual obligations. Judge Failla also noted that Plaintiffs, rather than needing to prove that the trustee had actual knowledge of breaches of representations and warranties, could potentially demonstrate the trustee’s discovery of breaches through a showing of conscious avoidance or implied actual knowledge. Wells Fargo Sampling Order.

Rating Agency Developments

 

On August 23, 2017, DBRS published a report entitled Rating Companies in the Oil and Gas and Oilfield Services Industries. Report.

On August 21, 2017, Moody’s published a report entitled Government-Related Issuers. Report.

On August 18, 2017, DBRS published a report entitled Rating Companies in the Communications Industry. Report.

On August 18, 2017, DBRS published a report entitled Rating Companies in the Consumer Products Industry. Report.

On August 18, 2017, DBRS published a report entitled Rating Companies in the Merchandising Industry. Report.

On August 17, 2017, Fitch published a report entitled U.S. Military Housing Rating Criteria. Report.

LIBOR Discontinuance and the Derivatives Market

 

On July 27, 2017, the Chief Executive of the UK Financial Conduct Authority (“FCA“) announced that, after the end of 2021, the FCA would no longer use its power to persuade or compel panel banks to submit rate information used to determine the London Interbank Offered Rate, known as “LIBOR.” LIBOR serves as a benchmark rate for hundreds of trillions of dollars of securities, loans and transactions, including over-the-counter and exchange-traded derivatives. The potential permanent discontinuance of LIBOR has significant implications for the derivatives market, especially for legacy transactions. Read more here.

European Commission Adopts Delegated Regulation That Supplements the MiFIR on the Treatment of Package Orders

 

On August 14, 2017, the European Commission has published the draft text of a Delegated Regulation supplementing the Markets in Financial Instruments Regulation (Regulation 600/2014) (“MiFIR“) with regard to the treatment of package orders.

Currently, Article 9(1)(e) of MiFIR provides that, where certain conditions apply, a waiver is given for both pre- and post-trade transparency requirements for packaged orders. This waiver is, however, limited where the package order is considered “liquid”.

Pursuant to the power of the Commission to adopt a Delegated Regulation establishing a clear methodology for determining package orders for which there is a “liquid market,” the Commission has introduced this Delegated Regulation. Article 1 of the Delegated Regulation sets out general methodology for establishing which for package orders there is a “liquid market.” Articles 2 to 5 then go on to specify the conditions under which a package order can fulfill asset-specific criteria set out in Article 1(b).

Following the introduction of the draft text of the Delegated Regulation, the Council of the EU and European Parliament will consider it. Subject to any objections, it will then enter into force 20 days after its publication in the Official Journal of the EU and apply from January 3, 2018.

To see the draft text of the Delegated Regulation, please click here.