Edward Eisert

Edward Eisert

Orrick, Herrington & Sutcliffe LLP

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Latest Publications


CFPB Structure Ruled Unconstitutional

On October 11, 2016, the U.S. Court of Appeals for the District of Columbia Circuit ruled in PHH Corporation v. Consumer Financial Protection Bureau that the CFPB’s structure is unconstitutional. In reaching this...more

10/19/2016 - CFPB Constitutional Challenges DOJ PHH Corp. v CFPB

FINRA and SEC Announce Tick Size Pilot Program

On October 3, 2016, the Financial Industry Regulatory Authority (“FINRA”) and the Securities and Exchange Commission (“SEC”)’s Office of Investor Education and Advocacy issued an Investor Alert announcing a new National...more

10/14/2016 - FINRA Investors SEC

SEC Adopts Amendments to Form ADV

On August 25, 2016, the Securities and Exchange Commission (SEC) adopted amendments to Form ADV that are designed to provide additional information regarding advisers, including information about their separately managed...more

8/30/2016 - Form ADV Investment Adviser Investment Advisers Act of 1940 SEC Umbrella Registration

New Jersey Appellate Court Clarifies Definition of Compensation under Advisers Act

On August 12, 2016, the United States Court of Appeals for the Third Circuit affirmed the decision of the District Court of New Jersey and held in United States v. Everett C. Miller that the defendant was an “investment...more

8/19/2016 - Compensation Investment Adviser Investment Advisers Act of 1940 SEC

FinCEN Issues Customer Due Diligence Rule (CDD) FAQs

On July 19, 2016, the Financial Crimes Enforcement Network (“FinCEN”) issued FAQs regarding the customer due diligence requirements (“CDD”) that it published on May 11, 2016, for certain financial institutions, including...more

7/26/2016 - Beneficial Owner Customer Due Diligence (CDD) Financial Institutions FinCEN

Federal Reserve Announces Extension of Conformance Period Under Section 13 of the Bank Holding Company Act

On July 7, 2016, the Federal Reserve announced that it will extend until July 21, 2017 the conformance period for banking entities to divest ownership in certain legacy investment funds and terminate relationships with funds...more

7/14/2016 - Bank Holding Company Act Dodd-Frank FDIC Federal Reserve Private Equity Funds Volcker Rule

NY DFS Adopts Final Anti-Terrorism and Anti-Money Laundering Regulation

On June 30, 2016, the New York Department of Financial Services (“NY DFS”) adopted a final anti-terrorism and anti-money laundering regulation (the “Final Regulation”) that requires institutions subject to regulation by the...more

7/13/2016 - Anti-Money Laundering Anti-Terrorism Financing BSA/AML Department of Financial Services Financial Institutions

SEC Proposes Rule Requiring Investment Advisers to Adopt Business Continuity and Transition Plans

On June 28, 2016, the Securities and Exchange Commission proposed a new rule that would require registered investment advisers to adopt and implement written business continuity and transition plans. In announcing the...more

7/13/2016 - Business Continuity Plans Business Disruption Investment Adviser Public Comment SEC

Financial Stability Board Issues Asset Management-Related Policy Recommendations

On June 22, 2016, the Financial Stability Board (FSB) published for public consultation Proposed Policy Recommendations to Address Structural Vulnerabilities from Asset Management Activities. The document sets out 14 proposed...more

6/24/2016 - Asset Management FSB Investment Funds IOSCO Private Funds

SEC Issues Order Increasing the Net Worth Test Under Rule 205-3 Under the Investment Advisers Act of 1940 to $2.1 Million

Section 205(a)(1) of the Investment Advisers Act of 1940 (the “Advisers Act”) generally prohibits an investment adviser from entering into, extending, renewing, or performing any investment advisory contract that provides for...more

6/21/2016 - Advisory Contracts Dodd-Frank Investment Adviser Investment Advisers Act of 1940 SEC

Federal Reserve Updates Risk Management Supervisory Guidance for Smaller FBOs

On June 8, 2016, the Federal Reserve updated its Supervisory Guidance that partially supersedes SR letter 95-51, “Rating the Adequacy of Risk Management and Internal Controls at State Member Banks and Bank Holding Companies.”...more

6/17/2016 - Board of Directors FBOs Federal Reserve Foreign Banks Risk Management

Banking Agencies Permit “Reduced Content” Living Wills for Smaller FBOs

On June 10, 2016, the Federal Reserve Board and Federal Deposit Insurance Corporation announced they are permitting 84 foreign banking organizations (not identified) with limited U.S. operations to file “reduced content”...more

6/17/2016 - Depository Institutions FBOs FDIC Federal Reserve Foreign Banks

SEC Finds that Private Equity Fund Adviser Acted as Unregistered Broker

On June 1, 2016, the Securities and Exchange Commission (“SEC”) announced that a private equity fund advisory firm and its owner agreed to pay more than $3.1 million to settle charges that they engaged in brokerage activity,...more

6/15/2016 - Broker-Dealer Limited Partnership Agreements Private Equity Funds SEC

Treasury Announces Key Regulations and Legislation to Counter Money Laundering and Corruption, Combat Tax Evasion

On May 5, 2016, the U.S. Department of the Treasury announced several actions to strengthen financial transparency. Treasury announced a Customer Due Diligence (CDD) Final Rule, proposed Beneficial Ownership legislation and...more

5/13/2016 - Banks Beneficial Owner Broker-Dealer CDD Corruption Financial Institutions LLC Money Laundering Tax Evasion U.S. Treasury

SEC’s Division of Investment Management Issues Letter Regarding Independent Verification Required by Rule 206(4)-2 Under the...

On April 25, 2016, the Staff of the Division of Investment Management of the Securities and Exchange Commission issued a no-action letter that provides that it would not recommend enforcement action to the Commission under...more

5/3/2016 - Division of Investment Management Financial Markets Investment Adviser Investment Advisers Act of 1940 No-Action Letters PCAOB SEC Sub-advisers Verification Requirements

Derivatives in Review - April 2016

Novo Banco and CDS – A Post-Mortem - The 2014 ISDA Credit Derivatives Definitions updated the previous set of credit derivatives definitions to, among other things, include a credit event for “Governmental Intervention.”...more

4/22/2016 - CFTC Commodities Exchange Act Derivatives Dodd-Frank Electricity End-Users Financial Markets ISDA Margin Requirements Natural Gas Recordkeeping Requirements Reporting Requirements Swap Dealers Swaps Trading Platforms

OCC Releases its Risk Appetite Statement

On April 12, the Office of the Comptroller of the Currency (“OCC”) released its Risk Appetite Statement, which sets boundaries of acceptable levels of risk in key areas of agency operations. The OCC stated that: “By clearly...more

4/18/2016 - Banking Sector Financial Institutions Innovation OCC Risk Management

FinCEN Proposes Funding Portals Regulations under Bank Secrecy Act

On April 4, 2016, the Financial Crimes Enforcement Network, a bureau of the Department of the Treasury (“FinCEN”), proposed amendments to the definitions of ‘‘broker or dealer in securities’’ and ‘‘broker-dealer’’ under the...more

4/11/2016 - Bank Secrecy Act Broker-Dealer Crowdfunding FinCEN Funding Portal JOBS Act Securities Act of 1933

Federal District Court Rules against Designation of MetLife as a “SIFI” under Dodd-Frank Act

On March 30, the D.C. federal District Court ruled against the designation by the Financial Stability Oversight Counsel (“FSOC”) of MetLife as a “systemically important financial institution” under the Dodd-Frank Act. The...more

4/5/2016 - Dodd-Frank Financial Institutions FSOC MetLife Nonbank Firms SIFIs

FINRA Reports on Digital Investment Advice

On March 15, the Financial Industry Regulatory Authority (commonly referred to as “FINRA”) issued a Report that emphasizes that offerings of digital investment advice requires sound governance and supervision, including...more

3/22/2016 - Broker-Dealer Digital Securities Financial Markets FINRA Investment Adviser SEC

Bureau of Consumer Financial Protection Issues Policy on No-Action Letters

On February 18, the Consumer Financial Protection Bureau issued a new policy statement on No-Action Letters. Under the Policy, Bureau staff, in its discretion, would issue no-action letters (NALs) to specific applicants in...more

3/1/2016 - CFPB Consumer Financial Products Financial Services Industry No-Action Letters Policy Management

SEC Announces 2016 Examination Priorities

On January 11, the SEC announced its Office of Compliance Inspections and Examinations’ (OCIE) 2016 priorities. New areas of focus include liquidity controls, public pension advisers, product promotion, and two popular...more

1/22/2016 - Analytics Cybersecurity ETFs Financial Institutions OCIE SEC SEC Examination Priorities Variable Annuities

SEC Approves Interim Final Rules Implementing Two Provisions of the FAST Act

On January 13, the Securities and Exchange Commission announced that it approved interim final rules implementing two provisions of the Fixing America’s Surface Transportation (FAST) Act, adopted by Congress in December, that...more

1/22/2016 - Emerging Growth Companies Fixing America’s Surface Transportation Act (FAST Act) Form F-1 Form S-1 Interim Rule Reporting Requirements SEC

New York State Department of Financial Services Superintendent's Regulations Impose Strict Senior Officer Certification...

The last four years has seen a trend of increased law enforcement and regulatory investigations into financial institutions for sanctions violations and anti-money laundering, or Bank Secrecy Act ("BSA"), compliance. The New...more

12/23/2015 - BSA/AML Certification Requirements Economic Sanctions FFIEC Financial Institutions NYDFS Proposed Regulation Sarbanes-Oxley

SEC Issues Staff Report on Accredited Investor Definition

On December 18, the Securities and Exchange Commission issued a staff report (the “Report”) on the definition of “accredited investor” set forth in Rule 501(a) of Regulation D under the Securities Act of 1933. The Dodd-Frank...more

12/23/2015 - Accredited Investors Regulation D SEC

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