Orrick's Financial Industry Week In Review

by Orrick, Herrington & Sutcliffe LLP
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Financial Industry Developments

House Committee on Financial Services Comments on OCC Fintech Charter

All 34 Republican members of the Financial Services Committee of the U.S. House of Representatives, including Chairman Jeb Hensarling (Tex. – R) and Vice Chairman Patrick McHenry (N.C. – R), in a letter dated March 10, 2017, to Comptroller of the Currency Thomas Curry, urged the Office of the Comptroller of the Currency ("OCC") not to "rush" the decision to create special purpose national bank charters for fintech companies without giving stakeholders the opportunity to see the details of the prospective charter and the opportunity to comment, and also without giving the incoming Comptroller the opportunity to assess the charter after Comptroller Curry's term expires in April 2017. The letter advises Comptroller Curry that if such opportunities for review, comment and assessment are not provided, "Congress will examine the OCC's actions and, if appropriate, overturn them." A number of banks, community bank organizations and others previously provided comments to the OCC urging the OCC to assure that there will be a level playing field for newly chartered fintech banks and existing banks.

 

Rating Agency Developments

On March 8, 2017, Fitch issued a report entitled U.S. Auto Lease ABS Rating Criteria. Report.

On March 7, 2017, DBRS issued a report entitled Mapping Financial Institution Internal Ratings to DBRS Ratings for Global Structured Credit Transactions. Report.

On March 7, 2017, Fitch issued a report entitled National Scale Ratings Criteria. Report.

On March 7, 2017, Moody's updated its rating criteria for variable rate instruments supported by conditional liquidity facilities. Report.

On March 6, 2017, Fitch issued a report entitled Criteria for Analyzing Multiborrower U.S. and Canadian Commercial Mortgage Transactions. Report.

On March 6, 2017, Moody's updated its rating criteria for gas prepayment bonds. Report.

On March 3, 2017, DBRS issued a report entitled Rating Public-Private Partnerships. Report.

On March 3, 2017, Fitch issued a report entitled SME Balance Sheet Securitisation Rating Criteria. Report.

On March 3, 2017, Fitch issued a report entitled North America and Asia-Pacific Multiborrower CMBS Surveillance Criteria. Report.

On March 2, 2017, DBRS issued a report entitled Rating Sports Franchises and Stadium Financings. Report.

 

RMBS and Other Securities Litigation

First Department Grants Summary Judgment Against RMBS Collateral Manager for Failure to Raise Issue of Fact Regarding Loss Causation

On March 2, 2017, the New York Supreme Court, Appellate Division, First Department reversed a decision from the New York Supreme Court and dismissed a complaint filed by two hedge funds against the collateral manager of a $400 million collateralized debt obligation ("CDO") investment. Plaintiff hedge funds Basis PAC-Rim Opportunity Fund (Master) and Basis Yield Alpha Fund (Master) (together, "Basis") filed a lawsuit asserting fraud claims against defendant TCW Asset Management Company ("TCW"), which had served as the collateral manager for the Dutch Hill II CDO. Dutch Hill II was created to serve as an investment vehicle for the purpose of taking a net long position on extremely risky RMBS; TCW selected the assets for the Dutch Hill II portfolio and made representations to Basis about the viability of the subprime RMBS market. Basis purchased over $27 million of Dutch Hill II notes in 2007, but the notes were all but valueless following the housing crisis. In moving for summary judgment, TCW submitted expert evidence showing that the housing market crash would have caused Basis's losses even if the collateral underlying the CDO had not been misrepresented, as Basis alleged. In response, Basis did not submit sufficient evidence rebutting that opinion or showing that any of the particular misrepresentations by TCW caused its losses. The Supreme Court had denied summary judgment, holding that there were issues of fact as to loss causation. The First Department reversed, concluding that by failing to rebut TCW's evidence, Basis had not raised an issue of fact as to loss causation.  Opinion.

 

European Financial Industry Developments

EMMI Considers EURIBOR Reforms  

On March 9, 2017, the European Money Markets Institute ("EMMI") issued a paper that considered the legal grounds for a proposed reform to EURIBOR.

Possible reform to EURIBOR was previously outlined by the EMMI in October 2015 (available here), and the most recently issued paper delves deeper into possible evolution. In particular, the paper considers the legal ramifications of the points previously considered.

The EMMI has encouraged EURIBOR users to consider the proposed reforms in an attempt to address possible issues around any changes. The paper is available here.

European Banking Authority Publishes Report on Liquidity Coverage Ratio Disclosure

On March 8, 2017, the European Banking Authority ("EBA") issued a report that considered the disclosure requirements in relation to the liquidity coverage ratio.

As it stands, European regulation specifies the liquidity coverage ratio for credit institutions, with the goal of maintaining a buffer against stressed situations and acting as an important tool in the assessment of risk management.

The guidelines that have been published harmonize and specify the necessary disclosures applicable to credit institutions. The final guidelines are available here.

European Commission Publishes Speech on FinTech

On March 8, 2017, the European Commission (EC) published a speech that considered the challenges currently faced by the financial services sector in the EU, with a particular emphasis on FinTech.

Financial technology, commonly referred to as FinTech, has been a hot topic in recent times, with the European Commission maintaining a task force specifically dealing with it.

The speech, given by Oliver Guersent, commented on a number of points, including the need to ensure that all human interaction was not excluded and the possible investor protection risks surrounding "robo-advice." The speech can be found in its entirety here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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