Orrick's Financial Industry Week in Review - February 10, 2014

by Orrick, Herrington & Sutcliffe LLP
Contact

Financial Industry Developments

Janet Yellen Sworn in as the Fed's Chair

 On February 3, Jannet L. Yellen took the oath of office as Chair of the Board of Governors of the Federal Reserve SystemRelease.


Extension of Exemptions for Security-Based Swaps

On February 5, the SEC extended interim final rules that exempt security-based swaps that were security-based swap agreements  prior to July 16, 2011, and are defined as "securities" under the Securities Act and the Exchange Act as of July 16, 2011, due solely to the provisions of Title VII of Dodd-Frank. Under the extension, the expiration dates in the interim final rules will change from February 11, 2014, to February 11, 2017.   ReleasePolicy Statement.

Rating Agency Developments

On February 5, DBRS released its methodology for analyzing commercial paper liquidity support for non-bank issuers. DBRS Report.

 Note: Free registration is required for rating agency releases and reports.

Asset Management

No-Action Letter Provides Guidance Regarding "Knowledgeable Employees" of Private Fund Advisers

On February 6, the staff of the SEC's Division of Investment Management issued a no-action letter with respect to Rule 3c-5 of the Investment Company Act of 1940 (the Company Act) that represents a substantial improvement over the existing guidance regarding the definition of "knowledgeable employees" thereunder, i.e., persons who are not required to be "qualified purchasers" under Section 3(c)(7) of the Company Act, or to be counted for purposes of the 100 beneficial owner limit under Section 3(c)(1) of the Company Act.  Response.

No-Action Letter Provides Relief to M&A Brokers

On January 31, in a significant no-action letter (Letter), the Staff of the Division of Trading and Markets provided assurances that it would not recommend enforcement action to the Commission under Section 15(a) of the Securities Exchange Act of 1934 if an "M&A Broker" (as defined in the Letter) were to engage in enumerated activities in connection with the purchase or sale of a privately-held company without registering as a broker-dealer pursuant to Section 15(b) of the Exchange Act.

The Letter is the culmination of years of effort (both political and regulatory) and provides significant relief to a broad range of activities heretofore restricted to registered broker-dealers.  Letter.

RMBS and Other Securities Litigation

Morgan Stanley and FHFA Reach RMBS Settlement

On February 4, Morgan Stanley disclosed in a regulatory filing that it has agreed, in principle, to a settlement for US$1.25 billion with the Federal Housing Finance Agency to resolve claims pending in the United States District Court for the Southern District of New York related to the sale of US$10.58 billion in RMBS between 2005 and 2007.  The FHFA, as conservator for Fannie Mae and Freddie Mac, asserted claims for violations of federal and state securities laws on the basis of allegedly false and misleading statements and omissions in the registration statements and prospectuses of securities sold to Freddie Mac and Fannie Mae.  Form 8-K. Complaint.

Bank of America's US$8.5 Billion RMBS Settlement Approved

On January 31, Justice Barbara R. Kapnick of the Supreme Court of New York for New York County approved, with one exception, an US$8.5 billion settlement between Bank of America and a group of RMBS investors.  The Bank of New York Mellon, acting as the trustee for trusts that in the aggregate issued US$424 billion in RMBS backed by mortgages originated by Countrywide, entered into an agreement with Bank of America in 2011 to resolve claims alleging breaches of representations and warranties and alleged violations of prudent servicing obligations.  After more than two years of State and Federal Court proceedings, Justice Kapnick approved the settlement, and found that BNY Mellon as Trustee did not abuse its discretion or act in bad faith or outside the bounds of reasonable judgment in reaching the settlement, except to agree to the settlement of certain loan modification claims, which the Court did not approve.  The Court declined to approve the compromise of the loan modification claims based on its conclusion that BNY Mellon settled those claims "without investigating their potential worth or strength." Order.  

European Financial Industry Developments

LIBOR Code of Conduct and Whistleblowing Procedure Released by ICE Benchmark Administration

On February 3, The ICE Benchmark Administration (IBA) revised and published the London Interbank Offered Rate (LIBOR) code of conduct for contributing banks and a LIBOR whistleblowing procedure. These documents relate to IBA's role as the administrator of LIBOR.

The LIBOR Code of Conduct sets out practice standards for contributing banks and covers a number of issues including governance arrangements, submission methodology, conflicts of interest, record-keeping and compliance. The UK Financial Conduct Authority (FCA) has confirmed that the Code is industry guidance.

The whistleblowing procedure explains how an individual can alert the IBA, on an anonymous basis, of any conduct that may involve manipulation, or attempted manipulation, of LIBOR.  LIBOR Code of ConductConfirmed Industry Guidance.  Whistleblowing Procedure.

The European Parliament Votes to Adopt CSMAD

On February 4, the European Parliament published a press release reporting that it had voted at its plenary session to adopt the proposed directive on criminal sanctions for insider dealing and market manipulation (CSMAD). The CSMAD, together with the proposed regulation on insider dealing and market manipulation (MAR), make up the MAD II legislative proposals that will replace the Market Abuse Directive (2003/6/EC) (MAD).

The European Commission has welcomed the Parliament's adoption of the rules in a press release and has published a set of frequently asked questions on CSMAD.

Following adoption by the Council of the EU and publication (expected in June 2014), member states will have two years to implement the CSMAD. Press Release EU ParliamentPress Release EU CommissionCSMAD FAQs

Events

Orrick's Annual Financial Services Employment Law Roundtable

On March 4, please join us in the New York Office for Orrick's Annual Financial Services Employment Law Roundtable, which will include a special presentation by EEOC General Counsel, David Lopez, on EEOC Enforcement Initiatives for 2014.  Roundtable discussion topics include wage-and-hour cases impacting the financial services industry and NLRB regulation of the non-union environment, among other topics.  For more information and to register for this event, please click 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.

© Orrick, Herrington & Sutcliffe LLP | Attorney Advertising

Written by:

Orrick, Herrington & Sutcliffe LLP
Contact
more
less

Orrick, Herrington & Sutcliffe LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!