THE FINANCIAL REPORT – DLA Piper

IN THIS ISSUE

 

Discussion and Analysis

News from the Americas

News from Asia and the Pacific

News from Europe

Global Regulators

US Securities and Exchange Commission Developments

US Commodity Futures Trading Commission Developments

US Banking Agency Developments

US Judicial Developments

US Exchanges and Self-Regulatory Organizations

Discussion and Analysis

I’m a big fan of Raising Hope, the critically acclaimed television comedy created by Emmy Award winner Gary Garcia, airing on FOX, that follows the continuing comic adventures of the dimwitted, but lovable, Chance family.

In an episode which aired in November of last year, the character Burt Chance creates a new bartering system for the fictional town of Natesville. That system employs a “currency” created by Burt which he dubs “Burt Bucks.” All starts out well until Burt realizes that he can acquire from his neighbors any goods and services he wishes simply by printing more Burt Bucks. Of course, very quickly (it is only a half-hour show!) the supply of Burt Bucks in circulation increases astronomically and the Burt Bucks become worthless. The residents of Natesville, perhaps without realizing it, had lost faith in Burt acting as a “central bank.”

Earlier this week, prominent venture capitalist, Marc Andreesen, published an insightful article entitled “Why Bitcoin Matters.” (see, http://dealbook.nytimes.com/2014/01/21/why-bitcoin-matters/) In that article, Andreesen explains how Bitcoin works:

"Bitcoin is a digital currency, whose value is based directly on two things: use of the payment system today - volume and velocity of payments running through the ledger - and speculation on future use of the payment system. This is one part that is confusing people. It’s not as much that the Bitcoin currency has some arbitrary value and then people are trading with it; it’s more that people can trade with Bitcoin (anywhere, everywhere, with no fraud and no or very low fees) and as a result it has value.

The Bitcoin ledger is a new kind of payment system. Anyone in the world can pay anyone else in the world any amount of value of Bitcoin by simply transferring ownership of the corresponding slot in the ledger. Put value in, transfer it, the recipient gets value out, no authorization required, and in many cases, no fees."

Andreesen believes that Bitcoin may be a technological innovation on par with the advent of the personal computer in 1975 and the Internet in 1993. He notes that Bitcoin is “the first Internetwide payment system where transactions either happen with no fees or very low fees.” Possibly more compelling, however, is that Bitcoin is described by Andreesen as a “digital bearer instrument.” In his view, it enables parties to exchange assets with no pre-existing relationship of trust.

Andreesen correctly acknowledges that there are numerous regulatory topics and issues that will need to be resolved because few, if any, countries have regulatory frameworks for banking and payments that anticipated technology like Bitcoin.

Andreesen’s success as a business visionary cannot be denied and his conclusion that “Bitcoin offers a sweeping vista of opportunity to reimagine how the financial system can and should work in the Internet era” may, indeed, prove to be prescient. Still, Andreesen and other early advocates of Bitcoin generally seem to gloss over a major weakness: the absence of a trustworthy, accountable and transparent central bank.

Even the most Internet-savvy have a difficult time explaining how Bitcoins are “mined” and how they know with complete certainty that the supply of Bitcoins is forever fixed. At the risk of being overly simplistic, without understanding specifically who controls the supply of Bitcoins, and how “they” do so, how can any individual or business be comfortable that Bitcoins won’t become the digital version of Burt Bucks? And, if Bitcoin is a digital currency, will computer hackers be able to create a way to forge a digital currency? Doesn’t the absence of a centralized monetary authority charged with policing the system and preventing such fraudulent activity make the occurrence of that activity virtually inevitable?

Very few of us are willing today to admit that, in 1993, we never thought “that Internet thing” would catch on. How prehistoric those days and that mindset now seem. It will be interesting to see, 20 years from now, whether people have come to depend on Bitcoin in the same way we depend on the Internet today.

News from the Americas

Volcker rule regulations amended. Five US financial regulators (the Federal Reserve Board, FDIC, OCC, CFTC and SEC) published an interim final rule that will allow banks to retain interests in certain collateralized debt obligations backed primarily by trust preferred securities (TruPS CDOs). Holdings in TruPS CDOs will be exempt from the investment prohibitions of the Volcker rule, Section 619 of the Dodd-Frank Act. Separately, the banking agencies published a list of issuers that meet the requirements of the interim rule. (1/14/2014)

Canadian regulators propose model derivatives customer clearing and protection rules. The Canadian Securities Administrators published for comment CSA Staff Notice 91-304, “Model Provincial Rule Derivatives: Customer Clearing and Protection of Customer Collateral and Positions.” The Model Rule is intended to improve the protection of customer collateral and positions, and to increase the resilience of derivatives clearing agencies. The rule requirements relate to segregation and use of customer collateral, as well as record keeping and disclosure about collateral held. Comments should be submitted by March 19, 2014. (1/16/2014) CSA press release.

OSC proposes disclosure of women on boards. The Ontario Securities Commission published proposed amendments to Form 58-101F1 of National Instrument 58-101 “Disclosure of Corporate Governance Practices.” The proposed amendments would require TSX-listed issuers (and other non-venture issuers) that are reporting issuers in Ontario to provide disclosure regarding the following matters on an annual basis: (i) director term limits, (ii) policies regarding the representation of women on the board, (iii) the board’s or nominating committee’s consideration of the representation of women in the director identification and selection process, (iv) the issuer’s consideration of the representation of women in executive officer positions when making executive officer appointments, (v) targets regarding the representation of women on the board and in executive officer positions and (vi) the number of women on the board and in executive officer positions. Comments should be submitted by April 16, 2014. (1/15/2014) OSC press release.

CSA suitability guidance. The Canadian Securities Administrators published guidance on know-your-client and suitability requirements. (1/9/2014) CSA press release.

News from Asia and the Pacific

China’s shadow banking reforms. Fitch Ratings analyzed China’s shadow banking reforms and the likely consequences. (1/17/2014) Shadowy reforms.

Japan proposes stewardship code for institutional investors. Japan’s Financial Services Agency published for comment a draft code on the responsibilities of institutional investors to enhance the medium- to long-term investment return for their clients and beneficiaries. Comments should be submitted by February 9, 2014. (1/15/2014)

Australia extends class order for financial reporting by stapled entities. The Australian Securities & Investments Commission extended Class Order [CO 13/1050], which allows issuers of stapled securities to continue to present consolidated or combined financial statements. The amended class order extends the relief given to stapled entities for future financial years pending further consideration of reporting requirements by the IFRS Interpretations Committee. (1/8/2014) ASIC press release.

News from Europe

Proposed changes to UK Prudential Regulation Authority rulebook. The UK’s Prudential Regulation Authority published proposed changes to rules and policy material contained in the Prudential Regulation Authority Handbook. Among other things, the proposal would (i) replace the six Principles for Business that the PRA inherited from the Financial Services Authority with Fundamental Rules; (ii) change the rules on the PRA’s information gathering powers; and (iii) update the PRA’s statement of policy on the exercise of the financial stability information power. Comment should be submitted by March 21, 2014. (1/21/2014) PRA press release.

UK Financial services compensation scheme. The UK’s Prudential Regulation Authority and Financial Conduct Authority jointly issued a consultation paper outlining the proposed management expenses levy limit (MELL) for the 2014-2015 Financial Services Compensation Scheme. Comments should be submitted by February 17, 2014. (1/20/2014) PRA press release.

UK guidance on supervising retail investment advice. The UK Financial Conduct Authority published guidance on how payments made by providers to advisory firms under service or distribution agreements can breach Principle 8 (Conflicts of interest) and the COBS inducements rules. The guidance explains the FCA’s concerns and why certain practices are likely to create conflicts of interest. The guidance also explains a number of ways, but not the only ways, that firms can comply with the relevant requirements in the FCA Handbook. (1/16/2014) FCA press release.

Proprietary proposal. Bloomberg summarized European Commissioner Michel Barnier’s proposal that would prohibit global systemically important financial institutions from engaging in proprietary trading. These institutions would also be restricted from investing in or owning hedge funds and similar investment vehicles. (1/16/2014) Proprietary proposal.

ESMA updates prospectus guidance. The European Securities and Markets Authority updated its guidance on prospectus-related issues by including two new questions and answers. (1/15/2014) ESMA notice.

ESMA credit rating agency decision affirmed. The Board of Appeal of the European Supervisory Authorities affirmed the European Securities and Markets Authority’s decision to refuse Global Private Rating Company “Standard Rating” Ltd’s registration as a credit rating agency. (1/13/2014) ESMA notice.

Global Regulators

AML guidelines. The Basel Committee on Banking Supervision has published guidelines on bank management of risks related to money laundering and financing of terrorism. (1/15/2014) BIS press release.

Bank liquidity and stable funding. The Group of Governors and Heads of Supervision endorsed the Basel Committee’s proposals on bank leverage ratios, the net stable funding ratio and the Basel Committee’s strategic priorities. (1/12/104) BIS press release.

Asset managers. The Financial Stability Board and the International Organization of Securities Commissions published a consultation on how to identify global systemically important non-bank and non-insurer financial institutions. The proposal considers asset managers among the non-bank, non-insurer financial firms to be considered as potential global systemically important financial institutions. (1/8/2014) Joint press release.

US Securities and Exchange Commission Developments

New Final Rules

Temporary stay of municipal advisor registration. The SEC extended to July 1, 2014, the date on which compliance with the final municipal advisor registration rules will be required. (1/13/2014) SEC Release No. 34-71288; SEC press release.

SIPC rules amended. A proposed rule change filed by the Securities Investor Protection Corporation to amend SIPC Rule 400 (Rules Relating to Satisfaction of Customer Claims for Standardized Options) was approved. The amendment is effective February 18, 2014. (1/9/2014) SEC Release No. SIPA 172.

Guidance

Municipal advisor guidance. Interpretive guidance was issued by the Office of Municipal Securities. The guidance addresses questions regarding the implementation of new SEC rules requiring municipal advisors to register with the SEC. The guidance addresses topics including the advice standard, requests for proposals/requests for qualifications exemption, the exemption for independent municipal advisors, the exclusion for registered investment advisers, the underwriter exclusion, issuance of municipal securities and post-issuance advice and remarketing agent services. (1/10/2014) SEC press release.

Selected Enforcement Actions

FINRA’s findings sustained. The SEC sustained the Financial Industry Regulatory Authority’s finding that CapWest Securities, Inc., a former member firm, violated content standards for communications with the public. The disciplinary action stemmed from a FINRA sweep in which it requested that a group of member firms, including CapWest, produce all of the public communications the firms used in promoting certain products. After reviewing the materials that CapWest submitted, disciplinary action was commenced for violations of NASD conduct rules regarding public communications and violation of NASD supervisory standards. The hearing panel found that CapWest committed the violations charges and imposed a US$150,000 fine. Although CapWest did not seek review, FINRA’s National Adjudicatory Council reviewed the appropriateness of the fine and determined that it was excessive because (i) a majority of the violations were “inadvertent” and the result of a systemic problem in the Firm’s implementation of its supervisory system, (ii) many of the communications were targeted to accredited investors, and (iii) several of the communications were repeated multiple times in identical form. As a result, the NAC reduced the fine from US$150,000 to US$25,000. The SEC sustained the findings and the revised sanctions. (1/17/2014) In the Matter of the Application of CapWest Securities, Inc., SEC Release No. 34-71340.

Partially settled accounting fraud charges filed against Diamond Foods and former execs. The SEC charged Diamond Foods and two former executives for their roles in an accounting scheme to falsify walnut costs in order to boost earnings and meet estimates by stock analysts. The SEC alleges that Diamond’s then CFO directed the effort to fraudulently underreport money paid to walnut growers by delaying the recording of payments into later fiscal periods. Without admitting or denying the allegations Diamond Foods agreed to pay US$5 million to settle the SEC’s charges. Diamond’s former CEO also agreed to settle charges against him, and to pay a US$125,000 penalty. The former CEO already has returned or forfeited more than US$4 million in bonuses and other benefits. The SEC’s litigation continues against the CFO. (1/9/2014) SEC v. Diamond Foods, Inc., Lit.Rel.No. 22902; In the Matter of Michael Mendes, SEC Release No. 33-9508; SEC Press Release.

Other Developments

Investor Advisory Committee meeting. On January 31, 2014 the SEC’s Investor Advisory Committee will meet. Agenda items include decimalization, crowdfunding and rebates and payments for order flow. The meeting will be webcast. Written statements should be submitted by January 31, 2014. (1/13/2014) Meeting Notice.

Preparing for an examination. Steps investment advisors can take to prepare for their first SEC examination were discussed by Reuters. (1/16/2014) Preparation.

SEC technology budget cut. According to the Washington Post, the US Congress has slashed the SEC’s technology budget by US$50 million. As a result, the SEC’s plans for real-time monitoring of trading data and its issuer financial statement review will have to be limited or shelved. (1/16/2014) Budget cuts.

Enforcing the Volcker rule. The SEC may seek additional avenues for enforcing the Volcker rule, reported Reuters. The Commission may propose a rule which would allow it to bring an enforcement action against a broker-dealer for failing to maintain books and records concerning the Volcker rule’s prohibition against proprietary trading. (1/16/2014) New authority.

SEC Commissioner addresses capital requirements. The rationales for capital requirements were the subject of a speech by SEC Commissioner Daniel Gallagher. (1/15/2014) Gallagher speech.

New Form SD. The SEC published Form SD, the form which firms should use to fulfill the conflict minerals disclosure reporting requirements. (1/9/2014) Form SD.

Examination priorities. The SEC announced its examination priorities for 2014. The priorities address market-wide issues as well as those specific to particular businesses. Among the market-wide priorities are fraud detection and prevention, corporate governance and risk management, technology controls and retirement investments and rollovers. (1/9/2014) SEC press release.

US Commodity Futures Trading Commission Developments

Requests for Comment

Comment period reopened for automated trading environments concept release. The CFTC reopened the comment period for its concept release on risk controls and system safeguards for automated trading environments. Comments must be submitted by February 14, 2014. (1/17/2014) CFTC press release.

Aggregation of position limits. The period in which the CFTC will accept comments on its proposed amendment to rules on the aggregation for position limits has been extended to February 10, 2014. (1/9/2014) CFTC press release.

Regulatory Relief

Exemptive relief provided to DCO. The Division of Clearing and Risk (DCR) issued an exemptive letter providing North American Derivatives Exchange, Inc. (Nadex), a registered derivatives clearing organization (DCO), with relief from certain provisions of the CFTC’s regulations. DCR also issued an interpretative letter that addresses the applicability of certain regulatory provisions to Nadex. Because Nadex’s clearing model features non-intermediated clearing of transactions in fully-collateralized products, Nadex requested relief from compliance with regulatory provisions that are inapplicable to Nadex’s model. In addition, the CFTC approved an amended order of DCO registration for Nadex to better align the terms and conditions of Nadex’s registration order with the Commodity Exchange Act. (1/17/2014) CFTC press release.

Customer funds requirements. The Division of Swap Dealer and Intermediary Oversight provided relief from certain provisions of Regulation 30.7(c), which restricts a futures commission merchant from holding customer funds deposited to margin, guarantee, or secure foreign futures and foreign options transactions in jurisdictions outside of the United States in excess of 120 percent of total margin requirements. Enforcement action will not be recommended if the FCM: (1) identifies each business day whether it holds more than 120 percent of required margin for Regulation 30.7 customers with non-US depositories; (2) initiates a transfer of any such excess funds from non-US depositories to US depositories on the same business day; and (3) receives the funds in US depositories within two business days of initiating the transfer of such funds from the foreign depositories. (1/13/2014) CFTC press release.

Commingling relief. The Division of Swap Dealer and Intermediary Oversight provided time-limited relief with respect to compliance with certain conditions associated with the receipt of customer funds by futures commission merchants pursuant to Commission Regulations 1.20, 22.2, and 30.7. The relief expires on April 14, 2014. (1/10/2014) CFTC press release.

Other Developments

CFTC to seek comment on swaps reporting rules. The CFTC announced the formation of an interdivisional staff working group to review certain swaps transaction data recordkeeping and reporting provisions. The working group will formulate and recommend questions for public comment regarding, among other things, compliance reporting rules and consistency in regulatory reporting among market participants. Requests for comment will be published in the Federal Register by March 15, 2014. (1/21/2014) CFTC press release.

SDR provisional registration approved. The CFTC approved BSDR LLC’s application for provisional registration as a swap data repository. (1/17/2014) CFTC press release.

OCR conference calls. CFTC staff will host telephone conference calls with reporting parties regarding technical implementation of the new ownership and control rules every Wednesday, beginning January 22, 2014. (1/17/2014) CFTC press release.

Trade execution mandate. The Division of Market Oversight has deemed satisfied Javelin SEF, LLC’s self-certification of available-to-trade determinations (MAT Determinations) for certain interest rate swap contracts. The swaps that are subject to the MAT Determinations will become subject to the trade execution requirement under Section 2(h)(8) of the Commodity Exchange Act on February 15, 2014. The Division also clarified that the inclusion of a swap subject to the trade execution requirement in a multi-legged transaction would not per se relieve market participants of the obligation to trade such swap through a DCM or SEF. (1/16/2014) CFTC press release.

Portal capabilities expanded. The capabilities of the CFTC’s external portal that allow market participants and the general public to submit information have been expanded. The CFTC Portal Project now allows market participants to more easily complete applications and submit data to the CFTC in a timely and more confidential manner. (1/16/2014) CFTC press release.

Budget constraints. Bloomberg reported that the CFTC faces a funding crisis, and noted the effect the agency’s restricted budget is having on agency morale. (1/16/2014) Budget.

US Banking Agency Developments

OCC proposes heightened standards for largest banks. The OCC proposed new standards for large national banks and federal savings associations. The proposed standards would apply to any insured institution, including an insured US federal branch of a foreign bank, with average total consolidated assets of US$50 billion or more. The proposal would reserve the OCC’s authority to apply the guidelines to an institution with less than US$50 billion in assets if the OCC determines that it is highly complex or presents a heightened risk. The proposal includes minimum standards for the design and implementation of an institution’s risk governance framework and minimum standards for oversight of that framework by the institution’s board. Comments should be submitted within 60 days after publication in the Federal Register, which is expected during the week of January 20th. (1/16/2014) OCC press release.

Comment sought on physical commodity activities by bank holding companies. The Federal Reserve Board seeks comment on commodity activities conducted under different sections of the Bank Holding Company Act. In an advanced notice of proposed rulemaking, the Board addresses the risks that physical commodity activities could pose to the safety and soundness of financial holding companies and to financial stability generally, and the conflicts of interest and the potential risks and benefits of imposing additional capital requirements or other restrictions on the commodity activities of financial holding companies. Comments should be submitted by March 15, 2014. (1/14/2014) Federal Reserve Board press release.

US Judicial Developments

A broker’s duties. Petitioners challenged an SEC order which sustained a FINRA disciplinary matter stemming from petitioner’s sale of unregistered securities. Dismissing the petition, the US Court of Appeals for the Ninth Circuit concluded that substantial evidence existed to support the SEC’s finding that petitioners had traded unregistered securities and that the Section 4(4) “brokers’ exemption” of the Securities Act was unavailable to petitioners because they had not met their duty of inquiry given the presence of many suspicious circumstances surrounding the sales. Agreeing with positions previously taken by the SEC and the DC Circuit, the Ninth Circuit found that a broker is not merely an “order taker.” Instead, a broker must conduct a reasonable inquiry into the circumstances surrounding the transaction before it may claim the protection of the Section 4(4) exemption. (1/16/2014) World Trade Financial Corporation v. SEC.

US Exchanges and Self-Regulatory Organizations

NYSE gambling policy. NYSE Euronext issued an information memo that reminds firms that promoting or participating in certain gambling activities on Exchange premises is prohibited. (1/15/2014)

Municipal advisor standards of conduct proposed. The Municipal Securities Rulemaking Board has issued a proposal relating to the duties of advisors when providing advice on municipal securities transactions and related products. The proposed rule requires the disclosure of conflicts of interest and the documentation of such things as compensation arrangements and the scope of advisory activities to be performed. The proposal prohibits certain conduct as deceptive, dishonest or unfair and provides guidance on the application of the federal fiduciary duty, which requires municipal advisors to deal with their state and local government clients with the utmost good faith and to put their clients’ interests ahead of their own. Comments should be submitted by March 10, 2014. (1/9/2014) MSRB press release.

Reporting deadlines. The Financial Industry Regulatory Authority reminded firms of their filing obligations and noted the 2014 due dates for these filings. (1/8/2014) Information notice.

 

Topics:  Australia, Banks, Bitcoins, Board of Directors, Canada, CFTC, China, Collateralized Debt Obligations, Diversity, Dodd-Frank, ESMA, EU, FDIC, FINRA, Foreign Exchanges, OCR, Proprietary Trading, SEC, Self-Regulatory Organizations, Trust Preferred Securities, Virtual Currency, Volcker Rule

Published In: General Business Updates, Finance & Banking Updates, International Trade Updates, Securities Updates

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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