Financial Services Weekly News - December 2016 #3

by Goodwin


Editor's Note

The End of “Too Big to Fail”?  On December 15, the Board of Governors of the Federal Reserve System (Federal Reserve Board) adopted a final rule to strengthen the ability of government authorities to resolve the largest domestic and foreign banks operating in the United States without any government support or taxpayer assistance. The final rule applies to domestic firms identified by the Federal Reserve Board as global systemically important banks (GSIBs) and to the U.S. operations of foreign GSIBs. These institutions will be required to meet a new long-term debt requirement and a new “total loss-absorbing capacity,” or TLAC, requirement. The final rule will set a minimum level of long-term debt for domestic GSIBs and the U.S. operations of foreign GSIBs that could be used to recapitalize the critical operations of the firms upon failure. The complementary TLAC requirement will set a new minimum level of TLAC, which can be met with both regulatory capital and long-term debt. The final rule also will require the parent holding company of a domestic GSIB to avoid entering into certain financial arrangements that would create obstacles to an orderly resolution. These “clean holding company” requirements will include bans on issuance of short-term debt to external investors and on entering into derivatives and certain other types of financial contracts with external counterparties. 

In response to comments received on the October 30, 2015, proposed rule, the Federal Reserve Board made several notable changes, including (1) long-term debt issued on or before December 31, 2016, will be grandfathered by allowing it to count toward a firm's long-term debt requirement even if the debt has certain contractual clauses not allowed by the final rule; (2) while foreign firms' U.S. operations will generally be required to issue long-term debt to their foreign parent, the U.S. operations of certain foreign firms will be permitted to issue long-term debt to external parties, rather than solely to their parent companies, consistent with their resolution strategy; and (3) the long-term debt requirements of foreign firms were slightly reduced to be consistent with the treatment of domestic firms, reflecting the expectation that the losses of those firms would slightly reduce their balance sheets and the capital needed for recapitalization. Firms subject to the final rule will be required to comply with the rule by January 1, 2019.

The final rule essentially requires GSIBs to hold convertible debt that would be converted into equity if the bank were to fail, thereby eliminating the need for a taxpayer-funded bailout. Large banks and proponents of the final rule have hailed the final rule as the end of  “too big to fail.” However, critics argue that the final rule encourages banks to incur unnecessary levels of risk by requiring excessive leverage and encouraging them to seek greater returns through potentially risky behavior in order to offset the added cost of the new long-term debt and capital requirements. There are also questions about whether TLAC will work in practice and whether investment by other banks in the long-term debt required by the final rule could result in spreading, rather than curtailing, a financial contagion. With financial regulatory reform near the top of the incoming administration’s agenda and the replacement of Dodd-Frank’s orderly liquidation authority with a new chapter of the bankruptcy code being actively discussed, it remains to be seen whether the TLAC regime will survive at all, let alone end “too big to fail.”

The Roundup will be on hiatus for the next two weeks, and will resume publication on January 11. We wish all of you a happy holiday season and a wonderful New Year.

Regulatory Developments

Fed Issues Final Rule on Liquidity Reporting

On December 19, the Federal Reserve Board approved a final rule requiring for the first time that large banking organizations publicly disclose certain quantitative liquidity risk metrics. The final rule requires large banking organizations to disclose their consolidated liquidity coverage ratios each quarter based on averages over the prior quarter. Firms also are required to disclose their consolidated high-quality liquid asset (HQLA) amounts, broken down by HQLA category. Additionally, firms are required to disclose their projected net stressed cash outflow amounts, including retail inflows and retail deposit outflows, derivatives inflows and outflows, and several other measures. While generally similar to the rule proposed in November 2015, in response to comments, the final rule extends the implementation timeline of the public disclosure requirements by nine months. Compliance dates would range from April 2017 through October 2018. The final rule will become effective on April 1, 2017.

SEC Division of Investment Management Issues Guidance Regarding Mutual Fund Fee Structures

On December 16, the Securities and Exchange Commission’s (SEC) Division of Investment Management published an IM Guidance Update (the Guidance) focusing on disclosure issues and certain procedural requirements that may arise as investment company participants seek to amend mutual fund sales load schedules and implement new share classes designed to comply with the Department of Labor’s fiduciary rule. The Guidance seeks to clarify prospectus disclosures if the mutual fund complex wants to impose variations to sales loads that apply uniformly to investors that purchase fund shares through a single intermediary (or category of multiple intermediaries) including: (1) briefly describing the arrangements that result in breakpoints in, or elimination of, sales loads; (2) identifying each class of individuals or transactions to which the arrangements apply; and (3) stating each different breakpoint as a percentage of both the offering price and net amount invested. The Guidance clarifies that such disclosures should also specifically identify each intermediary whose investors receive a sales load variation and clarifies that funds may utilize an appendix to the statutory prospectus for more lengthy disclosures. For new share classes, the Guidance makes clear that adding a new class to an existing fund requires a filing with the SEC under rule 485(a). The Guidance also notes that any rule 485(b) filing relying on existing filings relying on persisting relief should include a cover letter or an explanatory note in the filing explaining that it is relying on this relief. The Guidance also encourages selective and template filing review requests to facilitate the filing review process by the SEC Staff.

CFPB: Campus Credit Cards Continue Decline
The Consumer Financial Protection Bureau (CFPB) issued its annual student banking report to Congress, finding that the market for credit cards offered in conjunction with colleges and universities continues to decline. The number of agreements between issuers and institutions of higher learning has fallen by nearly 75% since 2009, while the total number of accounts has fallen by more than 60%. The number of new accounts fell slightly in 2015. The number of issuers in the campus card market remained steady. The CFPB said that the remainder of the market is trending toward arrangements with alumni associations, rather than the educational institutions themselves. In conjunction with this report, the CFPB also issued a compliance bulletin to colleges and universities to remind them of their obligations under the CARD Act and Regulation Z related to the publication of college credit card agreements. This bulletin builds on previous CFPB reports finding that many of the largest colleges and universities do not publish credit card agreements on their websites or make them available to students and the public upon request, creating high risks of non-compliance with the law.

CFPB Announces Fair Lending Priorities for New Year

On December 16, the CFPB announced its fair lending priorities for the new year. In particular, the CFPB indicated that it would be increasing its focus in the following areas in 2017:

  • Redlining. The CFPB will continue to evaluate whether lenders have intentionally avoided lending in minority neighborhoods.
  • Mortgage and Student Loan Servicing. The CFPB will determine whether some borrowers who are behind on their mortgage or student loan payments may have more difficulty working out a new solution with the servicer because of their race or ethnicity.
  • Small Business Lending. Congress expressed concern that women-owned and minority-owned businesses may experience discrimination when they apply for credit, and has required the CFPB to take steps to ensure their fair access to credit.

It remains to be seen how the pending change in administration will affect these priorities. 

CFPB Releases Status Update Regarding Fall 2016 Rulemaking Agenda

On December 2, the CFPB released a status update regarding various initiatives that were proposed in its fall 2016 rulemaking agenda. The update provides readers with an overview of the CFPB’s proposals and observes that comments submitted in connection with a number of the proposals are currently under review. The following is a list of developments reported by the CFPB that industry participants may want to keep an eye on. These include “rulemaking actions in pre-rule, proposed rule, final rule, long-term, and completed stages.” View the LenderLaw Watch blog post.

CFPB Announces Threshold for HMDA Data Reporting to Remain Unchanged

On December 20, the CFPB announced that the asset size exemption threshold for banks reporting under the Home Mortgage Disclosure Act and Regulation C will remain at $44 million. Banks and savings associations with assets under $44 million as of December 31, 2016, are exempt from collecting data in 2017. 

Fannie Mae and Freddie Mac Announce HAMP Successor

On December 14, Fannie Mae and Freddie Mac announced new foreclosure prevention programs designed to replace the current Home Affordable Mortgage Program, which expires at the end of this year. Fannie and Freddie will implement a “flex modification” program developed with input from various industry stakeholders. This program would provide a 20 percent payment reduction to certain eligible borrowers. Most borrowers who are at least 60 days delinquent would be eligible for the payment reduction. Mortgage servicers must implement this program no later than October 1, 2017, when it will replace existing modification programs. Prior to October 1, 2017, mortgage servicers must evaluate borrowers for modifications using the existing standards. 

OCC Adopts Framework for Receiverships for Uninsured Federally Chartered National Banks

On December 20, the Office of the Comptroller of the Currency (OCC) released a final rule setting forth a framework for placing uninsured national banks into receivership. The final rule adopts the September 13, 2016, proposed rule, as discussed in the September 14 edition of the Roundup, without change. The final rule will apply to all uninsured national banks regulated by the OCC. While the National Bank Act (NBA) and Federal Deposit Insurance Act specify the Federal Deposit Insurance Corporation as receiver for insured banks and savings associations, the NBA grants the Comptroller broad authority to appoint a receiver for uninsured national banks. The final rule will not apply to federal savings associations, all of which are insured. The final rule describes the appointment of a receiver and required federal notice; process for submitting claims against the receivership; order of priorities for payment of administrative expenses and claims; powers and duties of the receiver; payment of dividends on claims; sources of funds for payments and claims; and the status of fiduciary and custodial assets and accounts. The final rule will become effective on January 19, 2017.

OCC Issues Rule to Reduce Regulatory Burden

On December 15, the OCC released a final rule that eliminates outdated or unnecessary provisions from certain OCC regulations, pursuant to the OCC’s responsibility under Section 2222 of the Economic Growth and Regulatory Paperwork Reduction Act of 1996 (EGRPRA).  In the final rule, the OCC is: (a) revising certain licensing rules related to chartering applications, business combinations involving federal mutual savings associations, and notices for changes in permanent capital; (b) clarifying national bank director oath requirements; (c) revising certain fiduciary activity requirements for national banks and federal savings associations; (d) removing certain financial disclosure regulations for national banks; (e) removing certain unnecessary regulatory reporting, accounting, and management policy regulations for federal savings associations; (f) updating the electronic activities regulation for federal savings associations; (g) integrating and updating OCC regulations for national banks and federal savings associations relating to municipal securities dealers, Securities Exchange Act disclosure rules, and securities offering disclosure rules; (h) updating and revising recordkeeping and confirmation requirements for national banks’ and federal savings associations’ securities transactions; (i) integrating and updating regulations relating to insider and affiliate transactions; and (j) making other technical and clarifying changes. As the OCC’s EGRPRA review continues, it may consider additional changes to its regulations.

Federal Regulatory Agencies Issue CECL FAQs

The federal banking agencies have published frequently asked questions (FAQs) on the Financial Accounting Standards Board’s Current Expected Credit Loss standard. The FAQs summarize key elements of the new standard, highlight changes to U.S. generally accepted accounting principles, provide regulatory perspective on CECL processes and methodologies and outline steps banks can take to prepare for implementation. CECL will be effective in 2020 for SEC registrants and in 2021 for other institutions. 

Lawmakers Call for Additional Marijuana Banking Guidance

With state or local law in 29 states and the District of Columbia now permitting marijuana use for various purposes, a bipartisan group of 10 Senators wrote a letter to the Financial Crimes Enforcement Network (FinCEN) requesting updated guidance regarding the use of banks by ordinary businesses connected to (but not directly involved in) the growing legal marijuana industry. While FinCEN addressed the issue of banking service for marijuana providers and growers in 2014, it did not address banking services for vendors whose clients are marijuana businesses. As a result, legitimate businesses such as chemists, security companies, landlords and lawyers are being denied banking services due to their clients’ involvement in the marijuana industry, according to the letter.

Client Alert: New SEC No-Action Guidance on Proxy Access Bylaw Amendment Proposals

The SEC’s Division of Corporation Finance recently granted no-action relief to a company seeking to exclude shareholder-proposed amendments to the company’s proxy access bylaw provisions on the basis of substantial implementation under Rule 14a-8(i)(10) after the company adopted some but not all of the shareholder’s proposed amendments. Although the SEC staff’s response does not make the basis for its decision clear and there remains some lack of clarity about the circumstances in which the staff is likely to agree that a company may exclude a shareholder proposal to amend existing proxy access bylaws, this no-action letter provides some useful data on how companies may respond to shareholder proposals to amend specific provisions of a company’s proxy access bylaws. For more information, view the client alert issued by Goodwin’s Public Companies Practice.

Enforcement & Litigation

NYDFS Fines International Bank $235 Million for Repeated Violations of Anti-Money Laundering Laws

On December 15, the New York State Department of Financial Services (DFS) announced that Intesa Sanpaolo S.p.A. and its New York branch bank will pay a $235 million fine and extend the term of engagement with its current independent consultant as part of a consent order entered into with the DFS for significant violations of New York anti-money laundering and Bank Secrecy Act (AML/BSA) laws. The violations include severe compliance failures over several years stemming from deficiencies in the implementation and oversight of its transaction monitoring system. In addition, an investigation by DFS found that the bank deliberately concealed information from bank examiners. 

FinCEN Penalizes Bronx Credit Union for Failures to Manage High-Risk International Financial Activity

On December 14, FinCEN assessed a $500,000 civil money penalty against Bethex Federal Credit Union, Bronx, New York for significant violations of anti-money laundering (AML) regulations relating to the credit union’s failure to manage high-risk international financial activity with wholesale, commercial money services businesses. Bethex was a federally chartered, low-income designated, community development credit union, which was liquidated by the National Credit Union Administration in 2015. The penalty will not affect the National Credit Union Share Insurance Fund or any other credit union.



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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