Attack of the State AGs. On December 12, New York Attorney General Eric T. Schneiderman and 16 other state attorneys general (State AGs) sent a letter to President Trump arguing that past statements by Mick Mulvaney, Acting Director of the Consumer Financial Protection Bureau (CFPB), about the CFPB should disqualify him from leading the agency. The letter, which was also signed by State AGs from Connecticut, the District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Mexico, North Carolina, Oregon, Vermont, Virginia and Washington, stated, “If incoming CFPB leadership prevents the agency’s professional staff from aggressively pursuing consumer abuse and financial misconduct, we will redouble our efforts at the state level to root out such misconduct and hold those responsible to account.” The State AGs went on to remind the president that, “As you know, state attorneys general have express statutory authority to enforce federal consumer protection laws, as well as the consumer protection laws of our respective states. We will continue to enforce those laws vigorously regardless of changes to CFPB's leadership or agenda.” Under the Dodd-Frank Act, State AGs and, to a lesser extent, state regulators can directly enforce several aspects of federal law including: the general ban on unfair, deceptive or abusive conduct (except against national banks and federal thrifts); rules and regulations promulgated by the CFPB; mortgage provisions regarding ability to repay, steering, prepayment penalties, escrows, appraisals, prompt crediting of payments, and payoff amount requests; and federal statutes such as the Truth in Lending Act and the Fair Credit Reporting Act to the extent authorized by the statute. Way back in November 2014, Goodwin warned that enforcement of federal law by states was a real possibility and that, with increasing coordination among states over consumer financial protection laws, and increased information sharing between states and the CFPB, it is likely that more states will choose to use their federal powers under Dodd-Frank. While many states have exercised these powers over the past few years, such enforcement actions have frequently taken the form of joint enforcement actions with the CFPB. It seems that, while the CFPB was under Democratic leadership, State AGs did not often feel the need to exercise their authority to enforce federal consumer protection laws when the CFPB chose not to act. We have long advised clients that leadership changes at the federal banking agencies and the CFPB could spark State AGs to be more active in their enforcement activities. Mr. Schneiderman’s letter to President Trump may indicate that this day has finally come.
Basel III Capital Standards and Reforms Finalized
On December 7, the Group of Central Bank Governors and Heads of Supervision announced the finalization of the Basel III capital standards and incorporation of regulatory reforms aimed at reducing excessive variability of risk-weighted assets and improving comparability and transparency of risk-based capital ratios in the wake of the global financial crisis. The revised standards are effective January 1, 2022, and will be phased-in over a five-year period. U.S. federal banking agencies announced their support for the reforms and anticipate determining domestic implementation through notice-and-comment rulemaking.
Fed Requests Comment on Proposals Regarding Stress Testing Program
On December 7, the Board of Governors of the Federal Reserve System (Federal Reserve) requested comment on a package of proposals that would increase the transparency of its stress testing program while maintaining the Federal Reserve’s ability to test the resilience of the nation’s largest and most complex banks. In response to prior feedback, one of the proposals would release greater information about the models the Federal Reserve uses to estimate the hypothetical losses in the stress tests, including as applied in the Comprehensive Capital Analysis and Review. This information would provide significantly more detail as to how the Federal Reserve’s models treat different types of loans under stress, and provide insight into how the annual stress test results are determined.
The Federal Reserve is also seeking comment on a proposed “Stress Testing Policy Statement” describing the Federal Reserve’s approach to model development, implementation, use and validation. This statement would elaborate on prior disclosures and would provide details on the principles and policies that guide the Federal Reserve’s development of its stress testing models. Additionally, the Federal Reserve is proposing to modify its framework for the design of the annual hypothetical economic scenarios. The modifications aim to enhance transparency and to further promote the resilience of the banking system throughout the economic cycle. Comments on the proposed measures will be accepted through January 22, 2018.
Fed to Publish Replacement Rates for LIBOR
On December 9, the Federal Reserve announced plans to publish three new reference rates for use in U.S. dollar derivatives and financial contracts starting in the second quarter of 2018. The rates will be published no later than 8 a.m. ET each day. Each rate will be calculated as a volume-weighted median of transacted rates. The most comprehensive of the rates, the Secured Overnight Financing Rate (SOFR), will be a broad measure of overnight Treasury financing transactions and was selected by the Alternative Reference Rates Committee as its recommended alternative to U.S. dollar LIBOR, will be sustained only through the end of 2021. SOFR will include triparty repo data from Bank of New York Mellon (BNYM) and cleared bilateral and GCF Repo data from the Depository Trust & Clearing Corporation (DTCC). The Triparty General Collateral Rate will be based solely on triparty repo data from BNYM. The Broad General Collateral Rate will be based on the triparty repo data from BNYM and GCF Repo data from DTCC.
FinCEN Launches FinCEN Exchange
On December 4, the United States Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN) launched the FinCEN Exchange program. Through this program FinCEN hopes to improve information sharing with financial institutions. The FinCEN Exchange will provide regular operational briefings where law enforcement, FinCEN and financial institutions can exchange information on priority illicit finance and national security threats. Participation in the FinCEN Exchange is voluntary and will not produce any new regulations. The FinCEN Exchange does not replace existing mechanisms by which law enforcement engages directly with the financial industry.
FINRA Releases 2017 Examination Findings Report Including Cybersecurity Findings
On December 6, the Financial Industry Regulatory Authority (FINRA) released its first Report on FINRA Examination Filings, a new resource that FINRA will release each year summarizing selected observations from examinations of member broker-dealers conducted during the past examination cycle. FINRA’s report includes, as a “Highlighted Observation,” an overview of FINRA’s findings related to cybersecurity. The report notes that firms have significantly increased the attention they pay to cybersecurity challenges, including at executive management levels. According to FINRA, exams have revealed that most firms have established, or are establishing, risk management programs that directly address cybersecurity risks, though some programs are more robust than others. Effective programs typically involved strong governance structures, regular risk assessments, training and protocol testing for employees, system-analytics and data-loss-prevention tools, and escalation of risk-acceptance decisions when appropriate. FINRA highlighted the following as areas where firms could improve their cybersecurity programs: closely managing user access rights; conducting ongoing, formalized risk assessments; ensuring vendor contracts have appropriate cybersecurity protections; managing branch-office compliance with security protocols; segregating responsibilities for requesting, approving, and implementing cybersecurity system changes; and strengthening (or implementing) data-loss-prevention tools. Other topics covered in the report as “Highlighted Observations” include outside business activities and private securities transactions, anti-money laundering compliance, product suitability, best execution and market access controls.
SEC Modifies Approach to Form N-PORT Filing Requirements
On December 8, the Securities and Exchange Commission (SEC) announced that it had immediately adopted a temporary final rule (temporary rule) to delay by nine months the public filing requirement of Form N-PORT, among other related items, as adopted by the Investment Company Reporting Modernization release (the Modernization rule). Larger fund groups (funds with aggregate net assets of $1 billion or more) will now have until April 30, 2019, to file Form N-PORT via Edgar. Smaller fund groups will continue to benefit from having a one-year delay for public filings on Form N-PORT and thus will have until April 30, 2020, to file Form N-PORT via Edgar. It is important to note, however, that the temporary rule did not change the June 1, 2018, compliance date for Form N-PORT adopted by the Modernization rule for larger fund groups. Accordingly, larger fund groups must satisfy their reporting obligations adopted by the Modernization rule by maintaining in their records the information required to be included in Form N-PORT beginning no later than July 30, 2018. The release further states that this information will be subject to examination by SEC staff. Smaller fund groups are not subject to a requirement to prepare and maintain a record of the information required on Form N-PORT prior to public filing. The temporary rule also delayed the rescission of Form N-Q until May 1, 2020, and fund groups should continue to publicly file the information required by Form N-Q until such fund begins filing Form N-PORT on Edgar. Money market funds may continue to rely on the initial August 1, 2019, rescission date of Form N-Q adopted by the Modernization rule. The Edgar reporting requirements added to Form N-PORT by the Investment Company Liquidity Risk Management Programs release (the “Liquidity rule”) was also delayed by the temporary rule. The compliance date for larger fund groups under the Liquidity rule is December 1, 2018, but such funds will now have until April 30, 2019, to include the Form N-PORT required information. However, similar to the Form N-PORT requirements under the Modernization rule, larger fund groups must maintain in their records the information required to be included in Form N-PORT under the Liquidity rule. The SEC stated that it was necessary to delay the public filing of Form N-PORT on Edgar to allow SEC staff additional time to complete and review any modifications to Edgar that are necessary to process Form N-PORT filings effectively and securely, given their frequency, volume and complexity, as well as the nonpublic nature of much of the data. For more information about the Modernization rule or the Liquidity rule, view the Modernization client alert and Liquidity rule client alert, respectively, prepared by Goodwin’s Investment Management practice.
SEC Appoints New Chairman and Board Members to PCAOB
On December 12, the SEC announced that it had appointed William D. Duhnke III as Chairman and J. Robert Brown, Kathleen M. Hamm, James G. Kaiser and Duane M. DesParte as board members of the Public Company Accounting Oversight Board (PCAOB). The PCAOB oversees the audits of public companies and broker-dealers. Additional information about the new members is available here.
Client Alert: SEC Approves Revised NYSE Rule Delaying Material News Releases After Closing
The SEC has approved a revised version of the previously proposed New York Stock Exchange rule that will prohibit listed companies from issuing material news after the close of trading (generally 4:00 p.m. ET) until the earlier of the publication of the company’s official NYSE closing price or five minutes after the close of trading. The revised version, which was effective immediately, provides an exception that permits listed companies to publicly disclose material information following a non-intentional disclosure in order to comply with Regulation FD. For more information, read the client alert issued by Goodwin’s Public Companies practice.
Enforcement & Litigation
Federal Court Dismisses NYDFS Lawsuit Against OCC
A federal court has dismissed as premature a lawsuit filed earlier this year by the New York Department of Financial Services (NYDFS) challenging the authority of the Office of the Comptroller of the Currency (OCC) to grant special purpose national bank (SPNB) charters to FinTech companies. In its decision issued yesterday, the Federal District Court for the Southern District of New York concluded that NYDFS lacked standing to challenge the OCC and that its claims were not ripe for consideration since the OCC has not yet finally determined that it will issue SPNB charters to FinTech companies. As a result, the court agreed with the OCC’s argument that any injury purportedly suffered by NYDFS is speculative, and it further noted that NYDFS claims are not ripe for consideration since they are contingent upon whether the OCC in the future decides to in fact issue SPNB charters to FinTech companies. The court did not address the substance of NYDFS claims, and it dismissed the case without prejudice, which means that NYDFS could renew its claims in the event the OCC moves forward with its proposal to grant SPNB charters to FinTech companies. The decision does not directly affect another lawsuit filed by the Conference of State Bank Supervisors against the OCC, which also challenges the OCC’s authority to issue SPNB charters to FinTech companies. However, that lawsuit is presumably vulnerable to dismissal on similar grounds. Although NYDFS’s lawsuit has been dismissed, in the event the OCC ultimately decides to take applications for SPNB charters from FinTech companies, applicants may be discouraged from applying until questions about the agency’s authority to grant such charters have been resolved.
SEC Files Charges in PlexCoin ICO
On December 4, the SEC announced that it has filed charges against two individuals for their roles in the initial coin offering (ICO) of PlexCoin Tokens. The SEC charged Dominic Lacroix and Sabrina Paradis-Royer with engaging in an ongoing securities fraud and the unlawful sale, and offer to sell, unregistered securities in violation of the Securities Act of 1933. The SEC claims that Lacroix violated a 2011 order not to engage in the sale of securities by the Canada’s financial markets authority (the “QAMF”), stemming from a prior securities violation. In addition, the SEC alleges that Lacroix and Paradis-Royer violated a June 2017 order by the QAMF, which found that PlexCoin was a “security” under the Howey Test and ordered the two to cease engaging in the offering of PlexCoin. View the Digital Currency + Blockchain Perspectives blog post.
Federal Reserve Settles With Pennsylvania Bank Over Alleged Deceptive Student Lending Practices
On December 6, the Federal Reserve Board announced that it entered into a consent order with a Pennsylvania bank ordering it to cease and desist deceptive student lending practices, and assessing millions of dollars in civil penalties. According to the order, the state-chartered bank and its agent violated section 5 of the Federal Trade Commission (FTC) Act by providing deceptive financial aid disbursement services to college and university students. Because the agent was not an insured depository institution as defined under federal law, it was necessary for the agent to form a contractual relationship with the state-chartered bank and other banks. View the Enforcement Watch blog post.
New Mexico AG Announces Investigation Into National Bank for Opening Fake Consumer Accounts
On November 29, the New Mexico Attorney General (AG) announced that, after a year-long investigation of a national bank, the AG will seek damages on behalf of thousands of New Mexico consumers for whom the bank had created unauthorized banking and credit card accounts. The AG announced that if he cannot reach a resolution with the bank, he will file a lawsuit. View the Enforcement Watch blog post.