Financial Services Weekly News Roundup - March 2015 #3

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SEC Focus on Disqualification Waivers. When negotiating a settlement of an SEC enforcement action against a registered financial services firm – or one that hopes one day to become registered – it is vital to consider the collateral consequences, including possible disqualification from using Regulation A and various securities exemptions. Prior to September 2013, the exemptions that contained disqualification provisions included Rule 505 of Regulation D, which was not frequently used, but not Rule 506, the safe harbor exemption for private offerings under Section 4(a)(2) of the Securities Act. According to the SEC release announcing the adoption of the Rule amendments eliminating the prohibition against general solicitation in Rule 506 and Rule 144A offerings, in 2012, the estimated amount of debt and equity reported as being raised in Rule 506 offerings for operating companies was $173 billion, and by pooled investment funds, $725 billion. When the SEC amended Rule 506 in September 2013 to include a disqualification provision, the stakes suddenly became much higher for broker-dealers, advisers to private funds and issuers facing possible disqualification. There was some question whether the SEC was using disqualification as an additional penalty and, on the other side, whether the SEC was simply granting waivers as a matter of course. As we report below, both SEC Chair Mary Jo White and the Division of Corporate Finance have now provided guidance on the standards the SEC staff uses to determine whether to grant waivers.

Regulatory Developments

Federal Reserve Board Issues Proposal Requiring Banking Organizations to Include Existing Legal Entity Identifiers on Certain Regulatory Reporting Forms

On March 16, the Federal Reserve issued a proposal that would impose additional reporting obligations for banking organizations with respect to certain regulatory reporting forms. Under the proposal, banking organizations would be required to include their existing Legal Entity Identifiers on the FR Y-6 and FR Y-7 organizational charts, effective for fiscal year ends beginning June 30, 2015. The Federal Reserve is also proposing to collect the Legal Entity Identifier for entities reportable on the Banking, Non-Banking SLHC and 4K Schedules of the FR Y-10. Additionally, there would be a one-time information collection of Legal Entity Identifier data for all FR Y-10 reportable entities (excluding branches) as of June 30, 2015. Since the FR Y-10 is an event-generated report, the Legal Entity Identifier would presumably be provided with respect to entities that become reportable after that date. A Legal Entity Identifier is a code unique to a legal entity used to identify that entity. Comments on the proposal are due within 60 days of its publication in the Federal Register.

SEC Chair Discusses Waivers Of Disqualification From Using Exemptions Under the Federal Securities Laws and Achieving Deterrence Through the Enforcement Process

In remarks at a Corporate Counsel Institute conference in Washington D.C., SEC Chair Mary Jo White discussed the distinction between enforcement remedies under the federal securities laws and the disqualifications that result from them, and described the processes followed by the SEC and its staff when considering exemption and waiver requests with respect to securities law disqualifications. Chair White stressed that “waivers were never intended to be, and we should not use them as, an additional enforcement tool designed to address misconduct or as an unjustified mechanism for deterring misconduct.” She emphasized the rigor of the SEC and staff review process for exemption and waiver requests. Her description of the factors considered during this review largely echoes the considerations described in the Division of Corporation Finance’s March 13, 2015 “Statement on Waivers of Disqualification under Regulation A and Rules 505 and 506 of Regulation D,” discussed below. Chair White also shared her views on how best to bring about positive change in the corporate cultures of our major financial institutions to help deter the repetitive pattern of significant corporate wrongdoing that we have witnessed both before and after the financial crisis. In her experience, she observed, the most effective deterrent is strong enforcement against responsible individuals, especially senior executives.

SEC Division of Corporation Finance Issues Policy Statement on Waivers of Disqualification under Regulation A and Rules 505 and 506 of Regulation D

The SEC’s Division of Corporation Finance issued a “Statement on Waivers of Disqualification under Regulation A and Rules 505 and 506 of Regulation D” that discusses the considerations weighed in exercising the authority delegated to the Director of the Division to grant waivers of disqualification with respect to Regulation A or D under the Securities Act. The policy statement highlights four factors in particular: (1) who was responsible for the misconduct and the relationship between the bad actor or actors and the party or parties seeking the waiver; (2) the duration of the misconduct; (3) remedial measures taken to address the misconduct; and (4) the potential impact on the issuer or third parties, such as investors, clients or customers, of denying a waiver.

FINRA Files Amendment No. 1 to Proposal to Adopt Debt Research Rule

The SEC on March 12 issued Release No. 34-74490 requesting comment on Amendment No. 1 to the proposal by FINRA to adopt a new Rule 2242 governing debt research analysts and debt research reports. The FINRA filing addresses comments FINRA received and proposes amendments in response to some of those comments. The amended text of the proposed rule can be found at the end of the FINRA filing. Comments are due 21 days after publication of the SEC release in the Federal Register.

Enforcement & Litigation

Mass. District Court Dismisses ERISA Class Action Over Float Income

The U.S. District Court for the District of Massachusetts dismissed all claims against affiliated entities that provided services to retirement savings plans and their investments (collectively, “Defendants”) in an ERISA class action lawsuit brought on behalf of 401(k) plans for which Defendants provide administrative services. The suit alleged that Defendants breached fiduciary duties under ERISA because they invested assets being redeemed from its client plans, commonly referred to as “float,” on an overnight basis but did not distribute the income from those overnight investments directly to the plans. In dismissing the suit, the Court held that the plaintiffs failed to plausibly allege that float income belonged to the 401(k) plans. The Court also held that, even if float were a plan asset, Defendants were not acting as fiduciaries to the plans when they invested the float, and, thus, the conduct the plaintiffs challenged was not subject to ERISA. The Court recognized that Defendants’ float practices complied with the terms of the service contracts with the plans and with the governing plan documents. In re Fidelity ERISA Float Litigation, No. 13-10222 (D. Mass. filed Mar. 11, 2015). (Goodwin Procter served as co-counsel for Defendants.)

Ninth Circuit Reverses Dismissal of State Law Claims Brought Directly Against Mutual Fund Organized as Massachusetts Business Trust, Its Trustees and Investment Adviser

The U.S. Court of Appeals for the Ninth Circuit reversed the dismissal of class action claims brought against Schwab Total Bond Market Fund, a mutual fund organized as a series of a Massachusetts business trust, and against the Fund’s trustees and its investment adviser. The claims center on the Fund’s alleged deviation from two investment policies (the “Policies”) that could be changed only with shareholder approval – the Fund’s policy of tracking a specified bond index and its industry concentration policy. With respect to the merits, the Court upheld three principal causes of action in the complaint. First, the Court held that the complaint stated a claim for breach of contract against the Fund on the basis of allegations that the mailing of the proxy statement seeking shareholder approval of the Policies, adoption of the Policies after shareholder approval, and the annual representations by the Fund that it would follow these policies were sufficient to form a contract between shareholders and the Fund that, under the circumstances alleged, fulfilled the requirements for a binding contract under traditional common law principles. Second, rejecting arguments that the trustees should be treated like directors of a corporation owing duties to the Fund, rather than to its shareholders, the Court held that the complaint stated a claim against the trustees for breach of a fiduciary duty to shareholders based on allegations that the trustees failed to ensure that the Fund was managed in accordance with Policies and by changing the Policies without obtaining required shareholder approval. The Court further held that this claim against the trustees could be brought directly rather than derivatively, i.e., on behalf of the Fund (which would require that a demand be made on the trustees before asserting any claim). Third, the court held that the complaint adequately stated a claim under which the Fund’s shareholders, as third party beneficiaries of the Fund’s advisory agreement, could seek to hold the Fund’s adviser liable for a breach of the investment advisory agreement for failing to follow the Policies in managing the Fund. The Court declined to address the effect of SLUSA on these state law claims, but directed the district court to consider the matter upon remand. Northstar Financial Advisors v. Schwab Investments, No. 11-17187 (9th Cir. filed Mar. 9, 2015).

SEC Settles With Adviser Over Inadequate Disclosures to Clients Investing in Private Funds of Manager Engaged in Installment Purchase of 49% Interest in Adviser

The SEC settled administrative proceedings against PageOne Financial, Inc., a registered investment adviser, and Edward R. Page, its sole owner and principal, related to SEC findings that the firm had failed to properly disclose conflicts of interest to which it was subject when recommending that clients invest in certain private funds. The manager of the private funds had agreed to acquire 49% of PageOne for approximately $3 million contingent upon the principal’s raising approximately $20 million for the private funds. Under the terms of the acquisition agreement, the private fund manager was to pay the acquisition price in installments over time. The SEC found that, in practice, the size and timing of the installment payments was determined, at least in part, by when PageOne clients made investments in the private funds. The SEC also found that, to the extent that the arrangement with the private fund manager was disclosed in PageOne’s Form ADV, it was mischaracterized as a referral arrangement for which PageOne was to be paid at rates less than half of what was ultimately paid by the private fund manager relative to amounts invested by PageOne clients, or as a consulting arrangement between the private fund manager and the principal for undisclosed compensation. PageOne clients ultimately invested approximately $13 to $15 million in the private funds for which PageOne received over $2.7 million in acquisition payments from the private fund manager. Because the $20 million threshold was not reached, the acquisition was not consummated, and the principal was obliged to return the amounts received from the private fund manager with interest. The SEC found that the respondents willfully violated (1) Sections 206(1) and 206(2) of the Investment Advisers Act, which prohibit fraudulent conduct by an investment adviser, and (2) Section 207 of the Advisers Act, which prohibits misstatements and omissions in an adviser’s filings with the SEC. The SEC will conduct additional proceedings to determine what, if any, disgorgement, prejudgment interest, civil penalties and/or other remedial action to impose. In the Matter of Edgar R. Page and PageOne Financial, SEC Release No. IA-4044 (Mar. 10, 2015).

CFTC Orders a Designated Contract Market to Pay a $3 Million Civil Monetary Penalty for Recurring Data Reporting Violations

The CFTC on March 16 announced that it had issued an order filing and simultaneously settling charges against a designated contract market (DCM) for submitting inaccurate and incomplete reports and data to the CFTC over a period of at least 20 months. According to the CFTC order, on every reporting day during the relevant period, the DCM submitted reports and data containing errors and omissions, with cumulative inaccuracies totaling in the thousands. The order further finds that CFTC staff repeatedly notified the DCM of the problems with its reports and data and requested that it take action to correct the mistakes, but that the DCM continued to submit inaccurate reports and data. The order requires the DCM to pay a $3 million civil monetary penalty and to comply with undertakings aimed at improving its regulatory reporting. In the Matter of ICE Futures U.S., Inc., CFTC Docket No.15-17 (Mar. 16 2015).

CFPB Releases Report on Consumer Remediation from Examination Findings

The CFPB released its latest supervision report outlining major findings from examinations that resulted in remediation of $19.4 million to more than 92,000 consumers in the last half of 2015. Major findings concerned student loan servicing, overdrafts, mortgage loan originations and consumer reporting agencies. CFPB examiners concluded that some student loan debt collectors made deceptive statements to consumers with defaulted federal student loans, overpromising restoring credit profiles if borrowers participated in a federal student loan rehabilitation program. Examiners also believed certain banks deceptively changed the way they assessed overdraft fees to maximize fees without adequately disclosing the new practices to depositors. The alleged mortgage origination violations included paying mortgage loan originators based on the terms of a loan, fees charged at closing exceeding GFE disclosures, and rejecting applications from consumers because they relied on public assistance income. The consumer reporting agency examination findings involved how CRAs handle consumer disputes, focusing on breakdowns in forwarding all relevant consumer information to furnishers.

 

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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