SEC Adopts Amendment to Form 10-K

On June 1, the Securities and Exchange Commission (SEC) approved an interim final rule implementing Section 72001 of the Fixing America's Surface Transportation (FAST) Act.  The rule allows Form 10-K registrants to provide a summary of business and financial information contained in the annual report, provided that each item in the summary includes a cross-reference by hyperlink to the material contained in the Form 10-K to which such item relates.  The rule will become effective once published in the Federal Register.  Rule.  Press Release.

On May 27, 2016, S&P published its revised rating criteria for hedge fund securitizations. Report.

On May 26, 2016, Fitch published its revised sovereign rating criteria. Report.

On May 26, 2016, DBRS published its methodology for rating credit funds. Report. 

On May 26, 2016, the FDIC reached a $190 million settlement of RMBS claims against eight financial institutions, including Barclays Capital Inc.; Deutsche Bank Securities Inc.; Goldman, Sachs & Co; RBS Securities Inc.; and UBS Securities LLC. The settlement resolves six separate suits brought in 2011 and 2012 in California and Alabama alleging misrepresentations within the defendant underwriters' RMBS offering documents.  The FDIC, as a receiver, will distribute the settlement funds among five failed bank receiverships.  FDIC Settlement Agreement. 

ESMA Reminds Firms of their Responsibilities when Selling Bail-In Securities

On June 2, 2016, ESMA issued a statement (ESMA/2016/902) reminding banks and investment firms of their responsibility to act in their clients' best interests when selling bail-in-able financial instruments.  The statement clarifies how credit institutions and investment firms should apply the requirements under the Markets in Financial Instruments Directive (2004/39/EC) (MiFID) governing the distribution to clients of financial instruments subject to the BRRD resolution regime under the Bank Recovery and Resolution Directive (2014/59/EU).

The statement stresses that firms must comply with their obligations under MiFID and the importance of:

• Providing investors with up-to-date, complete information drafted under the supervision of the compliance function.
• Managing potential conflicts of interest, in particular, when a firm sells its own bail-in financial instruments directly to its customers (self-placement).
• Ensuring the product is suitable and appropriate for the investor, which may entail collecting more in-depth information about the client than usual to reflect the fact a client could lose money without the firm entering into insolvency.

In an accompanying press release, ESMA explained that under the BRRD rules, which came into force in January 2016, firms are likely to issue a significant amount of potentially loss-bearing instruments to fulfil their obligations and raised its concern that investors (in particular retail investors) are unaware of the risks they may face when buying these instruments.

European Commission Adopts MiFIR Delegated Regulation on RTS on Access to Benchmarks

On June 2, 2016, the European Commission adopted a Delegated Regulation supplementing the Markets in Financial Instruments Regulation (Regulation 600/2014) (MiFIR) with regard to regulatory technical standards (RTS) on access in respect of benchmarks (C(2016) 3203 final).

MiFIR provides for the non-discriminatory access for central counterparties (CCPs) and trading venues to licences of, and information relating to, benchmarks that are used to determine the value of some financial instruments for trading and clearing purposes.

The Delegated Regulation lays down the list of information to be provided to a trading venue or CCP, the conditions under which access must be granted as well as specifications on non-discriminatory treatment. It also sets out the standards for determining how a benchmark can be considered to be new, and hence benefit from transitory arrangements.

Following adoption of the Delegated Regulation by the Commission, it will be considered by the Council of the EU and the European Parliament. If neither of them objects, the Delegated Regulation states that it will enter into force 20 days after its publication in the Official Journal of the EU (OJ) and will apply from the date referred to in the fourth paragraph of Article 55 of MiFIR.

Commission Adopts Proposal to Incorporate ESAs into EEA Agreement

On June 2, 2016, the European Commission published a press release announcing that it had adopted a proposal for a Council decision on the position to be taken by the EU on the incorporation of the Regulations on the European Supervisory Authorities (ESAs), and some of the related Regulations and Directives, into the Agreement on the European Economic Area (EEA).

The acts to be incorporated into the EEA Agreement include the ESAs Regulations (EBA, EIOPA and ESMA Regulations), the European Systemic Risk Board Regulation, the Alternative Investment Fund Managers Directive and related Delegated Acts, the Short Selling Regulation and related delegated acts, the European Markets Infrastructure Regulation ('EMIR') and the Credit Ratings Agency Regulations.

This is an important step towards the extension of the European System of Financial Supervision (ESFS) to the EEA EFTA countries: Norway, Iceland and Liechtenstein. The Commission explained that incorporating these acts into the EEA Agreement would ensure strong and co-ordinated financial supervision throughout the EEA.

Council of EU Adopts Regulation Extending Exemptions for Commodity Dealers under CRR

On May 30, 2016, the Council of the EU published a press release confirming that it has adopted a Regulation amending the Capital Requirements Regulation (Regulation 575/2013) (CRR) to extend an exemption from certain requirements for commodity dealers.

The expiry date for the exemption of commodity dealers from large exposure requirements and from own funds requirements has been pushed back under the amending Regulation from December 31, 2017 to December 31, 2020.

The CRR requires the European Commission to prepare reports on the prudential supervision of commodity dealers and of investment firms in general. Since the review is still underway, it is likely that new legislation that may be required would only be adopted after the initial expiry date for the exemption. The purpose of the extension is therefore to provide commodity dealers with a stable regulatory environment in the meantime.