The CFPB Releases Consumer Bulletin on Marketplace Lending and Announces It Is Accepting Consumer Complaints

On March 7, 2016, the Consumer Financial Protection Bureau (the "CFPB") released a consumer bulletin with information and tips for consumers of marketplace lending. The bulletin provides consumers with an overview of the peer-to-peer lending platform, as well as tips and general steps that should be taken when shopping for a loan. In conjunction with the release, the CFPB also announced that it is accepting complaints from consumers taking out loans from online marketplace lenders. Complaints are anticipated to be addressed within 60 days. CFPB Guide. Press Release. 

On March 8, 2016, Fitch updated its global rating criteria for single- and multi-name credit-linked notes. Report.

On March 8, 2016, DBRS published its methodology for rating European covered bonds. Report.

On March 4, 2016, DBRS published its methodology for rating North American CMBS. Report.

On March 3, 2016, Fitch updated its rating criteria for pooled multifamily housing bonds. Report.

On March 3, 2016, Fitch updated its rating criteria for solar power projects. Report.

On March 3, 2016, DBRS published its methodology for rating public-private partnerships. Report.

On March 3, 2016, DBRS published its methodology for rating market-linked securities. Report.

On March 3, 2016, DBRS published its criteria for recovery ratings for non-investment grade corporate issuers. Report. 

Burst Pipeline? Bankruptcy Court Rules Sabine Can Reject Midstream Contracts

Bankruptcy Judge Shelley Chapman held that Sabine Oil & Gas Corp. has satisfied the standards for rejection of several gathering and handling agreements between Sabine and its midstream counter-parties, Nordheim Eagle Ford Gathering, LLC and HPIP Gonzales Holdings, LLC. The ruling has limits. The matter ultimately turns on whether certain covenants "run with the land" under Texas law. While the Court held that Sabine exercised reasonable business judgment in rejecting the agreements, the Court declined to decide "in a binding way the underlying legal dispute with respect to whether the covenants at issue run with the land," and instead offered a "non-binding" analysis to determine the reasonableness of Sabine's rejection. Thus, if the counter-parties can demonstrate that the covenants do run with the land in an adversary proceeding, Sabine may not be able to terminate those covenants. In re Sabine Oil & Gas Corp., No. 15011835 (SCC) (Bankr. S.D.N.Y. Mar. 8, 2016).

European Commission Adopts Delegated Regulation on Presentation of Investment Recommendations and Disclosure of Conflict of Interest Under MAR

The European Commission has adopted a Delegated Regulation supplementing the Market Abuse Regulation ("MAR") with regard to regulatory technical standards for the technical arrangements for the objective presentation of investment recommendations or other information recommending or suggesting an investment strategy and for disclosure of particular interests or indications of conflict of interest (under Article 20).

The Delegated Regulation provides for rules on the identity of producers of recommendation; introduces a general standard on objective presentation of recommendations, applicable to any person mentioned in Article 20(1); sets out requirements on the maintenance of records of all recommendations produced on any issuer or financial instrument and disseminated during the preceding 12-month period and determines the general standards and additional obligations relating to disclosure of interests or of conflicts of interest. It also ensures that recommendations include the date and time on which the recommendation was first disseminated and provides for specific arrangements for dissemination of recommendations, their summary or extract and when recommendations are substantially altered.

Once approved by the Council of the EU and the European Parliament, it is expected that the Delegated Regulation will apply from 3 July 2016. The Delegated Regulation can be found here.

ESAs Publish Final Draft Technical Standards on Margin Requirements for Non-Centrally Cleared Derivatives

The Joint Committee of the European Supervisory Authorities (EBA, EIOPA, ESMA) ("ESAs") has published final draft Regulatory Technical Standards ("RTS") outlining the framework of the European Market Infrastructure Regulation (EMIR). The RTS cover the risk mitigation techniques related to the exchange of collateral to cover exposures arising from non-centrally cleared OTC derivatives. They also specify the criteria concerning intragroup exemptions and the definitions of practical and legal impediments to the prompt transfer of funds between counterparties.

The draft RTS prescribe that, for OTC derivatives not cleared by a Central Counterparty, counterparties have to exchange both initial and variation margins. This will reduce counterparty credit risk, mitigate any potential systemic risk and ensure alignment with international standards. The draft RTS outline the list of eligible collateral for the exchange of margins, the criteria to ensure the collateral is sufficiently diversified and not subject to wrong-way risk, as well as the methods to determine appropriate collateral haircuts. The draft RTS also lay down the operational procedures relating to documentation, legal assessments of the enforceability of the agreements and the timing of the collateral exchange, as well as the procedures for counterparties and competent authorities related to the treatment of intragroup derivative contracts.

EBA Publishes Amended Standards on Supervisory Reporting for Institutions

The European Banking Authority ("EBA") has published its final draft Implementing Technical Standards ("ITS") amending the Commission's Implementing Regulation (EU) No. 680/2014 on supervisory reporting. The EBA is required to develop ITS specifying supervisory reporting in the areas of own funds, financial information, losses stemming from lending collateralized by immovable property, large exposures, leverage ratio, liquidity ratios, asset encumbrance, additional liquidity monitoring metrics and supervisory benchmarking.

The final ITS include minor changes to templates and instructions which reflect some of the answers published in the EBA's Single Rulebook Q&A, align with disclosure requirements for capital buffers and correct legal references and other clerical errors. The amendments are expected to be applicable for reporting from December 2016.

Bank Recovery and Resolution Directive; Exceptions to "Bail-In" of Liabilities

On 4 February 2016, the European Commission adopted a Delegated Regulation (C(2016) 379) which (taking into account advice given by the European Banking Authority in March 2015) specifies where exclusion from the application of write-down or conversion powers is allowed under Article 44(3) of the Bank Recovery and Resolution Directive (2014/59/EU) (BRRD).

The BRRD's bail-in tool gives a resolution authority the power to bail in all the liabilities of a firm in resolution, subject to exclusions specified in Article 44 of the BRRD. In exceptional circumstances, Article 44(3) permits the resolution authority to exclude certain liabilities from the scope of the bail-in tool, if certain conditions are met. The Commission has the power under Article 44(11) to adopt a delegated act specifying the circumstances in which exclusions from the bail-in tool are necessary under Article 44(3).

The Delegated Regulation:

• Lays down common rules to be applied whenever a resolution authority considers excluding a liability from the application of the bail-in tool under Article 44(3).
• Clarifies when a liability can be excluded from bail-in based on the impossibility of bailing-in that liability within a reasonable timeframe.
• Lays down the elements to determine the reasonable time after which a liability can be excluded from bail-in.
• Clarifies when a liability can be excluded from bail-in based on the need to preserve certain critical functions and core business lines, to avoid widespread contagion or to avoid value destruction.