Discussion and Analysis
Loyal readers of this newsletter know that generally our “Discussion and Analysis” commentary focuses on a particular newsworthy item, issue or event impacting the regulation of the financial services industry. It is ironic that in the midst of the Federal government shutdown, there seems to be a plethora of such newsworthy items that warrant at least a brief comment. So, in a departure from our typical Discussion and Analysis commentary, here is a very brief summary of just a few of the big stories affecting the financial services industry since our last issue and our thoughts with respect thereto.
As of this writing, the US Securities and Exchange Commission purportedly has enough money to keep operating during the government shutdown and has not yet furloughed employees. In sharp contrast, however, only 28 employees of the Commodity Futures Trading Commission’s approximately 700-person workforce are still on the job. So, according to CFTC Commissioner Bart Chilton, the derivatives markets in the US essentially are currently unsupervised. There is little doubt that the uncertainty about “which cops are on the beat” will have a chilling effect on the volume of trading in US markets.
Yellen Picked to be Fed Chief
On Wednesday, President Obama nominated Janet Yellen, currently Vice Chairwoman of the Federal Reserve, to replace Ben Bernanke in the top spot. As the first woman to lead the Fed, and as one who is generally well-respected by both political parties, there is some hope that she will be able to set monetary policies without hurting the very fragile economy. Of course, in light of the government shutdown, the timetable for confirmation hearings and vote is uncertain. So, it is difficult to see how the end of the long debate on Bernanke’s successor will help to reduce the squabbling between Democrats and Republicans, let alone stabilize the economy any time soon.
Trials and Tribulations
The SEC’s civil insider trading suit against billionaire Mark Cuban, owner of the NBA’s Dallas Mavericks and one of the celebrities on the reality TV show, Shark Tank, is currently being tried. Whether Mr. Cuban was or wasn’t restricted from selling his shares of Mamma.com will be decided by a 10-person jury. The amazing thing about all of this, however, is that the trade at the center of this matter occurred in June, 2004 or nearly nine and a half years ago. Imagine how much longer it might have taken had there been government shutdowns during that period.
On Tuesday, the former head trader of Sentinel Management Group Inc. pled guilty to his part in a fraud against more than 70 clients of the investment management firm in the years leading up to Sentinel’s bankruptcy in 2007. Charles K. Mosely agreed to cooperate in the government’s case against co-defendant, Eric A. Bloom, Sentinel’s former president and CEO. Mosely now faces a maximum sentence of 10 years in prison and a $500,000 fine, instead of a maximum penalty of 370 years in prison had he been convicted on the 20 charges against him. Sentencing has been delayed, however, until after Bloom’s trial, which is scheduled to begin in February. Compared to the civil suit against Cuban, this is moving at lightning speed.
Also on Tuesday, the criminal fraud trial against five former Madoff employees got started in a Manhattan federal court. The five have pleaded not guilty despite the guilty pleas of six others, including Bernard Madoff. The trial is expected to last five months. It will be interesting to see what the government will be able to prove after its five-year investigation of one of history’s biggest frauds. Madoff, himself, has claimed that he acted alone. Prosecutors believe that the fraud stretched as far back as the early 1970’s.
Although the federal government shutdown will do nothing to help accelerate the SEC’s timetable for proposing and adopting rules relating to crowdfunding, several states are hard at work to adopt regulations designed to spur job-creation in those states. For example, earlier this week the Wisconsin Assembly unanimously passed a bill with almost no debate that would allow investors from Wisconsin to purchase stock in a business through a state-approved Internet portal. Investors who are not accredited would be permitted to purchase up to $10,000 in stock. Accredited and certified investors would be able to invest unlimited amounts. Kansas and Georgia also have adopted similar legislation permitting crowdfunding, and North Carolina is considering approving similar rules. Of course, this legislation presumably only applies to intrastate offerings. Nonetheless, it highlights the confusing and inconsistent regulation that is allowed to exist when the various rulemaking bodies operate on very different timelines.
Assuming that the government shutdown does not end any time soon, it will be interesting to see how this impacts the volume of stories in the financial services sector which are worthy of commentary. You can be sure that we will keep you posted.
News from the Americas
Money market funds. The remarks of Federal Reserve Board Governor Jeremy Stein concerning money market funds were discussed by Reuters. Stein stated that without the adoption of a floating net asset value, money market funds will continue to be a source of potential financial instability. The way in which money market funds operate within the tri-party repo market also must be addressed. (10/4/2013) Stein remarks.
Possible CFTC Chairman considered. According to DealBook, assistant secretary of the Treasury Timothy G. Massad is under consideration to replace Gary Gensler as Chairman of the CFTC. (10/4/2013) CFTC Chairman.
Canadian investment fund amendments. The Canadian Securities Administrators announced amendments to various disclosure requirements and forms related to investment funds. The amendments relate to the transition of financial reporting for investment funds to International Financial Reporting Standards. The amendments have been adopted, or are expected to be adopted, by each member of the CSA. If all necessary ministerial approvals are obtained, the amendments will come into force on January 1, 2014. (10/3/2013) CSA press release.
Joint guidance on reporting financial abuse of seniors. The Federal Reserve Board, Consumer Financial Protection Bureau, FDIC, Federal Trade Commission, National Credit Union Administration, OCC, and SEC jointly issued guidance which advises that the privacy provisions of the Gramm-Leach-Bliley Act generally permit financial institutions to report suspected elder financial abuse to authorities. (9/24/2013) Joint press release.
News from Asia and the Pacific
Singapore opens consultations. The Monetary Authority of Singapore opened consultations on:
• Proposed amendments to MAS Notice 637 on disclosure and submission requirements for assessing global systemically important banks and point of non-viability requirements. Comments should be submitted by November 4, 2013. (10/4/2013)
• The proposed power for MAS to issue prohibition orders under the Banking Act. Comments should be submitted by November 4, 2013. (10/4/2013)
• Draft regulation for complaint handling and resolution for the financial advisory industry. Comments should be submitted by October 31, 2013. (9/30/2013)
Singapore, Malaysia and Thailand sign cross-border agreement. The Monetary Authority of Singapore, the Securities Commission of Malaysia and the Securities and Exchange Commission of Thailand signed an agreement to facilitate the cross-border offering of collective investment schemes to retail investors in the three countries. The signatories expect to implement the framework in the first half of 2014. (10/1/2013) MAS press release.
Singapore’s Financial Advisory Industry Review. The Monetary Authority of Singapore issued its response to the public consultation on the recommendations of the Financial Advisory Industry Review. The review was aimed at raising the standards and professionalism of the financial advisory industry and enhancing the market efficiency for the distribution of life insurance and investment products in Singapore. (9/30/2013) MAS press release.
Hong Kong listing standards for overseas companies. The Securities and Futures Commission and The Stock Exchange of Hong Kong Limited published a revised Joint Policy Statement regarding the listing of overseas companies. (9/27/2013) SFC press release.
Basel Committee reports on China’s implementation of Basel III. The Basel Committee on Banking Supervision published a report on China’s implementation of the Basel capital framework. China’s implementation of the Basel capital framework was found to be closely aligned with the Basel III global standards with 12 out of 14 assessed components found to be “Compliant.” The two components that were graded “Largely Compliant” pertain to the Standardized Approach for credit risk and Pillar 3. Although some differences with the Basel framework were found in these areas, none of the findings were judged to be material. (9/27/2013) BIS press release.
News from Europe
FCA and Bank of England respond to Parliamentary Commission. The Financial Conduct Authority has released its response to the Parliamentary Commission on Banking Standards. Appointed in the wake of the LIBOR rate-rigging scandal, the Commission conducted an inquiry into professional standards and culture within the UK banking sector. The Commission’s final report sets out a vision for a new approach for Government, industry and the regulators and makes over 100 recommendations, of which 58 relate specifically to the FCA. The Bank of England also responded to the final report. A number of recommendations in the report were addressed to the bank, including the Financial Policy Committee and the Prudential Regulation Authority. The bank’s report is its response. It also meets a request from the government to provide an outline of how the bank would implement the proposed new framework for individuals.(10/7/2013)
EC opens crowdfunding consultation. The European Commission opened a consultation on crowdfunding and its potential benefits and risks. Comment on the optimal policy framework for crowdfunding is also sought. Comments should be submitted by December 31, 2013. (10/3/2013) EC press release.
ESMA recommendations for CCP oversight. The European Securities and Markets Authority published guidelines and recommendations that define the written agreement that a central counterparty’s national supervisor should propose as part of its establishment of a supervisory college under the European Market Infrastructure Regulation. (10/3/2013) ESMA notice.
ESMA’s 2014 plans. The European Securities and Markets Authority published its 2014 Work Program, which sets out its planned activities for 2014. (10/3/2013) ESMA notice.
UK FCA proposes expansion to Financial Services Compensation Scheme. The UK Financial Conduct Authority published a consultation paper on changes to the Investor Compensation Schemes Directive that would allow unincorporated associations and certain large partnerships to be eligible to claim on the Financial Services Compensation Scheme if an investment firm fails. Comments should be submitted by October 30, 2013. (10/3/2013) FCA press release.
UK FCA plans for consumer credit regulation. The UK Financial Conduct Authority set forth its plans for regulating the consumer credit industry when it assumes regulatory authority from the Office of Fair Trading on April 1, 2014. (10/3/2013) FCA press release.
UK’s PRA proposes miscellaneous amendments. The UK Prudential Regulatory Authority published Occasional Consultation Paper CP8/13, which proposes miscellaneous and minor changes to the PRA’s rules. Areas addressed include insurance, related party transactions and remuneration. Comments should be submitted by November 1, 2013. (10/3/2013) PRA press release.
ESMA equivalence assessments for OTC derivatives regimes. The European Securities and Market Authority published its second set of advice to the European Commission on the equivalence of the regulatory regimes for over-the-counter derivatives clearing, central counterparties (CCPs), and trade repositories (TRs) of non-EU countries with the European Markets Infrastructure Regulation (EMIR). The equivalence assessments considered the regulatory regimes of Canada, India and South Korea. ESMA also supplemented its equivalence assessments for Australia, Hong Kong, Singapore and Switzerland. The third-country rules were compared with EMIR requirements for CCPs, TRs and/or central clearing, reporting, and non-financial counterparties as well as risk mitigation techniques for uncleared trades. (10/2/2013) ESMA notice.
Bank of England Quarterly Bulletin. The Bank of England made available its quarterly bulletin for the third quarter of 2013. The bulletin includes articles addressing, among other things, the prudential regulation of insurers and recent developments in the sterling overnight money markets. (10/2/2013)
EC considers delay in Solvency II implementation. European Commissioner Michel Barnier introduced a draft Directive that would postpone to January 1, 2016, the application date of the Solvency II Directive, which creates a risk-based prudential regime for insurance and reinsurance undertakings. A legislative proposal known as “Omnibus II,” makes significant modifications to Solvency II and will not be completed before January 1, 2014, the date on which Solvency II is currently scheduled to start. Moreover, before Omnibus II can be applied, a number of implementing measures are needed, and these cannot be finalized before the details of Omnibus II are known. (10/2/2013) Barnier statement.
UK Financial Resource Council proposes executive remuneration reforms. The UK’s Financial Resource Council published a consultation on whether to amend the UK Corporate Governance Code to address issues relating to executive remuneration. They are: clawback arrangements; whether non-executive directors who are also executive directors in other companies should sit on the remuneration committee; and what actions companies might take if they fail to obtain at least a substantial majority in support of a resolution on remuneration. Comments should be submitted by December 6, 2013. (10/2/2013) FRC press release.
ESMA guidelines on alternative investment fund managers. The European Securities and Markets Authority published final guidelines on the reporting obligations for alternative investment fund managers (AIFMs). The guidelines require AIFMs, including hedge funds, private equity and real estate funds, to regularly report certain information to national supervisors. The Guidelines clarify provisions of the Alternative Investment Fund Managers Directive (AIFMD) on required information. ESMA has also published an Opinion that proposes introducing additional periodic reporting including such information as Value-at-Risk of AIFs or the number of transactions carried out using high frequency algorithmic trading techniques. After the Guidelines are translated into the official languages of the EU, national competent authorities will have two months to confirm to ESMA whether they comply or intend to comply with the Guidelines by incorporating them into their supervisory practices. (10/1/2013) ESMA notice.
EBA publishes final draft RTS for covered bonds. The European Banking Authority published final draft Regulatory Technical Standards (RTS) on close correspondence between the fair value of an institution’s covered bonds and the fair value of its assets. These RTS will be part of the Single Rulebook aimed at enhancing regulatory harmonization in the EU. The proposed final draft RTS relate to prudential filters applied to own funds. In particular, they specify the criteria for defining the close correspondence between the fair value of the covered bonds and the fair value of the assets for the purpose of calculating capital requirements. (9/30/2013) EBA press release.
Capital requirements for personal investment firms. The UK’s Financial Conduct Authority announced that it is deferring for two years the new capital requirements for personal investment firms which were published by the Financial Services Authority. The new implementation date is December 31, 2015. (9/27/2013) FCA press release.
ECB framework for the assessment of securities settlement systems. The European Central Bank published a new “Framework for the assessment of securities settlement systems and links to determine their eligibility for use in Eurosystem credit operations.” The new streamlined user assessment framework introduces procedural simplifications while ensuring a high level of protection for the Eurosystem against losses in the conduct of its credit operations. (9/27/2013) ECB press release.
Draft standards on EMIR’s cross-border application are delayed. The European Commission extended to November 15, 2013, the deadline by which the European Securities and Markets Authority should deliver its draft technical standards on the cross-border application of the European Market Infrastructure. The original deadline was September 25, 2013. (9/26/2013) ESMA notice.
IOSCO report on the implementation of principles for the identification of risk. The International Organization of Securities Commissions published the final report on the implementation of Principles 6 and 7 of its objectives and principles of securities regulation. Principle 6 requires regulators to have or contribute to a process to monitor, mitigate and manage systemic risk appropriate to their mandate. Principle 7 requires regulators to have or contribute to a process to review the perimeter of regulation regularly. The final report discusses the implementation of these principles and makes recommendations on the development of systemic risk and regulatory perimeter review processes. (9/30/2013) IOSCO press release.
US Securities and Exchange Commission Developments
New Final Rules
Revised EDGAR Manual. The Electronic Data Gathering, Analysis, and Retrieval System Filer Manual, and related rules, have been revised to reflect updates to the EDGAR system. The revisions support updates to Form D and to submission form types 13F-HR and 13F-HR/A. The revisions were effective immediately. (9/25/2013) SEC Release No. 33-9457.
Comment period reopened for proposed amendments to Regulation D. The SEC will again accept comments on its proposed amendments to Regulation D, Form D and Rule 156 under the Securities Act. The amendments were proposed in connection with the new rules permitting issuers to engage in general solicitation and general advertising under new paragraph (c) of Rule 506. Comments should be submitted by November 4, 2013. (9/27/2013) SEC Release No. 33-9458.
Selected Enforcement Actions
Investment advisor pays US$1 million to settle best execution claims. The SEC instituted settled administrative proceedings against an investment advisory firm and its owner for failing to seek the most beneficial terms reasonably available when investing in mutual fund shares for three funds that they managed. An SEC investigation found that Manarin Investment Counsel Ltd. and Roland R. Manarin violated their obligation to seek “best execution” by consistently selecting higher cost mutual fund shares for the three fund clients even though cheaper shares in the same mutual funds were available. As a result, the clients paid avoidable fees on their mutual fund holdings, which were passed through to a brokerage firm owned by Manarin in a practice inconsistent with the disclosures they made to investors. The brokerage firm also was charged with violations. Without admitting or denying the allegations, Manarin and his firms agreed to pay more than US$1 million to settle the charges. (10/2/2013) SEC press release.
Whistleblower awarded US$14 million. The SEC announced an award of more than US$14 million to a whistleblower whose information led to an SEC enforcement action that recovered substantial investor funds. The award is the largest made by the SEC’s whistleblower program to date. (10/1/2013) SEC press release.
Three Auditors charged in “Operation Broken Gate.” The SEC instituted administrative proceedings against three auditors as part of its ongoing effort to hold gatekeepers accountable for the important roles they play in the securities industry. “Operation Broken Gate” is the Enforcement Division’s effort to identify auditors who fail to carry out their duties and responsibilities consistent with professional standards. The auditors charged in these latest SEC actions agreed to settle the respective actions against them and will be prohibited from practicing as accountants before the SEC. One auditor is contesting the action. (9/30/2013) SEC press release.
Market structure. According to Bloomberg, SEC Commissioner Daniel Gallagher has called for a review of Commission market structure rules. (10/3/2013) Gallagher remarks.
Chairman White asserts the agency’s independence. SEC Chairman Mary Jo White reviewed the history and importance of SEC independence from political influence, questioning the apparently socially motivated disclosures mandated by the Dodd-Frank Act and perceived judicial interference in the Commission’s enforcement decision making process. (10/3/2013) White remarks.
New market data website announced. SEC Chairman Mary Jo White announced the launch of a new website focused on equity market structure. Among other things, the site will disseminate data and related observations drawn from the SEC’s market information and data analysis system. It will also include staff research papers and staff reviews on market structure topics. (10/2/2013) White remarks.
Chairman White discusses enforcement policy. In a speech entitled “Deploying the Full Enforcement Arsenal,” SEC Chairman Mary Jo White explained when the agency will require admissions in its enforcement actions. She also emphasized that corporate penalties will always be considered in appropriate circumstances and that firms should expect to see more mandatory undertakings. In a subtle policy shift, the enforcement staff has been told to look first at individual conduct, working out to the entity. (9/26/2013) White remarks.
General solicitation. The Office of Investor Education and Advocacy issued information for investors on the new SEC rule that allows general solicitation or advertising for private offerings. The investor alert describes the new rule and the investor bulletin provides details on the definition of “accredited investor.” (9/23/2013)
Forum on small business capital formation. The annual SEC Government-Business Forum on Small Business Capital Formation will occur on November 21, 2013. The forum will include panel discussions about small business capital formation matters, including implementation of the JOBS Act, and work groups to formulate policy recommendations. (10/3/2013) SEC press release.
US Commodity Futures Trading Commission Developments
DCM application approved. The application of Nodal Exchange, LLC, previously operating as an exempt commercial market (ECM), for designation as a contract market (DCM) has been approved. Nodal DCM is listing for trading various power futures contracts and options on power futures contracts. Separately, the Division of Market Oversight provided no-action relief to Nodal to allow for the simultaneous listing and trading of contracts on Nodal’s first date of operation as a DCM. (9/27/2013) CFTC press release.
Approval of temporary SEFs. The applications of Thomson Reuters (SEF) LLC and ICAP SEF (US) LLC for temporary registration as swap execution facilities have been approved. (9/27/2013) CFTC Press Release.
Division of Market Oversight. DMO issued the following regulatory relief:
• Reporting relief for temporarily registered swap execution facilities (SEFs) from certain swap data reporting requirements of Parts 43 and 45 of the CFTC’s regulations with respect to certain swaps in the equity, foreign exchange, and other commodity asset classes executed on, or pursuant to, the rules of a SEF. (9/30/2013) CFTC Letter No. 13-55.
• Along with the Division of Clearing and Risk, time-limited and specific relief for futures commission merchants from the requirement to comply with Commission Regulation 1.73(a)(2)(i) and (a)(2)(ii), and for temporarily registered SEFs with relief from certain swap data reporting requirements of Parts 43 and 45 of the CFTC’s regulations with respect to certain swaps in the equity, foreign exchange, and other commodity asset classes executed on, or pursuant to, the rules of a SEF. (9/30/2013) CFTC Letter No. 13-62.
• Relief for SEFs and Designated Contract Markets from the one business day product review period requirement of Commission regulation 40.2(a)(2) for newly-listed swap products. (9/30/2013) CFTC Letter No. 13-60.
• Relief for temporarily registered SEFs from the transaction confirmation requirement in CFTC Regulation 37.6(b) for swaps that are not intended to be submitted for clearing. (9/30/2013) CFTC Letter No. 13-58.
• Registration relief for Australian-based trading platform Yieldbroker Pty Limited. (9/30/2013) CFTC Letter No. 13-59.
• Relief from enforcement responsibilities for temporarily registered SEFs. (9/27/2013) CFTC Letter No. 13-57.
• Relief from the continuation data reporting requirements of Section 45.4 for certain uncleared swaps in the equity, foreign exchange and other commodity asset classes, executed on or pursuant to the rules of a temporarily registered SEF. (9/27/2013) CFTC Letter No. 13-56.
Division of Swap Dealer and Intermediary Oversight. DSIO issued relief from certain aggregation requirements for persons engaging in certain swap transaction floor trader activities. (9/30/2013) CFTC Letter No. 13-61.
Federal shutdown announcements. The CFTC announced it will not produce public reports such as the cotton on call, Commitment of Traders and the Bank Participation Report during a government shutdown. (10/1/2013) CFTC press release. The National Futures Association, at the request of the CFTC, published a list of Division of Swap Dealer and Intermediary Oversight staff who may be contacted during the federal government shutdown for reasons other than normal operating activities. (10/1/2013) NFA Notice I-13-29.
Commodity options. The Division of Market Oversight issued commodity options guidance. The guidance includes general information regarding CFTC regulation of commodity options; general information regarding filing CFTC Form TO (unreported trade options); and answers to various technical questions regarding Form TO, trade options reporting, and CFTC Letter 13-08 (which provides no-action relief from certain reporting and recordkeeping provisions of Section 32.3(b) of the CFTC’s regulations for end users). (9/30/2013) CFTC press release.
US Judicial Developments
When a note is a security. The US Court of Appeals for the Tenth Circuit affirmed a district court’s finding that as a matter of law, the “unsecured promissory notes” sold by defendant were securities. In doing so the Court applied the four factors of the “family resemblance” test set forth by the Supreme Court in Reves v. Ernst & Young, 494 U.S. 56 (1990), on when a “note” is a security for purposes of the Securities Act of 1933. (10/4/2013) SEC v. Thompson.
US Exchanges and Self-Regulatory Organizations
SEC approves FINRA rule change for over-the-counter options. The SEC has issued an order granting approval of a proposed rule change relating to amendments to FINRA Rules 2360 (Options) and 4210 (Margin Requirements) in connection with Options Clearing Corporation (“OCC”) cleared over-the-counter (“OTC”) options. FINRA proposed to treat OCC cleared OTC as conventional options rather than to clear and guarantee OTC options on the S&P 500 index. (10/7/2013) See SEC Release 34-70619.
FINRA files amendment to Consolidated Rulebook. In response to comments received on a rule change published in the July 8th Federal Register, the Financial Industry Regulatory Authority filed with the SEC Amendment No. 1 to adopt consolidated FINRA supervision rules. Comments should be submitted on or before October 28, 2013. (10/2/2013) SEC Press Release 34-70612.
FINRA uncovers trading abuses. Reuters reported the comments of Financial Industry Regulatory Authority executive Tom Gira concerning abusive trading practices uncovered by FINRA’s market surveillance system. (10/3/2013) Trading abuses.
FINRA dark pool proposal. The Financial Industry Regulatory Authority filed with the SEC a proposal regarding alternative trading systems (ATS). The proposal would require an ATS to report weekly volume information and number of trades regarding securities transactions within the ATS and require each ATS to acquire and use a single, unique market participant identifier when reporting information to FINRA. (9/30/2013) FINRA proposal.
NFA Compliance Rule 2-45. The National Futures Association issued a Notice to Members regarding changes to NFA Compliance Rule 2-45 and its related Interpretive Notice, “Prohibition of Loans by Commodity Pools to CPOs and Affiliated Entities.” The rule prohibits a CPO from permitting a commodity pool to use any means to make a direct or indirect loan or advance of pool assets to the CPO or any other affiliated person or entity. NFA amended Compliance Rule 2-45 and the related Interpretive Notice to provide that certain specified transactions are not prohibited by Compliance Rule 2-45. (9/26/2013) NFA Notice to Members I-13-26.
FINRA suitability rule. On September 25th, the Financial Industry Regulatory Authority discussed effective practices for compliance with its suitability rule. FINRA Regulatory Notice 13-31.
Disclosure guide. The National Futures Association published a revised guide for CPOs and CTAs regarding the disclosure documents they must furnish. (9/24/2013)