The Financial Report - Volume 3, No. 15 • August 2014 (Global)

by DLA Piper


Discussion and Analysis

News from the Americas

News from Asia and the Pacific

News from Europe

Global Regulators

US Securities and Exchange Commission Developments

US Commodity Futures Trading Commission Developments

US Treasury Department Developments

US Judicial Developments

US Exchanges and Self-Regulatory Organizations

Discussion and Analysis

Unless you have been stranded on a deserted island (without wi-fi!) since last December, you have heard Pharrell Williams’ chart-topping single “Happy.” The catchy, upbeat tune has become a sort of anthem for optimism. The lyrics in the bridge verse proclaim: “Can’t nothing bring me down, my level’s too high.”

On Wednesday of this week, The Wall Street Journal published an article by Patrick O’Connor entitled “Poll Finds Widespread Economic Anxiety,” which summarizes a recent Wall Street Journal/NBC News poll. According to Mr. O’Connor, “Still scarred by a recession that ended five years ago, Americans are registering record levels of anxiety about the opportunities available to younger generations and are pessimistic about the nation’s long-term prospects, directing their blame at elected leaders in Washington.”

The poll found that over three-quarters of those surveyed, an all-time high, are not confident that their children’s generation will be better off than their own. Sixty percent of those surveyed believe that the US is in a state of decline. Nearly three-quarters of the surveyed respondents say that the economic problems facing the country are a result of the failure on the part of elected officials in Washington to get things done. Nearly eight in ten say that they are dissatisfied with the political system. Congress’s approval rating remains at an abysmal 14 percent and the President’s job-approval rating is at a new low of 40 percent, with a disapproval rating of 54 percent.

Although it would seem logical that the prevailing gloom would give Republicans an advantage in the upcoming fall elections, Republicans in Congress were viewed even more negatively than the President and the Democrats in Congress. Only 19 percent of those polled held positive views of congressional Republicans, while 54 percent viewed them negatively. This would seem to indicate that the prospects for change are bleak, regardless of which party prevails in the next elections.

While growth in inflation-adjusted family income has been slow, hiring has picked up and job openings are at a seven year high. Also, despite conflicts in the Ukraine and the Middle East, the Ebola scare in Africa, and other notable world events, the economic markets have been quite resilient. The Dow Jones Industrial Average reached an all-time high in July and, currently, is down less than 1 percent since the start of the year.

So, what accounts for the widespread malaise? Is it a feeling that economic benefits are being enjoyed by relatively few and that income inequality is growing? Or is it a belief that most Americans were doing better five years ago than they are now? According to the pollsters, the American voters are telling their elected representatives that they continue to feel economic distress and that it is their fault.

The frustration with elected officials is palpable. What is far less clear is the seeming disconnect between prevailing American pessimism and certain metrics, like the recent stock-market performance. Negativity seems to breed negativity unless and until the cycle can be broken, perhaps by newly elected leaders who may be perceived as more connected.

I think that I’m going to listen to Pharrell now. And if that doesn’t change my mood, I can always listen to Idina Menzel and “Let it Go.”


News from the Americas

US GAO reports on “too big to fail.” The US Government Accountability Office published “Large Bank Holding Companies Expectations of Government Support.” The report reviews the benefits the largest bank holding companies (those with more than US$500 billion in assets) have received from perceived government support and how financial reforms have altered market expectations of government rescues and the existence or size of funding advantages the largest bank holding companies may have received due to perceived government support. GAO found that large bank holding companies had lower funding costs than smaller ones during the financial crisis but models generally suggest that such advantages may have since declined or reversed. (7/31/2014)

OSC seeks comment on trade repository applications. The Ontario Securities Commission published for comment the applications by the Chicago Mercantile Exchange Inc., DTCC Data Repository (US) LLC and Ice Trade Vault, LLC for designation as trade repositories in Ontario. OSC staff have coordinated with the staffs of the Autorités des marchés financiers and the Manitoba Securities Commission in reviewing the applications that are also filed in Québec and Manitoba, and will continue to work with them in finalizing the designation. Comments should be submitted by August 30, 2014. (7/31/2014) OSC press release.

Canadian qualifying central counterparties. The Bank of Canada, Alberta Securities Commission, Autorité des marchés financiers, British Columbia Securities Commission, Manitoba Securities Commission and Ontario Securities Commission jointly published a notice listing the Canadian-domiciled central counterparties which can be considered qualifying central counterparties under the standard on the capital treatment of certain bank exposures to central counterparties developed by the Basel Committee on Banking Supervision. (7/28/2014) Joint press release.

News from Asia and the Pacific

MAS and SGX response to market structure consultation. The Monetary Authority of Singapore and Singapore Exchange issued their response to the joint consultation paper on the Review of the Securities Market Structure and Practices. MAS and SGX will proceed with the five proposals concerning minimum trading price, collateral requirements, short position reporting, transparency of trading restrictions and reinforcing the listings and enforcement framework. (8/1/2014) MAS press release.

Hong Kong focuses on dark pools. Reuters reported the Hong Kong Securities and Futures Commission has warned that it is closely examining dark pools. (8/1/2014) Dark pools.

Singapore proposes financial benchmark rules. The Monetary Authority of Singapore published a consultation paper on legislation to introduce a regulatory framework for financial benchmarks. The proposal would impose criminal and civil sanctions for the manipulation of any financial benchmark in Singapore. In addition, administrators and submitters of financial benchmarks designated by MAS will be subject to regulation, including licensing requirements. Comments should be submitted by August 29, 2014. (7/29/2014) MAS press release.

ASIC proposes changes to OTC derivatives reporting. The Australian Securities and Investments Commission requested comment on proposed revisions to the rules that require the mandatory trade reporting of over-the-counter derivatives such as interest rate swaps. Comments should be submitted by August 29, 2014. (7/25/2014) ASIC press release.

News from Europe

European Commission

Single Resolution Mechanism published. The European Commission published the regulation establishing a Single Resolution Mechanism for the Banking Union. The regulation will enter into force on August 19, 2014. The provisions relating to the cooperation between the Single Resolution Board and the national resolution authorities for the preparation of the banks’ resolution plans will apply from January 1, 2015, and the Single Resolution Mechanism should be fully operational from January 1, 2016. (7/30/2014) EC Statement.

Joint Committee of the Three European Supervisory Authorities

Responsibilities when placing own financial products. The Joint Committee reminded financial institutions of their responsibilities when placing their own financial products with consumers. (7/31/2014) EBA press release. In addition, the European Securities and Markets Authority highlighted specific risks posed to investors by contingent convertible instruments. (8/1/2014) ESMA notice.

Financial conglomerate risk concentration. The Joint Committee launched a consultation on draft Regulatory Technical Standards on risk concentration and intra-group transactions within financial conglomerates. The technical standards aim at enhancing supervisory consistency in the application of the Financial Conglomerates Directive. Comments should be submitted by October 24, 2014. (7/24/2014) ESMA notice.

European Banking Authority

Standards on the treatment of equity exposures under the IRB approach. The EBA published its final draft Regulatory Technical Standards specifying the treatment of equity exposures under the internal ratings-based approach. The RTS will be part of the Single Rulebook aimed at enhancing regulatory harmonization in the European Union banking sector. (8/5/2014) EBA press release.

Consultation on criteria for intervention on structured deposits under MiFIR. The EBA published a paper opening a consultation on its authority to intervene in the market for structured deposits. Comments should be submitted by October 5, 2014. (8/5/2014) EBA press release.

Revised guidance on supervisory reporting. The EBA published revised guidance following the publication of Regulation (EU) No 680/2014 (implementing technical standards on supervisory reporting of the institutions). (8/1/2014) EBA press release.

Amended technical standards on supervisory reporting for institutions. The EBA published Final draft Implementing Technical Standards amending the European Commission’s Implementing Regulation on supervisory reporting under Regulation (EU) No 575/2013 of the European Parliament and of the Council. The amendments are expected to be applicable for reporting as of December 2014. (7/30/2014) EBA press release.

Revised ITS published. The EBA published updated final drafts of Implementing Technical Standards on Asset Encumbrance, Non-Performing Exposures and Forbearance, and Additional Monitoring Metrics for Liquidity. (7/25/2014) EBA press release.

EBA peer review of implementation of credit concentration risk. The EBA published a peer review on the implementation of its guidelines on the management of concentration risk under the supervisory review process. The report shows that National Competent Authorities (NCAs) largely comply with the assessed guidelines and credit concentration risk forms an integral part of NCA’s risk assessment system. (7/24/2014) EBA press release.

French intra-group large exposure measures approved. The EBA published an opinion approving the French draft structural measure of banking separation aimed at reducing group risk. (7/23/2014) EBA press release.

European Securities and Markets Authority

CPSS-IOSCO implementation guidelines. ESMA issued guidelines and recommendations regarding the implementation of the CPSS-IOSCO Principles for Financial Market Infrastructures in respect of Central Counterparties. (8/5/2014) ESMA notice.

MiFID comments. ESMA made public the responses it received to its Consultation and Discussion Papers on MiFID II/MiFIR. (8/5/2014)

CCP registered. ESMA added CME Clearing Europe Ltd to its list of registered central counterparties under the European Markets Infrastructure Regulation. (8/4/2014) ESMA notice.

Updated UCITS guidelines on ETFs and other UCITS issues. ESMA updated its guidelines on the diversification of collateral received by UCITS in the context of efficient portfolio management techniques and over-the-counter financial derivative transactions. The publication triggers a period of two months within which competent authorities subject to these guidelines have to notify ESMA of their compliance position. (8/1/2014) ESMA notice.

Methods for UCITS to calculate risk. ESMA is consulting on the calculation of counterparty risk by Undertakings for Collective Investment in Transferable Securities which enter into OTC derivative transactions which need to be centrally cleared under the European Markets Infrastructure Regulation. Comments should be submitted by October 22, 2014. (7/22/2014) ESMA notice.

UK Joint Regulatory Developments

Accountability and remuneration proposals. The Prudential Regulation Authority and Financial Conduct Authority published two joint consultation papers aimed at improving individual responsibility and accountability in the banking sector. The consultations include a new approval regime for the most senior individuals whose behavior and decisions have the potential to bring a bank to failure, or to cause serious harm to customers; and introduce new rules on remuneration to strengthen the alignment between long-term risk and reward in the banking sector. Comments on either proposal should be submitted by October 31, 2014. (7/30/2014) Bank of England press release.

Bank of England

Procyclicality working group paper. The Bank of England published, in conjunction with a group of academics and industry practitioners, a discussion paper which examines trends in the investment decisions of insurance companies and pension funds. The study finds evidence of procyclical investment behavior by insurance companies while UK defined benefit pension funds behaved countercyclically in the short-term. Over the medium-term a structural “de-risking” trend (whereby pension funds shifted investment allocations from equities to fixed income instruments) has dominated. (7/31/2014) Bank of England press release.

UK Financial Conduct Authority

Restrictions on the sale of CoCos. The FCA announced new temporary restrictions on firms from distributing contingent convertible securities to the mass retail market. The temporary rules take effect October 1, 2014, and end October 1, 2015. The FCA intends to open a consultation in September 2014 on permanent rules that would go into effect in October 2015. (8/5/2014) FCA press release.

Proposed loan to income ratio guidance. The FCA published proposed guidance on the loan to income ratio for residential mortgages. Comments should be submitted by September 7, 2014. (8/5/2014) FCA press release.

SIPP capital framework. The FCA published a new capital framework for self-invested personal pension plan operators. The new rules are effective September 1, 2016. (8/4/2014) FCA press release.

FCA consults on Recovery and Resolution Directive. The FCA published a consultation paper setting out proposed changes to the FCA Handbook that are required to transpose the EU Recovery and Resolution Directive into the UK regulatory regime. Comments should be submitted by October 1, 2014. (8/1/2014) FCA press release.

Update on defined contribution audit. The FCA announced that a progress update has been published by the Independent Project Board responsible for overseeing the audit of charges and benefits in legacy defined contribution workplace pension schemes. The update outlines the approach and methodology being used to undertake the review. (8/1/2014) FCA press release.

Best execution and payment for order flow. The FCA published its thematic review of best execution and payment for order flow. (7/31/2014) FCA press release.

Whistleblower study. The FCA published the results of its research into the impact of financial incentives on encouraging whistleblowing. The research showed that introducing financial incentives for whistleblowers would be unlikely to increase the number or quality of the disclosures received. (7/29/2014) FCA press release.

Interim management statements. The FCA opened a consultation on removing the requirement for issuers of shares admitted to trading on a regulated market to publish interim management statements pursuant to Transparency Directive Amending Directive (2013/50/EC). Comments should be submitted by September 4, 2014. (7/23/2014) FCA press release.

UK Prudential Regulation Authority

Variable remuneration clawback rules. The PRA published a policy statement setting out its final rule on the clawback of financial remuneration. Among other things, the rule provides that variable remuneration will be subject to clawback for at least seven years from the date awarded. The clawback rules will come into force on January 1, 2015. (7/30/2014) PRA press release.

Proposed implementation of the EU Bank Recovery and Resolution Directive. The PRA opened a consultation on proposed changes to the PRA Rulebook. The proposed amendments would implement the European Union Bank Recovery and Resolution Directive, and make changes to a supervisory statement to reflect the PRA’s expectations. The proposal addresses recovery plans, resolution packs, intragroup financial support agreements, notification of failure or likely failure, and contractual recognition of bail-in. Comments should be submitted by September 19, 2014. (7/24/2014) PRA press release.

Global Regulators

Repository on central clearing requirements for derivatives. The International Organization of Securities Commissions announced the availability of an information repository on central clearing requirements for OTC derivatives. The repository provides regulators and market participants with consolidated information on the clearing requirements of different jurisdictions. (8/5/2014) IOSCO press release.

IOSCO surveys the effects of commodity storehouses. The International Organization of Securities Commissions has authorized its Committee 7 on Commodity Derivatives to research the potential effects of storage infrastructure on the integrity of the price formation process of commodity derivatives in member jurisdictions. The first stage in the Committee’s work has been to develop a questionnaire as a way to gather information to inform its research. IOSCO is asking its members to respond to the questionnaire and to encourage other relevant entities in their jurisdictions to do so as well. Comments should be submitted by October 31, 2014. (8/1/2014) IOSCO press release.

IOSCO reports on the use of social media. The International Organization of Securities Commissions published its Report on the IOSCO Social Media and Automation of Advice Tools Surveys. The paper presents the results of four surveys on the use of social media and automated advice tools in capital markets, and how regulators oversee the use of these tools. (7/24/2014) IOSCO press release.

US Securities and Exchange Commission Developments

New and Proposed Rules

Money market fund reform. The SEC published amendments to its rules for money market mutual funds. The amendments require institutional prime money market funds to adopt a floating net asset value (NAV) and to allow non-government money market fund boards to impose fees and redemption gates. Enhanced diversification, disclosure and stress testing requirements, and updated reporting requirements are also included. A two-year transition period is included. (7/23/2014) SEC Release No. 33-9616. The SEC also proposed exemptions from certain confirmation requirements for transactions effected in shares of floating NAV money market funds and re-proposed amendments concerning provisions that reference credit ratings. (7/25/2014) SEC press release. The US Department of the Treasury addressed the tax reporting and compliance issues that may result from the floating NAV requirement. Treasury Department press release.

Selected Enforcement Actions

Investment advisor must pay penalty of almost US$15 million for cherry picking and soft dollar schemes. An SEC Administrative Law Judge issued an initial decision finding that J.S. Oliver Capital Management, an investment advisory firm, and Ian O. Mausner, its president, engaged in a cherry-picking scheme that awarded more profitable trades to hedge funds in which Mausner and his family had invested. Respondents then attributed less profitable trades to other clients, including a widow and a charitable foundation. The ALJ further found that Mausner and J.S. Oliver misappropriated more than US$1.1 million in soft dollars for undisclosed purposes that did not benefit clients. The order requires J.S. Oliver and Mausner to disgorge, jointly and severally, US$1,376,440, plus prejudgment interest. J.S. Oliver is also required to pay a civil monetary penalty of US$14,975,000 and Mausner is required to pay a civil monetary penalty of US$3,040,000. A portfolio manager was also found to have participated in the soft dollar scheme. (8/5/2014) In the Matter of J.S. Oliver Capital Management, L.P., ID-649.

Whistleblower award justified by unusual circumstances. The SEC announced an award of more than US$400,000 for a whistleblower who reported a fraud to the SEC after the company failed to address the issue internally. (7/31/2014) SEC press release. The award order noted that the claim was initially denied because of a prior investigation conducted by a self-regulatory organization; however, the claimant’s response detailed unusual circumstances that justified the waiver of the ordinary whistleblower award requirements. (7/31/2014) Order.

CEO and CFO charged with violating SOX certification rules. The SEC instituted partially settled administrative proceedings against the CEO and former CFO of QSGI Inc. for violating the Sarbanes-Oxley Act’s internal control certification provisions. The SEC alleged that CEO Marc Sherman and former CFO Edward L. Cummings represented in a management report accompanying QSGI’s fiscal year 2008 annual report that Sherman participated in management’s assessment of the internal controls. However, Sherman did not actually do so. The SEC further alleged that Sherman and Cummings each certified that they had disclosed all significant internal control deficiencies to outside auditors when, in fact, they had misled the auditors by withholding that inadequate inventory controls existed within the company’s operations and by engaging in other improper accounting practices. Without admitting or denying the allegations, Cummings consented to a cease-and-desist order, agreed to pay a US$23,000 penalty, and to be barred from serving as an officer and director of a publicly traded company for five years. (7/30/2014) SEC press release.

Dual registrant settles best execution claims. The SEC instituted settled administrative proceedings against Dominick & Dominick LLC, a dually registered investment adviser and broker-dealer, and its COO for breaches of fiduciary duty to certain advisory clients. Without admitting or denying the allegations, the respondents consented to the entry of an order finding that D&D did not seek best execution for those clients who participated in D&D’s “Commission-Only” and “Fee Plus Commission” advisory programs, because D&D’s best execution analyses did not account for brokerage commissions and did not analyze the commissions being charged to these advisory clients after it negotiated a reduction in execution and clearing costs with its clearing firm in 2010. D&D also failed to disclose a conflict of interest involving its clearing firm, specifically that it received rebates consisting of a significant portion of the interest these advisory clients paid the clearing firm for margin loans. (7/28/2014) In the Matter of Dominick & Dominick LLC, SEC Release No. 33-9619.

Transfer agent sold counterfeit securities. The SEC charged a Florida-based transfer agent and its owner with defrauding investors by using aggressive boiler room tactics to sell worthless securities. The SEC alleges that Cecil Franklin Speight, whose firm International Stock Transfer Inc. was a registered transfer agent, abused the transfer agent function by creating and issuing fake securities certificates to both US and international investors. While investors collectively sent in millions of dollars thinking they were purchasing high-yield investments and discounted stock, they ended up receiving counterfeit certificates that Speight and IST fooled them into thinking were legitimate. Related criminal charges have also been filed against Speight. (7/24/2014) SEC press release.

Other Developments

SEC Commissioner discusses municipal securities reforms. SEC Commissioner Michael Piwowar discussed municipal securities reforms. Piwowar specifically addressed the disclosure of markups on riskless principal transactions, best execution, pre-trade transparency and the Municipalities Continuing Disclosures Cooperation Initiative. (8/1/2014) Piwowar speech.

Municipalities disclosure initiative. The SEC has extended to December 1, 2014, the self-reporting deadline for issuers and obligors under its Municipalities Continuing Disclosures Cooperation Initiative. The deadline for underwriters remains September 10, 2014. (7/31/2014) SEC press release.

Staff announcement. Alberto Arevalo has been named an associate director in the SEC’s Office of International Affairs. Arevalo will oversee international enforcement, supervisory cooperation, and technical assistance programs. (7/30/2014) SEC press release.

Investor alert. The SEC issued an investor alert concerning the use of social media to spread false or misleading information about stocks. (7/25/2014) Investor alert.

US Commodity Futures Trading Commission Developments

Legal entity identifiers. The CFTC extended its order designating the Depository Trust and Clearing Corporation and Society for Worldwide Interbank Financial Telecommunication joint venture as the provider of legal entity identifiers. (7/28/2014) CFTC press release.

Registration relief for CPO/CTA. An entity and its affiliates who hold volume production payment instruments have received no-action relief from the Division of Swap Dealer and Intermediary Oversight from the requirement to register as commodity pool operators and commodity trading advisors. (7/25/2014) CFTC Letter No. 14-96.

Relief from Ownership and Control Reporting Requirement. The Division of Market Oversight has granted reporting parties additional time to comply with certain reporting requirements of the ownership and control final rule. (7/23/2014) CFTC press release.

Rule enforcement review of ICE Futures US. The Division of Market Oversight has completed a rule enforcement review of ICE Futures US. (7/22/2014) CFTC press release.

US Treasury Department Developments

FSOC meeting. The Financial Stability Oversight Council’s readout from its most recent meeting indicates it may not seek to designate individual asset manager firms as systemically important. Instead, it has directed its staff to review industry practices to assess potential risk. (7/31/2014) FSOC readout.

Beneficial ownership amendments. The Financial Crimes Enforcement Network proposed amendments to its Bank Secrecy Act regulations. The amendments would clarify customer due diligence obligations of banks and other financial institutions, including brokers, dealers, mutual funds, futures commission merchants, and introducing brokers). The amendments would require firms to know and verify the identities of the beneficial owners of accounts. Comments should be submitted by October 3, 2014. (7/30/2014) Treasury Department press release.

US Judicial Developments

Securities fraud litigation practices. The US Court of Appeals for the Ninth Circuit held that a party does not violate the automatic discovery stay found in the Private Securities Litigation Reform Act when it uses documents provided by a third party produced in accordance with a subpoena issued before the stay went into effect. Petrie v. Electronic Game Card, Inc.

Securities fraud case against small company moves forward. A federal district court has held that a complaint alleging misstatements made by a small manufacturing company and its officials stated a claim for securities fraud. Because of their positions and the issuer’s small size, the defendants must have had actual knowledge of the company’s internal affairs and known that statements made about the firm’s future were false. (7/25/2014) Fitzpatrick v. Uni-Pixel, Inc.

US Exchanges and Self-Regulatory Organizations

Expungement rule approved. The Financial Industry Regulatory Authority announced SEC approval of FINRA Rule 2081 (Prohibited Conditions Relating to Expungement of Customer Dispute Information). The rule prohibits members from conditioning customer settlements on the customer’s agreement to consent to, or not to oppose, a request to expunge such customer dispute information from the Central Registration Depository. The rule is effective immediately. (7/30/2014) FINRA Regulatory Notice 14-31.


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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