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•••• | Volume 9, No. 8 | February 24, 2014 |
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Insights from Winston & Strawn |
The Securities and Exchange Commission issued a press release on February 20th that reinforced its intention of stepping up its examination of registered investment advisers. In particular, the SEC's Office of Compliance Inspections and Examinations ("OCIE") plans to focus on investment advisers that have never been examined by its office in the past and that have been registered as investment advisers with the SEC for three or more years. Many of these investment advisers are private equity firms and hedge funds who registered and came under the SEC's jurisdiction as the result of Dodd-Frank.
The announcement is consistent with previous releases by the SEC that have indicated that examining the large number of recently registered advisers is a priority in 2014. The OCIE intends to examine a "significant percentage" of advisers that have not been examined since they registered.
The examinations are expected to address areas that the OCIE deems most important to protecting the interests of investors. Last month, in a report on its examination priorities for 2014, areas of focus identified by the OCIE included the safety of assets and custody issues, conflicts of interest, and marketing and performance presentation issues.
Winston & Strawn LLP will continue to monitor developments in connection with SEC examinations and enforcement.
Brad Mandel |
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Feature: Foreign Corrupt Practices Act |
The SEC’s 2014 priorities include continued, rigorous enforcement of the Foreign Corrupt Practices Act ("FCPA"). As noted by the agency in January, a specialized Enforcement Division unit announced the settlement of eight FCPA enforcement actions in 2013 and has already settled one this year. SEC FCPA Spotlight.
The FCPA Professor analyzed the eight cases from 2013 and noted the salient points from each. Peter R. Reilly, Associate Professor of Law at Texas A&M, focused on one of those matters, the case against Ralph Lauren Corporation, where the company settled by signing a non-prosecution agreement with the Commission. The Securities Law Prof Blog republished the abstract to Reilly’s article which discusses when and when not to self-report FCPA violations.
Blogging for the CLS Blue Sky Blog, Reilly has also addressed pre-trial bargaining under the FCPA. And D&O Diary discussed the private, follow-on lawsuits which almost invariably accompany a FCPA matter. |
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Banking Agency Developments |
In the March 2014 letter of the Federal Reserve Bank of Chicago, Senior Policy Advisor Carol L. Clark discusses the policy implications of high-speed trading. See also, Bloomberg.
On February 18th, the Federal Reserve Board approved a final rule which establishes a number of enhanced prudential standards for large U.S. bank holding companies and foreign banking organizations. These standards address liquidity, risk management, and capital. They also require a foreign banking organization with a significant U.S. presence to establish an intermediate holding company over its U.S. subsidiaries. Federal Reserve Board Press Release.
On February 18th, the Federal Deposit Insurance Corporation ("FDIC") extended to March 20, 2014, the date by which comments should be submitted in response to the FDIC's proposal for the Single Point of Entry strategy for the resolution of systemically important financial institutions. FDIC Press Release.
On February 14th, the Office of the Comptroller of the Currency ("OCC") issued guidance to clarify the agency's supervisory expectations for national banks and federal savings associations regarding secured consumer debt discharged in Chapter 7 bankruptcy proceedings. OCC Bulletin.
The OCC will host two workshops in Richmond, Virginia on March 25-26, 2014 for directors of national community banks and federal savings associations. The "Compliance Risk" and "Credit Risk: A Director's Focus" workshops are designed exclusively for directors of institutions supervised by the OCC. The compliance risk workshop focuses on major compliance risks and consumer protection regulations, such as the Qualified Mortgage Rule and Bank Secrecy Act, along with key elements of an effective compliance risk management program. The credit risk workshop focuses on the roles of the board and bank management, current events, emerging industry trends, and a range of credit issues, from structuring credit to collections. OCC Press Release. |
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Treasury Department Developments |
On February 14th, the Financial Crimes Enforcement Network, in coordination with the Department of Justice, issued guidance that clarifies customer due diligence expectations and reporting requirements for financial institutions seeking to provide services to marijuana businesses. The guidance provides that financial institutions can provide services to marijuana-related businesses in a manner consistent with their obligations to know their customers and to report possible criminal activity. The Unbanked. |
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Securities and Exchange Commission |
On February 21st, Securities and Exchange Commission ("SEC") Chair Mary Jo White noted, among other things, the 2014 priorities of the SEC's divisions. The Division of Corporation Finance will be reviewing public company disclosures; the Division of Investment Management will consider expanded stress testing, robust data reporting, and increased oversight of the largest asset management firms; and the Office of Risk Assessment and Surveillance is developing new technologies to cull additional red flags from internal and external data and information sources. The agency will also implement a pilot program to test tick sizes that would widen the quoting and trading increments for stock prices and test whether such a change improves liquidity and market quality. White Remarks.
On February 21st, Reuters summarized the remarks of SEC Commissioner Luis Aguilar concerning the cybersecurity risks faced by transfer agents. Transferring Risk.
On February 20th, the SEC's Office of Compliance Inspections and Examinations launched an initiative directed at investment advisers who have been registered with the SEC for at least three years but have never been examined. These examinations will concentrate on the advisers' compliance programs, filings and disclosure, marketing, portfolio management, and safekeeping of client assets. SEC Press Release; Industry Letter.
On February 20th, the SEC filed an amicus brief with the Second Circuit in a Dodd-Frank Act whistleblower lawsuit. The SEC contends that its rule which interprets the Dodd-Frank Act's anti-retaliation protections to include any individual who engages in the whistleblowing activities described by the Act, irrespective of whether the individual makes a separate report to the Commission, is entitled to deference.
The SEC will host a roundtable on March 26, 2014 to discuss cybersecurity and the issues and challenges it raises for market participants and public companies. SEC Press Release.
The SEC announced that Elizabeth Murphy has been named an associate director in its Division of Corporation Finance; Sharon Binger has been named director of the Philadelphia Regional Office, where she will oversee enforcement and examinations in the Mid-Atlantic region; Stephen Luparello has been named director of the Division of Trading and Markets, and John Ramsay, acting director of the Division of Trading and Markets, will leave the agency next month. |
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Federal Rules Effective Dates |
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April 1, 2014 |
Prohibitions and Restrictions on Proprietary Trading and Certain Interests in, and Relationships with, Hedge Funds and Private Equity Funds. 79 FR 5807. |
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March 1, 2014 |
Defining Larger Participants of the Student Loan Servicing Market. 78 FR 73383. |
March 12, 2014 |
Equal Access to Justice Act Implementation Rule. 79 FR 7569. |
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April 1, 2014 |
Prohibitions and Restrictions on Proprietary Trading and Certain Interests in, and Relationships With, Hedge Funds and Private Equity Funds. 79 FR 5535. |
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February 27, 2014 |
Executive Compensation. 79 FR 4389. |
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February 3, 2014 |
Rules Regarding Availability of Information. 79 FR 6077. |
February 18, 2014 |
Financial Market Utilities. 78 FR 76973. |
April 1, 2014 |
Prohibitions and Restrictions on Proprietary Trading and Certain Interests in, and Relationships With, Hedge Funds and Private Equity Funds. 79 FR 5535. |
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March 3, 2014 |
Derivatives. 79 FR 5228. |
March 31, 2014 |
Liquidity and Contingency Funding Plans. 78 FR 64879. |
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April 1, 2014 |
Prohibitions and Restrictions on Proprietary Trading and Certain Interests in, and Relationships With, Hedge Funds and Private Equity Funds. 79 FR 5535. |
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February 10, 2014 |
Extension of Exemptions for Security-Based Swaps. 79 FR 7570. |
April 1, 2014 |
Prohibitions and Restrictions on Proprietary Trading and Certain Interests in, and Relationships With, Hedge Funds and Private Equity Funds. 79 FR 5535. |
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February 14, 2014 |
Regulations Governing Definitive United States Savings Bonds, Series EE and HH; Regulations Governing Definitive United States Savings Bonds, Series I; Regulations Governing Securities Held in TreasuryDirect 79 FR 8858. |
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Judicial Developments |
On February 18th, a divided three-judge panel of the Second Circuit held that an insider trading tipper can be required to disgorge all the improper gains obtained by the tippees. After Joseph Contorinis, managing director at Jeffries & Company, was convicted of having engaged in insider trading for the benefit of the fund he co-managed, the district court granted the SEC's motion for summary judgment in the parallel civil suit. The order also required Contorinis to disgorge all profits made from the illegal trading, including that amassed by the fund. SEC v. Contorinis. |
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Industry News |
On February 21st, Bloomberg summarized the objections smaller banks have to proposed data collection rules that would require them to disclose what they earn from checking-account fees. Objections.
On February 16th, Reuters profiled David Wasinger. Described as the sole partner in a five-lawyer, St. Louis, Missouri firm, Wasinger has brought two of the most high-profile whistleblower lawsuits against financial firms. The Rainmaker. |
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Winston & Strawn Upcoming Events |
We are pleased to bring you the third installment of The Real Deal, a webinar series addressing current trends, challenges, and legal topics pertinent to M&A and securities professionals. The next topic, "Practical Guidance on Securities and Initial Public Offerings in a Changing Environment," will be held on March 18, 2014 at 12:00-1:00 p.m. (Central). eLunch.
Winston & Strawn is pleased to announce a webinar addressing the latest strategies for resolving Consumer Financial Protection Bureau actions, based on a two-year investigation that was recently closed by a Winston team without any enforcement action. The webinar will be held on Wednesday, March 5, 2014 at 1:15-2:45p.m. (Eastern). eLunch. |
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Winston & Strawn Speaking Engagements and Publications |
Subscribe to Winston & Strawn's Lending Law Digest, where attorneys blog on topics such as corporate lending, commercial lending, leveraged finance, sponsor finance, ABL, DIP loans, special assets, and much more.
Litigation / Contentious Regulatory — the Fortnightly Financial Newsletter is written by lawyers in Winston & Strawn's London office, focusing on key developments within the contentious financial services and financial crime arena. It contains brief highlights of those developments together with links to the source material for further review, if desired. Fortnightly Financial Newsletter.
Antitrust and Competition — The EU Weekly Briefing is designed to provide timely updates on recent European Union competition law by including a short description of, and links to, recent developments. EU Weekly Briefing.
Antitrust and Competition — The EU Weekly Briefing is designed to provide timely updates on recent European Union competition law by including a short description of, and links to, recent developments. EU Weekly Briefing. |
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