Winston & Strawn LLP: Financial Services Update - February 24, 2014
Financial Services Update | Winston & Strawn
•••• Volume 9, No. 8February 24, 2014
•  Insights from Winston & Strawn
•  Feature: Foreign Corrupt Practices Act
•  Banking Agency Developments
•  Treasury Department Developments
•  Securities and Exchange Commission
•  Commodity Futures Trading Commission
•  Federal Rules Effective Dates
•  Exchanges and Self-Regulatory Organizations
•  Judicial Developments
•  Industry News
•  Winston & Strawn Upcoming Events
•  Winston & Strawn Speaking Engagements and Publications
 
Insights from Winston & Strawn

SEC Again Indicates Closer Monitoring of Financial Advisers

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

 
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.
 
Banking Agency Developments
Chicago Fed Discusses High Speed Trading.
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.
 
 
Federal Reserve Board Adopts New Standards for Foreign and Large Banks.
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.
 
 
Comment Period Extended for SIFI Resolution Proposal.
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.
 
 
OCC Supervisory Expectations.
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.
 
 
OCC Workshops.
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.
 
Treasury Department Developments
Reaching the Unbanked.
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.
 
Securities and Exchange Commission
Chair White Addresses SEC Speaks Conference.
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.
 
 
Cybersecurity Risks.
On February 21st, Reuters summarized the remarks of SEC Commissioner Luis Aguilar concerning the cybersecurity risks faced by transfer agents. Transferring Risk.
 
 
OCIE to Focus on Never-Before-Examined Advisers.
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.
 
 
SEC Files Dodd-Frank Act Whistleblower Amicus Brief.
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.
 
 
Investor Bulletins.
The SEC has published two investor bulletins. One on how fees and expenses affect an investment portfolio and the other on variable annuities.
 
 
Cybersecurity Roundtable.
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.
 
 
Staff Announcements.
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.
 
Commodity Futures Trading Commission

Guidance

CFTC Guidance on Duplicative Reporting.
On February 18th, the Commodity Futures Trading Commission's ("CFTC") Division of Clearing and Risk provided guidance to ASX Clear (Futures) Pty Limited ("ASXCLF") regarding compliance with the condition to the no-action relief granted by the Division on February 6, 2014 that ASXCLF comply with the reporting obligations applicable to registered derivatives clearing organizations under the CFTC's Part 45 regulations. The guidance concerns duplicative reporting. CFTC Letter No. 14-17. See also CFTC Letter No. 14-07.
 
 

Regulatory Relief

CFTC Grants Southwest Power Pool's Request for No-Action Relief.
On February 20th, the CFTC's Divisions of Clearing and Risk, Market Oversight, and Swap Dealer and Intermediary Oversight issued a time-limited no-action letter to Southwest Power Pool. The letter, consistent with relief provided in the CFTC's April 2, 2013 final order exempting certain specified transactions of Regional Transmission Organizations and Independent System Operators from certain provisions of the Commodity Exchange Act, provides relief to Southwest Power Pool, its members and those market participants who meet the appropriate persons requirement under the RTO-ISO Order, and permits this market and these market participants to continue to operate while the CFTC considers Southwest Power Pool's petition.
 
 
CFTC Grants CPO Relief from Audited Annual Report Requirement.
On February 19th, the CFTC's Division of Swap Dealer and Intermediary Oversight provided a commodity pool operator with relief from the requirement in Regulations 4.7(b)(3) and 4.22(d)(1) that the financial statements in the pool's annual report be audited. At the end of the 2013 fiscal year the pool had just one participant, who also is a controlling principal of the CPO and oversees the daily operations of both the CPO and the pool. DSIO granted the relief conditioned upon the filing of an uncertified annual report for the 2013 fiscal year that otherwise complies with the provisions of Regulation 4.7(b)(3). CFTC Letter No. 14-19.
 
 

Other Developments

Speed Bumps.
On February 19th, Bloomberg summarized a proposal presented by a University of Chicago associate professor of economics at the CFTC's February 10, 2014 Technology Advisory Committee meeting. Eric Budish proposes the use of "frequent batch auctions" to ameliorate the negative effects of automated trading. Summary.
 
 
Whistleblowers.
On February 19th, Forbes described the CFTC's whistleblower program noting that the agency will make its first Dodd-Frank Act whistleblower award later this year. Whistleblowers.
 
Federal Rules Effective Dates

February 2014 - April 2014

Commodity Futures Trading Commission.
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.
 
 
Consumer Financial Protection Bureau.
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.
 
 
Federal Deposit Insurance Corporation.
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.
 
 
Federal Housing Finance Agency.
February 27, 2014 Executive Compensation. 79 FR 4389.
 
 
Federal Reserve System.
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.
 
 
National Credit Union Administration.
March 3, 2014 Derivatives. 79 FR 5228.
March 31, 2014 Liquidity and Contingency Funding Plans. 78 FR 64879.
 
 
Office of the Comptroller of the Currency.
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.
 
 
Securities and Exchange Commission.
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.
 
 
Treasury Department.
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.
 
Exchanges and Self-Regulatory Organizations

Maker-Taker Reform.
On February 20th, Bloomberg reported stock exchange representatives and participants have been lobbying the SEC as part of an effort to reform the "maker-taker" system in which exchanges pay rebates to traders for their business. Maker-Taker Reform.
 
 
Longer Period Designated to Consider Qualified Contingent Cross Proposals.
On February 18th, the SEC designated April 7, 2014 as the date by which it will approve, disapprove, or institute disapproval proceedings regarding the International Securities Exchange's and Topaz Exchange's separately proposed amendments addressing the number and size of counterparties to a Qualified Contingent Cross Order.
 
 

Financial Industry Regulatory Authority

SEC Approves FINRA BrokerCheck Proposals.
On February 20th, the Financial Industry Regulatory Authority announced the SEC approved two rule changes related to FINRA Rule 8312 (FINRA BrokerCheck Disclosure). First, the SEC approved amendments to permanently make publicly available in BrokerCheck information about former associated persons of a FINRA member firm who were registered on or after August 16, 1999, and who have been the subject of an investment-related civil action brought by a state or foreign financial regulatory authority that was dismissed pursuant to a settlement agreement. Second, the SEC approved amendments to include in BrokerCheck information about member firms and their associated persons of any registered national securities exchange that uses the Central Registration Depository for registration purposes. Both rule changes will become effective on June 23, 2014. FINRA Regulatory Notice 14-08.
 
 
FINRA ATS Proposal Approved.
On February 14th, the Financial Industry Regulatory Authority announced SEC approval of a proposal requiring alternative trading systems ("ATS") to report to FINRA weekly volume information and number of securities transactions within the ATS by security, and acquire and use a single, unique market participant identifier when reporting information to FINRA. FINRA Regulatory Notice 14-07.
 
 

ICE Clear Europe

Clearance of New Sovereign CDS Proposed.
On February 19th, the SEC provided notice of ICE Clear Europe's filing of a proposed rule change to allow it to provide for the clearance of new CDS contracts. They are Western European Sovereign CDS contracts referencing the Republic of Ireland, Italian Republic, Portuguese Republic, and Kingdom of Spain. Comments should be submitted within 21 days after publication in the Federal Register, which is expected during the week of February 24. SEC Release No. 34-71574.
 
 

International Swaps and Derivatives Association

ISDA Publishes 2014 Credit Derivative Definitions.
On February 21st, the International Swaps and Derivatives Association published the 2014 ISDA Credit Derivatives Definitions, a revised version of the 2003 ISDA Credit Derivatives Definitions that contains the basic terms used in the documentation of most credit derivatives transactions. ISDA Press Release.
 
 

Municipal Securities Rulemaking Board

MSRB Proposes Retail Investor Best Execution Requirement.
On February 19th, the Municipal Securities Rulemaking Board requested public comment on a proposal to establish for the first time explicit requirements for municipal securities dealers to seek the most favorable price possible when executing transactions for retail investors. The MSRB also seeks comment on an exception from the new rule for transactions with sophisticated municipal market professionals. Comments should be submitted on or before March 21, 2014. MSRB Press Release.
 
 

NASDAQ OMX Group

NASDAQ Proposes Kill Switch.
On February 18th, the SEC granted immediate effectiveness to the NASDAQ Stock Market's proposal to add a risk management tool commonly known as a "Kill Switch." The new Kill Switch feature will be optional and will be offered at no charge effective March 1, 2014. It will allow market participants to control, for each Market Participant Identifier ("MPID"), the total Net Notional Risk Exposure ("NNRE") they are prepared to accept per trading session. If a market participant exceeds their pre-established NNRE the access ports associated with that MPID will be disabled and open exposure on the NASDAQ Market under that MPID will be administratively cancelled. Comments should be submitted within 21 days after publication in the Federal Register, which is expected during the week of February 24. SEC Release No. 34-71555.
 
Judicial Developments
Tipper Is Liable for All Insider Trading Gains.
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.
 
Industry News
Overdraft Objections.
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.
 
 
The Whistleblower's Lawyer.
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.
 
Winston & Strawn Upcoming Events
The Real Deal Webinar Series: Practical Guidance on Securities and Initial Public Offerings in a Changing Environment
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.
 
 
How to Successfully Resolve a CFPB Investigation: Strategies Derived from Recent Victories
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.
 
Winston & Strawn Speaking Engagements and Publications
Lending Law Digest.
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.
 
 
London Fortnightly Financial Newsletter, Volume 2, Issue 2
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, Vol. 2, Issue 6
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, Vol. 2, Issue 5
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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