Finance

$150 Billion Spark Bipartisanship and Changes the Definition of “Worthy”

By Cremeithius Riggins, J.D. Candidate 2020 | Posted on

Congress and White House personnel are attempting to raise the financial threshold for a banking institution to be considered a “Systematically Important Financial Institution” (SIFI). On its face, this may seem to bring about banking reform; however, this would lead to a dramatic decrease in federal oversight and transparency. Considering the 2008 financial crisis, it is difficult to understand why any banking institution would not be considered systematically important. Nevertheless, the arguably arbitrary $50 billion threshold is taking center stage for what has already been a controversial Trump agenda.

At a time when there has been very little to celebrate about our government’s ability to work in a bipartisan manner, it appears that economics has forced the hand of some, including top White House economic advisor, Gary Cohen. Cohen was considered the “most important person” in Washington and on Wall Street. Cohen has been working with Democrats and Republicans to create significant changes in U.S. banking. On October 16, 2017, Cohen told the American Banking Association that the SIFI threshold needs to be raised from $50 billion to $200 billion. Is the U.S. banking system ready for a $150 million-dollar threshold increase only seven years after the $50 billion threshold was implemented?

Let’s put this into perspective. The 2008 financial crisis was the most stifling financial dilemma since the Great Depression. Several economic markets were crashing. The financial sector, credit industry, real estate market, and auto industry required federal funding to prevent economic turmoil. Many companies failed and many people lost their assets in the aftermath. It is also important to consider that the United States was not the only country that experienced the shock. The economic shock was so profound that it traveled across the Atlantic Ocean and devastated many European markets.

As a result of the financial crisis, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank Act). The Dodd-Frank Act was the culmination of studies conducted by the Commodity Futures Trading Commission (CFTC) and implemented an increase in regulation of swap market dealers. The current listing of swap dealers features more than 100 banking institutions considered SIFIs because they possess more than $50 billion dollars in assets. These banking institutions face greater federal oversight to increase transparency and lower risk to Americans. The $50 billion threshold was implemented to protect Americans; however, some economists attribute a negative impact to the threshold because it limits banks from lending to “worthy” customers. Does a $150 billion increase in the threshold change the definition of a worthy customer?

The worthy customer is as ambiguous and arbitrary as the slogan, “let banks be banks again,” used by President Trump to support the proposed $150 billion threshold increase. It is unclear exactly how many of the approximately one-hundred SIFIs would be free from governmental oversight. However, if letting banks be banks again means allowing institutions to engage in risky transactions to the detriment of Americans, it is as undesirable as waking up to the loss of all your fantasy stock.

$150 Billion Spark Bipartisanship and Changes the Definition of Worthy (PDF)

A New Approach to Financial Regulatory Enforcement

By Nicole Danesh, J.D. Candidate 2019 | Posted on

The regulatory enforcement of the financial industry may soon change. As the new administration settles into Washington; reports have suggested the rise of dedicated efforts to change, and potentially reduce, financial regulation by the Securities and Exchange Commission (“SEC”) and the Consumer Financial Protection Bureau. While these efforts have not yet fully materialized, there are some indications that they will soon impact the financial services industry.

The pressures to alter the regulatory framework are two-fold. First, major banks want to change the way regulatory agencies collect data related to possible crimes. If the banks can modify the framework in a way that would shift more responsibility to the government, then this may lower the banks’ costs of compliance. Second, government officials and regulatory agencies have taken steps to change the enforcement landscape from the top-down. For example, last month, the acting chairman of the SEC, Michael Piwowar, took steps to limit the agency’s powers. Piwowar’s directive gave exclusive power to the director of the enforcement division to authorize formal investigations. This will both limit inquiries and slow down the process of starting investigations. Consequently, the new structure will weaken financial regulatory enforcement.

Scaling back regulation may create undesirable consequences. Particularly concerning is the idea that violations can go undetected for quite some time until they grow into large and harmful issues. Additionally, a lack of sufficient regulation will increase the risk of another financial crisis.

On the other hand, excess regulations are not always desirable either. Too many regulations can create extremely high costs which may not be proportional to the consequential benefits of detecting minor violations. In order to prevent this, a current administration official and financial regulator has recently called for easing the strict requirements that arose after the 2008 crisis.

Ultimately, these new approaches might simply be an attempt to curb over-regulation. However, it may also offer a way for companies to tip-toe around the law in the name of generating profits. Regardless, regulatory agencies must strike a balance in structuring the new enforcement frameworks and make sure that the new regulatory regime is neither too stringent nor too lenient. This balance is key in preventing arbitrary targeting—wasting taxpayer resources in the process and burdening private businesses—and in incentivizing lawful behavior in the financial industry.

A New Approach to Financial Regulatory Enforcement (PDF)

After 12 Years, A.I.G.’s Former Chief Executive Agreed to Settle in Accounting Fraud Case

By John Billiet, L.L.M. Candidate 2017 | Posted on

On February 10, 2017, Maurice Greenberg (A.I.G’s former CEO) and his co-defendant Howard Smith (A.I.G.’s former CFO) agreed to settle with New York Attorney General, Eric T. Schneiderman on an accounting fraud case that lasted for more than 12 years. That settlement ends a civil case that began in 2005 under Spitzer – the then-New York Attorney General – and was continuously delayed by a flurry of defense motions and eight pre-trial appeals.

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Morgan Stanley Accused of Facilitating Unethical Sales Contests

By Alexander Baptiste, J.D. Candidate 2018 | Posted on

On October 3, 2016, Morgan Stanley was charged with “dishonest and unethical conduct” by a top Massachusetts securities regulator.

Morgan Stanley is accused of facilitating high-pressured sales contests in Massachusetts and Rhode Island, where brokers had the opportunity to earn thousands of dollars for selling high volumes of securities based loans. Securities based loans allow clients to borrow money against the value of their investment accounts, but are known to involve a non-negligible risk including the bank’s ability to sell securities to repay the loan.

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Retirees Win Against Mining Industrialist

By Claire Oxford, J.D. Candidate 2018 | Posted on

In a nearly unprecedented turn of events, the occupant of one of the largest single-family dwellings in the U.S., mining industrialist Ira Rennert, has settled with a group of retirees from one of his subsidiary companies and agreed to pay their pensions in full.

In 2011, Rennert’s conglomerate, Renco, purchased R.G. Steel for $1.2 billion. At the time, Renco’s pension was underfunded by almost $70 million. Shortly after the acquisition, Renco struck a deal with the private equity group Cerberus in a purported attempt to find more funding for R. G. Steel. The deal included Cerberus’s purchase of a 24.5 percent equity stake in R. G. Steel – causing Renco’s ownership to fall under the 80 percent cutoff to legally be considered the controlling group and therefore responsible for pension obligations. Though Renco executives claim they acted appropriately, the government believes the intention was to avoid being held accountable for the pension payments.

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High Frequency Trading, Dark Pools, and Call for a New Stock Exchange

By Shodhan Babu, LLM Candidate, 2016 | Posted on

The volatility of the stock market requires no introduction. It has long been acknowledged that the volatility is as much a reflection of non-economic factors as economic ones. An understanding of trends, based on both economic and non-economic factors, and the time that investors take to react to changes in the stock market can be the crucial difference between gains and losses in the stock market.

It is common for investors to buy stocks of companies in which they perceive the prize to go up, in small tranches, in order to ensure that the price does not go up at once, which would occur if investors purchased large blocks of shares at once. In order for this to work effectively and fairly, all investors have to be presented with the ability to place purchase or sell orders at prices that are uniformly communicated to all investors at one single point in time. Until 1998 this proposition was fairly routine since buyers and sellers traded on the floor of the stock exchanges.

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Administrative Judge Raises S.E.C’s Burden to Convict Insider Trader

By Matt Kempf, J.D. Candidate 2017 | Posted on

In a pivotal 1983 ruling, the Supreme Court held that to find a breach of duty to stockholders resulting in “insider trading,” a party must prove that a personal gain, either material or immaterial, resulted from confidential information provided by a trading relative or “friend.” The Court, however, left ambiguous the term, “friend” for over three decades, causing much confusion.  Did the Court intend to mean a close friend? A friend with whom you occasionally converse? A Facebook friend?

Recently, Judge Patil provided some context, although controversial, to this central term in a S.E.C. administrative decision, by dismissing insider trading charges against Joseph Ruggieri, a former securities trader at Wells Fargo. At issue in the case was the question of how close a non-familial relationship must be to qualify as “meaningfully close.” Ruggieri mentored Gregory Bolan, a Wells Fargo analyst, and allegedly profited approximately $117,000 from tips received from Bolan. In order to have succeeded, the Department of Justice needed to prove that benefits Bolan received from the mentorship and feedback was substantial enough to qualify their relationship as meaningfully close. The Department of Justice argued that mere friendship was enough to establish the benefit. In his decision, however, judge Patil disagreed, holding that the benefit received by the mentorship was insufficient.

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Update: Argentina’s Debt Crisis Continues as Debt Swap Legislation is Proposed

By Nahal Bahri, J.D. Candidate 2015 | Posted on

After a rocky summer, Argentina is trying to push itself through its recent debt default by proposing new legislation that could potentially pull the country out of its current financial crisis. Last week, in a speech addressed to the nation, President Cristina Fernández announced a plan for legislation that would allow bondholders to swap “their debt issued under foreign law for bonds of the same value governed by local law.”

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White House Mortgage Policy Advances Housing Finance Reform

By Nahal Bahri, J.D. Candidate 2015 | Posted on

While the economy has been improving since the financial crisis, the housing market has been slow to recover. The White House has proposed a plan to help homeowners refinance their mortgages while Congress has proposed the Housing Finance Reform and Taxpayer Protection Act of 2014 (introduced in 2013) as part of the greater system of housing finance reform with the hopes of boosting the housing market.

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Secondary Private Equity Investments on the Rise

By Katya Mandzhieva, LL.M. Candidate 2014 | Posted on

The rising stock market has increased corporate valuation of companies. This surge has given the secondary private equity market a new life. According to Bloomberg Private Equity M&A database, secondary private equity transactions year-to-date stood at $25.6 billion with a total of 97 deals. Prior to this, the highest activity for secondary private equity market was in 2007 with $114.7 billion in deal value for 316 deals; whereas the lowest activity was in 2009 with $4.1 billion for 82 deals. The private equity market has been criticized as illiquid but now it can sell quickly with only modest discounts to net asset value (NAV).

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