Fed Proposes Definitions for Systemically Important Nonbank Financial Institutions

On February 8th the Fed published a proposed rule that would govern when a company is “predominantly engaged in financial activities” and when it would be considered “systemically important.” Various provisions of the Dodd Frank Act require regulations to be implemented for systemically important financial institutions, including general regulation on activity, as well as reporting and disclosure requirements.

Under the proposed rule, an institution could be considered “financial” if, in either of the past two years, 85% or more of its revenue is related to activities determined to be financial in nature (according to the Bank Holding Company Act). This calculation would include income from equity investments in other institutions that are primarily engaged in financial activities.


Rules are good, but who’s going to enforce them?

Since the Dodd-Frank Wall Street Reform and Consumer Protection Act was passed in July, many federal agencies, including the Securities and Exchange Commission, the Federal Reserve Board, and the Office of the Treasury, have been tasked with creating new rules that will govern the future of America’s financial institutions. The Act contains some 300 provisions and may necessitate promulgating upwards of 243 regulations. However, many agencies are now facing an important question: where is the money to properly enforce these new regulations going to come from? Heated debate has raged about appropriate funding for agencies like the SEC and CFTC, whose 2010 funding levels are set to expire March 4.

SEC Chairman Mary Shapiro recently raised the issue before the Senate. Ms. Shapiro has stated that “[t]he real crunch comes after the rules are in place and [the SEC] has to operationalize them. We lack the resources to do that.” Congress’ failure to pass a budget that would have given the SEC an 18% funding increase puts that agency and other regulatory agencies in a bind. If unsuccessful, Shaprio has stated that the SEC will have to cut some 600 employees and would be unable to implement the rules and studies required by the Act.

To help mollify the situation, on January 26, 2011, the Federal Bar Association Securities Law Committee Executive Counsel wrote a letter to members of Congress imploring them to vote for more funding for the SEC. The letter asks Congress for “a substantially increased appropriation for the SEC” through registration fees at no cost to the American taxpayer, and “the adoption for the SEC of the same funding model that Congress has used successfully for decades for the nation’s banking regulators.” In response to the fiscal stalemate, Senator Barney Frank, one of the authors of Dodd-Frank Act, introduced an amendment last week to increase the SEC’s funding by $131 million.


Fed Approves Final Rule to Implement Volcker Rule

On February 9th the Fed approved of the final version of the Volcker Rule, part of the Dodd-Frank Act, which is now scheduled to go into effect on April 1, 2011, though there is a 2 year window in which governed entities will be given to conform their behavior to its regulations. The Volcker Rule prohibits insured depository institutions (hereafter referred to as “banks”) from proprietary trading in securities and financial derivatives, as well as from acquiring a financial or governing interest in hedge funds. Activities by U.S. banks would be governed by the rule, regardless of where their activities take place, however activities by non-U.S. banks would only be governed if they occurred, at least in part, within the U.S.

The definition of activities that constitute proprietary trading is taking positions with the primary purpose of selling shortly thereafter. The ambiguity inherent in this definition is supplemented by the provision that allows government agencies, such as the SEC and CFTC, to implement rules that extend activities governed by the rule to any security or financial instrument that is deemed appropriate.


“Poison Pills” a Plausible Legal Solution for Dealing with External Activist Investors in Proposed Mergers/Acquisitions

It’s not uncommon for one or a few investors to acquire a large stake in a publicly-traded company in order to either force through or interfere with a proposed merger/acquisition. These investors can, on the one hand, engage in “vote no” campaigns, which can lead to large pay-outs (in the form of better terms for the deal) as well as temporary increases in the stock price of the company, but it can also prevent otherwise beneficial and profitable deals from occurring.Today some companies are requiring potential targets to adopt “poison pills” in order to prevent such hold-ups. Case in point: Dell, which insisted that Compellant Technologies implement a poison pill provision before entering into a merger agreement with the company.

There are limits on the legal efficacy awarded to these provisions.  Latham & Watkins recently issued a client alert  highlighting the generally recognized legal limits of poison pill provisions under Delaware state law by reviewing several recent cases.The limits are centered around the existence of a reasonable threat and whether the challenged provision was a proportional response that did not sacrifice the exercise of the franchise by stockholders.One solution that exists to satisfy the last provision (exercise of the franchise) is to require stockholder approval before a poison pill provision kicks in (known as a “chewable pill”).


Bernanke Testifies on Fed’s Commitment to Implementing Dodd-Frank

In a statement before the Committee on Banking, Housing, and Urban Affairs, Ben Bernanke reaffirmed the Federal Reserve’s commitment to working with financial regulatory agencies to implement Dodd-Frank – more than 50 rulemakings and formal guidelines.  According to Bernanke’s statement, the Fed has more than 300 staff members working on implementation projects, and the transfer of the Federal Reserve’s consumer protection responsibilities to the new Bureau of Consumer Financial Protection is well under way.  After delving into a list of ongoing implementation projects, Bernanke concluded his statement by expressing the Fed’s commitment to its “long-standing practice of ensuring that all of its rulemakings are conducted in a fair, open, and transparent manner.”

Click here to read his entire testimony.

Open Season: Dodd-Frank’s Whistleblower Bounty Provision

In the wake of financial collapse and corporate scandal, Congress acted to create incentives for employees to report securities fraud to the Securities and Exchange Commission. Section 922 of the Dodd-Frank Wall Street Reform and Consumer Protection Act aims to do just that.  This section, also referred to as the “whistleblower bounty” provision, amends the Securities and Exchange Act of 1934 to provide that any whistleblower who voluntarily provides “original information” regarding a violation of securities law to the SEC shall receive between 10% and 30% of any successful enforcement of penalties greater than $1,000,000. On November 3, 2010, the SEC submitted a notice of proposed rulemaking to implement this section of the Act, with a deadline for final rules of April 21, 2011.Since the passage of the bill, debate has swirled about the effect of the provision on employees who may have knowledge regarding securities law violations by their employers. One argument in favor of the new section is that the financial incentives will provide the SEC with reliable information leading to successful enforcement of securities law as well as information that may be used to further investigations into questionable practices by reporting companies. Since the Act’s passage, the SEC has already reported a marked increase in the number of whistleblower complaints filed.


National Mortgage Servicing Standards and Looming Litigation

When the Obama Administration released the Treasury’s white paper to propose reforms to the national housing finance market, it also called for the establishment of national standards for mortgage servicing.  The paper put forth a set of basic proposals to reform mortgage servicing and foreclosure processing practices but stopped short of comprehensive and detailed solutions.  Recently, however, Acting Chairman of the Office of the Comptroller of the Currency, John Walsh, went further and provided the first glimpse in his testimony at the Senate Banking Committee of what could form the backbone of national mortgage servicing standards.

These new standards come on the heels of reports that federal regulators will be taking legal action against the 14 largest U.S. mortgage servicers for failure to comply with foreclosure laws and for the pervasive problems that arose out of processing foreclosures.   Also, a new NERA study looks at the economic implications of foreclosure suspensions and potential litigation related to problems associated mortgage servicing and foreclosure processing.

James Nguyen, National Mortgage Servicing Standards and Looming Litigation, Berkeley Bus. L.J. Network (February 23, 2011), http://thenetwork.berkeleylawblogs.org/2011/02/23/national-mortgage-servicing-standards-and-looming-litigation/.

The $13 Billion Dollar Question: How Will the Proposed Interchange Fee Rules Work?

When the Federal Reserve released its proposed rule (Regulation II) implementing Section 1075 of the Dodd-Frank Act (DFA) on Debit-Card Interchange Fees and Routing, it unleashed a firestorm of comments from the banking industry opposing the rule.  Some have estimated that the new regulations would reduce banks’ income from fees by $13 billion.  Last week, the House Financial Services Committee held a hearing on the issue.

What Regulation II does, broadly speaking, is that it seeks reduce the amount of fees that debit-card bank issuers can charge merchants with the intent that such reductions would result in lower retail prices for consumers.  It does so in two ways: (1) by enacting a prohibition on network exclusivity arrangements and routing restrictions, and (2) establishing an interchange fee standard.

Seen more as a market-based approach, the prohibition on Network Exclusivity Arrangements and Routing Restrictions prohibit issuers and payment card networks from restricting the number of networks on which a debit card transaction may be processed to fewer than two unaffiliated networks. In Federal Reserve Governor Sarah Raskin’s recent testimony on the proposed rule, there are two possible interpretations of the prohibition:  (more…)

Has Sarbanes-Oxley Reduced IPOs?

The Sarbanes-Oxley Act was enacted in 2002, setting higher standards for all U.S. public company board, management and public accounting firms.  The Act mandated reforms to enhance financial disclosures and corporate responsibility.  Since the enactment of Sarbanes-Oxley, a debate has ensued about whether or not overregulation has deterred foreign companies from listing in the United States.  In response, the SEC reduced regulatory requirements on foreign and public companies, making compliance easier.  Public companies now face lighter regulations as a result of Supreme Court decisions and requirements that have been eliminated through the Dodd-Frank Act.  The Supreme Court made it significantly harder to sue public companies for securities fraud in several cases and the Dodd-Frank Act eliminated the requirement that auditors must certify the validity of company’s internal controls for companies with a market value of less than $75 million.

A study by Berkeley Law Professor Robert Bartlett, however, found that a majority of companies bought by private equity firms still voluntarily complied with the requirements of Sarbanes-Oxley.  Professor Bartlett’s study corrects a significant bias in the hypothesis that the compliance costs associated with Sarbanes-Oxley resulted in an increase of firms going private.  His study provides considerable evidence to show that the wave of going-private was not driven by the compliance costs.

SEC Issues Final Say-On-Pay Rules

On January 25, 2011, the Securities and Exchange Commission (SEC) officially adopted final rules implementing Section 951 of the Dodd-Frank Wall Street Reform and Consumer Protection Act. This so-called “Say-on-Pay” provision establishes three new shareholder-voting requirements for large companies subject to federal proxy rules.  First, such companies must provide shareholders with a non-binding vote on executive compensation at least once every three years. Second, large companies must give shareholders a non-binding vote establishing the frequency with which they engage in the say-on-pay vote at least once every six years. Finally, shareholders must be given a separately held advisory vote on “golden-parachute” arrangements and understandings in connection with mergers and acquisitions and other transactions, including going-private transactions and third-party tender offers.

For large reporting companies, the non-binding vote on executive compensation as well as the non-binding vote on frequency must be had at the first shareholder meeting after January 21, 2011.  However, smaller reporting companies are not required to hold a say-on-pay or frequency vote until the first shareholder meeting to occur after January 21, 2013.  New regulations regarding golden-parachute votes and disclosures will become effective after April 25, 2011.