Financial Services Update______December 13, 2010
Volume 5, No. 45



IN THIS ISSUE

Insights from Winston & Strawn

In the News

Banking Agency Developments

Treasury Department Developments

Joint SEC-CFTC Action

Commodity Futures Trading Commission

Securities and Exchange Commission

Exchanges and Self-Regulatory Organizations

Judicial Developments

Rules Effective Dates

Winston & Strawn Speaking Engagements and Publications


Insights from Winston & Strawn [Top]

A bank regulatory lawyer reflecting on the developments of this past week might perceive two themes: first, the Federal Reserve Board and its new independent bureau, the Bureau of Consumer Financial Protection (BCFP), may be expected to be on the defensive in coming years, and, second, bank regulatory lawyers should not expect a quiet uneventful holiday vacation this year.
As to the need for the Fed and the BCFP to be on the defensive in coming years, consider that incoming House Financial Services Committee Chairman Spencer Bachus (R-AL) has advised that Congressman Ron Paul (R-TX), a long-time critic of the Fed, will serve as Chairman of the House Subcommittee on Domestic Monetary Policy and that Congressman Randy Neugebauer (R-TX), who has warned the nascent BCFP that Congress will exercise particularly close oversight over it, will chair the House Oversight and Investigations Subcommittee. Meanwhile, incoming Chairman Bachus and Congresswoman Judy Biggert (R-IL), who is expected to chair the House Insurance, Housing, and Community Opportunity Subcommittee, have written the Inspectors-General of the Fed and Treasury Department critically asking for a report by early January on numerous aspects of the ongoing organization of the BCFP. Further putting the Fed on the defensive is a December 9 letter from a bipartisan group of 13 U. S. Senators expressing concern with how the Fed will implement the "Durbin Amendment," requiring the Fed to set debit interchange fees, as to which the Fed will release a proposed rule next Thursday, December 16, at 2:30 ET. The Fed is already defending a lawsuit brought by TCF Bank challenging the constitutionality of the rule. While the Fed is not technically subject to the President's two-year freeze on federal salaries, it can be expected to follow the spirit of the freeze. We mention this because it is perhaps the only ray of sunshine brightening the week for the Fed, i.e. a call by current House Financial Services Committee Chairman Barney Frank (D-MA) for an exemption from the President's wage freeze for employees implementing the Dodd-Frank Act.
As to the second theme, the ruination of quiet holiday vacations for bank regulatory lawyers, they should expect to be quite busy over the next few weeks. Apart from usual regulatory developments that occur daily, as mentioned earlier, the Fed will release its controversial proposed debit interchange fee-setting rule next Thursday at 2:30 p.m. ET. In addition, the Basel Committee announced this week that it will release the text of Basel III by December 31. Many have suggested that, as important as the Dodd- Frank Act may be, Basel III may be of even greater significance.
This will be our last issue for this year. Happy holidays.
In the News [Top]
  • Basel Committee Releases Guidance on Counterparty Risk; Requests Comment on Operational Risk.
On December 10th, the Basel Committee on Banking Supervision issued Sound Practices for Backtesting Counterparty Credit Risk Models. The guidance sets out supervisory expectations as well as recommendations to strengthen the backtesting of internal assessments of counterparty credit risk exposures. BIS Press Release on Counterparty Risk. The Basel Committee also published for comment two papers on operational risk. The first, Sound Practices for the Management and Supervision of Operational Risk, updates the Committee's 2003 guidance regarding governance, risk management and disclosure. The second, Operational Risk - Supervisory Guidelines for the Advanced Measurement Approaches, sets forth supervisory guidelines relating to governance, data and modeling. Comments on the operational risk studies should be submitted on or before February 25, 2011. BIS Press Release on Operational Risk.
  • Outsourced Day Trading.
On December 9th, the New York Times reported that American and Canadian trading firms' outsourcing of their day trading activities to China raises legal and regulatory questions. Day Trading.
  • Debit Card Fees.
On December 8th, Reuters reported that the Federal Reserve Board will publish next week, proposed rules limiting the fees banks may charge for debit card transactions. Debit Card Fees.
  • House Committee Holds Hearings on Increasing Offering Limit.
On December 8th, the House Financial Services Committee held hearings on whether the offering limit under SEC Regulation A should be increased. Committee Webpage (with links to prepared remarks).
  • Credit Raters.
On December 7th, Bloomberg reported that the Dodd-Frank Act's provisions concerning credit raters limit the agencies' ability to use the First Amendment to shield themselves from lawsuits, and makes it easier for potential competitors to enter the credit rating market. Credit Raters.
  • Moody's Proposal for Rating Money Market Funds.
On December 7th, CFO.com reported on Moody's request for comment on a proposed new ratings system for money market funds. Critique.
  • Madoff Developments.
On December 6th, Bloomberg summarized the recent activities of the SIPC trustee for Bernard L. Madoff Investments Securities LLC, including a settlement with an alleged feeder fund and the filing of clawback suits. The trustee faces a December 11, 2010 deadline for the filing of lawsuits and has thus far asserted claims for $33 billion, $13 billion more than investors allegedly lost in the Ponzi scheme. Trustee Action. On December 8th, the Boston Globe reported that Carl J. Shapiro, one of Madoff's first investors, will pay $625 million to the trustee and the Justice Department to settle a clawback suit filed against him, his family and philanthropic foundation. Settlement. On December 9th, the New York Times reported that the trustee has sued seven banks who sold derivative products tied to the performance of Madoff's funds and then hedged their exposure by buying shares in those funds. Derivatives Suits.
  • Financial Stability Oversight Council's Broad Proposal.
On December 6th, Reuters reported on the Financial Stability Oversight Council's proposed rules on how to determine whether a financial instruments clearinghouse is systemically important suggest that the FSOC may adopt a far-reaching rule. Systemically Important.
  • The Financier Versus The New York Attorney General.
On December 5th, the Seattle Times reported on the decision of Steven Rattner, a former principal of the Quadrangle Group and "Car Czar," to contest "pay-to-play" charges filed against him by the New York Attorney General. Contest. Rattner has settled related charges brought by the SEC. SEC v. Rattner, Lit.Rel.No. 21748. On December 7th, the New York Times reported the back-story. Back-Story.

Banking Agency Developments [Top]
  • Federal Reserve Board Releases Results of 2010 Payments Study.
On December 8th, the Federal Reserve Board announced that its 2010 study of noncash payments revealed that in 2009 more than three-quarters of all U.S. noncash payments were made electronically, a 9.3 percent annual increase since the Federal Reserve's last study in 2007. Federal Reserve Board Press Release.

Treasury Department Developments [Top]
  • Treasury Department Targets Hizballah Financial Network.
On December 9th, the Treasury Department targeted Hizballah's financial network by designating Hizballah fundraisers Ali Tajideen and Husayn Tajideen. The action also targeted a network of businesses that are owned or controlled by the Tajideen brothers operating in The Gambia, Lebanon, Sierra Leone, the Democratic Republic of Congo, Angola, and the British Virgin Islands. Also designated for providing support to Hizballah was Bilal Mohsen Wehbe, a Hizballah member who serves as Hizballah's chief representative in South America. U.S. persons are prohibited from engaging in any transactions with these individuals, and any assets the designees have under U.S. jurisdiction are frozen. Treasury Department Press Release.
  • Treasury Calls for Large Position Reports.
On December 8th, the Treasury Department called for Large Position Reports from those entities whose reportable positions in the 0-3/4% Treasury Notes of September 2013 equaled or exceeded $2 billion as of close of business Wednesday, December 8, 2010. This call for Large Position Reports is a test. Entities with reportable positions in this note equal to or exceeding the $2 billion threshold must report these positions to the Federal Reserve Bank of New York. Entities with positions in this note below $2 billion are not required to file Large Position Reports. Reports should be submitted to the Government Securities Dealer Statistics Unit of the Federal Reserve Bank of New York before noon Eastern Time on Wednesday, December 15, 2010. Treasury Department Press Release.
  • FinCEN Proposes AML Plan for Non-Bank Mortgage Lenders.
On December 6th, the Financial Crimes Enforcement Network proposed for comment a requirement that non-bank residential mortgage lenders and originators, like other types of financial institutions, establish anti-money laundering programs and comply with suspicious activity report regulations. Comments should be submitted on or before February 7, 2011. FinCEN Press Release.
Joint SEC-CFTC Action [Top]
  • Definition of Swap Related Terms.
On December 7th, the SEC and CFTC, in consultation with the Board of Governors of the Federal Reserve System, requested comment on proposed rules and interpretative guidance under the Commodity Exchange Act and the Securities Exchange Act of 1934 that further define the terms "swap dealer," "security-based swap dealer," "major swap participant," "major security-based swap participant," and "eligible contract participant." Comments should be submitted within 60 days after publication in the Federal Register, which is expected during the week of December 13. SEC Release No. 34-63452. See also SEC Press Release and Fact Sheet.
  • The Feasibility of Requiring Standardized Algorithmic Descriptions for Derivatives.
On December 3rd, the SEC and CFTC, in accordance with the Dodd-Frank Act, requested comment on the feasibility of requiring the derivatives industry to adopt standardized computer-readable algorithmic descriptions that may be used to describe complex and standardized financial derivatives. These algorithmic descriptions should be designed to facilitate computerized analysis of individual derivative contracts and to calculate net exposures to complex derivatives. The Commissions also seek comment on the extent to which the algorithmic description, together with standardized and extensible legal definitions, may serve as the binding legal definition of derivative contracts. The CFTC will accept submissions on behalf of both agencies in response to these questions through December 31, 2010. SEC Release No. 34-63423. See also CFTC Press Release.

Commodity Futures Trading Commission [Top]
Proposed Rules and Requests for Comment
  • Reporting and Recordkeeping Requirements for Swap Dealers and Major Swap Participants.
On December 9th, the CFTC published for comment proposed rules that would set forth reporting and recordkeeping requirements and daily trading records requirements for swap dealers and major swap participants. The proposed rules would establish the regulatory standards for compliance with new sections of the Commodity Exchange Act added by the Dodd-Frank Act. Comments should be submitted on or before February 7, 2011. 75 FR 76666.
  • CFTC Votes to Propose End-User Exemptions.
On December 9th, the CFTC voted to propose for public comment end-user exceptions to mandatory clearing of swaps. It delayed an expected vote on proposed rules concerning swap execution facilities. See Reuters.
  • Swap Data Recordkeeping and Reporting Requirements.
On December 8th, the CFTC published for comment proposed rules for swap data recordkeeping, and reporting requirements for swap data repositories, derivatives clearing organizations, designated contract markets, swap execution facilities, swap dealers, major swap participants, and swap counterparties who are neither swap dealers nor major swap participants (including counterparties who qualify for the end user exception with respect to particular swaps). Comments should be submitted on or before February 7, 2011. 75 FR 76574.
  • Real-Time Public Reporting of Swap Transaction Data.
On December 7th, the CFTC published for comment proposed rules implementing the Dodd-Frank Act's framework for the real-time public reporting of swap transaction and pricing data for all swap transactions. Additionally, the Commission is proposing rules to address the appropriate minimum size and time delay relating to block trades on swaps and large notional swap transactions. Comments should be submitted on or before February 7, 2011. 75 FR 76140.
  • Comment Requested on CME's Application for DCO Registration.
On December 7th, the CFTC requested comment on CME Clearing Europe Limited's application for registration as a derivatives clearing organization. Comments should be submitted on or before January 6, 2011. CFTC Press Release.
  • Whistleblower Provisions.
On December 6th, the CFTC published for comment proposed rules implementing the whistleblower protection provisions of the Dodd-Frank Act. The proposed rules establish a whistleblower program that enables the CFTC to pay an award to eligible whistleblowers who voluntarily provide the CFTC with original information about a violation of the Commodity Exchange Act that leads to the successful enforcement of a covered judicial or administrative action, or a related action. The proposed rules also provide public notice of the Act's prohibition on retaliation by employers against individuals that provide the CFTC with information about potential violations. Comments should be submitted on or before February 4, 2011. 75 FR 75728.
Other Developments
  • Open Meeting.
The CFTC will hold an open meeting on December 16, 2010 to consider whether to propose position limits for physical commodity derivatives; confirmation, portfolio reconciliation and portfolio compression requirements for swap dealers and major swap participants; risk management requirements for derivatives clearing organizations; and core principles and other requirements for swap execution facilities. CFTC Press Release.
  • Commissioner Chilton Addresses the High Frequency World USA 2010 Conference.
On December 8th, CFTC Commissioner Bart Chilton discussed speculative position limits and high frequency trading stating that the CFTC should consider requiring exchanges to review high frequency trading algorithms before their implementation. Chilton Remarks.
  • CFTC Publishes Historical Futures and Options Positions.
On December 6th, the CFTC made available more than four years of history of "Traders in Financial Futures" data in the weekly Commitments of Traders reports. See Commitments of Traders webpage. The reports disclose, on a weekly basis, the futures and options positions in financial futures markets held by the following categories of large traders: Dealer/Intermediary, Asset Manager/Institutional, Leveraged Funds and Other Reportables. CFTC Press Release.
  • Books and Records Exemptive Relief Request Granted.
On November 17th, the Division of Clearing and Intermediary Oversight provided exemptive relief to a registered CPO and CTA from the books and records location requirements of Rules 4.23 and 4.33 such that the CPO/CTA may maintain its books and records at a branch office (also the main business office of an affiliated company) that provides operational support to the CPO/CTA. CFTC Letter No. 10-37.

Securities and Exchange Commission [Top]
  • Open Meeting.
The SEC will hold an open meeting on December 15, 2010, to:
  • Consider whether to propose Rule 3Cg-1 under the Securities Exchange Act to except mandatory clearing of security-based swaps for counterparties meeting certain conditions. The SEC will also consider an exemption for banks, savings associations, farm credit system institutions and credit unions.
  • Consider whether to propose rule and form amendments to establish a process for the submission for review of security-based swaps for mandatory clearing and for the filing of changes to rules, procedures or operations by clearing agencies that are designated financial market utilities. The SEC also will consider whether to propose a new rule to establish a procedure by which the SEC may stay the mandatory clearing requirement. In addition, the SEC will consider whether to propose a new rule concerning the submission to a clearing agency of a security-based swap for clearing.
  • Consider whether to propose rules regarding disclosure and reporting obligations with respect to the use of conflict minerals.
  • Consider whether to propose rules regarding disclosure and reporting obligations with respect to mine safety matters.
  • Consider whether to propose rules regarding disclosure and reporting obligations with respect to payments to governments made by resource extraction issuers.
Open Meeting Notice.
  • SEC Considers Mechanisms to Prevent Extreme Trades.
On December 9th, Reuters reported the SEC is considering whether to require trading algorithms to include a mechanism that would prevent the execution of an extreme order. Algorithms.
  • Chairman Schapiro Testifies before the Senate Securities Subcommittee.
On December 8th, SEC Chairman Mary L. Schapiro testified about U.S. equity market structure. The SEC is examining whether existing market structure rules are adequate given the significant changes in trading technology and practices. The SEC's Office of Compliance, Inspections and Examinations and the Division of Enforcement are conducting regulatory sweeps and developing new approaches. Enforcement staff is currently focusing on whether certain trading practices occur that potentially give rise to federal securities law violations. Such practices include layering or spoofing, improper order cancellation activities or "quote stuffing," the use of order anticipation and momentum ignition strategies undertaken for a manipulative purpose, passive market making practices that incentivize possible manipulative quoting activity, abusive co-location and data latency arbitrage activity in potential violation of Regulation NMS, use of Direct Market Access arrangements to conceal manipulative trading activity and conduit entity market manipulation. Schapiro Testimony.
  • Chairman Schapiro Addresses AICPA Annual Conference.
On December 6th, SEC Chairman Mary L. Schapiro discussed the important role of accountants. She noted that the SEC may expand its current rules mandating annual surprise examinations of client accounts held by investment advisers to include examinations of client accounts held by broker-dealers. New rules may also require auditor attestation concerning broker-dealer internal controls and compliance procedures, and PCAOB oversight of broker-dealer audits. Schapiro Remarks.
  • Fee Rate Advisory.
On December 3rd, the SEC announced that because the federal government will be funded under a continuing resolution at least through December 18, 2010, fees paid under Section 6(b) of the Securities Act of 1933 and Sections 13(e), 14(g) and 31 of the Securities Exchange Act of 1934 will remain at their current rates. Fee Rate Advisory.

Exchanges and Self-Regulatory Organizations [Top]
  • SEC Extends Circuit Breakers.
On December 9th, the SEC granted immediate effectiveness to the proposed four month extension of its circuit breaker and clearly erroneous trades pilot programs aimed at preventing severe market disruptions like those experienced during the May 6 "flash crash." Comments on the extension should be submitted within 21 days after publication in the Federal Register, which is expected during the week of December 13. See, e.g., SEC Release No. 34-63497 (BATS Exchange circuit breaker proposal); SEC Release No. 34-63488 (BATS Exchange clearly erroneous proposal).
  • Exchanges Propose Amendments to $1 Strike Price Programs.
On December 8th, the SEC provided notice of NYSE Arca's and NYSE Amex's filing of individually proposed amendments to their respective rules to improve the operation of their $1 Strike Price Programs. Currently, each exchange's $1 Strike Price Program only allows the listing of new $1 strikes within $5 of the previous day's closing price. In certain circumstances this has led to situations where there are no at-the-money $1 strikes for a day, despite significant demand. The exchanges propose that $1 interval strike prices be allowed to be added immediately within $5 of the official opening price in the primary listing market. Thus, on any day, $1 Strike Program strikes may be added within $5 of either the opening price or the previous day's closing price. Comments should be submitted within 21 days after publication in the Federal Register, which is expected during the week of December 13.
  • Stub Quotes.
On December 5th, Bloomberg reported on the new market maker rules banning stub quotes, which are effective December 6, 2010. Stub Quotes.
The Depository Trust Company
  • DTC Extends End-Of-Day Cutoff Time for Processing to the Federal Reserve.
On December 2nd, the SEC granted immediate effectiveness to The Depository Trust Company's proposed changes to its end-of-day settlement processing system, which controls and coordinates the settlement of Participant accounts and Settling Bank accounts on DTC's system. The Federal Reserve has requested that DTC make revisions to its settlement schedule relating to the timing for Participants to pledge collateral to a Federal Reserve Bank. Additionally, the Federal Reserve requested that DTC consolidate the pledge reasons used for discount window and daylight overdraft payment system risk purposes. Comments should be submitted on or before December 29, 2010. SEC Release No. 34-63415.
NASDAQ OMX BX
  • SEC to Review Proposed BX Venture Market.
On December 7th, the SEC provided notice that it is instituting proceedings to determine whether to disapprove NASDAQ OMX BX's proposed new listing market, the "BX Venture Market." The Exchange has stated that it expects that the securities listed on BX would not be classified as national market system securities. As a result, BX-listed securities would not be subject to an NMS plan and would not be subject to Regulation NMS. BX-listed securities would trade on the Exchange and also could trade over-the-counter. BX-listed securities would be considered penny stocks unless they qualify for an exemption. No "blue sky" exemption would be available, so companies would be required to satisfy state law registration requirements and other state laws that regulate the sale and offering of securities. BX would not list any company that meets the quantitative (e.g., financial) requirements for listing on The NASDAQ Stock Market. Comments should be submitted on or before January 24, 2011. SEC Release No. 34-63448.
  • Amendment to Price Improvement Plan Proposed.
On December 2nd, the SEC provided notice of NASDAQ OMX BX's proposed amendment to Chapter V, Section 18 (The Price Improvement Period) of the Rules of the Boston Options Exchange Group, LLC to permit an Options Participant initiating a PIP to designate a PIP Surrender Quantity. Comments should be submitted on or before December 29, 2010. SEC Release No. 34-63416.
National Futures Association
  • Assessment Fees.
On December 9th the National Futures Association announced that effective January 1, 2011, NFA's Futures Commission Merchant assessment fee will increase from $0.01 per side to $0.02 per side. In addition, the Forex Dealer Member assessment fee will increase from $0.01 per $10,000 of notional value to $0.02. NFA Notice I-10-20.
New York Stock Exchange
  • Bonds Liquidity Providers Proposed.
On December 6th, the SEC provided notice of the New York Stock Exchange's proposal to establish a twelve-month pilot program to create a bond trading license for member organizations that desire to trade only debt securities on the Exchange and establish a new class of NYSE market participants, "Bonds Liquidity Providers." Comments should be submitted on or before January 3, 2011. SEC Release No. 34-63444.
NYSE Arca
  • Q Order Amendments are Immediately Effective.
On December 6th, the SEC granted immediate effectiveness to NYSE Arca's proposed amendment of Rules 7.31(k) and 7.23(a)(1) to modify certain characteristics of the Q Order and clarify the interest eligible for satisfaction of a market maker's two-sided obligation. Comments should be submitted on or before January 3, 2011. SEC Release No. 34-63440.

Judicial Developments [Top]
  • Ninth Circuit Reverses CFO's Accounting Fraud Conviction.
On December 10th, the Ninth Circuit reversed the conviction of Prabhat Goyal, the CFO of Network Associates, Inc., formerly known as McAfee, on securities fraud and making false statement charges arising from an alleged accounting fraud. The Court held that that the prosecution offered no evidence adequate to prove that any GAAP violations materially affected the revenue that NAI reported; failed to prove that NAI violated GAAP; and failed to prove Goyal's knowledge of a GAAP violation. In a stinging concurrence, Chief Judge Kozinski criticized Goyal's prosecution as a stretch beyond proper bounds and urged the government to proceed more cautiously in the future. U.S. v. Goyal.
  • Supreme Court Hears Oral Argument on Regulation Z.
On December 8th, the U.S. Supreme Court heard oral argument on the applicability of the Truth in Lending Act's change in terms notice requirement when a creditor increases a credit card's interest rate in response to a cardholder default pursuant to a default rate term disclosed in the card agreement. Chase Bank USA, N.A. v. McCoy.
  • PayPal's Debt Collector Subject to the FDCPA.
On December 7th, the Eleventh Circuit addressed whether a debt collection agency retained by on-line payment processor PayPal was subject to the Fair Debt Collection Practices Act. Plaintiff sold his laptop on Craigslist, directing the buyer to pay via PayPal. The funds, however, were fraudulent and PayPal's collection agency sought to recover the money from plaintiff. Plaintiff alleges the agency's collection methods violated the FDCPA and state consumer protection laws. Agreeing, the Court held that plaintiff was a consumer of PayPal's services, whose payment obligation arose from a transaction, and that the transaction was personal in nature. Oppenheim v. I.C. System, Inc.
  • Supreme Court Hears Oral Argument in Mutual Fund Case.
On December 7th, the Supreme Court heard oral argument on whether an investment adviser for a group of mutual funds can be held primarily liable for securities fraud for having made misleading statements in fund prospectuses even though the prospectuses were issued in the names of the funds and the misleading statements were not expressly attributed to the adviser. Janus Capital Group, Inc. v. First Derivative Traders.
  • Subpoenas Issued to Law Firms are Enforceable.
On December 7th, the Ninth Circuit held that subpoenas seeking non-privileged documents from law firms as part of a grand jury investigation of the firms' clients are enforceable. The firms obtained the documents through discovery in a civil antitrust suit. No collusion between the civil suitors and the government has been suggested and the trial court determined that the government has not engaged in any bad faith tactics. In re Grand Jury Subpoenas.
Rules Effective Dates [Top]
  • Risk Management Controls for Brokers and Dealers with Market Access - Effective January 14, 2011.
The Securities and Exchange Commission is adopting new Rule 15c3-5 under the Securities Exchange Act of 1934. Rule 15c3-5 will require brokers and dealers with access to trading securities directly on an exchange or alternative trading system ("ATS"), including those providing sponsored or direct market access to customers or other persons, and broker-dealer operators of an ATS that provide access to trading securities directly on their ATS to a person other than a broker or dealer, to establish, document, and maintain a system of risk management controls and supervisory procedures that, among other things, are reasonably designed to (1) systematically limit the financial exposure of the broker or dealer that could arise as a result of market access, and (2) ensure compliance with all regulatory requirements that are applicable in connection with market access. 75 FR 69791.
Winston & Strawn Speaking Engagements and Publications [Top]
  • Winston & Strawn Sponsors Northwestern's 2011 Kellogg Private Equity and Venture Capital Conference.
Winston & Strawn will sponsor Northwestern's 2011 Kellogg Private Equity and Venture Capital Conference to be held February 9 in Chicago. Event.

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