Goodwin Procter’s Capital Markets practice has issued a Client Alert on the SEC’s proposed rule that would require most public companies to provide proxy statement disclosure regarding the relationship between their executive compensation and total shareholder return for the last five completed years. Overall, the disclosure that would be required by the proposed rules is unlikely to substantively improve the quality of information available to investors in assessing the relationship between executive compensation and company performance and, in some cases, may obscure this relationship. However, because the Dodd-Frank Act requires the SEC to adopt these rules, public companies will need to understand how the final rules will impact their overall disclosure once they are adopted. Although the timing is uncertain, the SEC could adopt final rules prior to the 2016 proxy season.
On June 22 the federal banking agencies announced that they had approved a joint final rule modifying regulations that apply to loans secured by properties located in special flood hazard areas. The rule implements provisions of the Homeowner Flood Insurance Affordability Act of 2014 concerning escrowing of flood insurance payments. The rule also implements provisions in the Biggert-Waters Flood Insurance Reform Act of 2012 regarding force-placed flood insurance. The rule requires regulated lending institutions to escrow flood insurance premiums and fees for loans secured by residential improved real estate or mobile homes that are made on or after January 1, 2016. The rule contains exemptions for: (1) loans that are in a subordinate position to a senior lien secured by the same property for which flood insurance is being provided; (2) loans secured by residential improved real estate or a mobile home that is part of a condominium, cooperative, or other project development, provided certain conditions are met; (3) loans that are extensions of credit primarily for a business, commercial, or agricultural purpose; (4) home equity lines of credit; (5) nonperforming loans; and (6) loans with terms not longer than 12 months. The rule also includes an exemption for a structure that is a part of a residential property if that structure is detached from the primary residence and does not also serve as a residence. The rule has a small institution exemption for certain regulated lending institutions if they have total assets of less than $1 billion. The rule provides new and revised sample notice forms and clauses. Finally, the rule provides that regulated lending institutions have the authority to charge a borrower for the cost of force-placed flood insurance coverage beginning on the date on which the borrower's coverage lapses or becomes insufficient and stipulates the circumstances under which a lender must terminate force-placed flood insurance coverage and refund payments to a borrower.
The SEC’s Office of Compliance Inspections and Examinations (OCIE) announced in a National Exam Program Alert dated June 22 that NEP staff intends to focus on certain registered investment advisers and broker-dealers that provide services or sell investment products to retail investors. Examination focus areas will include whether the adviser or broker has a reasonable basis for its recommendations, conflicts of interest, supervision and compliance controls, marketing and disclosure.
In an Information Notice dated June 19, FINRA noted that within the past two weeks, several member firms had informed FINRA that they have been subject to distributed denial of services (DDoS) attacks originated by a cyber-criminal group known as DD4BC. According to FINRA, a successful DDoS attack renders a website or network unavailable for its intended users by overwhelming the site with incoming messages. It appears that DD4BC has been targeting financial services and broker-dealer firms that have an online presence. In these incidents, DD4BC first sends the firm an email announcing that the firm will be a target for a DDoS attack, but that the firm can avoid the attack by paying a ransom in Bitcoin. DD4BC conducts a short “demonstration” attack, typically lasting about one hour, with the threat of further attacks if the ransom is not paid. DD4BC requests payment within 24 hours to prevent further attacks. The Information Notice provides advice about responding to such communications or attacks, and refers to the Report on Cybersecurity Practices, issued on February 3, 2015, in which it highlights effective practices for cybersecurity programs.
Enforcement and Litigation
On June 17, the SEC announced that it had entered an order instituting proceedings and imposing a cease-and-desist order in settlement of an enforcement action against Sand Hill Exchange (Sand Hill) and two individuals for offering security-based swaps to retail investors without filing a registration statement for the offering or registering Sand Hill as a national securities exchange. Sand Hill began as an online business involving the valuation of private startup companies along the lines of a fantasy sports league. According to the SEC, Sand Hill changed its business model, inviting web users to use real money (dollars or Bitcoin) to buy and sell contracts referencing pre-IPO companies and their value. The SEC found that these contracts were securities-based swaps. In addition to the cease-and-desist order, the respondents agreed to pay a $20,000 penalty. The SEC announcement includes a link to an investor alert entitled Beware of Fantasy Stock Trading Websites that contains useful information not only for investors but for companies considering offering similar online products. Goodwin Procter represented Sand Hill and the individual respondents in the SEC enforcement action. In the Matter of Sand Hill Exchange et al., File No. 3-16598 (6/17/15).
On June 17 the SEC announced a consent order (“Order”) instituting administrative and cease-and-desist proceedings against an investment adviser and affiliated administrator, as well as the independent and interested members of the board of an investment company managed by the investment adviser. The Order relates both to that investment company (Fund One) and a second investment company (Fund Two) overseen by a different board. Only the members of the board of Fund One were involved in the Order. The SEC (1) sanctioned the investment adviser for violations of Section 15(c) of the Investment Company Act of 1940 for providing incomplete information to Fund One’s board in connection with the board’s initial approval of advisory agreements for a new fund and for providing incomplete and inaccurate information to Fund Two’s board in connection with the annual approval of the continuation of advisory agreements for existing funds, (2) sanctioned the members of Fund One’s board (including both its independent and interested members) for violations of Section 15(c) for failing to follow up on the incomplete information before approving Fund One’s advisory agreements and (3) sanctioned the Administrator for omitting from Fund Two’s shareholder report a discussion of the board’s 15(c) process, as required by Item 27(d)(i) of Form N-1A. In addition to the cease-and-desist orders, the SEC required the board members each to pay a civil penalty of $3,250 and the adviser, the administrator and their owner jointly and severally to pay a civil penalty of $50,000. In the Matter of Commonwealth Capital Management, LLC, et al., File No. 3-16599 (6/17/15).
On June 22, FINRA announced that it had entered into a Letter of Acceptance, Waiver and Consent (AWC) with Morgan Stanley Smith Barney, LLC (Morgan Stanley), imposing a fine of $650,000 and an AWC with Scottrade, Inc., imposing a fine of $300,000. FINRA found that the firms had failed to implement reasonable supervisory systems to monitor the transmittal of customer funds to third-party accounts. Both firms had previously been cited for weak supervisory systems by FINRA examination teams but, according to FINRA, neither took the necessary steps to correct the supervisory gaps. In the case of Morgan Stanley, FINRA found that from October 2008 to June 2013, three registered representatives in two different branch offices converted a total of $494,400 from 13 customers by creating fraudulent wire transfer orders and branch checks from the customer's accounts to third-party accounts.
On June 18, the SEC issued a press release announcing enforcement actions against 36 municipal underwriting firms which from 2010 through 2014 violated federal securities laws by selling municipal bonds using offering documents that contained materially false statements or omissions about the bond issuers’ compliance with continuing disclosure obligations. The firms also allegedly failed to conduct adequate due diligence to identify the misstatements and omissions before offering and selling the bonds to their customers. The cases are the first brought against underwriters under the Municipalities Continuing Disclosure Cooperation Initiative, a voluntary self-reporting program targeting material misstatements and omissions in municipal bond offering documents. The SEC entered separate orders for each firm, linked in the press release. The firms agreed to cease and desist from violations of the applicable federal securities laws in the future and to pay civil penalties that aggregated to approximately $9 million. Each firm also agreed to retain an independent consultant to review its policies and procedures on due diligence for municipal securities underwriting.