Financial Services Alert - November 6, 2012 November 06, 2012
In This Issue

FDIC Issues Guidance Regarding the Scheduled December 31, 2012 Expiration of Temporary Unlimited FDIC Insurance Coverage for Noninterest-Bearing Transaction Accounts

Section 343 of the Dodd-Frank Act established the Transaction Account Guarantee (“TAG”) program that provides separate, unlimited FDIC insurance coverage for noninterest-bearing transaction accounts until December 31, 2012.  Unless Congress acts to extend the TAG program, such unlimited FDIC deposit insurance coverage of noninterest-bearing transaction accounts will expire on January 1, 2013, and such accounts will be insured up to the standard maximum deposit insurance amount of $250,000 for each deposit ownership category.  Although community banks have advocated for an extension of the TAG program, the FDIC issued a Financial Institution Letter, FIL-45-2012, (the “FIL”) to provide guidance to institutions in the event the TAG program expires as scheduled.

Although the Dodd-Frank Act imposes no specific notice requirement for institutions in connection with the expiration of the TAG program, in the FIL the FDIC encourages institutions, “as a matter of prudent commercial practice,” to notify their affected depositors about the pending expiration and the impact that expiration will have on the institution’s deposit insurance coverage.  The FIL provides that institutions may use any reasonable method of providing reminders to depositors, such as individual written notices to each [noninterest-bearing transaction account] depositor or notices on regular account statements and includes model language for either a separate notice to depositors or a notice to be included on regular account statements. 

The FIL further provides that institutions must remove the required notices of the TAG program coverage from their main offices, branches, and Web sites, and should remove any other notices that they may have made available to customers, no later than January 2, 2013.  Additionally, the FIL requires institutions to review all of their account agreements and disclosure statements used in connection with noninterest-bearing transaction accounts to ensure that these documents accurately reflect FDIC insurance coverage for these accounts as of January 1, 2013. The FIL states that such review and necessary adjustments to account documentation should be completed promptly upon expiration of the TAG program.

The FDIC notes in the FIL that in accordance with applicable state law, sufficient collateral should be set aside to secure accounts of government depositors to the extent those accounts exceed $250,000 after December 31, 2012.  Moreover, the FIL sets forth changes to call reports pertaining to noninterest-bearing transaction accounts effective for the March 31, 2013 call reports.

Finally, the FDIC states that it will provide additional guidance to institutions should Congress extend the TAG program or otherwise modify the deposit insurance coverage for noninterest-bearing transaction accounts. 

SEC Preparing Filing Deadline Relief for Those Affected by Hurricane Sandy

The SEC announced that in response to Hurricane Sandy and its aftermath the SEC staff is preparing relief measures that are expected to include extensions of filing deadlines for any filing due during the period from October 29, 2012 to November 20, 2012 for publicly traded companies, investment companies, investment advisers, other persons with filing obligations, accountants, brokerage firms, and transfer agents, among others.  The announcement stated that “[i]t is anticipated that the deadline for any such filing would be extended to November 21, 2012, and the scope of the relief measures would extend to any individual and entity with a filing obligation that cannot file timely due to Hurricane Sandy and its aftermath. The staff will also consider requests for additional relief on a case-by-case basis.”

Financial Services Quarterly

August 14, 2012

SEC Commences Administrative Proceedings Over Adviser’s Alleged Recordkeeping and Form ADV Shortcomings and Failure to Respond to Information Requests from Board of Registered Fund Client

Standard Chartered Bank Settles Enforcement Action Brought by NY Department of Financial Services for $340 million; Regulatory Order Alleged Bank’s New York Branch Hid from Regulators $250 billion in Iranian Transactions
FRB, FDIC and OCC Extend Comment Period on Regulatory Capital Proposals
FRB Issues Final Rule Concerning Financial Market Utilities Risk Management Standards (Regulation HH)
SEC Issues Report on Municipal Securities Market
CFTC/SEC Product Definition Rules Published in Federal Register to be Effective on October 12, 2012
See Key Dates for Certain CFTC Regulations Affected by the Joint CFTC-SEC Product Definition Rules.
SEC to Host Market Technology Roundtable and Consider Rule Addressing Capacity and Reliability of Exchange Systems

August 21, 2012

Goodwin Procter Issues Client Alert Regarding New Iran Sanctions

The new SEC sanctions-related activities disclosure requirements take effect for any quarterly or annual report filed after February 6, 2013.
CFTC and SEC Publish Final Definitions of “Swap” and “Security-Based Swap”
OFAC Holds U.S. Investment Manager Accountable for Actions of Foreign Subsidiary and Agent
CFTC Provides Guidance to CPOs and CTAs
CFTC Proposes Clearing Exemption for Swaps Between Certain Affiliates
CFTC Grants Temporary No-Action Relief to Persons Eligible for the Trade Option Exemption
FinCEN Issues Ruling Concerning AML Compliance Obligations of Loan or Finance Company Subsidiaries of Banks and Other Financial Institutions

August 28, 2012

SEC Chair: Money Market Fund Reforms Will Not be Proposed for SEC Approval

OCC, FDIC and FRB Announce They are Considering a Delay in Implementation Timeline for Stress Testing by Covered Financial Institutions with Assets Between $10 Billion and $50 Billion
Federal Reserve Bank of Boston Issues Report on Risks Associated With, and Current Regulatory Enforcement of, Mobile Payments
OCC Issues Handbook Booklet on Banks’ Management of Unique and Hard-to-Value Assets

September 4, 2012

SEC Proposes Rule Changes to Implement JOBS Act Mandate to Remove General Solicitation Prohibition for Rule 506 and Rule 144A Offerings

SEC Staff Issues Answers to Frequently Asked Questions on Effect of JOBS Act On Activities by Research Analysts
SEC Staff Risk Alert on Pay-to-Play Prohibitions under MSRB Rules Includes Observations on Overall Pay-to-Play Compliance Measures
Federal Banking Agencies Publish Proposed Revised Regulatory Capital Rules and Final Market Risk Capital Rules in Federal Register
Goodwin Procter Alerts: Final Rules on Conflict Minerals Disclosures and Payment Disclosure by Resource Extraction Issuers
Issuers must comply with the new conflict minerals disclosure requirements for the calendar year beginning January 1, 2013, with the first reports due May 31, 2014. Resource extraction issuers must comply with the new payment disclosure requirements for fiscal years ending after September 30, 2013.
UK Financial Services Authority Issues Consultation on the Restriction of the Promotion of Unregulated Collective Investment Schemes to Retail Investors
NFA Proposes Registration Requirement for “Swaps Firms”
CFTC Approves Final Rule Imposing Standards for Swap Dealers and Major Swap Participants
The compliance schedule for the final rules, whose earliest date is November 13, 2012, is provided in the adopting release published in the Federal Register.

September 11, 2012

Mutual Funds Should Consider Accelerating Filings in Advance of Substantial Increase in SEC Registration Fee Rate

FRB Approves Bank Holding Company Acquisition in Which, For the First Time Since 2007, the FRB Counts a Credit Union’s Deposits in Analyzing the Competitive Impact of the Acquisition
No-Action Relief under Advisers Act Custody Rule for 529 Plan Program Managers
SEC Issues Study Regarding Retail Investor Financial Literacy

September 18, 2012

Government Accountability Office Issues Report Assessing Financial Stability Oversight Council

SEC Settles Administrative Proceeding Against Affiliated Advisers and Their Owner Related to Alleged Undisclosed Revenue Sharing Arrangements
FINRA Announces Effective Date of Rule 5123 Regarding Member Participation in Private Placements of Securities
The effective date for new FINRA Rule 5123 is December 3, 2012.
SEC Submits Credit Rating Standardization Study to Congress
FDIC Issues Guidance on Credit Risk Management for Purchased Loan Participations
CFTC Issues FAQ on Timing of Swap Dealer Registration

September 25, 2012

Basel III Implications for Residential Mortgage Lending

Federal Banking Agencies Release a Regulatory Capital Estimation Tool to Assist in Assessing the Potential Effects of the Proposed Basel III Capital Rules
Mutual Fund Directors Forum Issues Guidance on Proxy Voting Oversight
FinCEN Issues Administrative Ruling Regarding Participation of Associations of Financed Institutions in Section 314(b) Program
SEC Further Extends Temporary Registration Program for Municipal Advisors

October 2, 2012

Variable Annuity Holder Allowed to Assert Section 36(b) Excessive Fee Claims Against Investment Adviser of Underlying Mutual Funds

OCC Issues Guidance on How Banks May Use SBICs to Expand Their Small-Business Finance Activities
Federal Banking Agencies, FCA and FHFA Reopen Comment Period on Proposed Swap Margin and Capital Requirements
Comment period is open until November 26, 2012.
Federal Court Vacates and Remands CFTC Position Limits Rule
FDIC Issues New Classification System for Citing Consumer Compliance Violations

October 9, 2012

CFTC Chairman Suggests Timeline for Future Dodd-Frank Regulations

CFTC Issues Guidance to FCMs on Omnibus Accounts
FINRA Proposes Amendments to Research Analyst Rules to Conform with Requirements of the JOBS Act
Comments are due November 7, 2012.
OCC Issues Bulletin Summarizing Changes in How Bank Secrecy Act/Anti-Money Laundering Compliance Examination Findings are Reflected in OCC’s Rating and Assessment Systems
As Required by Section 1103 of the Dodd-Frank Act, the FRB Makes Discount Window Transaction Data (With a Two-Year Time Lag) Publicly Available

October 16, 2012

CFTC Issues Range of Swaps-Related Interpretive Guidance and No-Action Relief

CFTC Issues Interpretive Guidance Concluding That Some Securitization Vehicles Are Not Commodity Pools
CFTC Provides Temporary No-Action Relief from Registration Requirements Arising from Swaps
CFTC Issues No-Action Letter Temporarily Allowing Exclusion of Swaps of Exempt or Agricultural Commodities from Swap Dealer De Minimis Threshold Calculations
FDIC Approves Final Rule Regarding Large Bank Stress Tests; OCC, FRB Issue Consistent and Similar Rules
FDIC Issues Final Rule to Implement Authority to Preserve Affiliate Contracts as Receiver of Systemically Important Financial Institutions
The Final Rule is effective November 15, 2012.
SEC Issues Report on Broker-Dealer Insider Trading Prevention Practices
SEC Examination Staff Announces “Presence Exam” Strategy For Newly Registered Private Fund Advisers
SEC Proposes to Extend Sunset of Temporary Rule Regarding Certain Principal Transactions for Advisers Until December 31, 2014
Reminder: European Short Selling Regulation Effective November 1 Applies to US Persons
Goodwin Procter Alert: Department of Justice’s Hart-Scott-Rodino Fine for Biglari May Signal Increased Enforcement Effort
Goodwin Procter Alert: Filing Deadline Approaches for Exemption from California Investment Adviser Registration

October 23, 2012

OCC Issues Guidance Regarding Community Bank Stress Tests

FRB Approves First SLHC Deregistration Request Based on Section 604(i) of Dodd-Frank
SEC Proposes Capital, Margin, and Segregation Rules for Security-Based Swap Dealers and Major Security-Based Swap Participants
SEC Staff Issues Legal Bulletin on Shareholder Proposals
Goodwin Procter Alert: NYSE and NASDAQ Submit Proposed Listing Standards on Compensation Committee Independence and Compensation Adviser Engagement/Independence
Goodwin Procter Alert: New Iran Sanctions Law Closes Foreign Subsidiary Loophole
New ERISA Litigation Update Available
U.K. Development of Note - Tax and Chancery Chamber Upholds FSA Sanctioning of Swiss Fund Manager and Brokers for Marking the Close