Alert May 07, 2013

Quarterly Review

February 5, 2013

Goodwin Procter Alert - HHS Issues Long-Awaited Final HIPAA Omnibus Rule

Goodwin Procter Alert - New NYSE and NASDAQ Listing Standards Approved: Compensation Committee Independence, Compensation Adviser Engagement and Independence

The NYSE Rules will be effective on July 1, 2013, although companies are not required to comply with the NYSE Rules concerning the independence of compensation committee members until the earlier of (i) the first annual meeting held after January 15, 2014 or (ii) October 31, 2014.

The NASDAQ Rules also will be effective on July 1, 2013, although companies are not required to comply with the NASDAQ Rules concerning the independence of compensation committee members, and the requirement that companies have a formal compensation committee and written compensation committee charter, until the earlier of (i) the first annual meeting held after January 15, 2014 or (ii) October 31, 2014. In connection with these changes, NASDAQ-listed companies are required to certify to NASDAQ, no later than 30 days after the final applicable implementation deadline, that they have complied with the new compensation committee composition and charter requirements.

Goodwin Procter Alert - SEC Enforcement Division Signals Likely Increase in Private Equity Enforcement Actions

February 12, 2013

FRB Governor Duke Speaks on the Future of Community Banking

DOL Issues Advisory Opinion Clarifying ERISA Issues With Respect to Cleared Swap Transactions Involving ERISA Plans

SEC Extends Securities Law Exemptions For Security-Based Swaps

The SEC extended the expiration date to February 11, 2014.

FDIC Issues Financial Institution Letter Alerting Banking Institutions to Modifications to the Statement of Policy for Section 19 of the Federal Deposit Insurance Act

February 19, 2013

FDIC Issues Notice of Proposed Rulemaking Regarding Insured Deposits at Foreign Branches of U.S. Banks

FRB Staff Working Paper Discusses Historical Use of U.S. Reserve Requirements to Promote Bank Liquidity

FINRA Requests Comments on Proposed FINRA Rules Governing Markups, Commissions and Fees

February 26, 2013

OCIE Announces 2013 SEC National Examination Program Priorities

SEC Staff Provides Guidance on Incorporation of 3.8% Tax on Net Investment Income Into Standardized Mutual Fund After-Tax Return Calculation

FRB Extends Comment Period to April 30, 2013 on its Proposed Rule to Enhance Prudential Standards for Foreign Banking Organizations and Certain Foreign Nonbank Financial Companies

GAO Issues Report on Financial Crisis Losses and Potential Impacts of the Dodd-Frank Act

Reminder: Swap End-Users Must Obtain LEIs/CICIs by April 10, 2013

March 5, 2013

SEC Exam Review Prompts Risk Alert on Advisers Act Custody Rule Compliance

SEC Staff Grants No-Action Relief to Allow Advisory Agreement Amendment Establishing Unified Fee Structure Without Shareholder Approval

FRB Issues Notice of Proposed Rulemaking Concerning Provision of Financial Services to Systemically Important Financial Market Utilities

FRB Governor Raskin Urges Banks to Take Proactive Role in Dealing with Reputational Risk

Comptroller of the Currency Curry Discusses Enforcement Practice and Philosophy of OCC and States That No Large Bank Is “Too Big to Prosecute”

Goodwin Procter Alert Describes ESMA Remuneration Guidelines Under the Alternative Investment Fund Managers Directive

March 12, 2013

Comptroller of the Currency Curry Testifies on OCC’s Supervision and Enforcement of BSA/AML Compliance and Discusses Future BSA/AML Corporate Governance Compliance Guidance to be Provided by the OCC

OCC Issues Guidance Concerning Process by Which National Banks and Thrifts Sponsoring a Short-Term Investment Fund Must Make Monthly Disclosures to the OCC

Banks managing short-term investment funds must comply with all provisions of the STIF Rule beginning July 1, 2013, with the first monthly reports due August 7, 2013.

IRS Office of Chief Counsel Makes Publicly Available Field Attorney Advice Memorandum Concerning Capitalization of Costs of Holding OREO Property

SEC Requests Information on Standards of Conduct for Broker-Dealers and Advisers When Advising Retail Customers

The submission deadline is July 5, 2013.

March 19, 2013

Goodwin Procter Attorneys to Participate in Financial Markets Association’s Securities and Compliance Seminar

SEC Settles Administrative Proceeding Over Deviation from Valuation Policy Stated in Fund Offering Materials and Investor Reports for Registered Adviser’s Fund of Private Equity Funds

SEC Staff Provides Guidance on SEC Filing Obligations for Social Media Postings Regarding Mutual Funds

OCC Issues Proposed Reporting Requirements for Annual Stress Tests of Covered Financial Institutions with Consolidated Assets of $10 Billion to $50 Billion

Comments on the Proposal are due by May 10, 2013.

March 26, 2013

Goodwin Procter Alert: Massachusetts High Court Rules that ZIP Codes Are Personal Identification Information

Goodwin Procter Alert: Aiding and Abetting Liability of Fund Manager for Use of Unregistered Broker – Recent SEC Enforcement Action

SEC Staff Provides FAQ on Rule 15a-6 and Foreign Broker-Dealers

FinCEN Issues Guidance on the Application of its Money Services Businesses Regulations to Users, Administrators and Exchangers of Virtual Currencies

FDIC, FRB and OCC Jointly Propose Revisions to Interagency Q&As Regarding Community Reinvestment; Comptroller Curry Presents Remarks Concerning Revisions to Q&As

Comments on the Proposal are due by May 17, 2013.

CFTC Issues No-Action Relief from Clearing Requirement for Multilateral Portfolio Compression Exercises and for Stub Swaps

April 2, 2013

Goodwin Procter Alert and April 17 Seminar Provide Updates for Non-European Private Fund Managers on the European Union Alternative Investment Fund Managers Directive

Effective July 22, 2013 (subject to any extensions that may be granted, e.g., the UK proposal discussed in the April 30, 2013 Financial Services Alert), the European Union Alternative Investment Fund Managers (AIFM) Directive will govern the marketing and operation of alternative investment funds within the European Economic Area.

New Goodwin Procter ERISA Litigation Update Available

ISDA Releases Second Dodd-Frank Protocol

FRB, FDIC and OCC Issue Updated Guidance Concerning Leveraged Lending

The compliance deadline for the Interagency Guidance is May 21, 2013.

Federal Agencies Issue Guidance Concerning Revisions to Flood Disaster Protection Act

April 9, 2013

Goodwin Procter Alert - SEC Clarifies Social Media Use and Reg FD Compliance

Goodwin Procter Alert - Using the Web to Match Private Companies and Potential Investors: SEC No-Action Letters Open a Door, but Questions Remain

FDIC Releases Videos Designed to Provide Information to Bank Directors, Officers and Employees Regarding Responsibilities of Bank Directors and Risk Management Examination and Compliance Examination Processes

FRB Adopts Final Rule Defining “Predominantly Engaged in Financial Activities” and “Significant” Nonbank Financial Company and Bank Holding Company under the Dodd-Frank Act

CFTC Exempts Swaps Between Certain Affiliates from Clearing

CFTC Provides Time-Limited No-Action Relief for Commodity Pool Operators of Securitization Vehicles

The relief available to eligible securitization vehicle CPOs continues through June 30, 2013.

SEC Staff Grants No-Action Relief for Blanket Shareholder Approval of Successor Advisory Agreements Resulting from Restructuring by Fund Advisers’ Ultimate Parent

Form 13 Filers Must Use New Online Form Beginning April 29

The implementation date was subsequently postponed until at least May 20, 2013.

April 16, 2013

SEC and CFTC Adopt Rules to Address FCRA Requirements for Identity Theft Programs and Credit Card Changes of Address

The final rules become effective May 20, 2013; compliance is required beginning November 20, 2013.

Federal Court Rules That Failure to Meet Statutory 180-Day Deadline After Wells Notice Does Not Bar Filing of Enforcement Action

FRB Issues Proposed Rule Concerning Annual Assessments on Largest Banking Organizations and on Nonbank Financial Companies Designated for FRB Supervision by FSOC

Comments on the Proposed Rule are due by June 15, 2013.

OCC Deputy Chief Counsel Testifies Before Senate Subcommittee Concerning Retention by Banks of Independent Consultants in Connection with OCC Enforcement Actions

FRB Issues Final Retail Forex Rule

The Final Rule becomes effective on May 13, 2013.

CFTC Extends Reporting Requirement Compliance Date for End-Users

The letter provides extensions to as early as May 29, 2013 and as late as October 31, 2013 depending on the nature of the reporting entity and the nature of the swaps data reporting.

April 23, 2013

IRS Allows Banks to Deduct, Rather Than Capitalize, Costs Associated with Selling Foreclosure Property

SEC Investor Advisory Committee Issues Recommendations Related to Target Date Mutual Funds

FDIC Files Complaint Against Former Senior Officers of Failed Bank Who Allegedly Ignored Both FDIC Lending Regulatory Requirements and Repeated Regulatory Criticisms

April 30, 2013

The EU AIFM Directive for Private Investment Fund Managers – Breakfast Seminars in NYC (May 9) and Boston (May 10)

The EU AIFMD Directive for Private Fund Managers – UK Proposes to Postpone Compliance for Non-EU Managers Until July 22, 2014

Goodwin Procter Alert: Senior SEC Lawyer Remarks Indicate Continued Focus on Private Fund Adviser Activities and Broker-Dealer Registration Issues

Basel Committee Seeks Comments on Proposal to Require Recognition of Cost of Credit Protection

Comments on the proposal outlined in the Consultative Document are due by June 21, 2013.

OCC and FDIC Issue Proposed Guidance and FRB Issues Statement on Deposit Advance Loan Products

Comments on both the OCC’s version of the Proposed Guidance and the FDIC’s version of the Proposed Guidance are due by May 30, 2013.