On September 27, the Internal Revenue Service (IRS) and Treasury Department released proposed regulations under Section 851 of the Internal Revenue Code (the Code) that, if finalized, would prospectively invalidate dozens of private letter rulings treating subpart F and PFIC inclusions as RIC qualifying income without regard to whether the offshore corporation makes a distribution to the RIC out of its earnings and profits (e&p) attributable to such inclusions during the taxable year. The regulations, if finalized, would clarify that subpart F and passive foreign investment company (PFIC) inclusions are neither “dividends” nor other qualifying income for RICs in the absence of such a distribution. The preamble to the proposed regulations, along with a companion Revenue Procedure 2016-50, also formalize the IRS's current "no rule" policy regarding all RIC qualification issues arising from a RIC’s investment in certain financial instruments. RICs, and certain other taxpayers (including, for example, publicly traded partnerships, “PTPs”) using blocker structures or otherwise investing in controlled foreign corporations (CFCs) or PFICs that do not currently satisfy the distribution requirement in the proposed regulations should consider implementing a distribution policy for any such CFCs or PFICs. RICs and other taxpayers relying on the treatment of a financial instrument or position as a 1940 Act security should consider revisiting their analysis of such instruments and positions in light of the IRS’s statements in support of its broad no rule policy.
FINRA recently made public a targeted examination letter announcing its inquiry into unit investment trust (UIT) rollovers. A UIT is a type of investment company registered under the 1940 Act that generally has minimal management and uses a “buy and hold” strategy over a fixed period of time. At the end of its term, the UIT’s sponsor may offer investors the option to roll over their interests to a new UIT. FINRA appears particularly interested in Early Rollovers, which it defines as the sale of a UIT 100 days or more prior to the portfolio ending date: the targeted examination letter requests disclosure of the top 25 registered representatives generating the highest Early Rollover revenue and having the highest number of Early Rollovers. Though FINRA conducts its investigations on a non-public basis, this is the latest in a series of targeted form examination letters that it has made public.
The International Securities Exchange (the Exchange) recently proposed two new rules in a filing to the SEC in an effort to “prohibit disruptive quoting and trading activity,” such as layering and spoofing, on the Exchange. Rule 1616 would allow the Exchange to “initiate an expedited suspension proceeding” without waiting an extended period for investigation and enforcement proceedings to play out. The Rule 1616 hearing would be based on alleged violations of proposed Rule 403, which would “more specifically define and prohibit disruptive quoting and trading activity on the Exchange.” Rule 1616 would allow the Exchange to instantly block a Member from continuing its disruptive trading and quoting behavior on the Exchange, as well as requiring a Member to stop providing access to the Exchange to a client of the Member who is taking part in disruptive activities. Rule 1616 provides for an expedited hearing and would allow the hearing panel to keep the cease and desist aspect of the order effective while an appeal by the Member is pending. Rule 403 would prohibit activities that are commonly called layering and spoofing, but would provide more detail, and thus more guidance, about the disruptive quoting and trading activities that fall within the prohibition. Rule 403 would also apply to Members acting in concert to disrupt the market, and would eliminate an intent requirement for this kind of disruptive behavior. Rule 403 would apply to trading in options as well as equity securities. Comments on the proposal are due 21 days after publication in the Federal Register.
On September 23, the Federal Reserve Board (the Board) solicited public comments on a proposed rule to strengthen requirements on financial holding companies’ physical commodity activities (such as extraction, storage and transportation of commodities). The proposal aims to reduce the environmental, legal, reputational and financial risks that such physical commodity activities pose to financial holding companies. The proposed rule would: (1) require firms to hold additional capital in connection with activities involving commodities for which existing laws would impose liability if the commodity were released into the environment; (2) tighten the quantitative limit on the amount of physical commodity trading activity firms may conduct; (3) rescind authorizations that allow firms to engage in physical commodity activities involving power plants; (4) remove copper from the list of precious metals that all bank holding companies are permitted to own and store; and (5) establish new public reporting requirements on the nature and extent of firms' physical commodity holdings and activities. Currently only a limited number of financial holding companies supervised by the Board engage in physical commodity activities and investments. Comments are due on December 22, 2016.
On September 20, the U.S. District Court for the District of Columbia issued a stay on the Financial Crimes Enforcement Network’s (FinCEN) final rule against Tanzania-based FBME Bank Ltd. (FBME). As reported in the March 30 edition of the Roundup, in the final rule, FinCEN had used its authority under Section 311 of the USA PATRIOT Act to prohibit U.S. financial institutions from opening or maintaining a correspondent account for, or on behalf of, FBME. Without vacating the final rule, the Court remanded the final rule to FinCEN but stayed its implementation in order to avoid potentially irreparable harm to FBME. The stay will remain in place until FinCEN “furnishes adequate responses to FBME’s significant comments” regarding the final rule.
In conjunction with its issuance in April 2016 of a new regulation redefining the concept of “investment advice” for purposes of fiduciary status under ERISA and Section 4975 of the Code, the Department of Labor amended a number of existing prohibited transaction class exemptions that are frequently used by financial services companies in conducting certain aspects of their business. In particular, the amended exemptions include Prohibited Transaction Exemption (PTE) 86-128 relating to agency transactions involving an affiliated broker-dealer, PTE 77-4 relating to investments in affiliated mutual funds, Parts III and IV of PTE 75-1 relating to certain underwritten offerings and market-making transactions, PTE 84-24 relating to certain purchases of insurance or annuity contracts or mutual fund shares, PTE 80-83 relating to the use of proceeds of a securities issuance to repay indebtedness to a fiduciary or its affiliate and PTE 83-1 relating to certain sales of certificates of interest in a mortgage pool. Like the investment advice regulation, these amendments have an “applicability date” of April 10, 2017. For more information, view the client alert from Goodwin’s Financial Industry and ERISA & Executive Compensation practices.
Enforcement & Litigation
On September 23, the Consumer Financial Protection Bureau (CFPB) announced that it filed suit against a credit repair company in the U.S. District Court for the Central District of California, for alleged violations of the Consumer Financial Protection Act (CFPA), and the Telemarketing and Consumer Fraud and Abuse Prevention Act and its implementing regulation, the Telemarketing Sales Rule. According to the complaint, the company operated an “ongoing, unlawful credit repair business” that charged consumers unlawful advance fees and misrepresented the costs and benefits of its services. For more information, view the Enforcement Watch blog post.
On September 22, the Federal Trade Commission (FTC) announced that the U.S. District Court for the Central District of California issued a permanent injunction prohibiting five defendants involved in mortgage relief scams from mortgage loan modification and debt relief business. The FTC brought a lawsuit against the five defendants in July 2014, following a joint federal-state enforcement effort known as “Operation Mis-Modification.” The FTC alleged that the defendants falsely claimed that they could lower consumers’ mortgage payments and interest rates or prevent foreclosure. Defendants also falsely claimed to be affiliated with government agencies or the consumers’ existing lenders or servicers. The FTC also alleged that they charged illegal advance fees. For more information, view the Enforcement Watch blog post.
On September 21, the Department of Justice (DOJ) announced that the U.S. District Court for the Eastern District of Texas entered a stipulated order for a permanent injunction and civil penalty judgment against the vice president of a debt collector. Following an investigation of the debt collector by the Federal Trade Commission, on January 21, 2015, the United States filed a complaint against the debt collector, its president, and its former vice president, alleging that collectors called consumers claiming to be attorneys or judicial employees. For more information, view the Enforcement Watch blog post.
Goodwin’s Digital Currency + Blockchain Technology practice will host a breakfast program featuring Fintech thought leader Chris Skinner, author of the newly released book, ValueWeb, on October 4 in New York. The program will look at the ways in which Fintech firms are building the Internet of Value using a combination of technologies from mobile devices to the blockchain and bitcoin, to allow machines to trade with machines and people with people, anywhere on the planet in real-time and free of charge. Chris will also discuss what that means for financial institutions, governments and their citizens. Co-Chair of the practice, Grant Fondo, will give opening remarks. Click here to register for the event.
The American Lawyer awarded Goodwin the grand prize in the Global Dispute of the Year category at its 2016 Global Legal Awards. The firm was recognized for its work on the Argentine bonds litigation settlement, a case involving the South American nation’s default on bonds worth billions of dollars. Goodwin also received first prize in the Global Dispute of the Year: U.S. Litigation (Finance) category for the same matter. Goodwin and other firms representing the largest creditors of Argentina were honored at the American Lawyer’s Global Legal Awards ceremony on September 26 in New York City.