On January 12, the Securities and Exchange Commission (SEC) announced the 2017 examination priorities for its Office of Compliance Inspections and Examinations (OCIE). The main areas of the OCIE’s focus include (1) risks to retail investors, (2) risks specific to elderly and retiring investors, and (3) market-wide risks. Under the retail investor category, the OCIE will concentrate on registered investment advisers and broker-dealers that offer investment advice through automated or digital platforms, investment advisers and broker-dealers associated with wrap fee programs, regulatory compliance of exchange-traded funds, newly registered or never-before examined advisers, and investment advisers that provide advisory services from multiple locations, among others. Under the focus on senior investors, the OCIE will especially scrutinize public pension plan advisers, sales of variable insurance products and management of target date funds, as well as registrants’ supervisory programs and controls relating to products and services directed at senior investors. Under the market-wide risks category, the OCIE will examine structural risks and trends that may involve multiple firms or entire industries, specifically looking at money market funds, systemically important clearing agencies, cybersecurity compliance and anti-money laundering programs that address money laundering and terrorist financing risks.
On January 11, the SEC Division of Investment Management released an interpretive letter concerning the distribution of fund shares. The Division had been asked to consider whether the restrictions of Section 22(d) of the 1940 Act apply to a broker when 1) the broker acts as agent on behalf of its customers and 2) the broker charges its customers commissions for effecting transactions in a class of shares of a fund without any front-end load, deferred sales charge, or other asset-based fee for sales or distribution (“Clean Shares”). Section 22(d) prohibits a fund from selling its securities except at “a current public offering price described in the prospectus” to any person other than to or through a principal underwriter for distribution. In its interpretive letter, the Division stated that the restrictions of Section 22(d) of the 1940 Act do not apply to a broker under circumstances where:
- The broker will represent in its selling agreement with the fund’s underwriter that it is acting solely on an agency basis for the sale of Clean Shares;
- The Clean Shares sold by the broker will not include any form of distribution-related payment to the broker;
- The fund’s prospectus will disclose that an investor transacting in Clean Shares may be required to pay a commission to a broker, and if applicable, that shares of the fund are available in other share classes that have different fees and expenses;
- The nature and amount of the commissions and the times at which they would be collected would be determined by the broker consistent with the broker’s obligations under applicable law, including but not limited to applicable FINRA and Department of Labor rules; and
- Purchases and redemptions of Clean Shares are made at net asset value established by the fund (before imposition of a commission).
On January 4, FINRA published its Annual Regulatory and Examination Priorities Letter to highlight issues of importance to FINRA’s regulatory programs. The Letter provides information about areas FINRA plans to review in its 2017 exams and focuses on core issues of compliance, supervision and risk management. Focus areas include (1) supervisory and compliance controls of firms that hire high-risk and recidivist brokers, (2) sales practices, particularly with respect to senior investors, suitability, excessive concentration in securities exposed to an industry sector, excessive and short-term trading in long-term products, firms’ obligations to monitor their registered representatives’ outside business activities and private securities transactions and social media and electronic communications, (3) management of financial risks, particularly with respect to liquidity and firms’ written policies and procedures designed to comply with FINRA’s 2016 amendments to Rule 4210 establishing margin requirements for covered agency transactions, (4) operational risks and measures firms take to mitigate those risks and (5) market integrity, particularly focusing on enhancing its surveillance programs designed to detect and deter manipulation. FINRA also intends to advance a number of its initiatives, including its Audit Trail Reporting Early Remediation Initiative, Tick Size Pilot, compliance with the Market Access Rule, a pilot trading examination program and its fixed income surveillance program. Firms may find the Letter useful in reviewing their compliance and supervisory programs and framing issues to address in their internal training and communications. In his cover letter, FINRA CEO Robert Cook said that FINRA will for the first time this year publish a summary report that outlines key findings from examinations in selected areas, and develop additional compliance tools for firms, including a “compliance calendar” and a directory of compliance service providers.
On January 13, the Department of Labor (DOL) released a second set of frequently asked questions on its final rule redefining who counts as a fiduciary under the Employee Retirement Income Security Act and Internal Revenue Code. Specific areas of focus include exemptions regarding investment recommendations, investment education, general communications, independent fiduciaries and platform providers.
On January 8, New York Governor Andrew M. Cuomo called for new legislation adding a section to New York's Financial Services Law disqualifying certain “bad actors” from the banking or insurance industries if, after a hearing, the Superintendent of Financial Services finds they have done something so severe as to have a direct bearing on their fitness or ability to continue participating in the industry. The proposal would strengthen the ability of the NY Department of Financial Services to bring enforcement actions protecting consumers from egregious or deceptive behavior.
On January 12, the Office of the Comptroller of the Currency (OCC) issued the “Management Interlocks” booklet of the Comptroller’s Licensing Manual, which replaces the booklet of the same title issued in October 2009. The revised booklet incorporates updated requirements following the integration of the Office of Thrift Supervision into the OCC in 2011 and clarifies guidance for both national banks and federal savings associations.
On January 13, the OCC, the Federal Reserve Board, and the Federal Deposit Insurance Corporation extended until February 17, 2017, the comment period for the advance notice of proposed rulemaking on enhanced cyber risk management standards for large and interconnected entities under their supervision and those entities’ service providers (the ANPR). The ANPR previously was discussed in the October 26 edition of the Roundup.
With the inauguration of President-elect Trump less than a week away, there is considerable speculation regarding what legal changes are in store for the financial services industry in the next administration. During his campaign, President-elect Trump consistently emphasized that financial regulatory reform is a critical component of his plan to increase economic growth and create jobs. He has expressly stated that his team would be working to “dismantle the Dodd-Frank Act and replace it with new policies to encourage economic growth and job creation.” Similarly, Treasury Secretary nominee Steven Mnuchin has said that the new administration wants to “strip back part of Dodd-Frank” and that such a rollback would be the administration’s “number one priority on the regulatory side.” But while financial regulatory reform is widely expected to be a priority in a Trump administration, few concrete proposals have been put forward. In order to anticipate the types of reform proposals that may emerge in the coming months, it may be useful to revisit recent proposals that have garnered widespread Republican support, but were never enacted. One such proposal, the Financial CHOICE Act (the CHOICE Act), passed the House Financial Services Committee on September 13, 2016, and was amended on December 20, 2016. For more information, view the client alert issued by Goodwin’s Financial Industry Practice.
Enforcement & Litigation
On January 10, the U.S. Supreme Court heard oral arguments in Expressions Hair Design et al. v. Schneiderman et al., a case reviewing a New York law regulating how credit card surcharges are communicated to consumers. N.Y. Gen. Bus. Law § 518 prohibits retailers from telling consumers they will pay a surcharge to use a credit card, but permits them to tell consumers they will get a discount for using cash. At issue is whether the law constitutes a price control or a potential limitation on free speech. In 2015, the Second Circuit ruled that the law regulated commerce and conduct, not speech, overturning a 2013 U.S. District Court decision that the law violated the First Amendment. The Supreme Court is now considering whether to apply a stricter scrutiny standard required by the First Amendment, or treat the law as a dispute over price controls, warranting less scrutiny. Justices Alito and Breyer indicated that the case should move forward in the New York Court of Appeals, the state’s highest court. Justices Roberts, Ginsburg and Kennedy appeared to agree that the law was a violation of the First Amendment. Specifically, Kennedy noted that the law does not make surcharges illegal, but rather it regulates how the pricing structure is communicated to consumers. Breyer expressed concern that using the First Amendment to invalidate a business regulation would later permit businesses to challenge other regulations they do not like. Several justices including Breyer and Sotomayor requested more clarity from New York state, indicating it was not a judge’s place to substitute for state regulators. The U.S. Supreme Court has not yet rendered a decision.
On December 21, FINRA announced that it had imposed a fine totaling $14.4 million against 12 financial services firms for deficiencies in the retention of electronic records. As a result of its investigation, FINRA determined that these firms had not maintained their records in the “write once, read many” (WORM) format that is required by SEC Rule 17a-4(f) and related FINRA rules. The rules require electronic records to be held in WORM format in order to avoid any potentially misleading subsequent adjustment. The penalties ranged from $500,000 to $4 million.
On January 3, the U.S. District Court for the Central District of California certified for appellate review its August 31, 2016, Order finding that a California-based payday lending company used a “rent-a-tribe” scheme to avoid state usury laws, in violation of the Consumer Financial Protection Act (CFPA). View the Enforcement Watch blog post.
On January 11, the Federal Trade Commission (FTC) announced that it had agreed to two stipulated orders (available here and here) with individuals who participated in an alleged fraudulent mortgage relief scheme. According to the FTC, the individuals promised consumers “at least $75,000” or complete relief on their mortgages through a “mass joinder lawsuit.” View the Enforcement Watch blog post.
On January 9, the Consumer Financial Protection Bureau (CFPB) announced that it entered into a consent order with two affiliated medical debt collection law firms over allegations that the law firms used deceptive collection letters and illegally notarized collection affidavits. The consent order alleges that the law firms would send debtors collection notices purporting to be from an attorney or law firm even though no attorney or law firm had reviewed the consumer’s account. View the Enforcement Watch blog post.
On January 9, the FTC announced that it had filed a lawsuit in the U.S. District Court for the District of Kansas against one individual and affiliated companies, alleging that they sold portfolios of nonexistent payday loans to debt collectors. The complaint alleges that the companies fabricated lenders and loan providers to whom consumers supposedly owed money, and that debt collectors would then try to collect money from these consumers. View the Enforcement Watch blog post.
On December 6, Goodwin’s Financial Industry Practice hosted its 5th Annual Banking Symposium, a forum for financial institution CEOs and senior management to discuss critical and emerging issues in the banking industry. This year’s Symposium, with the theme “Unwinding the Road Ahead,” focused on how community banks can successfully unwind the tangled road of politics, regulation and technological change for the benefit of their customers and communities. View findings from the Symposium.
On January 13, the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC) issued a Final Rule, announcing that it would amend the Sudanese Sanctions Regulations to authorize all transactions previously prohibited under the Sudanese Sanctions Regulations and related Executive Orders. For more information, view the client alert issued by Goodwin’s National Security & Foreign Trade Regulation Practice.
Goodwin announced on January 11 the expansion of its Private Equity and Private Investment Funds practices with the appointment of six new partners, 15 associates and five trainees in the London office, all of whom join from the London office of King & Wood Mallesons (KWM). The group comprises the bulk of the market-leading and former SJ Berwin investment funds team and includes Michael Halford, Ed Hall, Laura Charkin, Shawn D’Aguiar, Patrick Deasy, and Ajay Pathak. These specialists join Goodwin as partners. View the press release.
Consumer financial services companies are facing unprecedented regulatory and enforcement scrutiny, mounting litigation and costly class actions, and there is no sign of change coming anytime soon. That is why it is essential that in-house and outside counsel have a mastery of new class action litigation and settlement trends, emerging theories of liability, the latest enforcement actions and regulatory initiatives, and the most effective defense and settlement strategies. It is with this in mind that American Conference Institute has developed its 27th National Conference on Consumer Finance Class Actions & Litigation with a brand new Miami location. Thomas Hefferon, partner and co-chair of Goodwin’s Financial Industry Practice, will serve as co-chair of this conference.