On Thursday, October 21, 2021, the Financial Stability Oversight Council released a Report on Climate-Related Financial Risk (the “Report”). The Report represents the culmination of a deliberative process that began on May 20, 2021, when President Biden signed an Executive Order on Climate-Related Financial Risk. The Report is a milestone for the Biden Administration, and
FDIC Issues Request for Information on Digital Assets
On Monday, May 17, 2021, the Federal Deposit Insurance Corporation (“FDIC”) issued a request for information and comment (“RFI”) regarding the current and potential digital asset activities of insured depository institutions (“IDIs”). The RFI is intended to inform the FDIC’s understanding of digital asset activities, including associated risk and compliance management issues. Comments on the RFI are due by July 16, 2021.
The RFI categorizes digital asset activities into five use cases and solicits comments based on this framework. The five use cases are (i) technology solutions, such as token-based systems and distributed ledgers; (ii) asset-based activities, such as investments and margin lending; (iii) liability-based activities, such as deposit services and reserves; (iv) custodial services; and (v) other activities, which could include market-making and decentralized financing. The RFI requests comment on whether additional use cases should be included within this framework and which use cases have the greatest demand in the marketplace. The RFI also requests that commenters provide more detailed information about the use cases that IDIs currently conduct or are considering conducting.
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OCC Interpretation Paves Way for Banks to Custody Cryptocurrency
Today, the OCC released an interpretive letter concluding that national banks and federal savings associations (together, “banks”) may permissibly provide cryptocurrency custody services for customers. The letter, written by Chief Counsel Jonathan Gould, describes custody of cryptocurrency as a modern form of the traditional banking activity of providing safekeeping and custody services, which the agency has previously permitted banks to conduct through electronic means. The letter also “reaffirms the OCC’s position that national banks may provide permissible banking services to any lawful business they choose, including cryptocurrency businesses, so long as they effectively manage the risks and comply with applicable law.”
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SEC Orders Equity Exchanges and FINRA to Submit New Single National Market System Plan for Equity Market Data
On May 6, the Securities and Exchange Commission (“SEC”) issued an order (“Order”) directing the registered equity exchanges and the Financial Industry Regulatory Authority (“FINRA”) (together, the “Self-Regulatory Organizations” or “SROs”) to submit to the SEC a new National Market System (“NMS”) plan to govern the public dissemination of real-time, consolidated market data for NMS stocks. This new plan would replace the three existing NMS data plans for equities with a single, consolidated plan. Only SROs have voting power on the operating committees for the existing NMS data plans, but the Order directs that the new consolidated plan provide for voting by non-SROs for the first time. The Order discusses at length comments received in response to the Notice of Proposed Order issued by the SEC on January 8, 2020.
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IOSCO Issues Report on Risks Relating to Crypto-Asset Trading Platforms
On February 12, 2020, the Board of the International Organization of Securities Commissions (“IOSCO”) released a report titled Issues, Risks and Regulatory Considerations Relating to Crypto-Asset Trading Platforms. The report describes the risks associated with crypto-asset trading platforms (“CTPs”) and sets forth key considerations for regulators in addressing such risks. IOSCO is an association of primary securities and futures regulators from over 100 different nations. The U.S. Securities and Exchange Commission and the Commodity Futures Trading Commission are ordinary and associate members, respectively, of IOSCO.
To prepare this report, IOSCO first issued a consultation report on May 28, 2019, which included a survey of the approaches member jurisdictions were currently undertaking or considering with respect to CTPs. The final report draws upon the consultation report and includes a summary of the survey’s findings.
The report notes that many of the issues and risks associated with trading on CTPs are similar to the issues and risks associated with trading traditional securities or financial instruments on trading venues. Consequently, IOSCO states that the three core objectives of securities regulation are relevant in the crypto-asset context. The three core objectives are: (1) protection of investors; (2) ensuring that markets are fair, efficient and transparent; and (3) reduction of systemic risk. Supporting these objectives are principles that foster efficient markets, including: effective price discovery, appropriate transparency, market integrity, and fair access. The final report, to assist regulators in evaluating CTPs under their purview, sets forth the following list of key considerations:
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SEC Issues Guidance on Changes to Stock Exchange Fees for Market Data and Connections
On May 21, 2019, the U.S. Securities and Exchange Commission (the “SEC”) issued guidance to national securities exchanges and the Financial Industry Regulatory Authority (“FINRA”) (referred to as “SROs”) clarifying the SEC’s expectations with respect to their market data fees. These guidelines clarify enhanced standards for SROs to increase their fees for products and services, including fees for market data and connections, which has become a significant revenue source for data providers.
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SEC Has Been Busy in FY 2019
[This article was also published in Law360]
Despite enduring the longest government shutdown in U.S. history, the U.S. Securities and Exchange Commission’s Division of Enforcement filed more cases in the first six months of this fiscal year than in the same period last year. From October 2018 through the end of March, the division filed 216 new “stand-alone” actions,[1] compared to just 149 during the first six months of FY 2018.
This increase was largely due to 79 cases filed on a single day in March against investment advisers for alleged disclosure failures relating to conflicts of interests associated with certain mutual fund fees. With the addition of these cases, enforcement actions against investment advisers made up nearly 50% of all cases filed so far this fiscal year.
Excluding the 79 March settlements from the half-year results, the division filed only 137 stand-alone enforcement actions — 12 fewer than at the same point last year, though perhaps more in line with our expectations, considering the time lost during the shutdown.
Overview of FY 2019 Enforcement
Despite bringing fewer cases involving broker dealer misconduct, insider trading and public finance abuse, the division is outpacing its FY 2018 results in the areas of issuer reporting/audit and accounting, Foreign Corrupt Practices Act and, as mentioned above, investment adviser misconduct.
The division is also close to where it was in FY 2018 with respect to market manipulation cases, just 10% off last year’s pace. Below is a chart comparing this year’s performance to FY 2018. For a comprehensive analysis of FY 2018, see our earlier article here.
As the chart above shows, the government shutdown assuredly had a negative impact on several program areas. Every enforcement area but investment adviser misconduct, FCPA and issuer reporting/audit and accounting has seen a decline relative to the same period last year. Most notable is the decline in securities offering cases, which had increased each of the past two years.
Nevertheless, some enforcement activity continued during the shutdown and even a few enforcement actions were brought. According to Chairman Clayton,[2] during the shutdown, the SEC “focused on monitoring the functioning of our markets and, as necessary to prevent imminent threats to property, taking action.” That action involved filing only 10 new cases during the lull.
Notably, during the shutdown, the division sued nine individuals and entities accused of hacking into the SEC’s EDGAR system — the electronic portal used by the public to make SEC filings — in 2016. The defendants purportedly accessed the system to extract nonpublic information for use in illegal trading.
Before the shutdown, the SEC brought several significant cases against public companies for disclosure violations and fraudulent or otherwise deficient financial statements or internal controls. Once the shutdown ended, the agency picked up where it left off, ending with 20% more cases in these areas than during the same period last year.
In addition to significant cases against the Hertz Corporation,[3] Lumber Liquidators Holdings Inc.[4] and Volkswagen Aktiengesellschaft,[5] the SEC punctuated those efforts with two mini-sweeps — one addressing alleged longstanding but unaddressed internal controls failures and another focused on alleged failures to disclose that required quarterly reviews by external auditors had not occurred.