Treasury-HUD “Conference on the Future of Housing Finance”
Next Tuesday, August 17th, the U.S. Departments of Treasury and Housing & Urban Development (HUD) will co-host the “Conference on the Future of Housing Finance,” an open press, day long event where Treasury Secretary Tim Geithner and HUD Secretary Shaun Donovan will moderate panel discussions which will include the following panelists: Barbara J. Desoer, President of Bank of America Home Loans; Ingrid Gould Ellen, Professor of Urban Planning and Public Policy at New York University; · Bill Gross, Co-founder and Co-chief Investment Officer of PIMCO; Mike Heid, Co-president of Wells Fargo Home Mortgage; S.A. Ibrahim, Chief Executive Officer of Radian Group Inc.; Marc H. Morial, President and Chief Executive Officer of the National Urban League; Alex Pollock, Resident Fellow at the American Enterprise Institute; Lewis Ranieri, Chairman of Ranieri and Company, Inc.; Ellen Seidman, Ellen Seidman, Executive Vice President ShoreBank Corporation; Michael A. Stegman, Director of Policy and Housing at the John D. and Catherine T. MacArthur Foundation; Susan Wachter, Professor at the University of Pennsylvania’s Wharton School; Mark Zandi, Chief Economist of Moody’s Analytics. Sources indicate the topic of eliminating GSEs could emerge as one of the most contentious points of discussion.
July Retail Sales and Consumer Price Index Reports Released
On Friday, the Department of Commerce released its July retail sales report showing an increase of 0.4% during the month. This positive report follows Mary and June sales figures showing consecutive declines. The Department of Labor also issued its July consumer prices report for July on Friday showing the seasonally adjusted Consumer Price Index rose 0.3 percent. The June report also showed prices fell 0.1 percent, and therefore such positive July figures could ease concerns about deflation.
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Romer to Leave Council of Economic Advisors
On Thursday night, the White House announced that Dr. Christina Romer, chair of the Council of Economic Advisors, will leave September 3rd to return to the University of California at Berkley. Some are speculating Friday’s announcement of the 9.5% July unemployment rate may have contributed to her resignation since Romer predicted the 2009 stimulus bill would help keep the unemployment rate under 8 percent. Sources indicate that Council of Economic Advisors member Austan Goolsbee appears to be the front-runner to succeed Romer as Chairman. There is also speculation that Romer is under consideration to replace Janet Yellen as president of the Federal Reserve Bank of San Francisco. Yellen was recently nominated to be Vice Chairman of the Federal Reserve.
July Jobs Report Released
On Friday, the Department of Labor released the July jobs report showing that nonfarm payrolls declined by 131,000 jobs and the unemployment rate remained steady at 9.5 percent. 71,000 private-sector jobs were added last month while 143,000 temporary workers on the 2010 census were let go. The June data were revised down significantly showing that payrolls fell by 221,000, more than the 125,000 drop previously reported, as only 31,000 jobs were added in the private sector. Taking into account revisions to prior months this year, the U.S. economy added an average of less than 100,000 jobs a month in the first seven months of 2010.
Tax Cut Showdown In September
On Wednesday, Senate Majority Leader Harry Reid (D-NV) announced that the Senate would vote on a package of expiring tax cuts when the Senate returns in September. It remains unclear whether Senate Finance Committee Chairman Max Baucus (D-MT) will hold a committee markup on the bill or it will be brought directly to the floor. Moderate Democratic Senators Kent Conrad (D-ND) and Evan Bayh (D-IN) have called for an extension of all the “Bush” tax cuts, including those benefiting individuals earning more than $200,000 and families earning over $250,000 annually. If the Senate passes such an extension, it would likely set up a showdown with the House where a majority of Democrats do not want to extend tax cuts for all individuals. Some Democrats on the Ways and Means Committee have discussed a proposal to repeal the Bush tax cuts for the top tax brackets but delay the collection of those revenues until 2012.
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This post looks at potential enforcement and compliance risks for private funds under the new Dodd-Frank Act. We believe it should be of interest to managers of hedge funds, private equity funds and venture capital funds, as well as those who invest in or deal with them. It follows up an earlier post concerning the basic requirement that most private funds register with the SEC; this post focuses on a series of lesser known but significant risks under the Dodd-Frank Act (also available as a printer-friendly Client Alert).
By now, most “private” or “hedge” fund managers know that the Dodd-Frank Wall Street Reform and Consumer Protection Act requires SEC registration of most advisers to private funds, effective July 2011. But SEC registration is not the only aspect of the new law that fund managers need to be aware of. Other provisions of the law will have significant effects on funds.
Key issues include:
- Funds must meet expanded books and records requirements.
- Advisers to venture capital funds, exempt from registration under the law, will have to take pains to avoid being treated as private equity or hedge fund advisers, who do have to register.
- The standard for aiding and abetting liability has been lowered, such that “recklessness” rather than “actual knowledge” is sufficient.
- Smaller advisers, not subject to SEC registration, will become subject to the vagaries of state regulation.
“Private” or “hedge” funds are swept into the law through Title IV, the “Private Fund Investment Advisers Registration Act of 2010.” While Title IV does contain the registration requirements, it also contains other provisions that expand the scope well beyond the regulatory hook of registration. Further, other provisions of Dodd-Frank – notably, Title IX, entitled “Investor Protections and Improvements to the Regulation of Securities” – also have significant implications for private funds.
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The following outlines the primary consumer protection requirements of the Mortgage Reform and Anti-Predatory Lending Act (the “Act” or the “Mortgage Act”), which is Title XIV of the Dodd-Frank Wall Street Reform and Consumer Protection Act.
Effective Dates. The Mortgage Act is somewhat ambiguous as to its effective dates. There is a possible argument that those many provisions of the Act for which no regulation is specifically required took effect immediately upon the signing of the Act by the President on July 21, 2010. We believe do not believe that to be a plausible interpretation.
Under the best interpretation of the Act, those provisions for which no regulations are issued would take effect 18 months after the designated transfer date. The designated transfer date is the date on which the various consumer protection functions are transferred from the federal banking agencies to the Consumer Financial Protection Bureau (the “Bureau”). Where regulations are required by the Act, they must be issued in final form within 18 months of the designated transfer date, and the regulation and corresponding Act provision then would take effect within 12 months thereafter.
The Consumer Financial Protection Bureau. The majority of the Mortgage Act’s provisions will be included in the “enumerated consumer laws” that the Bureau will implement and enforce. However, most of the regulations that the Act requires would be written by the Federal Reserve, presumably due to the delay until the designated transfer date.
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Public companies should be aware of the following potential landmines – there are others – crafted into the Dodd-Frank Act:
Enhancements to whistleblower incentives and protections (§ 922), which may encourage employees to report borderline (or even non-existent) issues to authorities.
The lowering of the standard for “aiding and abetting” liability from “knowing and substantial” assistance to “knowing or reckless and substantial” assistance (§ 929 O), which may encourage the SEC to pursue marginal actions against companies or individuals who potentially may have assisted a violation. (The Act also mandates a GAO study of the benefits and detriments of enabling private rights of action for aiding and abetting violations. Such a study could be a basis for legislative attempts, within the next few years, to overturn the long-standing prohibition of such actions established by Central Bank of Denver and other cases.)
Empowerment of the SEC to seek and obtain monetary penalties in administrative proceedings against entities and individuals who are not registered with the Commission, e.g. public companies that are not registered as broker-dealers or investment advisors (§ 929 P). There is a perception that administrative proceedings – unlike actions in federal district court –provide the SEC with a “home-court advantage.” Previously, the Commission would have had to file an action in district court were it to seek monetary penalties against a public company.
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President Signs Sweeping Financial Reform Bill: What our Non-Bank Public Companies Need to Know Now
On July 21, 2010, President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act. Included in the reform legislation — aimed primarily at the reform of financial institutions – are provisions that will apply to all publicly traded companies, including provisions relating to “say on pay” shareholder votes, proxy access, executive compensation disclosure and compensation committees. For more information on these and other provisions of the Act, please see the Bulletin published by the Corporate Finance and Securities and Employee Benefits Client Service Groups on July 22, 2010.
Private Fund Investment Advisers Registration Act of 2010: New Law Changes Regulatory Framework for Alternative Investment Managers
On July 21, 2010, President Obama signed into law the financial reform package known as the Dodd-Frank Wall Street Reform and Consumer Protection Act, which contains the Private Fund Investment Advisers Registration Act of 2010 (the “Private Fund Act”). The Private Fund Act changes the regulatory framework that governs investment advisers managing private fund investments, including private equity funds, hedge funds and certain real estate funds. For more information on the Private Fund Act, please see the client Alert published by the Alternative Investments Group on July 29, 2010.
Department of Labor Clarifies FMLA Definition of “Son or Daughter,” Confirming Benefit Eligibility of Non-Traditional Families
Under the Family and Medical Leave Act, eligible employees may take up to 12 weeks of job-protected leave upon the birth of a son or daughter, the placement of a son or daughter for adoption or foster care, or to care for a son or daughter with a serious health condition. Pursuant to the statute, the term “son or daughter” not only includes children with whom a parent has a biological or legal relationship, but the children of individuals standing “in the place of a parent.” For more information on the clarification of the definition of the term “son or daughter”, please see the client Alert published by the Labor & Employment Client Service Group on July 19, 2010.
BANKING
Monitise to raise 32m; extends Visa deal. The deal increases Visa’s shareholding in the company from 12.6% to 14.4% and is supplemented by a one year extension of the pair’s global alliance to 2015.
Half of consumers think cash will be obsolete in 20 years – survey. With Brits increasingly turning to cards, cash could be obsolete by 2030, according to 52% of users of discount Web site MyVoucherCodes. “I think it is quite possible that notes and coins could be obsolete within the next twenty years, as debit cards were only introduced in the mid-70s and since then paying by plastic has drastically increased in popularity. I wouldn’t rule out the idea that in a couple of decade’s time, we won’t use cash anymore.”
CREDIT/DEBIT/GIFT/PREPAID CARDS
Risky Software Still in Place as a Visa Deadline Passes. Although many U.S. merchants and processors have met Visa Inc.s July 1 deadline for replacing unapproved point-of-sale software applications with ones that meet requirements of the Payment Application data-security standard, or PA-DSS, many non-compliant card-processing applications remain in the marketplace, Visa says.
XIUS-bcgi Upgrades INfinet Prepaid Solution New Features in Line with Industry Trends. XIUS-bcgi, provider of telecom solutions for mobile operators and MVNOs, has announced the market offering of the latest version of its INfinet prepaid solution.
The Bancorp Bank Backs New AccountNow Card Now Offering AccountNow Gold Visa Prepaid Card.
“The new AccountNow Gold Visa Prepaid Card is already proving to be very popular with consumers,” says Jim Jones, AccountNow CEO. “The Bancorp will help AccountNow provide even more people with a dynamic, valuable product as well as help our company continue our positive growth trajectory.”
Global Cash Card Partners with MasterCard To Offer GEM Prepaid Payroll Program. The program facilitates payments to employees as payroll funds are automatically loaded onto a reloadable Prepaid MasterCard card issued by First-Citizens Bank & Trust. The prepaid MasterCard cards can be used anywhere Debit MasterCard is accepted.
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Given the extensive work that many investment advisers will have to undertake in order to fully comply with the Private Fund Act (a process that can stretch into many months), we urge all Firm clients and contacts to promptly begin to consider what impact the Private Fund Act has on their operations and to plan the steps necessary to comply with its various aspects. To assist our clients and contacts in determining whether you will be affected in this area, below is a brief summary of the changes resulting from the Private Fund Act (also available as a printer-friendly Client Alert).
On July 21, 2010, President Obama signed into law the financial reform package known as the Dodd- Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”), which contains the Private Fund Investment Advisers Registration Act of 2010 (the “Private Fund Act”). The Private Fund Act changes the regulatory framework that governs investment advisers managing private fund investments, including private equity funds, hedge funds and real estate funds. Specifically, the Private Fund Act (i) requires that many investment advisers, including certain foreign investment advisers, that are currently exempt from registration with the Securities and Exchange Commission (“SEC”) under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), register with the SEC; (ii) requires that certain investment advisers currently registered with the SEC change to state registration and (iii) significantly expands the reporting and record-keeping requirements for domestic and foreign investment advisers to private funds of all types. The Private Fund Act adopts a new set of limited exemptions from SEC registration based on the asset class managed, the amount of assets under management and/or the operational details of foreign managers. At the same time, the Private Fund Act significantly expands the reporting and record keeping requirements to which these limited exempt entities will be subject going forward.
The Private Fund Act becomes effective one year from the date of the Dodd-Frank Act’s enactment, on July 21, 2011. During this one year window, each affected investment adviser will need to become fully compliant with the requirements of the Private Fund Act, including SEC registration (which currently unregistered investment advisers may choose to pursue immediately). Although the Private Fund Act contemplates substantial SEC rule making and guidance over the next year, it is clear that investment advisers will need to devote substantial resources to conformity with the Private Fund Act (including, for example, designation and training of a Chief Compliance Officer, adoption of extensive compliance procedures as mandated by the Advisers Act, and modification or adoption of SEC mandated internal reporting and record keeping systems).
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This post summarizes the federal preemption standard that will apply to national banks and federal thrifts as a result of the Dodd-Frank Wall Street Reform and Consumer Protection Act. The new preemption rules are included in Title X of the Dodd-Frank Act, also referred to as the Consumer Financial Protection Act of 2010.
The Preemption Standards Before The Act
Understanding the new preemption standard requires an understanding of the historical preemption standards. Until 2004, federal thrifts operated under one standard and national banks under another.
The OTS (and before them, the FHLBB) took the position that federal thrift regulation “occupied the field” of regulation for federal thrifts. This broad preemption basically meant that only the most incidental of State laws would apply to federal thrifts.
In contrast, the OCC traditionally claimed federal preemption only on a case-by-case basis and only if the State law in question interfered with a national bank in the exercise of its federally-authorized powers. In 1996, the U.S. Supreme Court in the Barnett decision upheld this approach when it held that State laws can regulate national banks where doing so does not “prevent or significantly interfere with” a national bank’s exercise of its powers.
In 2004, the OCC issued new regulations that stated the OCC’s preemption authority more broadly. While the OCC refrained from claiming occupation of the field, the broad preemptive language of the regulation was otherwise very similar to the OTS’ preemption regulation. Given that the OCC announced this new standard while States, counties and cities were aggressively regulating “predatory lending,” it is perhaps not surprising that the OCC was widely criticized by consumer advocacy groups for preempting consumer protection laws.
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2010 has been a rough year for many banks. Continued economic malaise, stagnant (at best) real estate values, harsh regulatory examinations, compliance with enforcement actions and the political battle over regulatory reform has caused many sleepless nights in the industry. However, on July 22, 2010, things appear to have gotten even worse for the industry, as the Empire started its ground war against banks.
As seen in the image below, Darth Vader, presumably in an effort to obtain funds to complete the latest Death Star, robbed a bank branch in New York on the morning of July 22, 2010.
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