E-ALERT Financial Institutions
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1 E-ALERT Financial Institutins BEIJING BRUSSELS LONDON NEW YORK SAN DIEGO SAN FRANCISCO SILICON VALLEY WASHINGTON March 19, 2010 SENATE FINANCIAL REFORM LEGISLATION ADDRESSES PROPRIETARY TRADING On March 15, 2010, Senate Banking Cmmittee Chairman Christpher Ddd (D-CT) unveiled cmprehensive financial regulatry refrm legislatin ( Refrm Legislatin ) that includes new limits n prprietary trading that are based n prpsals first advanced by Frmer Chairman f the Federal Reserve Paul Vlcker and that als are the fcus f separate legislatin recently intrduced by Senatrs Jeff Merkley (D-OR) and Carl Levin (D-MI). 1 The Refrm Legislatin addresses prprietary trading in tw cntexts. First, the Federal Reserve is given authrity, upn the affirmative vte f at least tw-thirds f the members f the Financial Stability Oversight Cuncil ( FSOC ), 2 t prhibit bank hlding cmpanies and nnbank financial cmpanies frm engaging in a brad range f activities that culd include prprietary trading. Secnd, and separately, the federal banking agencies are required thrugh jint rulemaking, and subject t FSOC recmmendatins and mdificatins, t prhibit banking entities frm engaging in prprietary trading. These statutry prvisins are described in greater detail belw. In general, the Refrm Legislatin des nt affect hedge funds r private equity funds wn prprietary trading activities. Federal Reserve Authrity t Prhibit Individual Cmpanies frm Prprietary Trading The Refrm Legislatin gives the Federal Reserve authrity t require the terminat[in f] ne r mre activities (a) by a bank hlding cmpany with ttal cnslidated assets f $50 billin r mre and (b) als by a nnbank financial cmpany supervised by the Federal Reserve 3 if the Federal Reserve determines that such cmpany pses a grave threat t the financial stability f the United States. 4 Under this authrity, the Federal Reserve Bard 1 Fr further infrmatin n the prprietary trading legislatin intrduced by Senatrs Merkley and Levin, please see ur prir e-alert Senatrs Merkley and Levin Intrduce Prprietary Trading Legislatin (March 12, 2010). 2 The Refrm Legislatin establishes the FSOC t identify risks t U.S. financial stability psed by systemically imprtant financial firms, t prmte market discipline by eliminating the expectatin that the U.S. gvernment will shield such firms frm lsses in the event f failure, and t respnd t emerging threats t the stability f the United States financial markets. The FSOC s vting members are the Secretary f the Treasury as chairman, Chairman f the Federal Reserve Bard f Gvernrs, Cmptrller f the Currency, Directr f the Bureau f Cnsumer Financial Prtectin (t be created by the Refrm Legislatin), Chairman f the Securities and Exchange Cmmissin, Chairpersn f the Federal Depsit Insurance Crpratin, Chairpersn f the Cmmdity Futures Trading Cmmissin, Directr f the Federal Husing Finance Agency, and a Presidentiallyappinted member having insurance expertise. 3 The Refrm Legislatin authrizes the FSOC t subject nnbank financial cmpanies i.e., cmpanies that are substantially engaged in activities that are financial in nature (as defined in sectin 4(k) f the Bank Hlding Cmpany Act) and that are neither bank hlding cmpanies r bank hlding cmpany subsidiaries t regulatin and supervisin by the Federal Reserve based n the factrs set frth in ftnte 4, infra. 4 The Federal Reserve, in determining whether a cmpany pses a grave threat t the financial stability f the United States, is directed t take int cnsideratin the fllwing factrs: (A) the degree f leverage f the cmpany; (B) the amunt and nature f the financial assets f the cmpany; (C) the amunt and types f the liabilities f the cmpany, including the degree f reliance n shrt-term funding; (D) the extent and type f the
2 culd prhibit such a bank hlding r nnbank financial cmpany frm engaging in prprietary trading. Fr such a prhibitin t be effective, the FSOC must apprve the Federal Reserve s actin by a tw-thirds vte f the FSOC s members. Thereafter, the Federal Reserve must prvide the subject cmpany written ntice that such cmpany is being cnsidered fr mitigatry actin. The cmpany may request, in writing, an pprtunity fr a written r ral hearing befre the Federal Reserve t cntest the mitigatry actin. Fllwing the hearing, the Federal Reserve is required t render a final decisin taking int cnsideratin the factrs listed in ftnte 4. Federal Banking Agency Authrity t Prhibit Prprietary Trading and Spnsring r Investing in Hedge Funds/Private Equity Funds Prprietary Trading The Refrm Legislatin separately prvides that the federal banking agencies, subject t the recmmendatins and mdificatins cntained in an FSOC study (discussed belw), shall jintly prhibit prprietary trading by an insured depsitry institutin, a cmpany that cntrls an insured depsitry institutin r is treated as a bank hlding cmpany fr purpses f the Bank Hlding Cmpany Act, and any subsidiary f such institutin r cmpany. Fr this purpse, the legislatin defines prprietary trading t mean purchasing r selling, r therwise acquiring and dispsing f, stcks, bnds, ptins, cmmdities, derivatives, r ther financial instruments by an insured depsitry institutin, a cmpany that cntrls an insured depsitry institutin r is treated as a bank hlding cmpany fr purpses f the Bank Hlding Cmpany Act f 1956, and any subsidiary f such institutin r cmpany, fr the trading bk f such institutin, cmpany, r subsidiary. The Refrm Legislatin specifies that prprietary trading des nt include purchasing r selling, r therwise acquiring and dispsing f these financial instruments n behalf f a custmer, as part f a market making activity, r therwise in cnnectin with r in facilitatin f custmer relatinships, including hedging activities related t such a purchase, sale, acquisitin, r dispsal. The Refrm Legislatin als expressly states that the prhibitin n prprietary trading des nt apply t an investment that is therwise authrized by federal law in bligatins f the United States r any agency f the United States, including bligatins fully guaranteed as t principal and interest by the United States r an agency f the United States; bligatins, participatins, r ther instruments f, r issued by, the Gvernment Natinal Mrtgage Assciatin, the Federal Natinal Mrtgage Assciatin, r the Federal Hme Lan Mrtgage Crpratin, including bligatins fully guaranteed as t principal and interest by such entities; and bligatins f any State r any plitical subdivisin f a State. Further, the prhibitin des nt apply t freign cmpanies the greater part f whse business is cnducted utside f the United States r t cmpanies that d n business in the United ff-balance sheet expsures f the cmpany; (E) the extent and type f the transactins and relatinships f the cmpany with ther significant nnbank financial cmpanies and significant bank hlding cmpanies; (F) the imprtance f the cmpany as a surce f credit fr husehlds, businesses, and State and lcal gvernments and as a surce f liquidity fr the United States financial system; (G) the recmmendatin, if any, f a member f the Cuncil; (H) the peratin f, r wnership interest in, any clearing, settlement, r payment business f the cmpany; (I) the extent t which (i) assets are managed rather than wned by the cmpany; and (ii) wnership f assets under management is diffuse; and (J) any ther factrs that the Cuncil deems apprpriate. 2
3 States except as an incident t their internatinal r freign business (s lng as the cmpany is nt cntrlled directly r indirectly by a U.S. persn). Spnsring r Investing in Hedge Funds/Private Equity Funds The Refrm Legislatin additinally prvides that the federal banking agencies, subject t the recmmendatins and mdificatins cntained in an FSOC study (discussed belw), shall jintly prhibit an insured depsitry institutin, a cmpany that cntrls an insured depsitry institutin r is treated as a bank hlding cmpany fr purpses f the Bank Hlding Cmpany Act f 1956, r any subsidiary f such institutin r cmpany, frm spnsring r investment in a hedge fund r a private equity fund. The Legislatin treats as a hedge fund r a private equity fund any cmpany r ther entity that is exempt frm registratin as an investment cmpany pursuant t sectin 3(c)(1) r 3(c)(7) f the Investment Cmpany Act f 1940, and als any similar funds as determined by the federal banking agencies. Additinally, spnsring is defined t encmpass (1) serving as a general partner, managing member, r trustee f a fund, (2) in any manner selecting r cntrlling (r having emplyees, fficers, r directrs, r agents wh cnstitute) a majrity f the directrs, trustees, r management f a fund, r (3) sharing with a fund, fr crprate, marketing, prmtinal, r ther purpses, the same name r a variatin f the same name. The Legislatin s prhibitin n spnsring r investing in a hedge fund r private equity fund als des nt apply t freign cmpanies the greater part f whse business is cnducted utside f the United States r by cmpanies that d n business in the United States except as an incident t their internatinal r freign business (s lng as the cmpany is nt cntrlled directly r indirectly by a U.S. persn). Further, the prhibitin des nt apply t investments therwise authrized under federal law in a small business investment cmpany (as defined in sectin 103 f the Small Business Investment Act f 1958), r an investment designed primarily t prmte the public welfare (as prvided in 12 U.S.C. 24(11)). Where an insured depsitry institutin, a cmpany that cntrls an insured depsitry institutin r is treated as a bank hlding cmpany fr purpses f the Bank Hlding Cmpany Act f 1956, and any subsidiary f such institutin r cmpany serves, directly r indirectly, as the investment manager r investment adviser t a hedge fund r private equity fund, such institutin, cmpany r subsidiary is prhibited frm entering enter int a cvered transactin, as such term is defined in sectin 23A f the Federal Reserve Act, 5 with such fund, and als frm prviding custdy, securities lending, r ther prime brkerage services t such fund. Mrever, transactins between such banking entities and their managed r advised funds are required t be n arms length market terms, cnsistent with the requirements f sectin 23B f the Federal Reserve Act. Certain Nnbank Financial Cmpanies In the case f nnbank financial cmpanies that the FSOC has designated fr prudential regulatin by the Federal Reserve, the Refrm Legislatin directs the Federal Reserve, 5 Under sectin 23A f the Federal Reserve Act, the term cvered transactin with respect t a fund wuld encmpass (A) a lan r extensin f credit t the fund; (B) a purchase f r an investment in securities issued by the fund; (C) a purchase f assets, including assets subject t an agreement t repurchase, frm the fund (except the purchase f real and persnal prperty as may be specifically exempted by the Bard by rder r regulatin); (D) the acceptance f securities issued by the fund as cllateral security fr a lan r extensin f credit t any persn r cmpany; and (E) the issuance f a guarantee, acceptance, r letter f credit, including an endrsement r standby letter f credit, n behalf f the fund. 3
4 subject t the recmmendatins and mdificatins cntained in an FSOC study (discussed belw), t adpt rules impsing additinal capital requirements and specifying additinal quantitative limits fr such nnbank financial cmpanies t the extent that they engage in prprietary trading r spnsring and investing in hedge funds and private equity funds. The Legislatin specifically states that these Federal Reserve rules shall nt apply t the trading f an investment that is therwise authrized by federal law in bligatins f the United States r any agency f the United States, including bligatins fully guaranteed as t principal and interest by the United States r an agency f the United States; bligatins, participatins, r ther instruments f, r issued by, the Gvernment Natinal Mrtgage Assciatin, the Federal Natinal Mrtgage Assciatin, r the Federal Hme Lan Mrtgage Crpratin, including bligatins fully guaranteed as t principal and interest by such entities; and bligatins f any State r any plitical subdivisin f a State. Such rules als are nt t apply t the trading f an investment therwise authrized under federal law in a small business investment cmpany (as defined in sectin 103 f the Small Business Investment Act f 1958) r an investment designed primarily t prmte the public welfare (as prvided in 12 U.S.C. 24(11)). FSOC Study As indicated, the Refrm Legislatin requires that, within six mnths after enactment, the FSOC cnduct a study f the Legislatin s treatment f banking entities prprietary trading and investments in hedge funds and private equity funds, including the applicable definitins, t assess the extent t which such treatment wuld prmte safety and sundness, prtect taxpayers and enhance financial stability, limit the inapprpriate transfer f federal subsidies frm institutins that benefit frm depsit insurance and liquidity facilities t unregulated entities, reduce inapprpriate cnflicts f interest, raise the cst f credit r ther financial services, and limit activities that have previusly caused undue risk r lss in depsitry institutins. The FSOC study als is t include recmmendatins regarding the treatment f prprietary trading and investments in hedge funds and private equity funds, including any mdificatins t the Legislatin s definitins, prhibitins, requirements, and limitatins that the FSOC determines wuld mre effectively implement the purpses f the Legislatin with respect t such trading and investments. The regulatins that the federal banking agencies are required t issue in rder t implement the Legislatin s varius definitins, prhibitins and requirements shall reflect any recmmendatins r mdificatins made by the FSOC in its study. The banking agencies are required t issue their final regulatins n later than nine mnths after the issuance f the FSOC s reprt. T the extent that the banking agencies final regulatins prhibit certain frms f prprietary trading r investments in hedge funds r private equity funds, banking entities generally are required t cmply with the prhibitins within tw years after the regulatins are issued (subject t up t three ne-year extensins fr individual banking institutins by their federal banking regulatr). * * * * * 4
5 Attrneys in Cvingtn s Financial Institutins Grup advise a range f clients n recent financial services and banking develpments. The Financial Institutins Grup s expertise derives frm advising clients n the impact f such develpments ver the curse f the past three decades. Please d nt hesitate t cntact any member f ur Financial Institutins Grup, including the undersigned, shuld yu have any questins. Stuart Stck sstck@cv.cm D. Jean Veta jveta@cv.cm Mark Pltkin mpltkin@cv.cm Keith Nreika knreika@cv.cm David Martin dmartin@cv.cm Tim Clark tclark@cv.cm David Engvall dengvall@cv.cm Michael Nnaka mnnaka@cv.cm This infrmatin is nt intended as legal advice. Readers shuld seek specific legal advice befre acting with regard t the subjects mentined herein. Cvingtn & Burling LLP, an internatinal law firm, prvides crprate, litigatin and regulatry expertise t enable clients t achieve their gals. This cmmunicatin is intended t bring relevant develpments t ur clients and ther interested clleagues. Please send an t unsubscribe@cv.cm if yu d nt wish t receive future s r electrnic alerts Cvingtn & Burling LLP, 1201 Pennsylvania Avenue, NW, Washingtn, DC All rights reserved. 5
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