Latham & Watkins Finance Department. A New Era of Financial Regulation: Dodd-Frank Act to Become Law

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1 Number 1057 July 20, 2010 Client Alert Latham & Watkins Finance Department A New Era of Financial Regulation: Dodd-Frank Act to Become Law Although the Act makes many notable changes to the system of financial regulation and expands the scope of such regulation, it remains to be seen how in practice the various provisions of the Act will be enacted. It seems inevitable that more capital will be needed by financial institutions in order to continue to engage in the business of banking and providing financial services. After almost a year of discussions, debate and negotiations, financial regulatory reform has passed both the House and the Senate and is expected to be signed into law this week by President Obama. The Dodd-Frank Wall Street Reform and Consumer Protection Act (the Act) was approved by the House of Representatives on June 30 by a vote of 237 to 192 and approved by the Senate on July 15 by a vote of 60 to 39. The Act generally will take effect one day after its enactment, with certain exceptions. However, implementation of some provisions is expected to take months if not years. Also, there are already rumors of the need for a corrections bill to correct drafting and other flaws identified in the over 2,300 page bill. This Client Alert is intended to be a high-level summary of some of the Act s key provisions, which will impact the financial services sector for both banks and non-banks. As the Act is implemented through rulemakings and policy statements issued by the financial regulatory agencies, we will follow up with additional Client Alerts on particular issues in order to provide additional clarity. Financial Stability Oversight Council As one of its most significant changes, the Act creates the Financial Stability Oversight Council (the Council). Title I, Subtitle A of the Act establishes the interagency Council and tasks it with identifying, monitoring and addressing risks that financial firms and financial activities pose to the nation s financial stability. The Council is comprised of 10 voting members (the heads of the federal financial regulatory agencies and the new Bureau of Consumer Financial Protection, and an independent member with insurance expertise), and five non-voting members (the heads of the new Office of Financial Research and the new Federal Insurance Office, a state insurance commissioner, a state banking supervisor and a state securities commissioner). The Council is chaired by the Secretary of Treasury. The Council will designate certain institutions that could pose a threat to the financial stability of the US (either in the event of their material financial distress or based on their activities) as systemically significant to the nation s economy: (i) bank holding Latham & Watkins operates worldwide as a limited liability partnership organized under the laws of the State of Delaware (USA) with affiliated limited liability partnerships conducting the practice in the United Kingdom, France, Italy and Singapore and an affiliated partnership conducting the practice in Hong Kong and Japan. Latham & Watkins practices in Saudi Arabia in association with the Law Office of Mohammed Al-Sheikh. Under New York s Code of Professional Responsibility, portions of this communication contain attorney advertising. Prior results do not guarantee a similar outcome. Results depend upon a variety of factors unique to each representation. Please direct all inquiries regarding our conduct under New York s Disciplinary Rules to Latham & Watkins LLP, 885 Third Avenue, New York, NY , Phone: Copyright 2010 Latham & Watkins. All Rights Reserved.

2 companies with total consolidated assets of US $50 billion or more and that are closely interconnected with similar companies, and (ii) certain non-bank financial companies that are predominantly engaged in financial activities 1 (Significant Institutions). Significant Institutions that are non-bank companies are required to register with the Board of Governors of the Federal Reserve System (the Federal Reserve) and will be subject to the supervision and enhanced prudential standards established by the Federal Reserve. This means that some insurance companies, investment companies and finance firms may be subject to extensive federal regulation (including capital standards) for the first time. The Council can make recommendations to the Federal Reserve and other federal banking agencies for stricter prudential standards to be applied to Significant Institutions on an individual basis or by category. The Council can also make recommendations to the federal banking agencies to apply new or heightened standards and safeguards for financial activities or practices. And the Council will monitor domestic and international regulatory proposals and changes and make recommendations regarding the same. The Council s recommendations will be made in consultation with the federal banking agencies and will be subject to public notice and comment. Financial Regulatory Agency Reform and New Capital Rules Although the Act falls short of completely reworking the federal banking agency regime, under the Act, several key changes will be made to the various federal banking agencies. This will give them greatly expanded authority over banks and non-bank financial firms. As discussed below, the Federal Deposit Insurance Corporation (FDIC) will be empowered to act as receiver and dissolve certain bank holding companies and non-bank financial companies that have been deemed insolvent. Additionally, the Federal Reserve will be given greatly expanded supervisory authority over a wider swath of the financial system, as it will become the regulator of thrift holding companies and of Significant Institutions, and will have the authority to regulate and examine all subsidiaries of a bank holding company. At the same time, the Act significantly curtails the broad authority claimed by the federal banking agencies (and upheld by the US Supreme Court and various lower federal courts) to pre-empt state consumer protection laws. The Act also consolidates some of the federal banking agencies. This follows years of discussions and debate over the need for such consolidation. The Act eliminates the Office of Thrift Supervision (the OTS), the current regulator of federal thrifts/ savings associations and thrift holding companies. It will transfer the OTS s existing authority for supervision and regulation of thrift holding companies to the Federal Reserve, authority for supervision and regulation of federal savings associations to the Office of the Comptroller of the Currency (OCC), and authority for supervision and regulation of state savings associations to the FDIC. The Act does not, however, eliminate the thrift charter, and it remains to be seen whether federal thrifts will convert their charters to national bank charters once the OCC becomes their primary regulator. At the same time as it gains expanded authority, the Federal Reserve will become subject to increased scrutiny. Title XI of the Act requires a onetime audit of the emergency lending programs utilized during the financial crisis. The Federal Reserve must also disclose (with a two-year lag) details on its discount window lending activities 2 Number 1057 July 20, 2010

3 and open market transactions. The Act also limits the Federal Reserve s Section 13(3) emergency lending authority, which was the focus of much criticism and controversy during the financial crisis. The Federal Reserve is prohibited from using its Section 13(3) authority to provide assistance to an individual company, cannot provide assistance to insolvent firms and will need to obtain the approval of the Secretary of the Treasury for any lending program. The federal banking agencies will also issue new capital rules intended to modify and clarify the existing capital rules. Under the so-called Collins Amendment, the federal banking agencies must adopt countercyclical minimum leverage and risk-based capital requirements for all insured depository institutions, depository institution holding companies and Significant Institutions. The minimum requirements cannot be less than minimum ratios currently in effect for depository institutions. The Act also requires that a bank holding company or a company controlling an insured depository institution serve as a source of financial and managerial strength to its subsidiary bank. This is the first time that the controversial source of strength doctrine has become a statutory requirement rather than just an agency policy or regulation. In addition, the Act phases in a requirement that bank holding companies and Significant Institutions exclude trust preferred securities from their Tier I capital. Existing trust preferred securities issued before May 19, 2010 are grandfathered in for all bank holding companies with less than US $15 billion in total consolidated assets. Bank holding companies with US $15 billion or more in total assets have five years to comply with the provision, with three years to phase out their trust preferred securities, beginning on January 1, Thrift holding companies are also subject to the three-year phase-out of their trust preferred securities, but have five years to comply with the minimum leverage and risk-based capital requirements. Given the current difficulties many banks are facing with respect to the raising of capital, it is unclear what impact the elimination of trust preferred securities plus the new capital rules will have on financial institutions. At the very least, capital raising will become more complex as more capital will be required to engage in the business of banking. According to reports by analysts, the biggest impacts will likely be felt by the large regional banks. Enhanced Authority of the Federal Reserve: Prudential Standards Under the Act, the Federal Reserve is given increased authority over the supervision and regulation of Significant Institutions, and the Council is empowered to make recommendations regarding capital and leverage requirements applicable to the same. Title I, Subtitle C of the Act authorizes the Federal Reserve to establish by regulation enhanced prudential standards applicable to Significant Institutions. Such standards are required to be more stringent than those applicable to non-bank financial companies and bank holding companies that do not present similar risks to US financial stability, and can be imposed on an individual basis or by category. The enhanced prudential standards will include risk-based capital requirements and leverage limits, liquidity requirements, overall risk management requirements, resolution plan and credit exposure report requirements, concentration limits and stress tests, and may also include a contingent capital requirement and short-term debt limits (other than deposit liabilities), among others. Significant Institutions that are nonbank institutions may also be subject to restrictions on acquisitions of banks and 3 Number 1057 July 20, 2010

4 large non-bank financial institutions. Acquisitions of bank shares by nonbank Significant Institutions will be subject to Section 3 of the Bank Holding Company Act as if such companies were bank holding companies. In addition, Significant Institutions and large bank holding companies must provide written notice to the Federal Reserve prior to the acquisition of voting shares of a company engaged in financial activities that has total consolidated assets of US $10 billion or more, with certain exceptions. Enhanced Authority of the FDIC: Orderly Liquidation Authority With the goal of ending too big to fail and remedying the lack of authority under current laws to adequately address the failure of large non-bank institutions that was exposed during the financial crisis, Title II of the Act creates a special regime for the orderly liquidation of Significant Institutions, as well as other bank holding companies, and companies (or subsidiaries thereof) that are predominantly engaged in activities that are financial in nature or incidental thereto under the Bank Holding Company Act (Covered Financial Companies). This gives greatly expanded authority to the FDIC and increases its influence as a regulator of financial institutions. However, it remains unclear how the FDIC s orderly liquidation authority will in practice interact with existing Bankruptcy Code requirements, obligations and rights as well as expectations of the stakeholders in Covered Financial Companies. Under the Act, upon the recommendation of the Federal Reserve and the FDIC and the determination of the Secretary of the Treasury (in consultation with the President) that (among other factors) the failure of an insolvent Covered Financial Company would have serious adverse effects on the nation s financial stability, the Covered Financial Company can be removed from the bankruptcy regime that normally would apply and be placed into orderly liquidation with the FDIC as reciever. Such removal is subject to judicial review if the Covered Financial Company objects. Once a Covered Financial Company is placed into the orderly liquidation regime, its receivership must be completed within three years, subject to two one-year extensions. Although the orderly liquidation regime allows for the use of bridge financial companies for the purpose of liquidating a failed financial company, there is no option for rehabilitation or reorganization, or for a Federal Deposit Insurance Act-style conservatorship under which the failed financial company can continue to be run as a going concern. The FDIC s powers as receiver under the orderly liquidation regime are similar to the powers it has as receiver under the Federal Deposit Insurance Act, with certain modifications intended to reduce differences between the Federal Deposit Insurance Act and the Bankruptcy Code regimes. The FDIC is required to exercise its powers in a manner that mitigates significant risk to the financial stability of the United States such that: Creditors and shareholders will bear the risk of losses of such financial company Management responsible for the financial condition of the company will not be retained All parties having responsibility for the condition of the financial company bear losses consistent with their responsibilities, including actions for damages, restitution, and recoupment of compensation and gains not compatible with such responsibility The orderly liquidations will be paid for by a fund comprised of repayments to the FDIC from insolvent Covered Financial Companies, and through assessments and borrowings from the Treasury by the FDIC (subject 4 Number 1057 July 20, 2010

5 to specified limitations). The FDIC is authorized to charge risk-based assessments on Covered Financial Companies on a graduated basis, with higher assessments on companies with greater assets and risks. The Act specifically provides that no taxpayer funds will be used for the dissolution of Covered Financial Companies under the orderly liquidation authority. A Return to Glass-Steagall? The Volcker Rule The Volcker Rule named for President Obama s Economic Recovery Advisory Board Chairman and former Federal Reserve Chairman Paul Volcker places new restrictions on insured depository institutions, companies that directly or indirectly control such institutions, bank holding companies and their subsidiaries, and non-bank financial institutions supervised by the Federal Reserve. Title VI of the Act (Section 619) requires the federal banking agencies, through a joint rule making, to prohibit proprietary trading (purchasing or selling various financial instruments on one s own account(s)) or sponsoring or investing in a hedge fund or private equity fund by a banking entity. 2 Several exceptions to the rule may apply, including with respect to risk-mitigating hedging activities and trading conducted on behalf of customers. Regulators are directed to impose additional capital requirements and quantitative limits on any activities that are subject to exceptions. Additionally, a banking entity that organizes and offers a hedge fund or private equity fund may make and retain an initial investment if, within one year of establishment of the fund (with the possibility of two one-year extensions), the investment is reduced to 3 percent or less of total ownership interests and is immaterial to the banking entity (the maximum of all such investments must be 3 percent or less of the banking entity s Tier 1 capital). Banking entities must dispose of prohibited investments or relationships within: (i) two years of the Volcker Rule requirements becoming effective (which occurs on the earlier of 12 months after the issuance of final regulations or two years after enactment of the Act); or (ii) two years after a banking entity becomes a Significant Institution subject to Federal Reserve supervision under Title I of the Act, subject to up to three possible one-year extensions. An additional exemption of up to five years may be granted by the Federal Reserve to the extent necessary in the case of a banking entity that is subject to a contractual obligation that was in effect on May 1, 2010 regarding an investment in or capital commitment to an illiquid fund. Regulators are directed to issue rules to apply during the divestiture period that impose additional capital requirements and other restrictions on banking entities that sponsor or invest in hedge funds or private equity funds. While the Volcker Rule does not apply to non-bank financial companies that are not banking entities, the Federal Reserve is required to adopt rules that impose additional capital requirements and quantitative limits on non-bank financial companies that it supervises pursuant to Title I of the Act and that engage in proprietary trading or sponsoring or investing in hedge funds or private equity funds. Consumer Protection: The Bureau of Consumer Financial Protection and Beyond The Act creates a semi-independent bureau tasked with overseeing regulation of providers of consumer financial products and services. The Act also directly amends various consumer laws, imposing new regulations on credit card companies and other providers of financial services. 5 Number 1057 July 20, 2010

6 Bureau of Consumer Financial Protection Title X of the Act creates the Bureau of Consumer Financial Protection (the Bureau) as a new office within, though largely independent of, the Federal Reserve. The Federal Reserve is prohibited from interfering with the Bureau s personnel or functions. The Bureau has broad authority to issue regulations and interpretations under the existing panoply of federal consumer protection law (which will be transferred to the Bureau), as well as under its new authority to issue regulations concerning, among other things, unfair, deceptive and abusive practices, and disclosure requirements. The Bureau contains three specific units: (1) a unit to research, analyze and report on market developments concerning consumer financial products and services, underserved communities access to credit, consumer awareness of disclosures and costs, risks and benefits of consumer financial products and services, and consumer behavior; (2) a unit to provide information, guidance and technical help concerning the offering of financial products and services to traditionally underserved consumers and communities; and (3) a unit to collect and track consumer complaints regarding consumer financial products and services. A key political issue, ultimately resolved by the Conference Committee, concerned exclusions from the direct oversight of and examination by the Bureau. Under the Act, only the following entities are generally subject to direct supervision and examination by the Bureau: Large depository institutions Mortgage lenders, brokers and servicers Lenders of private student loans and payday loans Other large providers of consumer financial products Certain entities are entirely exempt from Bureau oversight (although they may be subject to rules issued by the Bureau). These include auto dealers, real estate brokers and persons subject to regulation by the SEC, CFTC or state insurance regulators. The Bureau is granted broad investigative and enforcement authority to enforce the existing statutes transferred to its jurisdiction, as well as existing regulations and any new regulations issued by the Bureau. In litigation, the Bureau has the right to seek substantial relief, including restitution and damages on behalf of consumers, injunctive relief and reformation of contracts. Civil penalties for violations can range from US $5,000 to US $1 million per day of violation. The Bureau is expressly authorized to enact regulations on the following topics: Prohibiting Unfair, Deceptive, or Abusive Practices. The Bureau can prevent covered persons from committing or engaging in an unfair, deceptive, or abusive act or practice in connection with a consumer transaction for a consumer financial product or service. The Bureau will define the phrase unfair, abusive or deceptive acts and practices and promulgate rules accordingly. Promulgating Rules on Disclosures. The Bureau is permitted to prescribe rules to ensure that disclosures concerning any consumer financial product or service are full, accurate, and effective, allowing consumers to understand the costs, benefits and risks associated with the product or service. The Bureau can issue model forms to provide a safe harbor to covered persons who utilize such forms. Consumer Rights to Access Information. The Bureau can prescribe rules that require covered persons to provide a consumer with certain information 6 Number 1057 July 20, 2010

7 concerning a product or service that the consumer obtained from the covered person, if the consumer requests such information. Responding to Consumer Complaints. The Bureau must establish procedures for responding to consumers who issue complaints against a covered person. Prohibited Acts. Once the Bureau issues rules and orders, it will be unlawful for any person to offer or provide a consumer financial product or service which violates those rules or orders. It will also be unlawful to knowingly or recklessly provide substantial assistance to another in the commission of an unfair, abusive, or deceptive act or practice. Federal Pre-emption Title X of the Act, which creates the Bureau, also modifies existing federal law regarding the pre-emption of state law with respect to the business and operations of national banks under the National Bank Act and federal savings banks under the Home Owners Loan Act. The National Bank Act and Home Owners Loan Act will pre-empt state consumer laws only if the state laws are determined by the court or the OCC, on a case-by-case basis, to prevent or significantly interfere with the exercise by the bank of its powers in accordance with the legal standard for pre-emption established under applicable case law. Non-bank operating subsidiaries of national banks and federal savings banks will lose the benefit of federal pre-emption that has been claimed by the federal banking agencies and upheld by the courts. State attorneys general will be permitted to enforce non-pre-empted laws against federal depository institutions; states will also be free to enact additional consumer protections beyond those that may be adopted by the Bureau and will have the power to enforce their own regulations as well as the Bureau s. Payment Card Regulations The Act also contains a list of specific reforms to existing consumer financial laws. Importantly, these reforms will increase the regulation of payment cards, placing the following new regulations onto payment card issuers and networks. The interchange transaction fee that issuers or networks charge in an electronic debit transaction must be reasonable and proportional to costs which the issuer or networks incur with respect to the transaction. Within nine months, the Federal Reserve must issue regulations establishing standards for assessing which rates would qualify as reasonable. Issuers with assets below US $10 billion are exempted from this provision. Additionally, issuers or networks are barred from restricting the number of payment card networks on which an electronic debt transaction may be processed to a single network, or two networks which are controlled by affiliates. Such persons may also not prohibit a person who accepts payment by debit card from directing the routing of electronic debt transactions for processing over any payment card network that may process such transactions. Finally, payment card networks are prohibited from in any way inhibiting: (1) another person from providing a discount for using any particular method of payment, such as cash, check, debit card or credit card; or (2) a person from requiring a minimum dollar amount before that person will accept a credit card as payment in a transaction, provided that such minimum dollar value does not differentiate between issuers or between payment card networks and the required amount is not greater than US $10; or (3) a federal agency or institute of higher learning from setting a maximum dollar amount for that entity s acceptance of credit cards, also to the extent that 7 Number 1057 July 20, 2010

8 such maximum dollar value does not differentiate between issuers or between payment card networks. Conclusion Although the Act makes many notable changes to the system of financial regulation and expands the scope of such regulation, it remains to be seen how in practice the various provisions of the Act will be enacted. It seems inevitable that more capital will be needed by financial institutions in order to continue to engage in the business of banking and providing financial services. Between the rumors of a corrections bill to come in the fall and the fact that much of the substance of the Act is punted to the various regulatory agencies for future rulemaking, nothing is certain or final at this point. It reminds one of the famous Winston Churchill quote: Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning. If you have any questions about this Client Alert, please contact one of the authors listed below or the Latham attorney with whom you normally consult: Brian W. Smith brian.smith@lw.com Washington, D.C. Melissa R. H. Hall melissa.hall@lw.com Washington, D.C. Angela Angelovska-Wilson angela.angelovska-wilson@lw.com Washington, D.C. This Alert was prepared with the assistance of Andrew Galdes and Trevor Scheetz, summer associates in the Washington, D.C. office of Latham & Watkins Endnotes 1 A company is predominantly engaged in financial activities if 85 percent or more of its consolidated annual gross revenues are derived from, or 85 percent or more of its consolidated assets relate to, activities that are financial in nature (as defined in Section 4(k) of the Bank Holding Company Act of 1956) or the ownership or control of one or more insured depository institutions. However, the Board a (in consultation with the Council) can establish criteria for exempting certain non-bank financial companies from Board supervision. 2 The Act defines a banking entity to be an insured depository institution, a company that controls a depository institution, a company treated as a bank holding company and any subsidiary of such institutions or companies (including broker-dealer and fund manager affiliates or subsidiaries). 8 Number 1057 July 20, 2010

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