We usually don’t blog about financial regulatory nonevents, but sometimes it is useful simply to point out when something is just that. Our “nonevent event” example of the day is the April 30 dismissal (read the accompanying order here) by the US District Court for the District of Columbia of the Conference of State Bank Supervisors (CSBS) lawsuit against the Office of the Comptroller of the Currency (OCC), where the CSBS challenged the OCC’s authority to issue national bank nondepository fintech charters. The court dismissed the lawsuit in part for lack of “ripeness,” which is administrative lawspeak for “there’s nothing to challenge here.” Put simply, the OCC has not chartered any fintech banks and has not even issued final guidance on the chartering process, and the court therefore found itself without anything to review or decide. Administrative law aficionados therefore should not be at all surprised by that aspect of the court’s decision and reasoning. As the court trenchantly stated, “Indeed, there may ultimately be no case to decide at all if the OCC does not charter a Fintech.” A similar lawsuit against the OCC that was filed by the New York State Department of Financial Services was dismissed last year on similar grounds, and we surmised at that time that the CSBS suit might suffer the same procedural fate.
In yet another example of state attorneys general stepping up their activities in response to a perceived regulatory rollback in Washington, 16 attorneys general, all Democrats, have written to the Bureau of Consumer Financial Protection (Bureau), formerly the Consumer Financial Protection Bureau (CFPB), proposing in quite strident terms that the Bureau not reduce its authority for or use of key enforcement tools such as the Civil Investigative Demand (CID). Read the letter here.
The letter makes the case that full CID authority permits agencies to fulfill their investigative mandate. While nominally responding to the Bureau’s request for information about its CID process, the letter serves the unmistakable purpose of making a joint public statement of the enforcement philosophy of these attorneys general. The letter thus bears a careful review as it likely presages investigative and enforcement litigation that they might undertake themselves. Each of these attorneys general has not only powerful consumer protection authorities under state law but also the express authorization under the Dodd-Frank Act to enforce that law’s prohibition on “unfair, deceptive, and abusive” acts and practices in federal court. In turn, as we have previously reported, the Bureau’s acting director, Mick Mulvaney, has made clear that he does not intend to interfere in the states’ regulatory and enforcement prerogatives. Read our prior blog here.
In what seems to be déjà vu, broker-dealers can (again) breathe a collective sigh of relief. The Financial Industry Regulatory Authority (FINRA) has filed a rule change with the Securities and Exchange Commission (SEC) to further delay the effective date of certain changes to its maintenance margin rule for Covered Agency Transactions (e.g., to-be-announced transactions, specified pool transactions, transactions in collateralized mortgage obligations) until March 25, 2019. Final implementation of the rule was scheduled for June 25, 2018, which itself was a delay from a previous compliance date. Please read our previous blog post for more information. The new proposal was filed for immediate effectiveness and FINRA, in delaying the rule changes, said that it would be reviewing whether any substantive changes were needed in the rule. Of note, the risk limit determinations of amended Rule 4210 that became effective on December 15, 2016, are not affected by the proposal.
In brief, FINRA announced in August 2016 the adoption of changes to Rule 4210 with respect to the treatment of “Covered Agency Transactions” that would require FINRA members that engage in covered agency transactions with counterparties to make and enforce written risk determinations for each counterparty, and subject to certain exceptions, collect maintenance margin for each counterparty based on the net long or short position by CUSIP. The requirement with respect to risk determinations has been effective since December 15, 2016 and the requirements with respect to maintenance margin were originally scheduled to become effective on December 15, 2017.
Arizona has become the first state in the United States to enact a law to create a “Fintech Sandbox” – a safe zone for fintech startups to test new applications and financial services otherwise subject to state money transmitter, banking, and similar licensing requirements without having to obtain a state license. Although other countries, such as the United Kingdom, Singapore, and Australia, have created similar fintech sandboxes, similar legislation or regulations thus far have not been adopted in the United States at the federal or state level.
The Fintech Sandbox idea was promoted by the Arizona attorney general and will be administered by the Arizona Office of the Attorney General (AZ OAG). However, the Fintech Sandbox does not mean that fintech companies will be unregulated in Arizona. There will be a substantive application and oversight process.
At a recent meeting of state attorneys general, Consumer Financial Protection Bureau (CFPB) Acting Director Mick Mulvaney reiterated his message, previously reported here that his bureau will no longer “push the envelope” on enforcement matters.
At the conclusion of his remarks, Pennsylvania Attorney General Josh Shapiro (D) asked Mulvaney whether this change in enforcement philosophy means that the CFPB will interfere in or otherwise impede the use of state attorney general authority to enforce certain Dodd-Frank provisions, specifically those penalizing conduct which is “unfair, deceptive, or abusive” (UDAAP) in federal court. Mulvaney responded unequivocally that it would not.
In a rare bipartisan vote, 16 Democrats and one Independent who caucuses with the Democrats joined with 50 Republicans to pass Senate Bill 2155, the Economic Growth, Regulatory Relief, and Consumer Protection Act (Senate Bill). The Senate Bill is the most comprehensive reform to the Dodd-Frank Act that has passed the Senate, although it is more limited in scope than HR 10, better known as the Financial CHOICE Act of 2017, the Dodd-Frank Act reform bill passed by the House of Representatives in June 2017.
There are a number of notable provisions in the Senate Bill.
In pointed and detailed public remarks, Federal Reserve Board Vice Chairman for Supervision Randal Quarles said on Monday that the Volcker Rule is “an example of a complex regulation that is not working well” and proposed a number of possible changes to the Volcker Rule. Mr. Quarles emphasized that all five regulatory agencies responsible for the implementation of the Volcker Rule are actively working on changes to the Volcker Rule. Overall, the possible changes outlined by Mr. Quarles focus on reducing the burden of the Volcker Rule within the boundaries of the statutory requirements, particularly for financial institutions that do not have large trading operations, as well as limiting unintended extraterritorial effects of the Volcker Rule. Further, it is not clear whether all five regulatory agencies are in alignment with the priorities and solutions that Mr. Quarles outlined in his speech, although he stated that he thought the odds of implementing the changes are “pretty good.”
US financial reform at the congressional and regulatory agency levels continues to move along—albeit more in fits and starts than in a blaze of big happenings. Below is a recap on where matters currently stand.
The US Senate financial regulatory reform bill, “The Economic Growth, Regulatory Relief and Consumer Protection Act” (S. 2155), about which we have previously written, remains on the Senate legislative calendar and now has 25 co-sponsors (12 Democrats, 12 Republicans, and 1 Independent who caucuses with the Democrats). No major actions on the bill have been taken. Given the bipartisan nature of the bill, it stands a reasonable chance of passing in the Senate (a vote will reportedly occur sometime in March) but will face strong opposition from Senator Elizabeth Warren and other progressive Democrats. There has been no indication from the House of Representatives thus far as to whether it will take up the Senate bill (if passed) or push for broader regulatory reform to align with its own financial regulatory reform bill.
Earlier this week, Consumer Financial Protection Bureau (CFPB) Acting Director Mick Mulvaney met with state attorneys general at the National Association of Attorneys General (NAAG) in Washington, DC, in his second public speaking appearance since taking over as acting director at the end of November 2017. While Mulvaney’s prepared remarks did not break new ground, his Q&A session with the state attorneys general was illuminating.
Mulvaney said that he does not intend to dismantle the CFPB, but that he does intend to change it so that it acts within the confines of the law as written. He does not intend to use his regulatory authority to break new ground and he does not intend to use his enforcement authority to “regulate through litigation,” a thinly veiled criticism of his predecessor’s aggressive use of the CFPB’s statutory “unfair, deceptive, and abusive acts and practices” (UDAAP) authority. Mulvaney also stated that he intends to focus a great deal more on education and less on enforcement.
Few topics in the financial news have gotten more attention recently than the rise of cryptocurrency and initial coin offerings (ICOs), which allow startups to raise money from users in exchange for digital currency. In 2017, ICOs raised more than $3 billion in funding, surpassing early-stage venture capital funding for internet companies, and solidifying ICOs as a financing strategy among tech entrepreneurs.
But with surging popularity comes increasing attention and scrutiny from regulators, most notably the US Securities and Exchange Commission (SEC or Commission). Previously, the SEC had adopted a more cautionary approach, advising potential investors to perform due diligence, and issuing trading suspensions for certain issuers that made questionable claims regarding ICO investments. As we have previously reported, however, the SEC has recently taken a more aggressive stance toward ICOs.