SEC to Consider Adopting Regulation AB II on February 5

January 30, 2014

As predicted in the keynote address at last week’s Structured Finance Industry Group conference in Las Vegas by Bingham partner Chris Cox, a past Chairman of the U.S. Securities and Exchange Commission (the “SEC”) and a 17-year member of Congress from California, on February 5, 2014, the SEC will consider adopting the long-awaited amendments to Regulation AB and other rules affecting the offering process for asset-backed securities, commonly known as “Regulation AB II.”According to the SEC’s agenda, these new rules would “revis[e] the disclosure, reporting, and offering process for asset-backed securities,” and would “require asset-backed issuers to provide enhanced disclosures including information for certain asset classes about each asset in the underlying pool in a standardized, tagged format and revise the shelf offering process and eligibility criteria for asset-backed securities.”

As originally proposed in 2010 (and partially re-proposed in 2011), Regulation AB II included provisions that would:
  • Require that in any private offering of “structured finance products” made in reliance on Rule 144A under the Securities Act of 1933, investors have the right to obtain all of the same initial and ongoing information as if the offering were SEC-registered;
  • Modernize the public offering process by requiring that investors be provided with a complete, standardized set of data on the underlying pool assets;
  • Increase the amount of disclosure provided in public offerings and, in shelf offerings, the amount of time that investors would have to examine the disclosure – including a requirement that in a shelf offering a preliminary prospectus and final transaction documents be filed with the SEC at least five business days before any securities are sold; and
  • Eliminate the investment-grade rating requirement for shelf eligibility and impose new requirements, including:
    • A certification filed at the time of each takedown by the chief executive officer of the depositor or executive officer in charge of securitization of the depositor, addressing the prospectus disclosure and the design of the securitization;
    • Transaction document provisions requiring that the trustee appoint a credit risk manager that would review assets when certain trigger events occur, and mandating dispute resolution for failure to comply with requests to repurchase assets;
    • Transaction document provisions requiring the inclusion in distribution reports on Form 10-D of requests by investors to communicate with other investors; and
    • An annual evaluation of compliance with these requirement.2

The SEC’s agenda makes no reference to any new disclosure requirements for private offerings of asset-backed securities, one of the provisions of proposed Regulation AB II that drew the heaviest industry commentary. Whether new disclosure requirements for Rule 144A offerings will be included in the rules considered by the SEC on February 5 remains to be seen.


If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Charles Sweet
John Arnholz
Reed Auerbach

Available at

For our guide to Regulation AB II as originally proposed in 2010, see A Guide to the SEC’s Proposed Revisions to the Rules and Forms for Offerings of Asset-Backed Securities, available at For our client alert on the partial re-proposal of Regulation AB II in 2011, see SEC Re-Proposes Shelf Eligibility Conditions and Filing Requirements for Transaction Documents in Offerings of Asset-Backed Securities, available at

This article was originally published by Bingham McCutchen LLP.