Financial Industry Developments

CFPB Proposes to Provide Flexibility in Collecting Information

On March 24, 2017, the Consumer Financial Protection Bureau ("CFPB") released a proposal to amend Equal Credit Opportunity Act regulations. The proposal would provide flexibility for lenders in collecting information about mortgage applicants' ethnicity, race and sex. The CFPB's proposal is meant to provide clarity to mortgage lenders regarding their obligations under the law and to promote compliance with rules intended to ensure that consumers are treated fairly. The proposal is open for public comment for 30 days after its publication in the Federal Register. Press Release. Proposal.

Rating Agency Developments

On March 29, 2017, Moody's published its approach to assessing credit risk for multilateral development banks and other supranational entities. Report.

On March 28, 2017, DBRS published its methodology for rating Canadian ABCP and related enhancement features. Report.

On March 28, 2017, Fitch published its U.K. income-contingent student loans rating criteria. Report.

On March 28, 2017, Fitch published an update to its rating criteria for trust preferred collateralized debt obligations (TruPS CDOs). Release.

On March 28, 2017, KBRA published its U.S. consumer loan ABS rating methodology. Report.

On March 24, 2017, DBRS published its methodology for rating companies in the forest products industry. Report.

On March 24, 2017, DBRS published its methodology for rating companies in the radio broadcasting industry. Report.

On March 24, 2017, DBRS published its methodology for rating companies in the television broadcasting industry. Report.

On March 24, 2017, DBRS published its methodology for rating companies in the printing industry. Report.

On March 24, 2017, DBRS published its methodology for rating companies in the publishing industry. Report.

On March 24, 2017, Moody's published an update to its local currency country risk ceiling for bonds and other local currency obligations. Report.

On March 23, 2017, DBRS published its North American CMBS multi-borrower rating methodology. Report.

On March 23, 2017, Fitch published an update to its criteria for estimating losses on U.S. mortgage pools for RMBS transactions. Report.

Investment Management

SEC Division of Investment Management Issues Guidance on Holding Companies and the Transient Investment Company Rule Under the Investment Company Act

Earlier this month, the SEC Division of Investment Management issued guidance with respect to situations in which an operating company may find that, upon the occurrence of an extraordinary event, it meets the definition of an "investment company" under the Investment Company Act of 1940 ("Company Act"), even though it intends to remain in such status only temporarily. Absent an exclusion or exemption from this definition, the operating company may be required to register under the Company Act. Rule 3a-2 under the Company Act, however, provides a one-year safe harbor for such transient investment companies if certain conditions are satisfied.

The Staff of the Division of Investment Management has received inquiries regarding the commencement of the one-year safe harbor as it applies to holding companies that are engaged in various businesses operating through wholly owned and majority-owned subsidiaries where neither the holding companies nor their subsidiaries are regulated as investment companies ("Holding Companies").

In response, the Staff has clarified that the one-year safe harbor period does not begin until the occurrence of an extraordinary event causes a Holding Company to have certain characteristics of an investment company. It is the staff's view that when adopting Rule 3a-2, the Commission did not intend to limit the circumstances under which an issuer could rely on the rule in such a way that Holding Companies are treated differently than other issuers because of the Holding Companies' organizational structures.

RMBS and Other Securities Litigation

Wells Fargo Wins Summary Judgment Motion on All Claims Brought by German Bank LBBW Luxemburg

On March 30, 2017, Judge J. Paul Oetken granted Defendants Wells Fargo Securities LLC ("Wells Fargo"), f/k/a Wachovia Capital Markets LLC ("Wachovia"), and Fortis Securities LLC's motion for summary judgment, dismissing the remaining causes of action and closing the case in LBBW Luxemburg S.A. v. Wells Fargo Securities LLC in the United States District Court for the Southern District of New York. 

In a prior motion to dismiss order in 2014, the Court granted in part Defendants' motion to dismiss, "keeping alive" only one theory of liability brought by LBBW. That remaining theory was that Wachovia's internal valuation markdown of the Grand Avenue II ("GAII") CDO Preference Shares, for which Defendants had served as some of the initial purchasers, on the same day it issued those shares allegedly signaled Wachovia's potential misrepresentation or omission to purchasers of other GAII's securities. Plaintiffs argued this markdown supported a plausible inference that Wachovia knowingly misrepresented the value of CDO shares and constituted circumstantial evidence of conscious misbehavior.

In its ruling, the Court held that LBBW failed to show that it conveyed its right to sue to another German entity, Landesbank, when the two companies merged in 2014, and therefore failed to establish standing. 

Judge Oetken also found that LBBW failed to overcome the motion for summary judgment on the merits. The Court found that LBBW's single surviving theory of liability was unsupported by the record, as discovery in the case had not produced evidence to connect the markdown to any secretly held view by Wells Fargo that GAII's portfolio of assets was in trouble.

The Court also rejected the fraud claims brought against Defendants, finding that LBBW failed to point to specific evidence as to a misrepresentation or material omission on Defendants' part based on the single surviving theory. Judge Oetken also dismissed constructive fraud and negligent misrepresentation claims against Defendants, concluding again that there was a lack of evidence to support any misrepresentation, an essential element of both claims. Finally, the Court found that LBBW's breach of contract claim, which alleged that Defendants agreed to notify it of any material changes to the CDO's capital structure, must fail, as the "evidence establishes beyond genuine dispute that the internal markdown on the Preference Shares was not related to any change in Wachovia's view of GAII's underlying portfolio of assets."

In addition to granting Defendants' motion for summary judgment, Judge Oetken also denied LBBW's motion to supplement the summary judgment record as untimely; LBBW's motion to strike certain of Defendants' arguments; and LBBW's motion for adverse inference sanctions. Opinion.

SDNY Grants Defendant GreenPoint Mortgage Summary Judgment

On March 29, 2017, Judge Andrew L. Carter, Jr., of the United States District Court for the Southern District of New York granted Defendant GreenPoint Mortgage Funding, Inc.'s ("GreenPoint") motion for summary judgment, dismissing all causes of action against it as time-barred and terminating the case in Lehman XS Trust et al. v. GreenPoint Mortgage Funding, Inc. 

Plaintiff Trustee U.S. Bank National Association, on behalf of the Lehman XS Trust, Series 2006-GP2 ("GP2"), Lehman XS Trust, Series 2006-GP3 ("GP3"), and Lehman XS Trust, Series 2006-GP4 ("GP4") (collectively, the "Trusts"), and Freddie Mac Conservator Federal Housing Finance Agency (collectively, "Plaintiffs") brought consolidated claims against GreenPoint regarding GP2, GP3, and GP4. Plaintiffs alleged breach of contract and indemnification claims for specific performance and damages arising out of GreenPoint's alleged breach of certain representations and warranties. 

Citing N.Y. C.P.L.R. § 214(3), the Court first found that Plaintiffs' breach of contract claims under the mortgage loan purchase agreements ("MLPA") for all three Trusts were time-barred under New York state's six-year statute of limitations for breach of contract actions. The Trusts' respective MLPAs required GreenPoint to cure or repurchase the defective loans in the event that any of the mortgage loans breached these representations and warranties. The closing dates for the Trusts were as follows: GP2 on May 15, 2006; GP3 on June 15, 2006; and GP4 on July 17, 2006. FHFA filed summons with notice for GP2 on May 30, 2012; for GP3 on June 29, 2012; and for GP4 on July 30, 2012. 

Judge Carter then rejected Plaintiffs' indemnification claims arising out of GreenPoint's alleged breaches of representations and warranties. Plaintiffs sought indemnification for its losses, costs, fees, and expenses arising out of and related to the breaches of GreenPoint's representations and warranties. Since Plaintiffs did not face liability to a third party as a result of the alleged breaches, the Court held that Plaintiffs' indemnification cause of action was "more appropriately characterized as one to recover losses incurred by breach of contract" and therefore also barred by the statute of limitations. 

Finally, the Court dismissed as time-barred Plaintiffs' newly alleged causes of action for breach of GreenPoint's representations and warranties made in the Trusts' Indemnification Agreements, which provide for indemnity to the Trusts and other entities for claims arising out of breaches of the representations and warranties made in the information provided by or on behalf of GreenPoint for inclusion in the Prospectus Supplements. Opinion.

European Financial Industry Developments

Delegated Regulation Further Extending Temporary Clearing Exception for PSAs Under the Regulation on OTC Derivatives, CCPS and Trade Repositories (Regulation 648/2012) EMIR Published in OJ

An amendment to EMIR entitled Commission Delegated Regulation (EU) 2017/610 was published in the Official Journal of the EU ("OJ"). The Delegated Regulation concerns the extension of transitional periods relating to Pension Scheme Arrangements ("PSAs") and was adopted by the European Commission on December 20, 2016. The Delegated Regulation came into force the day after it was published in the OJ, being April 1, 2017.

European Commission Publishes Draft Seventh Implementing Regulation Extending Transitional Periods Related to Own Fund Requirements for CCPS Exposures

On March 31, 2017, the European Commission published a draft version of an Implementing Regulation on the extension of the transitional periods related to own funds requirements for exposures to Central Counterparties ("CCPs"), set out in the Capital Requirements Regulation (Regulation 575/2013) ("CRR") and EMIR.

The Commission adopted an initial Implementing Regulation (Regulation 591/2014) in June 2014, extending the 15-month periods referred to in Article 497(1) and (2) of the CRR and in the first and second subparagraphs of Article 89(5)(a) of EMIR by six months, to December 15, 2014. The most recent Implementing Regulation, adopted by the European Commission on December 9, 2016, extended the transitional periods to December 15, 2016.

To avoid market disruption and to prevent penalizing institutions by subjecting them to higher own funds requirements during the process of authorization and recognition of existing CCPs, the latest Implementing Regulation extends the transitional periods by an additional six months, to June 15, 2017.

Delegated Acts Under the MiFID II Directive (2014/65/Eu) Published in OJ

On March 31, 2017, 28 Delegated Regulations supplementing the Markets In Financial Instruments Directive ("MiFID II") (2014/65/Eu) and the Markets in Financial Instruments Regulation (Regulation 600/2014) ("MiFIR") were published in the OJ, together with a Delegated Directive supplementing the MiFID. The Delegated Regulations will enter into force 20 days after their publication in the OJ (that is, April 20, 2017). They will apply from January 3, 2018, with the exception of certain provisions in Delegated Regulations 2017/567, 2017/571, 2017/581, 2017/583, 2017/587, 2017/588 and 2017/590.

The Delegated Regulations are:

1. Commission Delegated Regulation (EU) 2017/565 of April 25, 2016, supplementing MiFID II with regard to organizational requirements and operating conditions for investment firms and defined terms for the purposes of that Directive;
2. Commission Delegated Regulation (EU) 2017/566 of May 18, 2016, supplementing MiFID II with regard to regulatory technical standards ("RTS") for the ratio of unexecuted orders to transactions in order to prevent disorderly trading conditions;
3. Commission Delegated Regulation (EU) 2017/567 of May 18, 2016, supplementing MiFIR with regard to definitions, transparency, portfolio compression and supervisory measures on product intervention and positions;
4. Commission Delegated Regulation (EU) 2017/568 of May 24, 2016, supplementing MiFID II with regard to RTS for the admission of financial instruments to trading on regulated markets;
5. Commission Delegated Regulation (EU) 2017/569 of May 24, 2016, supplementing MiFID II with regard to RTS for the suspension and removal of financial instruments from trading;
6. Commission Delegated Regulation (EU) 2017/570 of May 26, 2016, supplementing MiFID II on markets in financial instruments with regard to RTS for the determination of a material market in terms of liquidity in relation to notifications of a temporary halt in trading;
7. Commission Delegated Regulation (EU) 2017/571 of June 2, 2016, supplementing MiFID II with regard to RTS on the authorization, organizational requirements and the publication of transactions for data reporting services providers;
8. Commission Delegated Regulation (EU) 2017/572 of June 2, 2016, supplementing MiFIR with regard to RTS on the specification of the offering of pre- and post-trade data and the level of disaggregation of data;
9. Commission Delegated Regulation (EU) 2017/573 of June 6, 2016, supplementing MiFID II on markets in financial instruments with regard to RTS on requirements to ensure fair and nondiscriminatory co‑location services and fee structures;
10. Commission Delegated Regulation (EU) 2017/574 of June 7, 2016, supplementing MiFID II with regard to RTS for the level of accuracy of business clocks;
11. Commission Delegated Regulation (EU) 2017/575 of June 8, 2016, supplementing MiFID II on markets in financial instruments with regard to RTS concerning the data to be published by execution venues on the quality of execution of transactions;
12. Commission Delegated Regulation (EU) 2017/576 of June 8, 2016, supplementing MiFID II with regard to RTS for the annual publication by investment firms of information on the identity of execution venues and on the quality of execution;
13. Commission Delegated Regulation (EU) 2017/577 of June 13, 2016, supplementing MiFIR on markets in financial instruments with regard to RTS on the volume cap mechanism and the provision of information for the purposes of transparency and other calculations;
14. Commission Delegated Regulation (EU) 2017/578 of June 13, 2016, supplementing MiFID II on markets in financial instruments with regard to RTS specifying the requirements on market making agreements and schemes;
15. Commission Delegated Regulation (EU) 2017/579 of June 13, 2016, supplementing MiFIR on markets in financial instruments with regard to RTS on the direct, substantial and foreseeable effect of derivative contracts within the Union and the prevention of the evasion of rules and obligations;
16. Commission Delegated Regulation (EU) 2017/580 of June 24, 2016, supplementing MiFIR with regard to RTS for the maintenance of relevant data relating to orders in financial instruments;
17. Commission Delegated Regulation (EU) 2017/581 of June 24, 2016, supplementing MiFIR with regard to RTS on clearing access in respect of trading venues and central counterparties;
18. Commission Delegated Regulation (EU) 2017/582 of June 29, 2016, supplementing MiFIR with regard to RTS specifying the obligation to clear derivatives traded on regulated markets and timing of acceptance for clearing;
19. Commission Delegated Regulation (EU) 2017/583 of July 14, 2016, supplementing MiFIR on markets in financial instruments with regard to RTS on transparency requirements for trading venues and investment firms in respect of bonds, structured finance products, emission allowances and derivatives;
20. Commission Delegated Regulation (EU) 2017/584 of July 14, 2016, supplementing MiFID II with regard to RTS specifying organizational requirements of trading venues;
21. Commission Delegated Regulation (EU) 2017/585 of July 14, 2016, supplementing MiFIR with regard to RTS for the data standards and formats for financial instrument reference data and technical measures in relation to arrangements to be made by ESMA and competent authorities;
22. Commission Delegated Regulation (EU) 2017/586 of July 14, 2016, supplementing MiFID II with regard to RTS for the exchange of information between competent authorities when cooperating in supervisory activities, on-the-spot verifications, and investigations;
23. Commission Delegated Regulation (EU) 2017/587 of July 14, 2016, supplementing MiFIR on markets in financial instruments with regard to RTS on transparency requirements for trading venues and investment firms in respect of shares, depositary receipts, exchange-traded funds, certificates and other similar financial instruments and on transaction execution obligations in respect of certain shares on a trading venue or by a systematic internalizer;
24. Commission Delegated Regulation (EU) 2017/588 of July 14, 2016, supplementing MiFID II with regard to RTS on the tick size regime for shares, depositary receipts, and exchange-traded funds;
25. Commission Delegated Regulation (EU) 2017/589 of July 19, 2016, supplementing MiFID II with regard to RTS specifying the organizational requirements of investment firms engaged in algorithmic trading;
26. Commission Delegated Regulation (EU) 2017/590 of July 28, 2016, supplementing MiFIR with regard to RTS for the reporting of transactions to competent authorities;
27. Commission Delegated Regulation (EU) 2017/591 of December 1, 2016, supplementing MiFID II with regard to RTS for the application of position limits to commodity derivatives; and
28. Commission Delegated Regulation (EU) 2017/592 of December 1, 2016, supplementing MiFID II with regard to RTS for the criteria to establish when an activity is considered to be ancillary to the main business.