FDIC Updates Brokered Deposit FAQs, Seeks Comment on Revised Document

On November 13, 2015, the Federal Deposit Insurance Corporation updated its Frequently Asked Questions regarding the identifying, accepting and reporting of brokered deposits.  This resource can be used to help ensure compliance with Section 29 of the Federal Deposit Insurance Act.  Release.

FHFA Releases 2015 Performance and Accountability Report

On November 16. 2015, the Federal Housing Finance Agency released a report that analyzes its duties as regulator of the Federal Home Loan Bank System and as regulator and conservator of Fannie Mae and Freddie Mac for the fiscal year 2015.  Release.

CFTC Divisions Provide Time-Limited No-Action Relief for Certain Affiliated Counterparties

On November 17, 2015, the U.S. Commodity Futures Trading Commission's Divisions of Clearing and Risk and Market Oversight each renewed preexisting no-relief for specified types of inter-affiliate transactions. The Division of Clearing and Risk addressed situations connected to mandatory clearing regimes outside of the United States. The Division of Market Oversight delayed the application of the trade execution requirement to certain affiliate counterparties.  Release.

On November 17, 2015, Fitch published its updated Rating Criteria for U.S. Municipal Short-Term Debt.  Release.

On November 17, 2015, Fitch published its updated Surveillance Criteria for U.S. CREL CDOs.  Release.

On November 17, 2015, Moody's published a rating methodology report entitled Publicly Managed Airports and Related Issuers.  Methodology.

On November 16, 2015, DBRS released a report entitled Rating U.S. Rental Car Securitizations.  Methodology.

On November 13, 2015, Fitch published its updated U.S. & Canadian Fixed-Rate Multiborrower CMBS Surveillance & U.S. Re-Remic Criteria.  Release.

Second Circuit Upholds Dismissal of RMBS Lawsuit as Time-Barred

On November 16, the Second Circuit Court of Appeals affirmed the District Court's dismissal of a lawsuit brought by Deutsche Bank National Trust Co. (acting as Trustee for RMBS Trust GSR 2007-OA1) against Quicken Loans, alleging that Quicken breached its obligation to repurchase mortgage loans that violated representations and warranties ("R&Ws").  The court held that because Quicken's R&Ws only purported to guarantee characteristics of the loans at the time of sale, New York's six year statute of limitations for breach of contract ran from that date, and had lapsed by the filing date of the action.

Following the New York Court of Appeals' decision in ACE (link to prior coverage), the court rejected the Trustee's argument that the accrual date for its claim was delayed by the repurchase procedures set forth in the transaction documents. The court also rejected the Trustee's argument that it should be entitled to take advantage of a statutory extension to the applicable limitations period because the FHFA originally filed the lawsuit. It held that FHFA did not "bring" the claims at issue because it only filed the initial summons and notice in the case before abandoning prosecution of the action after realizing it was not the proper plaintiff. Finally, the court upheld the dismissal of the Trustee's breach of the implied covenant of good faith and fair dealing as duplicative of the breach of contract claim.  Order.

ESMA Will Not Extend EMIR Exemption for the Collateralization of Bank Guarantees for Energy Derivatives

On November 19, 2015, the European Securities and Markets Authority ("ESMA") published a statement announcing that it will not further extend the existing three year grace period (expiring March 2016) for non-financial firms' use of non-collateralized bank guarantees to cover transactions in energy derivatives cleared by EU central counterparties ("CCPs") under EMIR (the Regulation on OTC derivative transactions, central counterparties and trade repositories) (Regulation 648/2012).

From March 15, 2016, CCPs authorized under EMIR will need to fully collateralize commercial bank guarantees used to cover transactions in derivatives relating to electricity or natural gas produced.

ESMA considered that an extension would not be appropriate for the following reasons:

• Allowing fully uncollateralized commercial bank guarantees could mean an undue source of risk for CCPs.
• The existing three year grace period seemed sufficient for the wholesale energy market to prepare for the incoming collateral obligations.
• Some EU CCPs already have implemented the EMIR requirements.
• EMIR requires that a CCP only accepts highly liquid collateral with minimal credit and market risk.
• A new postponement would maintain a discrepancy with international standards such as the CPMI-IOSCO principles for financial market infrastructures.
• ESMA expects parties to be ready to implement the collateral obligation relating to commercial bank guarantees by March 2016.

ESMA Launches MiFID Suspensions and Removals Database

On November 17, 2015, the European Securities and Markets Authority ("ESMA") launched a database of financial instruments that have been suspended or removed from trading under Article 41 of the Markets in Financial Instruments Directive (2004/39/EC) ("MiFID").

The database contains information about suspensions and removals that has been notified to ESMA under Article 41(2) of MiFID. According to an accompanying press release, the database covers financial instruments admitted to trading in European regulated markets and displays a list of the current suspensions in these markets, but not suspensions linked to them. The database also allows searching for instrument currently or previously suspended to consult the key details of its suspensions.

Reg AB II – New Changes or Business as Usual?

Orrick Partner, Janet Barbiere, will moderate this event on December 2^nd in New York. She will be joined by Paul T. Vanderslice, Managing Director at Citigroup Global Markets.

Discussion Topics:

• Asset Representations Reviewer Issues
• Dispute Resolution mechanism
• CEO Certification
• Sponsor Interest in the Securities
• Timing of preliminary prospectus and prospective supplement updates prior to pricing

Please click here to register.

The Puerto Rico Debt Crisis – An Update

​The Commonwealth of Puerto Rico is experiencing the most drastic fiscal crisis in the Commonwealth's history. Please join Orrick and The Bond Buyer on December 9^th at 12:00 pm EST for an informative webinar that will focus on the key bankruptcy and other financial issues that have come into play as the financial markets look to solve Puerto Rico's debt crisis.

Topics to be addressed during this webinar include:

• Possible Default & Restructuring Negotiations
• Priority of Commonwealth Debt
• Clawback Litigation Issues
• Proposed Chapter 9 Amendment
• Other Legislative Developments, Including Possible Appointment of Financial Control Board
• Pension/OPEB Underfunding and Possibility of "Grand Bargain" Solution for Pension Reform

Featured Presenters:
Lorraine S. McGowen, Partner, Restructuring, Orrick
Marc A. Levinson, Partner, Restructuring, Orrick
Kevin Roche, Partner, Public Finance, Orrick

For further information and to register, please click here.

Conversations@Orrick:  The Syrian Refugee Crisis - A Discussion with Lavinia Limón

We hope you can join us for what promises to be a thought-provoking overview of the Syrian refugee crisis, including a discussion of the numbers and flows of Syrian refugees, the impact on Jordan, Turkey, Lebanon, Iraq and their response, U.S. and International Community response, resettlement of Syrian refugees and the responsibility of the international community.

Date:
Thursday, December 10^th
6:00 p.m. Networking Reception
7:00 p.m. Discussion

Location:
Orrick's NY Office
CBS Building
51 West 52nd Street

RSVP Here.