CFTC Approves Final Rule on Margin Requirements for Uncleared Swaps for Swap Dealers and Major Swap Participants

On December 16, 2015, the U.S. Commodity Futures Trading Commission approved a new regulation for uncleared swaps not regulated by the Federal Reserve Board, the Office of the Comptroller of the Currency, the Federal Deposit Insurance Corporation, the Farm Credit Administration or the Federal Housing Finance Agency.  The new rule requires parties to collect margin in order to address concerns of entities taking on excessive risk. Press release. 

FHFA Issues Proposed Rule on Fannie Mae and Freddie Mac Duty to Serve Underserved Markets

On December 15, 2015, the Federal Housing Finance Agency issued a proposed rule that would require Fannie Mae and Freddie Mac to provide specific services relating to manufactured housing, affordable housing preservation and rural markets.  The proposed rule would also require Fannie Mae and Freddie Mac to address financing concerns in very low- to moderate-income families in those areas. Press release.

On December 16, 2015, Fitch released updated Criteria Assumptions for UK Residential Mortgages. Press release.

On December 16, 2015, Fitch released updated EMEA RMBS Rating Criteria, which had no impact on existing ratings. Press release.

On December 15, 2015, S&P issued Structured Finance Temporary Interest Shortfall Methodology, effective immediately (except where notification or registration is required). Report.

On December 15, 2015, DBRS released a report entitled Global Methodology for Rating Banks and Banking Organisations. Report.

On December 15, 2015, DBRS released a report entitled DBRS Criteria: Support Assessments for Banks and Banking Organisations. Report.

On December 15, 2015, DBRS released a report entitled Master European Structured Finance Surveillance Methodology. Report.

On December 15, 2015, DBRS released a report entitled Operational Risk Assessment for European Structured Finance Originators. Report.

On December 14, 2015, Moody's published its Global Approach to Rating Collateralized Loan Obligations. Report.

On December 10, 2015, Fitch released updated Criteria for Analysis of Commercial Real Estate Loans Securing Covered Bonds. Press release. 

Solus v. Perry: Case Update

Since May, we've followed Solus v. Perry, a New York County Supreme Court case originally filed in July of 2012. The case centered around whether Perry entered into a binding oral agreement to sell Solus a participation interest in a $1.6 billion claim against Bernie Madoff's bankruptcy estate. The parties agreed on a price and some other material terms during a phone call in April of 2012 but never signed a written agreement. In its pleadings, Perry claimed that because its trader noted that the trade was "subject to documentation," no agreement was ever formed.

Last Monday, the parties filed a stipulation discontinuing the case with prejudice.

During oral arguments on the parties' summary judgment motions last year, Judge Saliann Scarpulla noted that several issues with meaningful implications for the distressed trading market would need to be resolved before summary judgment could be entered, including: (1) whether there is an industry custom regarding the binding nature of oral contracts for unsecured claim trades; (2) whether an agreement that a trade is subject to documentation means there is no binding contract; and (3) whether the need for consent of a third party means there is no binding contract if such consent is not obtained.

The Solus v. Perry case will not produce an opinion resolving these issues. However, market participants should take note that even in New York, these issues are still considered open questions. Therefore, we reiterate the conclusions from our May article:

• When possible, get a trade confirmation signed immediately after entering into an oral trade.
• If an executed trade confirmation is not forthcoming, confirm that your counterparty is familiar with the LSTA standard terms or other relevant industry customs and intends to work within those guidelines.
• Be proactive any time a counterparty delivers a communication during or after trade time that could be interpreted as evidence that a binding agreement does not already exist.
• Exercise special care when dealing with counterparties and people with whom you do not typically trade. 

SEC Issues Staff Report on Accredited Investor Definition

On December 18, the Securities and Exchange Commission issued a staff report (the "Report") on the definition of "accredited investor" set forth in Rule 501(a) of Regulation D under the Securities Act of 1933. The Dodd-Frank Wall Street Reform and Consumer Protection Act directs the Commission to review the accredited investor definition as it relates to natural persons every four years to determine whether the definition should be modified or adjusted. Staff from the Divisions of Corporation Finance and Economic and Risk Analysis prepared the Report in connection with the first review of the definition.

The Report examines the history of the accredited investor definition and considers comments on the definition received from a variety of sources, including public commenters, the SEC's Investor Advisory Committee and its Advisory Committee on Small and Emerging Companies. The Report considers alternative approaches to defining "accredited investor," provides staff recommendations for potential updates and modifications to the existing definition and analyzes the impact potential approaches may have on the pool of accredited investors.

The primary recommendations of the Report are:

• The Commission should revise the financial thresholds, requirements for natural persons to qualify as accredited investors and the list-based approach for entities to qualify as accredited investors.
• The Commission should revise the accredited investor definition to allow individuals to qualify  as accredited investors based on other measures of sophistication besides their net worth and income.

The Report suggests detailed alternate approaches to implementing these recommendations.

The Commission is inviting members of the public to provide comments on the accredited investor definition, generally, and specifically on the staff recommendations contained in the Report, although a deadline for submitting comments has not been set. 

ESMA Guidelines for Assessment of Knowledge and Competence Under MiFID II

On December 18, the European Securities and Markets Authority ("ESMA") published a final report on guidelines for the assessment of knowledge and competence under the MiFID II Directive (2014/65/EU) ("Directive").

Article 25(1) of the Directive requires investment firms to ensure that persons giving investment advice or providing information about financial instruments, investment services or ancillary services to clients on behalf of the firm possess the necessary knowledge and competence to fulfil their obligations under the Directive.

EBA Final Draft RTS on Prudential Requirements for CSDS

On December 16, the EBA published its final report setting out draft RTS on prudential requirements for central securities depositories ("CSDs") under the Regulation on improving securities settlement and regulating CSDs (Regulation 909/2014) ("CSDR"). The final draft RTS relate to:

• The capital requirements for CSDs (required under Article 47);
• The additional risk-based capital surcharge reflecting the risks resulting from ancillary banking services (required under Article 54); and
• Details of the frameworks and tools for the monitoring, the measuring and management, the reporting and the public disclosure of credit and liquidity risks (required under Article 59).

European Commission Adopts Delegated Regulation on Obligations of Depositaries Required by UCITS V

The European Commission has adopted a Delegated Regulation (C(2015) 9160) supplementing the UCITS IV Directive (2009/65/EC) on the obligations of depositaries.

The Delegated Regulation sets out provisions relating to issues including:

• Minimum requirements for the contract between the management company or the investment company and the depositary (Article 2);
• Obligations on the depositary relating to oversight, due diligence, segregation and insolvency protection (Articles 3 to 17);
• The conditions and circumstances in which financial instruments held in custody are considered to be lost (Articles 18 and 19); and
• Independence requirements for management companies, investment companies, depositaries and third parties to whom the safekeeping function has been delegated (Articles 20 to 24).

The next step is for the Council of the EU and the European Parliament to consider the Delegated Regulation. If neither the Council nor the Parliament object to the Regulation, it will be published in the Official Journal of the EU and enter into force on the 20th day following its publication.

EBA Publishes Draft RTS in Relation to the BRRD

The EBA has published the following draft RTS in connection with the Bank Recovery and Resolution Directive (2014/59/EU) (BRRD):

• Final draft RTS on the valuation of derivatives under Article 49(4);
• A document setting out final draft RTS and guidelines on the business reorganization plans to be submitted where a resolution authority decides to apply the bail-in tool under the BRRD; and
• Final draft RTS on the information that should be contained in the detailed records of financial contracts required in support of the power to impose a stay on claims by creditors under Article 71. The final draft RTS also specify the circumstances in which the requirement to maintain detailed records will be imposed.

EBA Publishes Reports, Guidelines and Draft RTS in Relation to the CRR

The European Banking Authority ("EBA") has published the following documents in connection with the Capital Requirements Regulation (Regulation 575/2013) ("CRR"):

• Final guidelines on limits on exposures to shadow banking entities that carry out banking activities outside a regulated framework under Article 395. The guidelines introduce an approach that will allow EU institutions to set limits for their exposures to shadow banking entities as part of their internal processes. They are informed by a report on the exposures of a sample of EU institutions to shadow banking entities and the impact of setting limits. The guidelines will apply from 1 January 2017. Together with the report, they will assist the European Commission in its work on its upcoming report on the appropriateness and impact of imposing limits on exposures to shadow banking entities;
• A consultation paper on draft regulatory technical standards ("RTS") specifying the assessment methodology on the use of internal models for market risk, under Article 363(4)(c) of the CRR;
• A legislative proposal to extend certain exemptions for commodity dealers (COM(2015) 648);
• A report on the impact assessment and calibration of the net stable funding ratio ("NSFR") required under the CRR. The EBA recommends the introduction of an NSFR in the EU to ensure an appropriate stable funding structure relating to the degree of asset illiquidity, as the way of properly mitigating funding risk in banks.

Meanwhile, the text of the European Commission Implementing Regulation ((EU) 2015/2344) laying down implementing technical standards with regard to currencies with constraints on the availability of liquid assets in accordance with the CRR was published in the Official Journal of the EU.