Corporate & Financial Weekly Digest : Corporate Finance Lawyers & Attorneys for Legal Developments in Business & Financial Services

On May 25, the Securities and Exchange Commission issued proposed rule amendments that disqualify securities offerings involving certain "felons and other 'bad actors'" from reliance on the safe harbor from registration under Section 4(2) of the Securities Act of 1933 provided by Rule 506 of Regulation D to reflect the requirements of Section 926 of the Dodd-Frank Wall Street Reform and Consumer Protection Act. Section 926 of the Dodd-Frank Act requires that that the SEC issue disqualification rules for Rule 506 offerings that are "substantially similar" to the disqualification rules provided by Rule 262 of the Securities Act, which apply to securities offerings under Regulation A.

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Co-authored by Kari E. Hoelting

On May 25, the Securities and Exchange Commission issued final rules creating a whistleblower program under Section 21F of the Securities Exchange Act of 1934 as required by Section 922 of the Dodd-Frank Wall Street Reform and Consumer Protection Act. The new program authorizes the SEC to pay rewards to individuals who voluntarily provide the SEC with original information that leads to successful SEC enforcement actions that result in monetary sanctions totaling more than $1 million. The total amount of the award is between 10% and 30% of the monetary sanctions.

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Co-authored by Jessica M. Garrett

The U.S. Court of Appeals for the Federal Circuit recently reviewed the decisions in Micron Tech., Inc. v. Rambus, Inc., 225 F.R.D. 135, (D. Del. 2009) (Micron I), and Hynix Semiconductor, Inc. v. Rambus, Inc., 591 F.Supp.2d 1038 (N.D.Cal. 2006) (Hynix I), two cases that analyzed substantially identical facts but reached widely disparate conclusions. In each case, the plaintiff alleged that Rambus, Inc. committed spoliation by destroying potentially relevant documents pursuant to a document destruction policy at two company-sponsored "shred days." In both cases, the question of spoliation turned on the point at which litigation was reasonably foreseeable. The U.S. District Court for the District of Delaware determined that Rambus had committed spoliation because litigation was reasonably foreseeable prior to the destruction of documents, and issued sanctions against Rambus. Conversely, the U.S. District Court for the Northern District of California concluded that litigation was not reasonably foreseeable until after certain documents had already been destroyed, and did not sanction Rambus.

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On May 24, the UK Financial Services Authority (FSA) announced that it had fined Samuel Kahn £1,094,900 (approximately $1,790,000) and obtained a High Court injunction restraining him from committing market abuse. This was the first time the FSA had secured such a final injunction from the High Court.

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On May 19, the Bank of England and the UK Financial Services Authority (FSA) published a joint paper, "The Bank of England, Prudential Regulation Authority - Our approach to banking supervision," setting out the current thinking on how the future Prudential Regulation Authority (PRA) will approach the supervision of banks, building societies, credit unions and investment firms.

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On May 24, the European Parliament announced the result of the vote of the Parliament's Economic and Monetary Affairs Committee (ECON) on the proposed European Market Infrastructure Regulation (EMIR).

The draft regulation (which covers over-the-counter (OTC) derivatives, central clearing parties (CCPs) and trade repositories) "aims to bring greater safety, transparency and stability to the OTC derivatives market."

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On May 13, the Securities and Exchange Commission amended its procedures for holding funds in a filing fee account. Under current rules, after 180 days from the last filing fee deposit, withdrawal or other adjustment, funds in an SEC filing fee account are automatically returned to the account holder. The SEC has now amended rule 3a of its Informal and Other Procedures under the Securities Act of 1933 to extend this holding period to three years. After three years of inactivity the Commission will return funds to the account holder automatically, although the account holder may always request a refund of fees at any time. The SEC explained that extending the duration of the 180-day limitation would create greater efficiencies and less administrative burdens for both account holders and the SEC. It pointed out particularly that this amended account-clearing procedure will harmonize with Securities Act Rule 415(a)(5), which permits eligible issuers to conduct primary shelf offerings on an effective registration statement for a period of three years. The three-year account clearing procedure will allow such issuers, and in particular issuers permitted to file automatic shelf registration statements, to coordinate deposits of filing fees with the life of the registration statement. The SEC noted that any additional deposits or withdrawal requests during the three-year period will extend the time period for an additional three years.

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Co-authored by James B. Anderson

On May 25, the Securities and Exchange Commission will hold an open meeting to discuss whether to adopt rules and forms to implement the whistleblower provisions added to Section 21F of the Securities Exchange Act of 1934 by the Dodd-Frank Wall Street Reform and Consumer Protection Act. Under rules proposed on November 3, 2010, the SEC will pay an award or awards to one or more whistleblowers who voluntarily provide the SEC with original information that leads to the successful enforcement by the SEC of a federal court or administrative action in which the SEC obtains monetary sanctions totaling more than $1 million. The proposed rules define certain terms critical to the operation of the whistleblower program, outline the procedures for applying for awards and the SEC's procedures for making decisions on claims, and generally explain the scope of the whistleblower program to the public and to potential whistleblowers. Of interest will be the SEC's response to critics who have argued that the SEC's proposed rules will thwart the effectiveness of corporate compliance programs.

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Co-authored by Natalya S. Zelensky

On May 16, the Financial Industry Regulatory Authority announced the launch of the FINRA Disciplinary Actions Online database, a web-based searchable system that makes disciplinary documents accessible to the public. The database enables users to search FINRA actions free of charge by case number, document text, document type, action date (by date range), a combination of document text and action date, individual name and Central Registration Depository (CRD) number, or firm name and CRD number. The documents can be viewed online, printed, or downloaded as text-searchable PDF files. The disciplinary action documents made available include Letters of Acceptance, Waivers and Consent, settlements, National Adjudicatory Council decisions, Office of Hearing Officers decisions and complaints. BrokerCheck reports will now link to disciplinary actions housed in the database. In addition, starting on June 15, FINRA Monthly Disciplinary Actions will link each write-up to its corresponding action in the database.

The database is available here.
Click here to read the FINRA release.

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Co-authored by Robert Grundstein

The Securities and Exchange Commission has approved the Financial Industry Regulatory Authority's proposed rule changes to Rule 5131 that delete paragraph (b)(1) and delay the implementation date of paragraphs (b) and (d)(4) until September 26. Removal of paragraph (b)(1) of Rule 5131, which would have required members to establish, maintain and enforce policies and procedures reasonably designed to ensure that "investment banking personnel" have no involvement or influence (directly or indirectly) in the members' new issue allocation decisions, simplifies the spinning prohibitions on FINRA members and eliminates potential constraints on certain necessary functions traditionally performed by syndicate personnel. Postponing the implementation date will enable FINRA members to develop a reliable identification process for new issues allocations and to modify existent order handling systems to prevent the acceptance of market orders in new issue shares, thereby promoting effective compliance with Rule 5131 in the future.

Click here to read the SEC's release.
Click here to read a summary of FINRA's proposed changes to Rule 5131 in the May 6 edition of Corporate and Financial Weekly Digest.

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Co-authored by Natalya S. Zelensky

The Securities and Exchange Commission has approved the Financial Industry Regulatory Authority's proposal to adopt a new rule governing customer order protection. FINRA Rule 5320 applies to customer market and limit orders in securities that meet the definition of "OTC Equity Security" as defined in FINRA Rule 6420, as well as securities that meet the definition of "NMS stock" as defined in Rule 600 of SEC Regulation NMS. With respect to marketable and non-marketable customer limit orders, FINRA Rule 5320 includes minimum price improvement amounts that are necessary for a member firm to execute an order on a proprietary basis when holding an unexecuted limit order in that same security, and not be required to execute the held limit order (unless an exception applies). The rule's Supplementary Material provides several exceptions, including for large orders and orders from institutional accounts; a "no-knowledge" exception; and an exception for trades made to offset a customer odd-lot order or to correct a bona fide error.

FINRA Rule 5320 goes into effect on September 12 and applies to a customer order at all times that the order is executable by the firm. Therefore, if a customer and firm agree to process the customer's order outside normal market hours, the protections of FINRA Rule 5320 will apply to that customer's order outside normal market hours.

Click here to read FINRA Regulatory Notice 11-24.

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Co-authored by Natalya S. Zelensky

The Securities and Exchange Commission has approved the Financial Industry Regulatory Authority's proposal to adopt a rule governing fidelity bonds. FINRA Rule 4360 is based on NASD Rule 3020 and takes into account certain requirements under New York Stock Exchange Rule 319 and its Interpretation. The rule requires each firm required to join the Securities Investor Protection Corporation (SIPC) to maintain blanket fidelity bond coverage with specified amounts of coverage based on the firm's net capital requirement, with certain exceptions. Such firms must maintain fidelity bond coverage that provides for per loss coverage without an aggregate limit of liability. Firms that do not qualify for a fidelity bond with per loss coverage and no aggregate limit of liability must maintain substantially similar bond coverage in compliance with all of the rule's other provisions, provided that the firms maintain written correspondence from two insurance providers stating that the firms do not qualify for such coverage. FINRA Rule 4360 also addresses minimum required coverage, deductible provision, annual review of coverage, and exemptions. FINRA Rule 4360 takes effect on January 1, 2012. Firms subject to the rule must have a fidelity bond in place as of January 1, 2012, that meets all of the rule's requirements.

Click here to read FINRA Regulatory Notice 11-21.

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Co-authored by Natalya S. Zelensky

The Securities and Exchange Commission has approved proposed amendments to transaction reporting and notification requirements in the Financial Industry Regulatory Authority Rule 6700 Series and reporting fees in FINRA Rule 7730, which relate primarily to Asset-Backed Securities, and the method of calculating the Trading Activity Fee (TAF) for such securities in Schedule A of the FINRA By-Laws. FINRA's Trade Reporting and Compliance Engine (TRACE) rules provide for the reporting of transactions in TRACE-Eligible Securities to TRACE, and the dissemination of transaction information, with some exceptions. FINRA Rule 7730 sets forth TRACE reporting and data fees. The TAF is a regulatory fee FINRA uses to fund its member regulation activities, including examinations, financial monitoring, and policymaking, rulemaking and enforcement activities. The effective date of the approved amendments is May 16.

Click here to read FINRA Regulatory Notice 11-20.

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Co-authored by Kevin M. Foley and Christopher H. Mendoza

The Commodity Futures Trading Commission has adopted amendments to CFTC Rules 4.12 and 4.13 to provide relief from certain disclosure, reporting and recordkeeping requirements for commodity pool operators (CPOs), as well as relief from registration requirements for certain independent directors and trustees, of pools with units of participation that are publicly offered and traded on a national securities exchange (Commodity ETFs). The final rules are substantially similar to the rules that were proposed by the CFTC in September 2010.

The CFTC also has issued an order authorizing the National Futures Association to process claims of exemption under the newly adopted rules.

The rules will take effect on June 17.

The CFTC rules can be found here.
The CFTC order can be found here.

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Co-authored by Robert Grundstein

Section 403 of the Dodd-Frank Wall Street Reform and Consumer Protection Act repeals, as of July 21, the private adviser exemption in Section 203(b)(3) of the Investment Advisers Act of 1940 and will require advisers relying on that exemption (including advisers to many hedge funds and other private funds) to register with the Securities and Exchange Commission.

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Co-authored by Elizabeth D. Langdale

On May 16, the U.S. Supreme Court ruled that claims brought by private plaintiffs under the federal False Claims Act (FCA) could not be based on information received from Freedom of Information Act (FOIA) requests. In a 5-3 decision that reversed the U.S. Court of Appeals for the Second Circuit, the Supreme Court found that FOIA requests qualify as "reports" that trigger the public disclosure bar for qui tam actions under the FCA.

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Co-authored by Elizabeth D. Langdale

The Securities and Exchange Commission entered into a Deferred Prosecution Agreement (DPA) with Tenaris S.A. in the SEC's first-ever use of such agreement to facilitate and reward cooperation with the SEC. When Tenaris, a global manufacturer of steel pipe products, conducted a worldwide internal review of its operations and controls, it discovered that its personnel in Uzbekistan violated the Foreign Corrupt Practices Act (FCPA) by bribing Uzbekistani government officials to secure an advantage during a bidding process to supply pipelines for transporting natural gas. Tenaris informed the SEC of the violation. The SEC alleged that Tenaris made almost $5 million in profits when it was awarded several contracts as a result of the alleged bribery.

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Co-authored by Christina Grigorian

On May 12, the Board of Governors of the Federal Reserve System published for comment changes to Regulation E, which implements the Electronic Fund Transfer Act. The proposal contains new protections for consumers who send remittance transfers to consumers or entities in a foreign country.

The proposed changes were mandated by the Dodd-Frank Wall Street Reform and Consumer Protection Act, which requires that consumers get certain disclosures in connection with remittances to foreign countries, including information about fees, the applicable exchange rate, and the amount of currency to be received by the recipient. The Dodd-Frank Act also requires that senders of remittance transfers have certain error resolution rights.

Comments are due 60 days after publication in the Federal Register.

For more information, click here.

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Co-authored by Christopher K. Buch

On May 16, the U.S. Supreme Court issued its long-awaited opinion in the case of Cigna Corp. v. Amara. This decision will have a substantial impact on plan sponsors, both with respect to how a sponsor is to design its plan and disclose terms in its summary plan description, as well as what relief may be available for plan participants and beneficiaries for plan violations.

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In testimony before the U.S. House of Representatives Committee on Oversight and Government Reform on May 10, Securities and Exchange Commission Chairman Mary Shapiro stated that she had instructed the staff of the SEC to "take a fresh look" at rules relating to public and private offerings of securities in light of advances in technology, accelerated communications and changes in the operations of the financial markets, with a view to encouraging capital formation. No timetable was provided. Specific areas of focus outlined by Chairman Shapiro include:

• the restrictions on communications in initial public offerings;
• whether the ban on general solicitation or advertising for private placements should be revised;
• the number of shareholders that trigger public reporting, including questions surrounding the use of special purpose vehicles that hold securities of a private company for groups of investors; and
• regulatory questions posed by new capital-raising strategies.

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Co-authored by Louis Froelich

The Financial Industry Regulatory Authority has delayed the implementation of the new Order Audit Trail System (OATS) recording and reporting requirements for national market system (NMS) stocks to October 3. FINRA was originally slated to begin phasing in the expansion on July 11. According to the Securities and Exchange Commission, FINRA is delaying the implementation date in an effort to give its members sufficient time to make necessary changes to their systems to enable them to comply with the expanded OATS recording and reporting requirements.

Click here to read Securities and Exchange Commission Release No. 34-64369.
Click here for information on previous guidance from FINRA regarding the expansion of OATS to all NMS stocks, as reported in the January 14 edition of Corporate and Financial Weekly Digest.

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On May 11, the White House announced that Mark Wetjen has been nominated to be Commissioner of the Commodity Futures Trading Commission. Mr. Wetjen is currently Counsel and Senior Policy Advisor to Nevada Senator and Senate Majority Leader Harry Reid.

The press release announcing Mr. Wetjen's nomination is available here.

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Co-authored by Christian B. Hennion

The Securities and Exchange Commission has proposed amendments to Rule 205-3 under the Investment Advisers Act of 1940, as amended (the Advisers Act), to revise the definition of "qualified client." Under Rule 205-3, accounts of qualified clients are exempted from the Advisers Act's general prohibition against SEC-registered investment advisers charging performance-based fees to their advisory clients. Currently, a qualified client generally includes any client that has either (1) $750,000 or more under management with the investment adviser or (2) a net worth of at least $1.5 million.

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The U.S. Department of the Treasury has published a revised version of, and has delayed the first required filing of, the monthly report to the Federal Reserve Bank relating to the aggregate holdings of long-term securities by U.S. and foreign residents (Form SLT). Investment advisers and/or private investment funds that exceed the $1 billion threshold described below must file their first Form SLT report no later than October 23.

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Co-authored by Gregory C. Johnson

A New York federal district court recently ruled that, with limited statutorily defined exceptions, a whistleblower asserting private relation claims under the Dodd-Frank Wall Street Reform and Consumer Protection Act must allege that the information he provided was reported to the Securities and Exchange Commission. The court held, however, that the Dodd-Frank Act does not require that the whistleblower directly provide the information to the SEC in order to pursue a claim. Rather, all that is required is that the whistleblower allege that he acted jointly in an effort to provide the information concerning the alleged misconduct to the SEC.

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Co-authored by Gregory C. Johnson

A company's failure to implement a written litigation hold and its subsequent failure to produce certain documents responsive to an adversary's discovery request did not require finding the company liable for spoliation of evidence, a New York federal court recently ruled.

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On May 3, the Office of the Comptroller of the Currency (OCC) issued revised examination procedures for the Protecting Tenants at Foreclosure Act (Tenants Protection Act). The Tenants Protection Act, which is part of the Helping Families Save Their Homes Act of 2009, became effective on May 20, 2009. The Tenants Protection Act provides protections to bona fide tenants in the case of any foreclosure on a federally related mortgage loan or on any dwelling or residential real property. These protections provide that any immediate successor in interest in such a foreclosed property, including a bank that takes title to a house after foreclosure, will assume the interest subject to the rights of any bona fide tenant and must comply with certain notice requirements.

The Dodd-Frank Wall Street Reform and Consumer Protection Act revised the Tenants Protection Act by adding a definition for the date of a notice of foreclosure and by extending its expiration date to December 31, 2014.

These revised procedures replace the Tenants Protection Act procedures that were distributed via OCC Bulletin 2010-2, which this issuance rescinds.

Read more.

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On April 18, the Office of the Comptroller of the Currency (OCC) issued an alert to CEOs of National Banks and other regulated entities. The alert highlights the need for national banks and their technology service providers (TSPs) to take steps to ensure their enterprise risk management is sufficiently robust to protect and secure the bank's own and their customers' information. The OCC explained that several recent security breaches have highlighted the need for national banks and their TSPs to perform periodic risk assessments of their information security programs with respect to the prevention and detection of security incidents. Most security-related incidents occur because of the lack or failures of basic controls that allow attackers to gain entry into a target environment through phishing, spear-phishing, drive-by malware injection and other techniques. Once attackers have entered an environment, they typically use sophisticated tools and techniques to gain access to sensitive data or systems. Successful attacks often compromise sensitive customer information or create fraud. The increasing sophistication of the tools and techniques attackers use often includes stealth or other means that make their detection more difficult.

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On May 10, the Board of Directors of the Federal Deposit Insurance Corporation (FDIC) approved a proposed rule to adopt requirements for FDIC-supervised institutions that may engage in certain foreign exchange transactions with retail customers which fall under the provisions of Section 742 of the Dodd-Frank Wall Street Reform and Consumer Protection Act. As amended by the Dodd-Frank Act, the Commodity Exchange Act (CEA) provides that a U.S. financial institution for which there is a federal regulatory agency shall not enter into, or offer to enter into, a transaction described in Section 2(c)(2)(B)(i)(I) of the CEA with a retail customer except pursuant to a rule or regulation of a federal regulatory agency allowing the transaction under such terms and conditions as the federal regulatory agency shall prescribe ("retail forex rule"). The Dodd-Frank Act does not require that retail forex rules be issued jointly, or on a coordinated basis, with any other federal regulatory agency. While each federal banking agency is issuing a separate proposed rule, the federal banking agencies are coordinating their efforts. According to the FDIC, its notice of proposed rulemaking is substantially similar to the OCC's notice of proposed rulemaking regarding retail foreign currency transactions published on April 22 and regulations adopted by the Commodity Futures Trading Commission in September 2010.

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On March 30, the Securities and Exchange Commission approved proposed rules that would direct the national securities exchanges to establish listing standards that, among other things, require each member of an issuer's compensation committee to be a member of its board of directors, and to be "independent." In addition, the proposals would adopt new disclosure rules concerning the use of compensation consultants and conflicts of interest. See the April 1 edition of Corporate and Financial Weekly Digest.

The SEC originally requested that comments be received by April 29. The U.S. Chamber of Commerce, in an April 15 letter, requested that the SEC extend the comment period and, after considering the request, the SEC extended the comment period to May 19.

Read more.

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Co-authored by Natalya S. Zelensky

The Securities and Exchange Commission is seeking public comment on the feasibility, benefits and costs of two short selling disclosure regimes as a part of a study mandated by the Dodd-Frank Wall Street Reform and Consumer Protection Act. Section 417 of the Dodd-Frank Act requires the SEC to conduct studies of the feasibility, benefits and costs of (1) requiring reporting in real time, publicly or, in the alternative, only to the SEC and the Financial Industry Regulatory Authority, short sales positions in publicly listed securities, and (2) conducting a voluntary pilot program in which public companies could agree to have sales of their shares marked "long," "short," or "market maker short," and purchases of their shares marked "buy" or "buy-to-cover," and reported as such in real time through the Consolidated Tape. The SEC must submit a report on the results of these studies to Congress no later than July 21. Comments are due on or before 45 days after publication in the Federal Register.

Click here to read SEC Release No. 34-64383.

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Co-authored by Natalya S. Zelensky

The Financial Industry Regulatory Authority has proposed rule changes to FINRA Rule 5131 (New Issue Allocations and Distributions) to simplify the rule's spinning provision and to delay until September 26 the implementation date of the rule's provisions prohibiting spinning and purchasing of new issues in the secondary market prior to the start of trading of such shares in the secondary market. Paragraph (b) of FINRA Rule 5131 will prohibit an underwriter from allocating new issues to directors or executives of investment banking clients in exchange for receipt of investment banking business. The FINRA proposal would delete paragraph (b)(1) of the rule, which requires members to establish, maintain and enforce policies and procedures reasonably designed to ensure that "investment banking personnel" have no involvement or influence, directly or indirectly, in the members' new issue allocation decisions because of member concerns regarding the interpretation of this provision, particularly the term "investment banking personnel."

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On April 29, the U.S. Department of the Treasury published a formal notice of its intention to exclude Foreign Exchange Swaps and Foreign Exchange Forwards from the definition of swaps under provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act. The exclusion is being accomplished by exercise of the authority given to the Secretary of the Treasury in the Dodd-Frank Act to make a determination that those products "should not be regulated as swaps." As a result of the determination, FX Forwards and FX Swaps (1) cannot be subjected to mandatory clearing and exchange trading, and (2) will not count for purposes of determining a party's status as a Swap Dealer or Major Swap Participant. However, the exclusion is narrowly drawn so that those products will nevertheless be subject to certain other Dodd-Frank Act swap requirements, and other types of foreign exchange transactions that do not qualify as FX Swaps and FX Forwards will remain subject to the Dodd-Frank Act.

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Co-authored by Kevin M. Foley and Christian B. Hennion

The Commodity Futures Trading Commission has determined to extend the public comment period for over 30 of its proposed rulemakings under the Dodd-Frank Wall Street Reform and Consumer Protection Act until June 3. The rule proposals covered by the extension were proposed between October 2010 and March 2011 and relate to various aspects of the regulatory framework for swaps under the Dodd-Frank Act. For many of these proposed rulemakings, the public comment period has already closed, and is therefore being reopened until June 3. Comments previously received by the CFTC on such rule proposals after the close of the original comment period will be treated as if received during the reopened comment period and need not be resubmitted.

In its release announcing the extension of the public comment period, the CFTC also requests comment on the order in which it should consider the final rule proposals.

The CFTC release, including a full list of the affected rule proposals, is available here.

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Co-authored by Brian Schmidt

The U.S. District Court for the Southern District of New York denied defendants' motion to dismiss a complaint alleging that defendants improperly used confidential business information and solicited plaintiffs' employees and customers in contravention of defendants' employment agreements.

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Co-authored by Brian Schmidt

The Court of Chancery of Delaware ruled that counsel failed to establish "excusable neglect" when it requested additional time to submit an expert witness report after the deadline for that report—as provided for in the court's previously issued scheduling order—had expired.

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