The Financial Report – Volume 3, No. 4 • February 2014 (Global)
IN THIS ISSUE
Discussion and Analysis
On Tuesday, Andrew Dowell reported in The Wall Street Journal that a “computer attack” breached the crowdfunding site Kickstarter Inc. According to Dowell, Kickstarter was founded about five years ago and has raised US$850 million in pledges from five million people. Kickstarter retains 5 percent of the funds raised by projects that meet their funding goals. The article describes Kickstarter’s platform as an “exchange in which people can contribute often small amounts of money to fund projects.”
Crowdfunding generally refers to the process by which capital is raised from numerous, typically small, financial contributions to fund a project or enterprise and, unfortunately, a great deal of confusion remains regarding its regulatory status. Kickstarter is the leading example of donation-based crowdfunding. Contributors do not receive any equity or any financial return in the projects or enterprises that they finance. The Jumpstart Our Business Startups Act (JOBS Act) does not directly affect this form of crowdfunding.
As we discussed in this space in September 2013, the 80-year-old prohibition on general solicitation ended on Monday, September 23, 2013. This means that it is now legal for companies to solicit accredited investors and advertise that they are seeking to raise capital. This change was mandated under Title II of the JOBS Act.
The rules for crowdfunding with respect to ordinary or “retail” investors, however, were not even proposed until October 23, 2013, and the comment period for the proposed crowdfunding rules ended earlier this month. So crowdfunding rules have not yet been adopted. The mandate for crowdfunding is set forth in a different section, Title III of the JOBS Act, than the lifting of the ban on general solicitation.
It is possible that the confusion regarding the regulatory status of crowdfunding is due to the long wait for the SEC to propose and adopt rules for this potential new market. The JOBS Act had set the end of 2012 as the deadline for final rules on crowdfunding, a deadline which clearly has been missed.
In May 2013, the SEC’s Division of Trading and Markets published guidance referred to as “Frequently Asked Questions About Crowdfunding Intermediaries.” Since then, those FAQs have not been updated. The FAQ guidance indicates that Title III of the JOBS Act creates a new exemption for offerings of crowdfunded securities. Specifically, the JOBS Act amends the Securities Act to exempt issuers from the registration requirements of that Act when they offer and sell up to US$1 million in securities, provided that individual investments do not exceed certain thresholds and the issuer satisfies other conditions in the JOBS Act, most of which still require rulemaking by the SEC before they are operational.
One of the conditions that will be required for crowdfunding is that issuers will need to use the services of an intermediary that is either a broker registered with the SEC or a “funding portal” registered with the SEC. Title III of the JOBS Act adds a new provision to the Securities Exchange Act which requires the SEC to exempt, conditionally or unconditionally, an intermediary operating a funding portal from the requirement to register with the SEC as a broker. The intermediary, though, would need to register with the SEC as a funding portal and would be subject to the SEC’s examination, enforcement and rulemaking authority. The funding portal also must become a member of a national securities association that is registered under the Securities Exchange Act.
There is little doubt that donation-based platforms like Kickstarter hope to become “funding portals” for equity or financial-return based crowdfunding if and when the rulemaking under Title III of the JOBS Act becomes final. It will be interesting to see if donation-based platforms’ apparent vulnerability to computer attacks and data breaches will further stall the rulemaking necessary to implement true return-based crowdfunding. We will continue to monitor these important crowdfunding regulatory developments.
News from the Americas
SEC issues Draft Strategic Plan. The Securities and Exchange Commission published for public comment a Draft Strategic Plan, outlining its strategic goals for fiscal years 2014 to 2018. The plan was prepared in accordance with the Government Performance and Results Modernization Act of 2010, which requires federal agencies to outline their missions, planned initiatives, and performance goals for a five-year period. The plan examines forces shaping the regulatory environment and outlines more than 70 initiatives that the SEC has designed to support its primary strategic goals. Comments should be submitted by March 10, 2014. (2/14/2014). SEC Press Release.
OSC summary report for investment fund issuers. The Ontario Securities Commission issued its fourth annual Summary Report for Investment Fund Issuers, which provides an overview of the key activities and initiatives of the OSC for 2013 that impact investment fund issuers and the fund industry. (2/13/2014) OSC press release.
OSC guidance for small mining issuers. The Ontario Securities Commission published OSC Staff Notice 51-722 “Report on a Review of Mining Industry Issuers MD&A and Guidance,” which provides guidance to assist small mining issuers in complying with the Management’s Discussion and Analysis requirements in National Instrument 51-102 “Continuous Disclosure Obligations.” (2/6/2014) OSC press release.
News from Asia and the Pacific
ASIC information sheet on whistleblowers. The Australian Securities & Investments Commission has released information about its approach to dealing with whistleblower reports. The information explains how ASIC will communicate with whistleblowers, who is a whistleblower, the protections available to whistleblowers under the law, and how ASIC deals with information from whistleblowers. (2/18/2014) ASIC press release.
Interim class order relief for PDS regime is extended. The Australian Securities & Investments Commission extended to June 30, 2015, the interim class order relief from the shorter Product Disclosure Statement (PDS) regime for multi-funds, superannuation platforms and hedge funds. The relief is being extended pending the Australian Government decision on the application of the shorter PDS regime to superannuation platforms, multi-funds and hedge funds. (2/10/2014) ASIC press release.
Singapore announces market structure enhancements. The Monetary Authority of Singapore and the Singapore Exchange (SGX) released a joint consultation paper setting out proposals to strengthen the securities market in Singapore. The consultation addresses minimum trading price, collateral requirements, short reporting requirements, transparency of trading restrictions imposed by intermediaries, the SGX listings framework and regulatory enforcement of listing rules. Comments should be submitted by May 2, 2014. Separately, SGX announced measures to strengthen market transparency. The measures are effective March 3, 2014. (2/7/2014) MAS press release.
News from Europe
ESMA AIFMD guidance. The European Securities and Markets Authority published guidance on the Alternative Investment Fund Managers Directive. (2/17/2014) ESMA notice.
EBA consults on the volatility of own funds and their treatment in defined benefit plans. The European Banking Authority published a discussion paper on the impact on the volatility of own funds of the revised International Accounting Standard for employee benefits (IAS 19) and the deduction of defined benefit pension assets from own funds in accordance with the Capital Requirements Regulation. The discussion paper gives the EBA’s preliminary views based on: (i) a qualitative analysis of the accounting and prudential changes and their impact on the volatility of own funds, (ii) a quantitative analysis of this impact for a sample of EU institutions, and (iii) a qualitative analysis of the factors that may impact the volatility of own funds in the future. Comments should be submitted by April 14, 2014. (2/17/2014) EBA press release.
EBA 2013 fourth quarter risk dashboard. The European Banking Authority publishes the risk dashboard for the fourth quarter of 2013, which summarizes the main risks and vulnerabilities in the banking sector in the European Union. (2/14/2014) EBA press release.
UK court finds two unauthorized collective investment schemes. The UK Financial Conduct Authority announced the High Court has found that two investment schemes were unauthorized collective investment schemes because the promoters or operators were not properly authorized. (2/17/2014) FCA press release.
UK publishes code of practice for deferred prosecution agreements. The Director of the UK Serious Fraud Office and the Director of UK Public Prosecutions published a joint code of practice on the use of Deferred Prosecution Agreements (DPA), which become available to prosecutors on February 24, 2014. A DPA is an agreement reached under judicial supervision between the prosecutor and an organization. DPAs will only apply to organizations in cases of economic crime. Conditions attached to a DPA may include disgorgement of profits; payment of a fine; compensation for victims and costs; cooperation in any prosecution of individuals; and implementation of a compliance program. (2/14/2014) SFO press release.
FCA focuses on annuities. The UK Financial Conduct Authority published its thematic review of the annuities industry. The review found that some parts of the annuities market are not working well for some consumers. The FCA will now undertake a Competition Market Study into retirement income to assess competition and gain an understanding of why consumers do not shop around. As part of the Competition Market Study, the FCA will conduct further supervisory work looking at how pension provider sales teams act when selling annuities to existing customers. (2/14/2014) FCA press release.
FCA annuities guidance consultation. The UK Financial Conduct Authority, as part of its review of the annuities industry, proposed guidance on what it would expect to see on annuity comparison websites. Comments should be submitted by March 14, 2014. (2/14/2014) FCA guidance consultation notice.
ESMA seeks clarification on derivatives terms. The European Securities and Markets Authority asked the European Commission to clarify the definition of a derivative or derivative contracts under the European Market Infrastructure Regulation (EMIR). ESMA notes that these definition are not harmonized across the EU. (2/14/2014) ESMA notice.
ESMA consults on alternative performance measures. The European Securities and Markets Authority launched a consultation on Guidelines on Alternative Performance Measures (APM). The aim of the guidelines is to encourage European issuers to publish transparent, unbiased and comparable information on their financial performance in order to provide users with a better understanding of their performance. Some examples of APMs include EBIT (Earnings Before Interest & Tax), EBITDA (Earnings Before Interest, Taxes, Depreciation and Amortization), free cash flow, underlying profit or net-debt. Comments should be submitted by May 14, 2014. (2/13/2014) ESMA notice.
ESMA consultation on new credit rating agency requirements. The European Securities and Markets Authority published a consultation paper setting out the draft Regulatory Technical Standards (RTS) required for the implementation of the CRA3 Regulation. The draft RTS, which complements the existing regulatory framework for credit rating agencies (CRAs), cover disclosure requirements on structured finance instruments; the European Rating Platform; and the periodic reporting on fees charged by CRAs. Comments should be submitted by April 11, 2014. (2/11/2014) ESMA notice.
Review of transition management services. The UK Financial Conduct Authority published the results of its review of firms providing transition management services. The review looked at how firms move investment portfolios between different managers and markets for asset owners (such as pension funds), exploring the size of the market, the business models employed and the levels of oversight, governance and controls within the firms conducting transition management. (2/10/2014) FCA press release.
ESMA opinion on selling complex products. The European Securities and Markets Authority published an opinion on practices to be observed by investment firms when selling complex financial products to investors. The opinion sets out ESMA’s minimum expectations with respect to the conduct of firms when selling complex products to retail investors. (2/7/2014) ESMA notice.
European regulators issue final report on credit rating references. The Joint Committee of the three European Supervisory Authorities (European Banking Authority, European Securities and Markets Authority and European Insurance and Occupational Pensions Authority) published its final report on mechanistic references to credit ratings in the ESAs’ guidelines and recommendations and on the definition of “sole and mechanistic reliance” on such ratings. The EBA, ESMA and EIOPA have reviewed all their existing guidelines and recommendations in order to identify, and where appropriate remove, references to external credit ratings that could trigger sole or mechanistic reliance on such ratings. (2/6/2014) ESMA notice.
European regulators consult on credit assessments. The Joint Committee of the three European Supervisory Authorities (European Banking Authority, European Securities and Markets Authority and European Insurance and Occupational Pensions Authority) launched a consultation on draft Implementing Technical Standards (ITS) on the mapping of the credit assessments to risk weights of External Credit Assessment Institution (ECAI). These ITS will be part of the Single Rulebook in banking aimed at enhancing regulatory harmonization across the European Union. The draft ITS specify the elements that should be taken into consideration to determine the correspondence between risk weights and credit assessments provided by a particular ECAI. Comments should be submitted by May 5, 2014. (2/5/2014) ESMA notice.
FSB to study FX benchmarks. The Financial Stability Board announced the formation of a new sub-group on Foreign Exchange Benchmarks. The new group will be chaired by Guy Debelle (Assistant Governor, Financial Markets, Reserve Bank of Australia) and Paul Fisher (Executive Director for Markets, Bank of England). The FX Benchmarks Group will undertake a review of FX benchmarks and will analyze market practices in relation to their use and the functioning of the FX market as relevant. (2/14/2014) FSB press release.
IOSCO consults on code of conduct for credit rating agencies. The International Organization of Securities Commissions opened a consultation on “Code of Conduct Fundamentals for Credit Rating Agencies,” which proposes significant revisions and updates to the current IOSCO code of conduct for credit rating agencies. The IOSCO CRA Code is intended to offer a set of robust, practical measures as a guide to and a framework for CRAs with respect to protecting the integrity of the rating process. Comments should be submitted by March 28, 2014. (2/10/2014) IOSCO press release.
Responses to FSB consultation on supervisory risk. The Financial Stability Board published the comments it received in response to its consultation, “Guidance on Supervisory Interaction with Financial Institutions on Risk Culture.” (2/7/2014) Comments webpage.
FSB consults on the aggregation of derivatives trade reporting data. The Financial Stability Board published a consultation paper analyzing the options for aggregating over-the-counter derivatives trade reporting data. The paper examines the three broad types of model for an aggregation mechanism: a physically centralized model; a logically centralized model; and the collection and aggregation by authorities themselves of raw data from trade repositories. Comments should be submitted by February 28, 2014. (2/4/2014) FSB press release.
IOSCO working paper on crowd-funding. The International Organization of Securities Commissions published a staff working paper entitled “Crowd-funding: An Infant Industry Growing Fast.” The paper provides a global overview of the crowd-funding industry along with a mapping exercise of the global regulatory landscape. It seeks to identify investor protection issues and to determine whether crowd-funding poses a systemic risk to the global financial sector. (2/5/2014) IOSCO press release.
US Securities and Exchange Commission Developments
Interim Final Rule
Securities-based swaps exemptions extended. The expiration dates have been extended to February 11, 2017, for the SEC’s interim final rules providing exemptions under the Securities Act of 1933, the Securities Exchange Act of 1934, and the Trust Indenture Act of 1939 for those security-based swaps that, prior to July 16, 2011, were security-based swap agreements and that, as of July 16, 2011, are defined as “securities” under the Securities Act and the Exchange Act pursuant to Title VII of the Dodd-Frank Act. The interim final rules exempt offers and sales of security-based swap agreements from all but the anti-fraud provisions of the securities laws, provided that certain conditions are met. (2/5/2014) SEC Release No. 33-9545. See also SEC Release No. 34-71485.
Compliance guide on credit rating references for small entities. A small entity compliance guide has been issued by the SEC. The guide addresses the December 27, 2013 amendments to Rule 5b-3 and Forms N-1A, N-2, and N-3 under the Investment Company Act of 1940, which replace the reference to credit ratings in Rule 5b-3 with an alternative standard designed to retain a similar degree of credit quality to that in current Rule 5b-3, and eliminate in the Forms the required use of credit ratings from a nationally recognized statistical rating organization when a fund chooses to depict its portfolio holdings by credit quality. The amendments are effective July 7, 2014. (2/4/2014)
SEC announces cybersecurity roundtable. On March 26, 2014, the SEC will host a roundtable to discuss cybersecurity and the issues and challenges it raises for market participants and public companies. (2/14/2014) SEC press release.
Reorganization. Changes that SEC Chair Mary Jo White is making at the agency in an effort to address the Commission’s recent trial losses were discussed by the Wall Street Journal. (2/13/2014) Reorganization.
Fee rates. Starting on March 18, 2014, the fee rates applicable to most securities transactions will be set at US$22.10 per million dollars. The assessment on security futures transactions will remain unchanged at US$0.0042 for each round turn transaction. (2/12/2014) Fee rate.
Variable Annuities. An Investor Bulletin on variable annuities has been published by the SEC’s Office of Investor Education and Advocacy. (2/5/2014)
New staff named. New SEC staff have been announced. Michael F. Maloney has been named the chief accountant in the SEC’s Division of Enforcement; David Fredrickson has been named associate director and chief counsel in the agency’s Division of Corporation Finance; Paul A. Leder has been named director of its Office of International Affairs; and Rick A. Fleming has been named as the first head of the agency’s Office of the Investor Advocate. Elizabeth Murphy has been named an associate director in the Division of Corporation Finance.
US Commodity Futures Trading Commission Developments
Mandatory swaps trading. The CFTC discussed the steps it has taken to promote trading on swap execution facilities and assist in the transition to mandatory swaps trading, which began on February 15, 2014, for certain interest rate swaps. (2/10/2014) CFTC press release.
Financial reporting requirements. Guidance has been provided by the Division of Swap Dealer and Intermediary Oversight to futures commission merchants and derivatives clearing organizations on the procedures for submitting acknowledgment letters for accounts holding customer funds and on other financial reporting requirements. (2/5/2014) CFTC press release.
European swaps facilities. Acting CFTC Chair Mark Wetjen and European Commissioner Michel Barnier announced significant progress towards harmonizing a regulatory framework for CFTC-regulated swap execution facilities (SEFs) and EU-regulated multilateral trading facilities (MTFs). CFTC staff issued a “Conditional No-Action Letter” which, if certain conditions are met, will provide no-action relief for: (1) qualifying MTFs from the CFTC’s SEF registration requirement; (2) parties executing swap transactions on qualifying MTFs from the CFTC’s trade execution mandate; and (3) swap dealers and major swap participants executing swap transactions on qualifying MTFs from certain requirements under the CFTC’s business conduct rules. A separate short-term no-action letter also provides limited relief for all registered MTFs through March 24, 2014. (2/12/2014) CFTC press release.
Australian firm receives relief from DCO registration requirement. For a limited time, the Division of Clearing and Risk will not recommend enforcement action against the Australian-based clearing organization, ASX Clear (Futures) Pty Limited for failing to register as a derivatives clearing organization. (2/6/2014) CFTC press release.
Amendment to DCO registration rule proposed. Comments are sought on the petition from LCH.Clearnet Ltd for an amendment to and consolidation of its orders of registration as a derivatives clearing organization. Comments should be submitted by February 26, 2014. (2/11/2014) CFTC press release.
US Banking Agency Developments
Chicago Fed discusses high speed trading. The March Letter of the Federal Reserve Bank of Chicago discusses the policy implications of high-speed trading. (3/2014) Letter.
Updates on tri-party repo reforms. The Federal Reserve Bank of New York discussed reforms to the tri-party repo infrastructure. While the tri-party repo clearing banks have substantially reduced the amount of intraday credit needed for daily settlement and redesigned the process for settling maturing trades in a more liquidity-efficient manner, the risk of destabilizing fire sales has not been addressed by industry participants. (2/13/2014) New York Fed statement.
OCC guidance on proposed heightened standards for large banks. A bulletin has been published by the OCC on its proposed rule that would establish minimum standards for the design and implementation of a risk governance framework for large insured national banks, insured federal savings associations, and insured federal branches of foreign banks with average total consolidated assets of $50 billion or more. (2/5/2014)
US Judicial Developments
Determining “profits” in SEC enforcement actions. While a panel of the US Court of Appeals for the Third Circuit unanimously found that defendants fraudulently failed to file required beneficial ownership reports, it split on whether the disgorgement sought by the SEC was proper. A majority of the panel concluded that the trial court correctly ordered defendants to pay over US$31 million in disgorgement and interest. The majority found the trial court did not abuse its discretion when it found that defendants’ profits stemmed from their failure to file the beneficial ownership reports and not the intervening purchase of the issuer by a third party. (2/10/2014) SEC v. Teo.
US Exchanges and Self-Regulatory Organizations
NASDAQ Proposes “Kill Switch.” The NASDAQ Stock Market has filed for immediate effectiveness a proposal to add a risk management tool known as a “Kill Switch” that will enable NASDAQ market participants to: (1) establish a pre-determined risk exposure level, (2) receive notifications as the value of executed orders approaches that level, and (3) have order entry ports disabled and open orders cancelled when the value of executed orders exceeds the designated risk level. The feature will be optional and will be offered at no charge effective March 1, 2014. Comments should be submitted within 21 days from publication in the Federal Register, which is expected shortly. (2/18/2014) Kill Switch.
SEC approves FINRA ATS requirements. The Financial Industry Regulatory Authority announced that the SEC approved a rule change to require alternative trading systems (ATS) to: (i) report to FINRA weekly volume information and the number of securities transactions within the ATS by security; and (ii) acquire and use a single, unique market participant identifier when reporting information to FINRA. The ATS reporting requirement will be implemented beginning May 12, 2014. The first ATS reports for the week of May 12 through May 16, 2014, will then be due by May 28, 2014. Each ATS must begin reporting order and trade information to FINRA using a unique MPID by November 10, 2014. (2/14/2014) FINRA Regulatory Notice 14-07.
FINRA board adopts new expungement rule. The Financial Industry Regulatory Authority’s Board of Governors approved a rule proposal prohibiting firms and associated persons from conditioning settlements of customer disputes on, or compensating customers for, an agreement not to oppose a request to expunge information from an associated person’s Central Registration Depository record. (2/13/2014) FINRA press release.
Reporting requirements for forex members. New National Futures Association reporting requirements will go into effect on February 28, 2014. The new rules require FDMs to report certain specified information to NFA on a monthly or quarterly basis through the monthly and quarterly FOREX reports. (2/12/2014) NFA Notice to Members I-14-07.
Exempt CPO/CTA obligations. The National Futures Association discussed CFTC and NFA requirements for members who are exempt from CFTC registration. (2/12/2014) NFA Notice to Members I-14-06.
Updated FINRA financial responsibility and reporting rules. The Financial Industry Regulatory Authority announced updates to the imbedded text of the Securities Exchange Act financial responsibility and reporting rules. (2/7/2014) FINRA Regulatory Notice 14-06.