DOL Provides Important ERISA Guidance Regarding Cleared Swaps
Feb 26, 2013

Summary:
On February 7, 2013, the U.S. Department of Labor (the “DOL”) issued an advisory opinion concerning the application of the fiduciary and prohibited transaction provisions of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) to certain “cleared swap” transactions conducted pursuant to the provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”).

Federal Reserve Governor Tarullo Calls for Increased U.S. Regulation of Foreign Banking Organization
Dec 03, 2012

Summary:
In a speech delivered last week to the Yale School of Management, Federal Reserve Governor Daniel K. Tarullo signaled that the Board of Governors of the Federal Reserve System (FRB) is now considering major changes to the regulation of foreign banks and their affiliates in the United States. These regulatory changes suggested by Governor Tarullo would substantially expand the authority of the Federal Reserve to regulate capital, liquidity, and risk management of the U.S. operations of foreign banking organizations, and would result in the creation of a new form of Fed-regulated vehicle, the “intermediate holding company” (IHC). In that regard, he is suggesting a very substantial re-thinking of the manner in which the U.S. operations of global financial institutions are regulated, as well as increasing the cost of foreign banks conducting business in the U.S.

Revisions to CFTC Cross Border Guidance Discussed by Global Regulators at GMAC Meeting
Nov 12, 2012

Summary:
The U.S. Commodity Futures Trading Commission (CFTC) is considering revised staff proposals relating to the definition of “U.S. Person”, the availability of “substituted compliance” and the cross border aggregation of swaps, each modifying the initial proposed cross-border guidance dated June 29, 2012. At the meeting of the Global Markets Advisory Committee (GMAC) in Washington, DC on November 7, 2012, Commissioner Gensler announced his intent to issue the revised guidance before year end. However, the revised guidance is subject to further review by the CFTC Commissioners and, as their views on these issues do not appear to be in unison, the final form of the guidance and the timing of its issuance remains uncertain.

The Application of Commodity Pool Rules to Insurance Linked Securities
Oct 15, 2012

Summary:
The Dodd-Frank Act’s expansion of the definition of “commodity pool” to include any form of enterprise operated for the purpose of trading in “swaps,” coupled with the Commodity Futures Trading Commission (“CFTC”) and the Securities and Exchange Commission (“SEC”) recently adopting an expansive definition of the term “swap” for purposes of the Dodd-Frank Act and the Commodity Exchange Act creates uncertainty regarding whether issuers of insurance linked securities are commodity pools that would require the registration of commodity pool operators (“CPO”) and commodity trading advisors (“CTA”) with the CFTC.

The Consumer Financial Protection Bureau, the Controversial New Regulator, Begins with an Aggressive Enforcement Settlement Against a Financial Services Company
Aug 29, 2012

Summary:
On July 17, 2012, the Consumer Financial Protection Bureau ("CFPB") reached a groundbreaking $165 million settlement with a credit card issuer in its first enforcement action, ordering Capital One Bank (USA), N.A. to refund $140 million to two million customers who purchased its credit card "add-on" products and to pay a $25 million fine into the CFPB's Civil Penalty Fund. The CFPB is a powerful regulatory agency that was created by the Dodd-Frank Wall Street Reform and Consumer Protection Act to implement and enforce federal consumer financial laws and to promote fair, transparent and competitive and accessible markets for consumer financial services and products. After a quiet first year, the CFPB now has aggressively asserted its vast enforcement powers and levied significant financial penalties in its regulation of the marketing and sale of consumer financial products.

The Dodd-Frank Act May Require Registration as a “Commodity Pool Operator” and a “Commodity Trading Advisor” for Entities Associated with Securitization Transactions
Jul 23, 2012

Summary:
Upon effectiveness of the U.S. Commodity Futures Trading Commission (“CFTC”) final rules defining “swaps” under the Dodd-Frank Act, entities associated with securitization transactions may be required to register as commodity pool operators (“CPOs”) and/or commodity trading advisors (“CTAs”). Absent exemptive relief, these registration requirements will apply irrespective of whether the “swaps” are subject to mandatory clearing under the Dodd-Frank Act. Based on the Dodd-Frank Act and current CFTC regulations, certain entities associated with public and certain private securitization transactions are not exempt and may have to register as CPOs and/or CTAs.

CFTC Adopts Final Rules and Interpretations Further Defining Products and Final End-User Clearing Exception Rule; Proposes Clearing Exception for Swaps Entered into by Certain Cooperatives
Jul 11, 2012

Summary:
The Commodity Futures Trading Commission held an open meeting yesterday, July 10, 2012, to consider Final Rules and Interpretations (i) further defining the terms "swap," "security-based swap," "security-based swap agreement,"(ii) regarding mixed swaps, and (iii) governing books and records for security-based swap agreements pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act. The CFTC promulgated the Final Product Rules jointly with the Securities and Exchange Commission. The CFTC also voted to adopt the Final Rule on End-User Exception to Mandatory Clearing of Swaps. Finally, the CFTC issued a proposed rule to exempt from the mandatory clearing requirement, certain swaps executed by cooperatives that are financial entities with assets in excess of $10 billion.

The Sun Never Sets on Dodd-Frank
Apr 17, 2012

Summary:
When Dodd-Frank (more formally, the Wall Street Reform and Consumer Protection Act) was adopted, the legislation was advertised as a legal blueprint that, although proudly stamped "Made in America," would serve as a light of financial safety as to derivatives, bank activities, and like matters for the entire world. The global commercial and financial community was assured that a cooperative, consistent, and rational scheme of regulation would be adopted in financial capitals across the world, from Afghanistan to Zimbabwe, all based closely (maybe even word-for-word!) on translations of Dodd-Frank.

What is a Swap? Maybe (Almost) Everything? You Gotta Problem with That?
Apr 12, 2012

Summary:
It has now been almost two years since Dodd-Frank was enacted in order to provide comprehensive regulation of those transactions the legislation calls "swaps." In a world regulated by common sense, "what is a swap" would have been the first question answered by the regulators—indeed, the term should have been clearly defined by the statute. After all, how can the regulators adopt rules that govern a group of transactions where the regulators themselves do not know the transactions to which the rules will apply? How can businesses comment as to whether the proposed rules are sensible, or even feasible, as applied to a set of transactions that is boundless?

The Consumer Financial Protection Bureau: The New, Powerful Regulator of Financial Products and Services
Mar 06, 2012

Summary:
The Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank") created the Consumer Financial Protection Bureau ("CFPB") to oversee a broad array of financial products and services. Creation of the CFPB marked the first time in decades that Congress had formed a new federal agency. The political debate over who would lead the new agency initially overshadowed the more significant legal and policy concerns about the manner in which the CFPB was intended to operate. But now, after the procedurally controversial appointment of former Ohio Attorney General Richard Cordray on January 4, 2012, these broader concerns will be tested, both as a matter of governance and very possibly in the courts.

A Critical Analysis of the Potential Impact of the Volcker Rule on Municipal Bonds
Dec 12, 2011

Summary:
Federal regulators recently issued a notice of proposed rulemaking (the 'Proposal') under Section 619 of the Dodd-Frank Act, commonly known as the 'Volcker Rule.' If the Proposal were to be adopted in its present form, the regulators' narrow interpretation of the types of government securities exempted from the Volcker Rule would prohibit banking entities from proprietary trading in over half of the municipal bonds outstanding in the markets. Likewise, by the regulators' narrow interpretation, banking entities would be effectively prohibited from sponsoring or acquiring an ownership interest in municipal tender option bond ('TOB') trusts and from entering into the liquidity facilities that are an essential feature of TOB trusts.

The Volcker Rule's Impact on Financial Institutions' Ownership and Sponsorship of Structured Finance and Securitization Transactions
Nov 03, 2011

Summary:
The three federal banking agencies and the SEC recently approved for comment a proposed regulation implementing Section 619 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the 'Act'), more generally known as the 'Volcker Rule.' The 298-page proposal has yet to be published in the Federal Register, but the agencies have already agreed to an extended comment period for the proposal - running until January 13, 2012 - given the subject matter's significance.

The SEC Approves Final Version of Form PF
Oct 28, 2011

Summary:
The Securities and Exchange Commission (the "SEC") held an open meeting on Wednesday, October 26, 2011, regarding the adoption of a rule requiring certain registered investment advisers to hedge funds and other private funds to report information on Form PF for use by the Financial Stability Oversight Council ("FSOC") in monitoring systemic risk to the U.S. financial system. The new rule, Rule 204(b)-1 under the Investment Advisers Act of 1940, would implement sections 404 and 406 of the Dodd-Frank Act and was initially proposed, along with the Form PF, on January 26, 2011.

Position Limits Rumors Become Reality: CFTC Adopts Final Position Limits Rule Under Dodd-Frank
Oct 19, 2011

Summary:
On October 18, 2011, the Commodity Futures Trading Commission ("Commission") adopted, by a vote of 3 to 2, a final rule regarding position limits for certain physical commodity derivatives ("Final Rule") pursuant to the Commodity Exchange Act ("CEA"), as amended by the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank Act").

The Volcker Rule's Significant Impact on a Foreign Banking Organization's Proprietary Trading Activities
Oct 13, 2011

Summary:
This week, the three federal banking agencies and the SEC approved for comment a proposed regulation implementing Section 619 of the Dodd-Frank Act, more generally known as the 'Volcker Rule.' The 298-page proposal has yet to be published in the Federal Register, but the agencies have already agreed to an extended comment period for the proposal - running until January 13, 2012 - given the subject matter's significance. Effective July 21, 2012, the Volcker Rule restricts proprietary trading activities and investing in or sponsoring of private equity funds by 'banking entities' -defined by statute to include FDIC-insured depository institutions, bank holding companies, savings and loan holding companies, other entities that control an FDIC-insured depository institution, and foreign banks that are regulated as if they are bank holding companies under the International Banking Act.

SEC Proposes a New Rule Prohibiting Conflicts of Interest in Securitizations
Oct 04, 2011

Summary:
On September 19, 2011, the Securities and Exchange Commission (the "SEC") issued a release (the "Release") proposing new rule 127B (the "Proposed Rule") under the Securities Act, which would prohibit "material conflicts of interest" in securitizations. The Proposed Rule is intended to implement Section 621 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act"), codified as Section 27B ("Section 27B") of the Securities Act of 1933, as amended (the "Securities Act"). Subject to certain exceptions, Section 27B prohibits certain participants in asset-backed securities ("ABS") transactions from engaging in transactions within a designated time period that would involve or result in any material conflict of interest. Disclosure of such material conflicts of interest would not otherwise permit such prohibited transactions.

Living Wills: FDIC Modifies, Finalizes Rules
Sep 23, 2011

Summary:
On September 13, 2011, the Federal Deposit Insurance Corporation approved the final rule governing the implementation of the "living will" provision found in the Dodd-Frank Wall Street Reform and Consumer Protection Act. The rule continues to require covered companies to submit to the Board of Governors of the Federal Reserve System, the FDIC and the Financial Stability Oversight Council annual plans for the rapid and orderly resolution of their business in the event of material financial distress. The rule must still be approved by the Federal Reserve (which is expected to approve the rule shortly) It will then become effective 30 days after its publication in the Federal Register.

Proposed Treasury Regulations Regarding Swaps and Other Notional Principal Contracts
Sep 21, 2011

Summary:
On Thursday, September 15, the Treasury Department and the Internal Revenue Service issued proposed regulations that affect swaps and other notional principal contracts. The proposed regulations are proposed to be effective for contracts entered into on or after the date the final regulations are published in the Federal Register.

SEC Seeks Public Comment On Treatment of Asset-Backed Issuers under the Investment Company Act
Sep 13, 2011

Summary:
The Securities and Exchange Commission (the "SEC") recently issued an advance notice of proposed rulemaking (the "ANPR") requesting public comment on the treatment of asset-backed issuers under Rule 3a-7 under the Investment Company Act of 1940 (the "Investment Company Act").

SEC Re-proposal of Shelf Eligibility Conditions for Asset-Backed Securities and Applicability to Insurance-Linked Securities
Aug 04, 2011

Summary:
On July 26, 2011 the Securities and Exchange Commission (the 'SEC') issued a release (the 'Proposing Release') revising and re-proposing certain rules (the 'Proposed Rules') initially proposed in April 2010 related to asset-backed securities in light of the provisions added by the Dodd-Frank Wall Street Reform and Consumer Protection Act (the 'Dodd-Frank Act') and comments received on the 2010 ABS Proposals. Among other things, the 2010 ABS Proposals propose amendments to the safe harbor for exempt offerings and resales for 'structured finance products' in reliance on Securities Act Rule 144A, which would include many Insurance-Linked Securities ('ILS') such as CAT bonds. Under the Proposing Release, the SEC has requested additional comment on these proposals relating to exempt offerings.

FDIC Approves Rule Making With Respect to Orderly Liquidation Authority; Defers Ruling on Living Wills
Jul 28, 2011

Summary:
On July 6, the FDIC approved a final rule implementing the Orderly Liquidation Authority. The FDIC had been expected to issue a final rule on the 'Living Will' requirements July 6 as well. However, the FDIC tabled this matter until its August 6 meeting. The rule on the Orderly Liquidation Authority is promulgated under Title II of the Dodd-Frank Act, which authorizes the FDIC to create an orderly liquidation mechanism for systemically important financial institutions, which are referred to in the rule as covered financial companies. The final rule defines key terms, creates a priority structure, and delineates the procedure for filing a claim. The final rule will become effective August 15, 2011.

SEC Proposed Rules Regarding Third-Party Due Diligence Disclosure
Jul 08, 2011

Summary:
On June 8, 2011, the Securities and Exchange Commission (the "SEC") issued a release (the "Proposing Release") describing proposed rules (the "Proposed Rules") implementing the portion of Section 932 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act") relating to third-party due diligence. The Proposed Rules describe i) the obligations of issuers and underwriters to disclose the findings and conclusions of third-party due diligence reports and ii) the form this disclosure should take.

The Dodd-Frank Act: How It Impacts Specific Institutions, Entities and Transactions
Jun 22, 2011

Summary:
The Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Act") was signed into law by President Obama on July 21, 2010. The Act consists of sixteen distinct Titles on a wide variety of topics. Once implemented by the required regulations, the Act will significantly alter the U.S. financial regulatory system. All financial institutions will be directly and materially affected by the Act’s accompanying regulations, and non-financial institutions that use regulated financial products will be indirectly affected. Additionally, the Act’s amendments to Sarbanes-Oxley and broad changes to executive compensation and corporate governance rules will impact all U.S. public companies.

Living Wills: A User's Guide To Dodd-Frank's Bequest to Banks
Jun 13, 2011

Summary:
In 2010, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act. While many of its provisions have received greater publicity — such as the Orderly Liquidation Authority of Title II and the swap provisions of Title VII — the so-called "living will" provisions of Dodd-Frank are now receiving more focused attention. Section 165(d) of Dodd-Frank requires "systemically significant" financial institutions to periodically report to the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Company and the Financial Stability Oversight Counsel a plan for the rapid and orderly resolution of their business in the event of material financial distress.

Two Dodd Frank Problems: the Effective Date and the Definitions; Contingency Planning in the Absence of a Regulatory Structure
Jun 13, 2011

Summary:
This memorandum first explains the July 16, 2011 problem that will arise because the Dodd Frank derivatives legislation (Title VII of the statute) goes into effect without either a ready regulatory plan or an operating market structure. The effective date problem is made worse because of drafting problems in Dodd Frank, including the flawed definition of the single most important term in all of the statute: "swap."

Joint Agencies’ Proposed Rules Governing Incentive-Based Compensation at Covered Financial Institutions
Jun 01, 2011

Summary:
The Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Act") requires seven Federal agencies (the "Agencies") to jointly prescribe regulations or guidelines with respect to incentive-based compensation practices at covered financial institutions. On April 14, 2011, the government published proposed rules governing such incentive-based compensation arrangements at covered financial institutions (the "Proposed Rules").

The Dodd-Frank Whistleblower Provisions: Considerations for Effectively Preparing for and Responding to Whistleblowers
May 26, 2011

Summary:
As part of the Dodd-Frank Act ("Dodd-Frank" or the "Act"), Congress created powerful incentives to encourage persons to report (i) potential violations of the federal securities laws to the Securities and Exchange Commission ("SEC") and (ii) potential violations of the Commodity Exchange Act (the "CEA") to the Commodity Futures Trading Commission (the "CFTC"). While the Sarbanes-Oxley Act ("SOX") encouraged up-the-ladder reporting by employees and allowed for self-policing and self-reporting by companies of potential violations, the Dodd-Frank Act’s whistleblower provisions will incentivize external reporting to the regulators that may hamper a company’s ability to self-police and self-report.

The Dodd-Frank Act's Impact on Affiliate Transactions
Apr 21, 2011

Summary:
The Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) contains several provisions that will tighten the restrictions that govern transactions between banks and their affiliates – Sections 23A and 23B of the Federal Reserve Act – beginning in July 2012. These new provisions will (i) significantly increase the cost and burden of certain types of transactions between a bank and its nonbank affiliates, in particular, derivatives, securities lending/borrowing, and repo transactions; (ii) expand the scope of “affiliates” subject to Sections 23A and 23B; and (iii) increase the collateral burdens applicable to extensions of credit. As a result, banks should review, and may be required to modify, existing business arrangements with affiliates (as newly redefined) to comply with the new requirements.

CFTC, Prudential Regulators Propose Margin Rules for Non-Cleared Swap
Apr 13, 2011

Summary:
On April 12, 2011, the Commodity Futures Trading Commission (“CFTC”) voted 4-1 to issue proposed rules establishing minimum initial and variation margin requirements for non-cleared swaps entered into by CFTC-regulated swap dealers and major swap participants. Later the same day, the Federal Reserve Board, the Office of the Comptroller of the Currency, the Federal Deposit Insurance Corporation, the Farm Credit Administration and the Federal Housing Finance Agency(collectively, “Prudential Regulators”) jointly issued their own rules establishing margin requirements for swap dealers and major swap participants that are subject to their respective prudential regulation.

SEC Finalizes Rules Regarding Shareholder Approval of Executive Compensation and Golden Parachute Arrangements
Mar 01, 2011

Summary:
On January 25, 2011, the Securities and Exchange Commission (the “SEC”) adopted final rules (the “Final Rules”) to implement the provisions of Section 951 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, which requires publicly traded companies to provide for non-binding shareholder votes on executive compensation (“say-on-pay votes”), the frequency of say-on-pay votes (“say-when-on-pay votes”), and golden parachute packages of named executive officers (“say-on-golden-parachute votes”). The Final Rules become effective on April 4, 2011 and are largely similar to proposed rules (the “Proposed Rules”) that the SEC issued on October 18, 2010, discussed here. This Clients & Friends Memo supplements our previous discussion of the Proposed Rules by summarizing some of the substantive differences between the Proposed and Final Rules.

Fed Issues Final Regulations on the Volcker Rule’s Extension Periods
Feb 11, 2011

Summary:
On February 9, 2011, the Board of Governors of the Federal Reserve System (the "Federal Reserve Board") issued final regulations implementing the various conformance and extension periods under the Dodd-Frank Act’s "Volcker Rule." These new regulations will be codified as new Subpart K of the Federal Reserve Board’s Regulation Y.

Summary of Proposed Rulemaking Regarding Commodity Options & Agricultural Swaps
Feb 08, 2011

Summary:
The Dodd-Frank Wall Street Reform and Consumer Protection Act prohibits swaps in an agricultural commodity unless conducted pursuant to a rule or order under the Commodity Futures Trading Commission’s (“CFTC” or “Commission”) 4(c) exemptive authority. In the CFTC’s Notice of Proposed Rulemaking regarding Commodity Options and Agricultural Swaps, the Commission proposes to adopt new rules that would expressly require eligible parties that enter into swaps in an agricultural commodity to be subject to the same provisions of the CEA and the CFTC’s regulations that apply to all other commodity swaps. In addition, all over-the-counter commodity option transactions, including options on physical commodities, would be subject to the same requirements that apply to commodity swaps.

SEC Issues Final Rules Regarding Diligence and Disclosure in ABS Offerings
Feb 01, 2011

Summary:
The Securities and Exchange Commission (the "SEC") issued final rules (the "Final Rule") on January 20, 2011, implementing the provisions of Section 945 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Act"). Section 945 of the Act directed the SEC to issue rules that require an issuer of publicly offered asset-backed securities ("ABS") to perform a review of the assets underlying an ABS offering and disclose the nature of that review. The Final Rule adopts the SEC’s earlier proposal with one important change, which is the inclusion of a minimum standard of review. The SEC also adopted amendments to Regulation AB that would require an ABS issuer to disclose information regarding assets that deviate from disclosed underwriting criteria.

SEC Issues Final Rules for New Disclosure Requirements Regarding Representations and Warranties in Asset-Backed Securities Offerings
Feb 01, 2011

Summary:
The Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Act") was signed into law by President Obama on July 21, 2010. Section 943 of the Act requires the Securities and Exchange Commission (the "SEC") to prescribe regulations on the use of representations and warranties in the market for asset-backed securities. Such regulations must provide for disclosure by "securitizers," as defined in the Act, of fulfilled and unfulfilled repurchase requests across all trusts aggregated by the securitizer. They also require a description by nationally recognized statistical rating organizations ("NRSROs"), in reports accompanying credit ratings of securitization transactions, of the representations, warranties and enforcement mechanisms contained in each transaction and how they differ from those contained in issues of similar securities.

The Lincoln Amendment: Banks, Swap Dealers, National Treatment and the Future of the Amendment
Dec 14, 2010

Summary:
One of the most contentious provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act") is Section 716 – commonly referred to either as the "Lincoln Amendment" after its principal proponent, Senator Blanche Lincoln of Arkansas, or alternatively by its functional name, the "swaps push-out rule." The Lincoln Amendment effectively forbids FDIC-insured institutions and other entities that have access to Federal Reserve credit facilities – including banks, thrifts, and U.S. branches of foreign banks – from acting as a "swap dealer" except in certain limited circumstances, thus requiring such institutions to "push out" most swap dealing activities into an affiliate that is not FDIC insured and that does not otherwise access Federal Reserve credit facilities. The Lincoln Amendment will become effective in July 2012 and will have a significant, and likely not wholly anticipated, impact on banks and U.S.

SEC Proposes New Rules Regarding Shareholder Approval of Executive Compensation and Golden Parachute Arrangements
Nov 29, 2010

Summary:
The Securities and Exchange Commission (the "SEC") recently issued proposed rules (the "Proposed Rules") to implement the provisions of Section 951 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Act"). Section 951 of the Act requires publicly traded companies to provide for non-binding shareholder votes on executive compensation ("say on pay" and "say when on pay" votes) and golden parachute packages ("say on golden parachutes") of named executive officers.

SEC Proposes New Rules Regarding Diligence and Disclosure in ABS Offerings
Oct 26, 2010

Summary:
As part of what is expected to be a wave of proposed rulemaking under The Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Act"), the Securities and Exchange Commission (the "SEC") issued proposed rules to implement the provisions of Section 945 and a portion of Section 932 of the Act (the "Proposed Rules"). Section 945 of the Act added Section 7(d) to the Securities Act of 1933, as amended (the “Securities Act”), directing the SEC to issue rules requiring an issuer of asset-backed securities ("ABS") to perform a review of the assets underlying an ABS offering and disclose the nature of that review. Section 932 of the Act added Section 15E(s)(4)(A) to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), which requires an issuer or underwriter of ABS to make publicly available the findings and conclusions of any third-party due diligence report obtained by the issuer or underwriter.

SEC Proposes New Disclosure Requirements Regarding Representations and Warranties in Asset-Backed Securities Offerings
Oct 18, 2010

Summary:
The Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Act”) was signed into law by President Obama on July 21, 2010. Section 943 of the Act requires the Securities and Exchange Commission (the “SEC”) to prescribe regulations in the use of representations and warranties in the market for asset-backed securities. Such regulations must set forth new disclosure requirements for issuers, originators and depositors and nationally recognized statistical rating organizations (“NRSROs”) in securitization transactions where the transaction documents require the repurchase or replacement of underlying assets in connection with a breach of asset-level representations and warranties.

An Analysis of the Corporate Governance and Executive Compensation Provisions in the Dodd-Frank Wall Street Reform and Consumer Protection Act
Oct 15, 2010

SEC Schedule for Implementing Dodd-Frank Act
Oct 15, 2010

An Analysis of the Dodd-Frank Act's Volcker Rule
Oct 15, 2010

Summary:
On Friday, October 1, 2010, the federal "Financial Stability Oversight Council" ("FSOC" or "Council") convened for the first time. The FSOC, created by Title I of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act" or the "Act"), is comprised of the heads of the federal financial regulatory agencies and two presidential appointees, and is tasked with establishing recommendations regarding certain of the regulations that the financial regulatory agencies are required to adopt under the Dodd-Frank Act. One of the purposes of this initial meeting was to approve the issuance of a Request for Public Input (the "Request") soliciting comment regarding certain definitions contained in, and the general content of, Section 619 of the Dodd-Frank Act, popularly known as the "Volcker Rule." Public comments are due by November 5, 2010.

SEC Releases Timetable for Rulemaking and Reporting for Asset-Backed Securities under the Dodd-Frank Wall Street Reform and Consumer Protection Act
Sep 22, 2010

Summary:
The Securities and Exchange Commission has recently published a timetable setting forth a schedule for the release of reports, rule proposals and adoption of final rules under the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Act”).

Changes to the Regulation of Broker-Dealers and Investment Advisers Under Title IX of the Dodd-Frank Wall Street Reform and Consumer Protection Act
Aug 12, 2010

Summary:
Part I of this memorandum focuses on Title IX of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Act”) as it relates to the regulation by the Securities and Exchange Commission (“SEC”) of broker-dealers and, to a lesser extent, investment advisers. Part II of this memorandum covers a number of miscellaneous provisions included within Title IX that may affect broker-dealers. Part III describes studies to be conducted by the SEC, the reorganization of the SEC, and a provision that affects current beneficial ownership and short swing profit reporting requirements. Other memoranda prepared by Cadwalader cover the remaining provisions of Title IX, which include (i) significant requirements relevant to credit rating agencies and structured finance products, and (ii) rules related to executive compensation and corporate governance that apply to public companies generally, not merely to those engaged in financial activities.

Summary of the Titles of the Dodd-Frank Wall Street Reform and Consumer Protection Act
Jul 20, 2010

Summary:
This Overview Memorandum is intended to provide a very brief summary of those Titles of the Act that are most significant to our clients. In addition to this Overview Memorandum, Cadwalader has prepared a series of memoranda, each discussing a different aspect of the Act and how it will affect different industries, types of entities and transactions.

Changes to the Regulation of Banks, Thrifts, and Holding Companies Under the Dodd-Frank Wall Street Reform and Consumer Protection Act
Jul 20, 2010

Summary:
The focus of this Memorandum is on the material changes to U.S. banking regulation made by the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Act” or the “Dodd-Frank Act”), including the potential regulation by the Board of Governors of the Federal Reserve System of nonbank financial companies deemed systemically significant.

Regulation of Systemically Significant NonBanks Under the Dodd-Frank Wall Street Reform and Consumer Protection Act
Jul 20, 2010

Summary:
The focus of this Memorandum is the potential regulation by the Board of Governors of the Federal Reserve System, pursuant to the newly-passed Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Act” or the “Dodd-Frank Act”), of nonbank financial companies designated as “systemically significant” as provided by Titles I and VI of the Act, including the Volcker Rule.

Orderly Liquidation of Financial Companies, Including Executive Compensation Clawback, Under the Dodd-Frank Wall Street Reform and Consumer Protection Act
Jul 20, 2010

Summary:
Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“WSRCPA”) represents Congress’ attempt to address companies considered “too big to fail.” The statute creates a new “orderly liquidation authority” (“OLA”), which allows the Federal Deposit Insurance Corporation (“FDIC”) to seize control of a financial company whose imminent collapse is determined to threaten the financial system as a whole. Commencement of a receivership under the OLA would preempt any proceedings under the Bankruptcy Code. Thus, lenders, rating agencies, and others seeking to transact business with a company, or an affiliate of a company, that could potentially be considered a systemic risk will have to consider the impact on creditors’ rights of both the Bankruptcy Code and the OLA. Further, the OLA is solely a liquidation remedy. Rehabilitation or reorganization is not an option, and the ability of a debtor to stay in possession is eliminated.

Hedge Fund Regulation Under the Dodd-Frank Wall Street Reform and Consumer Protection Act
Jul 20, 2010

Summary:
The inevitable heightened regulation of the hedge fund industry has come to fruition, with the passing of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (the “Act”) by the Senate on July 15, 2010. While the Act could be worse – it does not appear to be the operational and expense burden to hedge funds that Sarbanes-Oxley is for corporate America – its ultimate effects remain to be seen, as much of the detailed formulation and implementation of the Act’s largely ambiguous provisions are left to future rulemaking by a wide range of increasingly powerful governmental regulators having tremendous discretionary authority, such as the Securities and Exchange Commission, the Commodity Futures Trading Commission, the Board of Governors of the Federal Reserve System, and the to-be-established Financial Stability Oversight Council.

Insurance Reforms Under the Dodd-Frank Wall Street Reform and Consumer Protection Act
Jul 20, 2010

Summary:
On July 15, 2010, the Senate voted in favor of adopting the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Act”). The Act is far reaching in scope and represents the culmination of months of debate and intense lobbying. The Act was precipitated by the financial crisis that began in 2007 and, therefore, its primary goal is to prevent a recurrence. The focus of this Memorandum is Title V – “Insurance” – of the Act.

The New Scheme for the Regulation of Swaps, with Appendices on Retroactivity, Special Entities and Tax, Under the Dodd-Frank Wall Street Reform and Consumer Protection Act
Jul 20, 2010

Summary:
Title VII (the “Derivatives Legislation” or the “Legislation”) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Act”) is among the most far reaching and controversial sets of statutory changes included within the Act. The Derivatives Legislation will give primary authority to the Commodity Futures Trading Commission (the “CFTC”) and the Securities Exchange Commission (the “SEC”; and together with the CFTC, the “Commissions”) to regulate the swaps market, both as to transactions and participants, although the various banking regulators (the “Bank Regulators”; and together with the Commissions, the “Regulators”) will retain substantial authority with respect to banks.

Regulation of End Users of Swaps Under the Dodd-Frank Wall Street Reform and Consumer Protection Act
Jul 20, 2010

Summary:
The purpose of this memorandum is to provide an overview of the application of Title VII (the “Derivatives Legislation” or the “Legislation”) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Act”) to end users, particularly (i) operating corporations (“Corporates”), such as manufacturing companies, insurance companies and airlines (all of which may be impacted somewhat differently), (ii) state and other municipal entities (“Munis”), and (iii) public and private benefit plans (“Plans”; and collectively with Corporates and Munis, “end users”).

Reforms to the Asset-Backed Securitization Process and the Regulation of Credit Rating Agencies under Dodd-Frank Wall Street Reform and Consumer Protection Act
Jul 20, 2010

Summary:
On July 15, 2010, the Senate voted in favor of adopting the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Act”). The Act is far reaching in scope and represents the culmination of months of debate and intense lobbying. To assist our clients in navigating and digesting the portions of the Act that are significant to their lines of business, Cadwalader has prepared a series of Clients & Friends memoranda, each addressing different aspects of the Act. The focus of this Memorandum is Title IX – Subtitle D “Improvements to the Asset-Backed Securitization Process” and Title IX – Subtitle C “Improvements to the Regulation of Credit Rating Agencies”.

Executive Compensation and Corporate Governance Provisions Under the Dodd-Frank Wall Street Reform and Consumer Protection Act
Jul 20, 2010

Summary:
The focus of this Memorandum is Title IX – Subtitle E “Accountability and Executive Compensation” and Title IX – Subtitle G “Strengthening Corporate Governance” of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Act”). We note that the Act requires the Securities and Exchange Commission (“SEC”), or other specified federal regulator, to develop rules in order to fully implement many of these compensation and corporate governance provisions. Accordingly, the ultimate impact of such provisions will in large part depend on how such rules are implemented.

Amendments to SOX, Including Section 404(b) Exemption for Nonaccelerated Filers, Under the Dodd-Frank Wall Street Reform and Consumer Protection Act
Jul 20, 2010

Summary:
This memorandum is focused on certain provisions of Title IX of the Act that relate to SOX Section 404, including an amendment to SOX Section 404 which exempts nonaccelerated filers from the SOX Section 404(b) requirement to obtain an auditors’ report on management’s assessment of the effectiveness of the company’s internal control over financial reporting.