Financial Services Regulatory & Enforcement

On March 22, 2013, ISDA opened the DF Protocol 2.0 for adherence to market participants. The DF Protocol 2.0 is part of ISDA’s documentation initiative aimed at assisting the derivatives industry in implementing and complying with the regulatory requirements imposed under Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”).

Bylined article by London head of Tax Sandy Bhogal and Alexandria Carr, a qualified barrister practising in London as Of Counsel with the Financial Services, Regulatory & Enforcement group, discuss the circumstances around the UK’s decision to call into question the Financial Transaction Tax plan.

On 18 April 2013 the UK government issued a legal challenge to the decision of the EU Council of 22 January 2013 which authorised a subset of the EU (not including the UK) to introduce a financial transaction tax under a little used procedure known as enhanced cooperation.

Alexandria Carr, a qualified barrister practising in London as Of Counsel with the Financial Services, Regulatory & Enforcement group, is quoted in an article about the legal implications raised by the UK seeking Treaty change in Europe.

Alex Carr, a qualified barrister practising in London as Of Counsel with the Financial Services, Regulatory & Enforcement group, is quoted in an article about the banking crisis in Cyprus and whether the existence of a banking union could have avoided such a situation.

In a bylined article, Alexandria Carr, a qualified barrister practising in London as Of Counsel with the Financial Services, Regulatory & Enforcement group, looks at whether the EU will deliver a credible, legally robust system for a European Banking Union following an agreement reached in December 2012.

This article first appeared in and is reproduced with the kind permission of International Banking and Financial Law Journal, February 2013. 

Alex Carr, a qualified barrister practising in London as Of Counsel with the Financial Services, Regulatory & Enforcement group, is quoted in an article about the extension of the planned EU financial transaction tax as the 11 countries implementing the charge launched plans to levy the tax across the whole world.

Alex Carr, a qualified barrister practising in London as Of Counsel with the Financial Services, Regulatory & Enforcement group, is quoted in an article about US banks attacking EU plans for financial transaction tax.

Alex Carr, a qualified barrister practising in London as Of Counsel with the Financial Services, Regulatory & Enforcement group, is quoted in an article about plans to ringfence retail banks.

Mayer Brown, a leading global law firm, announced today that it advised China International Marine Containers (Hong Kong) Limited (CIMC), part of the largest container manufacturing group in the world, on the establishment of a $600 million US commercial paper program supported by a letter of credit from Bank of China, New York Branch. The transaction marks one of the first letter of credit backed US commercial paper programs by an Asian issuer.

Alex Carr, a qualified barrister practising in London as Of Counsel with the Financial Services, Regulatory & Enforcement group, is quoted in an article about EU finance ministers fiving the green light to move forward with plans for a financial transaction tax.

Financial Services Regulatory & Enforcement partners Scott Anenberg and Jeff Taft (Washington, DC) are quoted in an article discussing five new US banking regulations that are slated to take effect in 2013.

On December 14, 2012, the Board of Governors of the Federal Reserve System (FRB) released a 300-page proposed rule (the Proposal) under Sections 165 and 166 of the Dodd-Frank Act that would impose heightened prudential requirements, on the US operations of foreign banking organizations (FBOs) having global consolidated assets of $50 billion or more.

Alex Carr, a qualified barrister practising in London as Of Counsel with the Financial Services, Regulatory & Enforcement group, is quoted in an article about EU finance ministers reaching a deal on a European Banking Supervisor.

Alex Carr, a qualified barrister practising in London as Of Counsel with the Financial Services, Regulatory & Enforcement group, is quoted in an article about EU finance ministers reaching a deal on a European Banking Supervisor

Alex Carr, a qualified barrister practising in London as Of Counsel with the Financial Services, Regulatory & Enforcement group, is quoted in an article about EU finance ministers reaching a deal on a European Banking Supervisor.

Bylined comment piece by Alex Carr, a qualified barrister practising in London as Of Counsel with the Financial Services, Regulatory & Enforcement group, looks at the divisions in Europe as EU finance ministers today tried to reach a decision on proposals to create a European Central Bank to supervise banks in the eurozone.

On November 16, 2012, under specific authority granted under the Dodd-Frank Wall Street Reform and Consumer Protection Act, the US Secretary of the Treasury (Secretary) issued the long-awaited final determination (Determination), which states that physically settled “foreign exchange swaps” (FX Swaps) and “foreign exchange forwards” (FX Forwards) are exempt from the definition of “swap” and not subject to many of the swap requirements under the Commodity Exchange Act (CEA).

Financial Services Regulatory & Enforcement partner Jeff Taft (Washington, DC) is quoted in an article discussing how President Obama's re-election, coupled with victories for key Senate Democrats, will likely spur financial regulators to take a tougher stance with banks.

Recent amendments to the European prospectus rules may make the operation of certain employee stock plans in Europe, by multinationals listed outside Europe, cheaper and more straightforward. However, it appears that any major relaxation of the rules for such companies might not actually come into force (if indeed it does) for some time yet.

The provisions of Regulation (EU) No 236/2012 of the European Parliament and of the Council of 14 March 2012 on short selling and certain aspects of credit default swaps ("the Regulation") will come into force on 1 November 2012.

The European Commission presented a draft directive on the recovery and resolution of credit institutions and investment firms (also referred to as the “Crisis Management Directive” or “CMD”) after extensive preparatory work on the international level and within the European Union.

The US Court of Appeals for the Second Circuit recently certified to the New York Court of Appeals two questions concerning the ability of a judgment creditor to garnish accounts of judgment debtors at non-US subsidiaries of banks that have branches in New York or are otherwise subject to jurisdiction in New York.

Financial Services Regulatory & Enforcement partner Jeff Taft (Washington, DC) is quoted on the decision by several state attorneys general to join in challenging the constitutionality of the Dodd-Frank Act.

The article references the Consumer Financial Protection Bureau survey conducted by Mayer Brown to gauge industry concerns and measure expectations about the impact of the bureau. The article notes that 12% of survey respondents reported that their companies had been contacted or subpoenaed by the CFPB in relation to an examination or investigation. The survey was co-written by Financial Services Regulatory & Enforcement partner Jeff Taft and Litigation & Dispute Resolution partner Rich Rosenfeld (both Washington, DC).

Interview with Alex Carr, a qualified barrister practising in London as Of Counsel with the Financial Services, Regulatory & Enforcement group about the European Commission's plan for the Central Bank to oversee individual banks in the euro zone.

On August 14, 2012, the US Commodity Futures Trading Commission’s (CFTC) Division of Swap Dealer and Intermediary Oversight released a set of frequently asked questions and answers regarding the changes to registration and compliance requirements for commodity pool operators (CPOs) and commodity trading advisors (CTAs) adopted earlier this year.

The recently signed Iran Threat Reduction and Syria Human Rights Act of 2012 extends to foreign subsidiaries of US companies the preexisting OFAC sanctions against Iran.

This update describes two recent PRC legal developments: the amendments proposed to be made to the Securities Investment Funds Law and the possible introduction of a qualified domestic limited partner (QDLP) scheme in Shanghai.

Corporate & Securities partner Stephanie Monaco (Washington, DC) profiled in a Q&A feature in the “Women in Law” section of Chambers and Partners.

Article evaluating the success of the US Consumer Financial Protection Bureau in its first year references the CFPB survey conducted by Mayer Brown to gauge industry concerns and measure expectations about the impact of the bureau. The survey was co-written by Financial Services Regulatory & Enforcement partner Jeff Taft, who is quoted in the article, and Litigation & Dispute Resolution partner Rich Rosenfeld (both Washington, DC).

Article evaluating the success of the US Consumer Financial Protection Bureau in its first year references the CFPB survey conducted by Mayer Brown to gauge industry concerns and measure expectations about the impact of the bureau. The survey was co-written by Financial Services Regulatory & Enforcement partner Jeff Taft and Litigation & Dispute Resolution partner Rich Rosenfeld (both Washington, DC).

Article details the findings from a Consumer Financial Protection Bureau survey conducted by Mayer Brown to gauge industry concerns and measure expectations about the impact of the bureau. The survey was co-written by Financial Services Regulatory & Enforcement partner Jeff Taft and Litigation & Dispute Resolution partner Rich Rosenfeld (both Washington, DC).

On June 29, 2012, the US Commodity Futures Trading Commission (the “CFTC”) proposed interpretive guidance (the “Proposed Guidance”) regarding the cross-border application of Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”).

Mayer Brown, a leading global law firm, has appointed Alexandria Carr, the lead legal adviser at HM Treasury on EU financial services strategy, to its Financial Services, Regulatory & Enforcement group in London as Of Counsel.

Financial Services Regulatory & Enforcement partner David Sahr (New York) quoted on the international reach of Dodd-Frank.

Financial Services Regulatory & Enforcement partner Jeff Taft (Washington, DC) quoted on the world’s largest banks submitting “living wills” to federal regulators that provide a blueprint for taking them apart during a crisis.

The ability of the Securities & Futures Commission (SFC) to obtain relief from the Courts for market misconduct, particularly against foreign entities, has returned to the spotlight as a result of Tiger Asia's appeal of the Court of Appeal's decision and a recent decision regarding service out of the jurisdiction in insider dealing proceedings.

Mayer Brown, a leading global law firm, announced today that the 2012 edition of Chambers USA: America’s Leading Lawyers for Business ranked 124 of its lawyers, with 149 total rankings, in 51 nationwide and/or state practice categories. Of these, 38 rankings are top-band or higher rankings in 25 nationwide and/or state categories.

In Spring 2010, we published an Update on the Tullett Prebon Plc v BGC Brokers LP case. In this much-publicised and long-running battle between rival interdealer brokers, the High Court took a dim view of BGC's conduct when poaching a team of brokers from Tullett. It took an even dimmer view of the conduct of Anthony Verrier, the former COO of Tullett.

In a closely watched appeal, the Eleventh Circuit Court of Appeals reversed the district court and affirmed the bankruptcy court’s original decision in In re TOUSA, Inc., in which it found that various lenders had received hundreds of millions of dollars in fraudulent transfers.

Financial Services Regulatory partner Angela Hayes is quoted in an article discussing the FSA's proposal to ban Anthony Verrier from holding a job in the financial services industry.

Last Friday, the US Commodity Futures Trading Commission and Securities and Exchange Commission (the “Commissions”) released the text of their final rulemaking further defining the terms “swap dealer,” “security-based swap dealer,” “major swap participant,” “major security-based swap participant” and “eligible contract participant.” In the report linked to below, we offer selected observations on the final rules and the Commissions’ interpretive guidance.

As from 1 June 2012, capital duty currently levied on Hong Kong companies on the increase of its share capital will be abolished. Previously a fee of HK$1 per HK$1000 of capital increase capped at HK$30,000 per capital raising applied. Its abolition will allow Hong Kong companies to raise their capital without any government fee or tax. For the period from 1 April 2012 to 31 March 2013, Hong Kong business registration fee (including levy) will be reduced by HK$2,000 (for principal Hong Kong place of business) and HK$73 (for other Hong Kong branches). A concessionary refund of the business registration fees paid for this period is allowed in certain cases.

The Financial Dispute Resolution Centre Limited ("FDRC") is expected to be operational in Hong Kong by mid-2012 and will effect all retail financial institutions. This update sets out some of the key facts and features of the FDRC.

On February, 15, 2012, the Securities and Exchange Commission adopted amendments to Rule 205-3 under the Investment Advisers of 1940 that increased the “assets under management” and “net worth” dollar thresholds used to determine whether an individual or company is a “qualified client” for purposes of enabling an investment adviser (including an adviser to Section 3(c)(1) funds) to charge performance-based compensation.

Bylined article by Washington, DC Financial Services Regulatory & Enforcement partner Alex Lakatos advises consumers of cloud services to consider all types of risk to their data, whether from their home country government or another country’s government.

Bylined article by Washington, DC Financial Services Regulatory & Enforcement partner Alex Lakatos provides an assessment of the risks the Patriot Act poses to data stored in the cloud.

The CFTC’s recent release of several final rules, including rules regarding registration of swap dealers and major swap participants, allows renewed consideration of the speed and sequencing of implementation of Title VII of Dodd Frank. The attached Update attempts to put recent CFTC actions in perspective, set against the CFTC’s own July 2011 “Effective Date for Swap Regulation” final order and the tentative schedule for further rule releases that Chairman Gensler made public at the CFTC’s January 11 open meeting.

China's National Development and Reform Commission (NDRC) has issued a Circular on Promoting the Regularisation and Development of Equity Investment Enterprises (Circular 2864), effective 9 December 2011.

Bylined article by New York Litigation partner Matthew Ingber discusses how the decision in Fiero Brothers v. FINRA will impact small and medium size broker-dealer firms.

Mayer Brown, a leading global law firm, is ranked in 16 categories in the 2012 edition of IFLR1000, a guide to the world’s leading financial law firms.

The Board of Governors of the Federal Reserve System (FRB) and the Federal Deposit Insurance Corporation (FDIC) have jointly approved a final rule (the “Resolution Plan Rule”) requiring certain large bank holding companies, non-US banks with US banking operations, and systemically significant nonbank financial companies to periodically submit to the FRB and the FDIC comprehensive plans for the rapid and orderly resolution of the company under the Bankruptcy Code in the event of material financial distress or failure.

Die Bankenaufsicht wurde im Zuge der Finanzmarktkrise tiefgreifend reformiert. Im Mittelpunkt sowohl der fachlichen als auch der politischen Debatte standen dabei insbesondere die Eigenkapitalanforderungen, die Europäisierung bzw. Internationalisierung der Aufsichtslandschaft sowie die Frage, wie Finanzinstitute im Krisenfall restrukturiert werden können.

On 18 August 2011, the PRC State Administration for Industry and Commerce (SAIC) released a draft (for public consultation) of the Administrative Measures on Registration of Debt for Equity Swaps (the Draft Measures). The Draft Measures aim to regulate and administer registrations of equity interests/shares held by foreign and domestic creditors in limited liability companies (LLCs) and companies limited by shares (CLSs) incorporated in the PRC in exchange for cancellation of debts owed by such LLCs and CLSs to the creditors.

On July 26, 2011, the US Securities and Exchange Commission (SEC) voted unanimously to adopt Form 13H and Rule 13h-1 under the Securities Exchange Act of 1934 (Exchange Act). The formal adopting release was issued on July 27.1 Although Rule 13h-1 is technically effective on October 3, 2011, the Adopting Release provides two staggered compliance dates for the rule’s key provisions.

The SEC has adopted new rules implementing certain changes to the Investment Advisers Act of 1940 that were made as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act. The new regulations provide several replacement exemptions for the former “private adviser exemption. We review three key new exemptions and discuss compliance and other issues for US- and Non-US Advisers. We also provide a summary of important dates for new and existing registrants.

California has become the first US state to enact sanctions pursuant to the 2010 federal Comprehensive Iran Sanctions, Accountability, and Divestment Act (CISADA). California’s Iran Contracting Act (the “Act”) bars persons determined to be engaged in investment activities in Iran’s nuclear, petroleum, or natural gas industries from bidding on or renewing contracts with California state and local governments for goods and services worth $1 million or more.

The Commodity Futures Trading Commission, meeting in open session today, passed a proposed order to address effective date concerns engendered by the anticipated lack of completion of the majority of needed implementing regulations by the July 16 date indicated by the statute. The proposed order will be subject to a 14-day comment period. As of this writing, the proposed order is not yet available and thus close analysis will await the proposed order’s publication.

New York Financial Services Regulatory and Enforcement partner David Sahr quoted on how Dodd-Frank will affect foreign banks.

Shanghai's regulatory authorities officially launched the foreign invested private equity investment enterprise pilot program (the Shanghai Pilot Program) with the issuance of the Implementing Measures on the Pilot Program of Foreign Invested Private Equity Investment Enterprises on 11 January 2011.

The HKEx published a listing decision to determine whether The Stock Exchange of Hong Kong Limited should waive the requirement on the exercise price of share options for a share option scheme of a PRC listed issuer in relation to issue of new A shares.

Coverage of London Financial Services Regulatory & Enforcement partner Mark Compton's move to Mayer Brown

The US government is proposing regulations clarifying the responsibilities of US and foreign banks under the expansive Iran sanctions laws that were enacted last year to target foreign financial institutions transacting business with Iran. On April 27, 2011, the Financial Crimes Enforcement Network (FinCEN) of the US Department of the Treasury (Treasury) posted on its website a Notice of Proposed Rulemaking to implement Section 104(e) of the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 (CISADA). These regulations are issued in proposed form at this time and parties are being asked to submit comments prior to the issuance of final regulations.

On April 8, 2011, the Internal Revenue Service (the “IRS”) released Notice 2011-34 (the “Notice”) regarding reporting and withholding requirements pursuant to FATCA1 (sections 1471 through 1474 of the Internal Revenue Code (the “Code”)).2 The Notice supplements preliminary guidance regarding the implementation of FATCA published in Notice 2010-60.3

In November of 2010, we reported that the US Supreme Court’s reasoning in Morrison v. National Australia Bank Ltd. regarding extraterritorial jurisdiction has been used in two cases to limit private RICO claims. In Cedeno v. Intech Group, Inc., the court (SDNY) dismissed a RICO claim brought by a foreign plaintiff against a foreign defendant because RICO, like Section 10(b), is silent as to its extraterritorial application. Similarly, in Norex Petroleum Ltd. v. Access Indus. Inc., the Second Circuit expressly found that, because RICO is silent as to its extraterritorial application, the presumption against extraterritoriality articulated in Morrison applies to RICO claims.

Washington, DC Financial Services Regulatory & Enforcement partner Scott Anenberg quoted on Dodd-Frank’s affect on small banks. Subscription required.

Article also appeared in On Wall Street.

The question of who will pay the additional costs that lenders are expected to incur as a result of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act) and the announced modifications to the Basel Framework of the Basel Committee on Banking Supervision (Basel III) has been a highly debated topic recently, as borrowers and lenders have been discussing and negotiating increased costs provisions in credit agreements.

Mortgage Electronic Registration Systems, Inc. (MERS), is an electronic registry created by the mortgage banking industry to track transfers in servicing rights and beneficial ownership of millions of mortgage loans around the nation. When a mortgage loan is originated by a member of MERS, the originator typically identifies MERS as the mortgagee of record on the mortgage and appoints it to serve in that capacity as “nominee” for the originator or any subsequent holder of the promissory note.

On Friday, February 25, 2011, and over the weekend, a cascade of sanctions fell on Libya, first from the United States, then from the United Nations, and then from the United Kingdom. The European Union followed suit on Monday, February 28.

In two separate, but related, notices of proposed rulemaking (NOPRs) published in the Federal Register on February 8, 2011, the US Commodity Futures Trading Commission (CFTC) has proposed rules to implement the requirements of Section 731 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act), which added new section 4s to the Commodity Exchange Act (CEA). The proposed rules regarding swap trading relationship documentation would be contained in a new 17 CFR Part 23. The first of these NOPRs (the Primary Swap Documentation NOPR) proposes rules that require the CFTC to prescribe standards for swap dealers (SDs) and major swap participants (MSPs) related to the timely and accurate confirmation, processing, netting, documentation and valuation of swaps. The second NOPR (the Swap OLA Provision NOPR) requires the inclusion of an orderly liquidation provision in the swap trading relationship documentation. Comments on each of the NOPRs are due on or before April 11, 2011.

In common with other developed financial markets Hong Kong has experienced an increased assertiveness on the part of its regulators since the financial crisis.

The US Securities and Exchange Commission (SEC) and the US Commodity Futures Trading Commission (CFTC) jointly proposed rules that would require reporting by investment advisers to certain types of pooled investment vehicles on new Form PF (the “Proposal”).

The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) required that the definition of “accredited investor” in rules issued under the Securities Act of 1933 (Securities Act) exclude the value of a natural person’s primary residence for purposes of determining whether a natural person has a net worth in excess of $1 million.

After a long wait since foreign investment in partnerships formed under PRC law was first permitted on 1 March 2010, the authorities in Shanghai jointly published Implementing Measures for a Pilot Program in respect of Foreign Invested Private Equity Investment Enterprises (the "Measures") on 11 January 2011.

On December 16, 2010, the Basel Committee on Banking Supervision (Committee) released the final text of the Basel III package of capital and liquidity reforms, which were originally proposed in December 2009, were modified and elaborated upon in subsequent releases in July and September 2010, and were endorsed by the G20 leaders in November 2010. Because most of the key elements of the Basel III package had been agreed upon and announced prior to release of the final text (including the new minimum capital requirements and phase-in arrangements announced in September), the release is in many respects anti-climactic.

New York Banking & Finance partner Josh Cohn noted as the principal drafter of a letter from The International Swaps and Derivatives Association to the Commodity Futures Trading Commission warning of a lack of clarity in new rules of the Dodd-Frank legislation. Subscription required.

Chicago Corporate & Securities partner Michael Hermsen quoted on a Dodd-Frank rule requiring companies to disclose CEO compensation compared to that of its median-paid employees.

The Dodd-Frank Act requires the US Commodity and Futures Trading Commission (CFTC) and the US Securities and Exchange Commission (SEC) to define certain so-called “key” terms used in Title VII of the Dodd-Frank Act.1 In Release No. 34-634522 (the Release), the CFTC and the SEC, in consultation with the Board of Governors of the Federal Reserve System, have now proposed definitions for the following terms:

Title VII of the Dodd Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act), entitled “Wall Street Transparency and Accountability Act,” contains significant reforms of the over-the-counter derivatives markets. The actual extent of many of these reforms may turn on the extent of regulatory “reach” under Title VII, which in turn will be determined by the meaning to be given to certain key terms used in Title VII. Importantly, Section 712(d) of the Dodd-Frank Act requires that the Commodities and Futures Trading Commission (CFTC) and the Securities and Exchange Commission (SEC), in consultation with the Federal Reserve Board, jointly further define these key terms.

In Morrison v. National Australia Bank Ltd., the US Supreme Court addressed the extraterritorial reach of Section 10(b) of the Securities Exchange Act. In that case, the Supreme Court addressed so-called “f-cubed” Section 10(b) claims—foreign plaintiffs suing foreign defendants in connection with securities traded on foreign exchanges.

The Dodd-Frank Act’s new whistleblower provision—which entices would-be whistleblowers who provide “original information” leading to a recovery of $1 million or more in any resulting enforcement action with up to 30 percent of the total amount collected—has become a cause for concern for the architects of corporate compliance programs. This “whistleblower bounty program”—tucked away in Section 922 of the Dodd-Frank Act—gives employees a strong incentive to bypass internal corporate compliance processes in favor of contacting the SEC directly when they are cognizant of infractions and misconduct, prompting some commentators to question whether the Dodd-Frank whistleblower program is at odds with the Sarbanes-Oxley (SOX) objectives of strengthening internal corporate compliance programs.

A trust company is a unique financial institution in the PRC which manages entrusted funds through the issuance of trust units.

On September 27, 2010, the Board of the Federal Deposit Insurance Corporation (FDIC) adopted new safe harbors1 (the New Rules) relating to the treatment of securitizations (and participations2) in receivership or conservatorship of an insured depository institution (bank). The New Rules replace a prior safe harbor (the Original Rule) that had been rendered largely obsolete by changes in US generally accepted accounting principles (GAAP).3 Initially, we believe that the FDIC has provided workable new safe harbors for banks that want to use them. We particularly applaud the FDIC for the provisions of the New Rules relating to existing master trusts.

The China Insurance Regulatory Commission (CIRC) now permits those insurance companies which are subject to its regulation to diversify their investments into the private equity and real estate sectors pursuant to the "Interim Measures for the Administration of Utilisation of Insurance Funds", effective 31 August 2010.

The Private Fund Investment Advisers Registration Act of 2010 (the “Registration Act”), contained in the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”), both expands and contracts the potential universe of types of investment advisers subject to registration with the Securities and Exchange Commission (the “SEC”) under the Investment Advisers Act of 1940 (the “Advisers Act”). On the one hand, it eliminates the “private adviser exemption,”1 which is the exemption from registration used by many investment advisers (for example, advisers to hedge funds, private equity funds, real estate funds and securitization vehicles). On the other hand, the Registration Act effectively raises the threshold for SEC registration from $25 million in assets under management to $100 million in assets under management, which may preclude certain investment advisers from registering (or possibly require certain investment advisers to deregister) with the SEC.

Chicago Banking & Finance partner Paul Forrester quoted on swaps-related trading and the tough new financial regulations in an article discussing speculative activities in commodities markets. Subscription required.

In In the Matter of vFinance Investments, Inc., the Securities and Exchange Commission censured, fined and issued cease and desist orders against vFinance Investments, Inc. (“vFinance”) and its former Chief Compliance Officer, Richard Campanella, for violating the recordkeeping and production requirements of the securities laws by failing to preserve and promptly produce electronic communications in response to SEC requests, including the personal email and personal computer of an independent contractor working in one of vFinance’s branch offices.

Q&A article with Michele Gibbons and Olga Loy discusses the recently passed Private Fund Investment Advisers Act of 2010.

The US Securities and Exchange Commission (SEC) recently took action to curb pay-to-play abuses with respect to investment advisory services for any “plan or program of a government entity”; essentially, any state or local pension funds, retirement systems or other government plans (all referred to herein as government plans). On June 30, 2010, the SEC adopted Rule 206(4)-5 (the Rule) under the Investment Advisers Act of 1940 (Advisers Act),1 which had been under consideration for the past year. Investment advisers are cautioned that the Rule does not preempt current or future state or local restrictions on similar activities. As a result, in addition to complying with the Rule, investment advisers should confirm whether other state or local restrictions apply to each government plan investment.2

The Thai Cabinet has approved, in principle, a Credit Card Business Bill ("Bill") aimed at curbing abuses by credit card business operators and increasing consumer protection.

At an open meeting convened on July 21, 2010, the US Securities and Exchange Commission (SEC) voted to adopt amendments to Part 2 of Form ADV and related rules.¹ Although the adopting release has not yet been issued, the amendments are expected to, among other things, require registered investment advisers to deliver to current and prospective clients a brochure (the “Brochure”) that is written in "plain English" and includes disclosures regarding an adviser’s business practices, conflicts of interest, background and advisory personnel. The Brochure can be comprised of either the completed Part 2 of Form ADV or a document that includes at least the information required in that form. The amendments are expected to impose significant reporting obligations and regulatory compliance expenses on registered investment advisers.

The Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Act”) was signed by President Obama on July 21, 2010. Mayer Brown issued an exhaustive summary of the Act in a Legal Update titled “Understanding the New Financial Reform Legislation.” In this Legal Update, we more specifically address the provisions of the Act that are most likely to impact public companies and their officers and directors.

The Dodd-Frank Wall Street Reform and Consumer Protection Act’s impact on the securitization markets will be significant. In fact, some provisions are already raising significant issues, as the market begins to digest the final terms of this landmark, voluminous legislation. Mayer Brown has already published a detailed summary and analysis of the Act, “Understanding the New Financial Reform Legislation.”

On June 30, the US House of Representatives voted 237 to 192 to approve the Dodd-Frank Wall Street Reform and Consumer Protection Act. Upon enactment, the legislation will change the way financial services are delivered in the United States, and how US and non-US banks, bank holding companies, securities firms, insurance companies, and other providers of financial services are regulated.

Mayer Brown LLP, a leading global law firm, announced today that 126 of its attorneys are ranked in the 2010 edition of Chambers USA: America’s Leading Lawyers for Business, including 40 who achieved a top-band ranking or higher in 27 nationwide and/or state categories.

On May 20, 2010, the US Senate passed its version of comprehensive financial services reform legislation, the “Restoring American Financial Stability Act of 2010” (the “Senate Bill”). The Senate Bill, coupled with the House of Representatives’ action last December passing its version of financial reform legislation, the “Wall Street Reform and Consumer Protection Act of 2009” (the “House Bill”), is about to enter a formal House-Senate conference to resolve differences between the two bills.

On May 11, 2010, the Board of the Federal Deposit Insurance Corporation (FDIC) released a notice of proposed rulemaking (NPR) concerning the FDIC’s rule (the Rule) relating to the treatment of securitizations (and participations) in receivership or conservatorship (12 CFR 360.6). This is the latest step in the FDIC’s reaction to changes in US accounting standards that made it difficult for banks4 to use the Rule. Comments on the NPR must be received by July 1, 2010.

The US Securities and Exchange Commission (the Commission) has released an important and voluminous notice of proposed rulemaking1 (the NPR) relating to asset-backed securities (ABS). Comments on the NPR will be due 90 days after the NPR is published in the Federal Register. The Commission currently expects that the new requirements would apply only to ABS issued after the implementation date(s) for the changes that are ultimately adopted, which may be up to one year after the final rules are adopted.

The Thai Board of Investment (BOI) identifies seven new business activities operated by small and medium-sized enterprises (SMEs) as eligible for investment incentives. BOI hopes that these incentives will drive Thai SMEs to shape up to be able to compete in a more global level.

Two recent developments suggest an increased collateral legal risk for persons and entities that enter into settlements with the US Securities and Exchange Commission (SEC). First, the SEC recently has suggested that it may release official statements detailing the facts underlying an investigation and settlement as part of the settlement process.

In a pair of recent decisions, the US District Courts for the Southern and Eastern Districts of New York have compelled the disclosure of overseas documents even though such production may violate foreign criminal laws. These decisions demonstrate the challenges associated with reconciling US discovery rules with foreign privacy laws and “blocking statutes” (i.e., statutes designed to protect non-US citizens from US discovery), and suggest several key factors that should be considered by litigants facing such issues.

On January 27, 2010, the US Securities and Exchange Commission (SEC), by a 4-1 vote, adopted amendments to Rule 2a-7 under the Investment Company Act of 1940, as amended (the “1940 Act”).1 Rule 2a-7 (the “Rule”) imposes quality, liquidity, and other requirements on any registered investment company that holds itself out to the public as a “money market fund.” Compliance with the amended Rule will be phased in over time as described further below.

The State Administration for Industry and Commerce (the "SAIC") issued Circular 31 on 10 February 2010, as a further step in the development of foreign-invested partnerships ("FIPs") following its issuance of Circular 47, the Administrative Measures for the Registration of Foreign-invested Partnership Enterprises (the "Registration Measures"), in January 2010.

This table has been prepared to accompany JSM’s 30 March 2010, Client Update “Circular 09 on Disclosure of Information on the Securities Market”.

Andy Pincus quoted on consumer protection proposals, saying small businesses would face a “significant diminution of credit” if the Dodd bill was made law.

The Board of Directors of the Federal Deposit Insurance Corporation (FDIC) has approved an extension through September 30, 2010 of the FDIC’s rule (the “Safe Harbor”) relating to the treatment of securitizations in receivership or conservatorship (12 CF 360.6). As described in our December 21, 2009 update, "A Peek at the Future of the FDIC Securitization Safe Harbor," recent changes in US accounting standards for securitizations created uncertainty about the continuing availability of the portion of the Safe Harbor relating to the FDIC’s repudiation power.

On February 24, 2010, the US Securities and Exchange Commission (SEC) adopted amendments to Regulation SHO under the Securities Exchange Act of 1934, aimed at restricting short selling under certain limited circumstances. After proposing a number of different short sale controls, the SEC voted 3-2 to adopt the “alternative uptick rule.”

The Hanoi Stock Exchange (HNX) and the Stock Exchange of Thailand (SET) have entered into a Memorandum of Understanding (MoU) on 22 January 2010 to establish a framework for cooperation between the two exchanges and allow dual-listing opportunities.

In a previous alert we highlighted the impact of the policy statement issued by the UK Financial Services Authority entitled “The approved persons regime – significant influence review” (“PS09/14”).

Mayer Brown has previously provided an assessment of the Council of the European Union's ("Council") draft compromise proposal (the "Compromise Proposal") on the Directive on Alternative Investment Fund Managers (the "Directive") published on 12 November

On December 17, 2009, the Basel Committee on Banking Supervision (the “Committee”) released for public comment a series of detailed and far-reaching proposals designed to strengthen the Basel II capital framework and improve the banking industry’s ability to withstand future financial and economic stress. The proposal, Strengthening the resilience of the banking sector (the “Capital Reform Proposal” or “Proposal”), constitutes a key element of the Committee’s effort to apply lessons learned from the recent financial crisis.

On December 16, 2009, the US Securities and Exchange Commission (SEC) voted to adopt amendments to Rule 206(4)-2 under the Investment Advisers Act of 1940 – the “Custody Rule” for registered investment advisers (RIAs). Based in part on approximately 1,300 comment letters received by the SEC, the SEC intends to make some significant changes from the original proposal to amend the Custody Rule.

On December 15, 2009, the Federal Deposit Insurance Corporation (FDIC) became the first of the US federal bank regulators to approve final rules responding to recent changes in US accounting standards for securitizations (see our June 22, 2009, Client Update, “Big Changes in Securitization Accounting”). The final rules are essentially identical to the rules proposed by the agencies late last summer. There are two primary consequences from the accounting changes.

On December 9, 2009, as part of a package to extend certain expiring tax provisions, the US House of Representatives passed HR 4213 (the House Bill), a bill containing several of the international tax proposals first introduced in the Foreign Account Tax Compliance Act of 2009 (FATCA).¹ Most notably, the House Bill contains a modified version of the withholding tax and information reporting proposals applicable to non-US financial institutions and also includes a provision that would tax carried interests as ordinary income. This alert only discusses the significant differences between the House Bill and FATCA relating to the information reporting and withholding tax provisions of each bill.

Thailand's new Anti-Money Laundering Act (No. 3) B.E. 2552, which came into effect on 22 October 2009, obliges nine new businesses and professions to report certain transactions to the Anti Money Laundering Office (AMLO).

On November 12, 2009, the Board of the FDIC approved an interim rule that provides some crucial transitional relief relating to recent changes in US accounting standards for securitizations (see our June 22, 2009, Client Update “Big Changes to Securitization Accounting”). One of the key impacts of the accounting changes is that banks (among other entities) will no longer be able to achieve sale treatment in securitizations of credit card and other receivables using many traditional structures.

Charles Horn quoted on financial regulatory reform. Subscription required.

We have reached a small landmark with this month’s edition of the Bulletin. This is our first anniversary edition of our monthly Bulletin.

In September 2009, the Securities and Futures Commission (SFC) issued a Consultation Paper to solicit feedback on its proposals to fine tune the existing regulatory regime for the sale of investments in Hong Kong.

On September 22, 2009, the Office of Chief Counsel of the Internal Revenue Service (the “Service”) issued a memorandum to the Director of Field Operations for Financial Services in Manhattan (the “Memorandum”) setting forth its position and legal analysis with respect to certain lending activities undertaken by foreign corporations. The Memorandum concludes that a foreign corporation has income that is effectively connected with a banking, financing, or similar business activity within the United States (and thus is subject to net basis US federal income tax) when origination activities are performed in the United States by an agent of the foreign corporation.

The Federal Deposit Insurance Corporation (FDIC) has approved a package of amendments designed, among other things, to conform its deposit insurance regulation (Part 330) to recent temporary statutory increases in the basic deposit insurance coverage limit from $100,000 to $250,000.

The UK model for governmental intervention announced in October 2008 became the European standard, with national variations to take account of differing systems. Although Greek banks have little exposure to “toxic” products and have not suffered large write-downs like some of their European peers, their rapid expansion in neighbouring Balkan markets has contributed to a liquidity squeeze.

In response to effect of the crisis on Danish financial markets, Denmark, similar to the US, the UK, Germany, Ireland and the Netherlands, has established a state guarantee scheme and a bailout package to ensure financial stability in the country.

The Norwegian government has maintained a policy of sustained involvement in financial markets following an economic crisis in the late 1980s – triggered by bad banking, weak market discipline and insufficient regulation. The mechanisms adopted by the Norwegian government to combat the 1980s recession have placed the economy in a better position to endure the current economic crisis than many other EU countries.

In the context of initiatives that were adopted in the European Union and aiming to strengthen the financial system stability, the access to liquidity and the financial capacity of credit institutions, the Portuguese government created a special scheme for granting guarantees to credit institutions with a registered office in Portugal as well as increased its guarantee of bank deposits. In November, Portugal’s parliament also approved a package proposed by the Spanish government to help local banks boost their capital ratios during the global financial crisis.

In the framework of the coordinated approach of the Euro area Member States and in particular in the light of the conclusions of the Ecofin meeting of 7 October 2008, the Italian Government adopted extraordinary measures to protect the financial sector and prevent recession.

Welcome to the September edition of our series of updates designed to keep you up to speed with government interventions in financial markets. Significant changes since our last update include the following:

In addition to the steps undertaken by the ECB, the Dutch government has provided different types of support to the Dutch financial system. These types of support include:

The co-ordinated efforts of the European Central Bank (the “ECB”) and the various national central banks (“NCBs”) of the member states of the European Union that have adopted the Euro (together with the ECB, the “Eurosystem”) have been instrumental in providing liquidity to qualifying financial institutions (i.e., generally any institution that is subject to the Eurosystem’s minimum reserve system and is considered to be financially sound) during the economic downturn.

Beginning in April 2008 and accelerating from there on, the UK began taking numerous and substantial actions in order to combat the economic downturn. Amongst the most important measures enacted by the UK are:

In an effort to provide increased transparency to the financial markets and protect investors from fraud and abuse, Congress and the Obama administration have proposed several bills (the “Legislation”) that would require certain advisers to private investment funds to register with the US Securities and Exchange Commission (the “SEC”) under the Investment Advisers Act of 1940, as amended (the “Advisers Act”).

As there will be a team of us from Mayer Brown attending this year’s forthcoming Rendez-Vous in Monte-Carlo, comprising lawyers from some of our offices in the US, UK and Germany, we have put together this Bulletin as a special edition for the Rendez-Vous.

By a vote of 4-1 (with OTS Acting Director John Bowman dissenting), the board of the Federal Deposit Insurance Corporation (FDIC) adopted a final policy statement establishing guidelines for private equity investors in failed banks or thrifts. The “Final Statement of Policy on Qualifications for Failed Bank Acquisitions” (Policy Statement) (available at http://www.fdic.gov/news/board/Aug26no2.pdf) reflects a few important modifications to the FDIC’s controversial July 2, 2009, proposal (Proposal) (see our Client Alert, “FDIC Proposes a Hard Line on Private Equity Investments in Failed Banks”), but retains many of the elements of the original proposal.

The Supplement to the Financial Markets Stabilization Act became effective on July 23, 2009 (as announced in the Federal Law Gazette I, No. 43/July 22, 2009, p. 1980). It governs the so called German Bad Bank, which was designed to give German banks the opportunity to dispose of risk positions and to relieve their balance sheets. In the course of the legislative procedures numerous amendments have been made, which are supposed to increase the Bad Bank’s practical effect and promote the financial markets’ stabilization.

On July 27, 2009, the US Securities and Exchange Commission (SEC) took several steps aimed at combating “abusive” short selling and increasing public disclosure of short sale activity. First, the SEC finalized Rule 204 under Reg. SHO,2 which was originally adopted as Interim Final Temporary Rule 204T in October 2008.

The headlines following publication of the Walker report inevitably focused on the recommendations with greatest political resonance – notably those concerned with bankers’ pay and bonuses. They are just a relatively small part of an overall package of reforms that looks to revitalise corporate governance in the UK financial institutions sector.

The Federal Deposit Insurance Corporation (FDIC) issued today for public comment its anticipated guidance for private equity investors in failed banks or thrifts. The proposed policy statement, which will be open for public comment for 30 days following publication in the Federal Register, would impose significant and, in many cases, ambiguous restrictions on (i) private equity investors in a company (other than certain existing bank or thrift holding companies) seeking to acquire from the FDIC deposits (or deposits and assets) of failed institutions, and (ii) applicants for de novo bank or thrift charters in connection with the resolution of failed institutions.

A United States person1 with a financial interest in, or signature authority over, “foreign financial accounts,” may be required to file a “Report of Foreign Bank and Financial Accounts” (Form TD F 90-22.1, or “FBAR”). As we discussed in our previous Client Alert on this topic (available here), the US Internal Revenue Service has apparently interpreted this term broadly, as including all vehicles for which investments are made on a pooled basis (e.g., to include mutual funds and hedge funds).

On May 20, 2009, the US Securities and Exchange Commission (SEC) issued proposed amendments to Rule 206(4)-2 (Custody Rule) under the Investment Advisers Act of 1940 (Advisers Act) aimed at providing additional safeguards for client assets held by registered investment advisers (Proposed Amendments). According to the SEC, the Proposed Amendments are intended to address the findings of several recent high-profile enforcement actions involving certain advisers’ custody arrangements, particularly self-custody or custody of client assets with an affiliate, in which client assets were misappropriated or otherwise fraudulently handled.

The Obama Administration has released a detailed proposal to change the financial services regulatory regime in the United States. The “white paper,” entitled “Financial Regulatory Reform: A New Foundation,” calls for the most significant overhaul of the American financial regulatory landscape since the Great Depression and is intended to mitigate or forestall future financial crises.

The financial services industry is constantly debating the roles and responsibilities of fiduciaries and how they contrast with those of service providers who are sometimes erroneously construed as fiduciaries. In Eurycleia Partners, LP et al. v. Seward & Kissel, LLP, No.88, 2009 WL 1543689, 2009 N.Y. Slip Op. 04299 (June 4, 2009), New York’s highest court shed light on the type of relationship that can give rise to breach of fiduciary duty claims and clarified the pleading standard applicable to fraud and aiding and abetting claims.

Particularly during the past 2 years of market turmoil, hedge fund managers in the US have encountered a step change in the intensity of regulatory investigation and litigation pressure. The SEC Enforcement Division has a dedicated Hedge Fund Working Group, which is investigating fraud and market manipulation by hedge fund investment advisers/managers. More than 100 cases involving hedge funds have been brought by the SEC in the past five years, with more than 20 so far this year. The SEC already has brought more enforcement actions involving hedge funds in the first four months of this year than all of last year. A significant proportion of the transatlantic information flow from the FSA to the SEC under cooperation arrangements has related to SEC activity in this area. Litigation in the US courts by aggrieved investors has been numerous and various, with fraud-based claims still in the majority. Though there has been egregious behaviour related to funds managed and advised from the US, this bias in the nature of claims filed is in part because of the legislative background and lower evidential hurdles in the US to filing claims based on fraud. Many matters framed as “fraud” in US proceedings would not be characterised in that way in UK litigation.

Analysis of National Insurance Consumer Protection Act

On May 20, 2009, President Obama signed into law the Fraud Enforcement and Recovery Act of 2009 (FERA). FERA contains a number of measures intended to combat mortgage, securities and commodities fraud, and to protect against fraud, waste and abuse in federal bailout/stimulus programs. In addition to the modifications of criminal law, the bill amends the civil False Claims Act (FCA) to both broaden liability and to enhance the ability of the US Department of Justice and qui tam plaintiffs (whistleblowers) to bring actions and share information. We review and highlight some of the key effects of the new law.

The over-the-counter (OTC) derivatives market is increasingly the focus of the U.S. legislative agenda. While the flurry of bills and pronouncements have done little to add substance to that framework, they have made one thing abundantly clear: OTC derivatives will be subject to a new regulatory landscape. One common thread among all is transparency; however, the road to achieving that is rife with blind corners.

Legislation has been introduced in the US House of Representatives that would create an optional federal charter for insurance companies, insurance agencies, and insurance producers. The National Insurance Consumer Protection Act (NICPA) would create an Office of National Insurance that would be headed by the National Insurance Commissioner.

Since the conduct of certain banking and financial services related activities within Germany requires a banking license pursuant to Section 32 of the German Banking Act (Gesetz über das Kreditwesen, "KWG") acquiring such a license for many investors is a crucial step on their way into the German market. We have prepared a summary of the conditions for granting a banking license within Germany.

Joint Administrators' progress report for the period 15 September 2008 to 14 March 2009

On April 10, 2009, the US Securities and Exchange Commission (SEC) issued five alternative proposed amendments to Regulation SHO, which, according to the SEC, are aimed at curbing short sales under certain circumstances and increasing overall investor confidence (the “Proposing Release”). The Proposing Release comes at a time when the SEC is under intense pressure from members of the US Congress, many of whom have taken an increased interest in short selling in light of the ongoing market crises.

Lord Turner’s review of the causes of the global banking crisis takes a close look at the way in which the Financial Services Authority should supervise firms. The main theme is that the FSA should supervise firms in a “more intrusive and more systematic” manner.

Since our latest Client Update on the Term Asset-Backed Securities Loan Facility (TALF), the program has evolved in important ways. For example, on Thursday, March 19, the Federal Reserve Board expanded the set of eligible collateral for TALF loans to include securities backed by four additional asset categories:

The Public-Private Partnership Investment Program (PPIP) is the most recent program to be announced under the US Treasury Department’s broad-based Financial Stability Plan. The PPIP will consist of two distinct components: (i) a program to address certain real estate loans held on the books of insured depository institutions, and (ii) a program to help create price discovery and a more liquid secondary market for certain securities backed by loan portfolios held by a broader variety of financial institutions.

Congress passed the Investment Company Act of 1940, 15 U.S.C. §§ 80a-1 et seq., to protect mutual fund investors. Section 36(b) of the Act imposes on investment advisers, who often create and manage mutual funds, “a fiduciary duty with respect to the receipt of compensation for services” from a mutual fund, and gives fund shareholders a private right of action for breach of that duty. Id. § 80a-35(b).

On 17 February 2009, the Securities and Futures Commission postponed the implementation date of its revised advertising guidelines and enhanced disclosure requirements in relation to the content of existing marketing materials in respect of collective investment schemes to 1 July 2009 to give certain issuers more time to implement these measures.

On 16 December 2008, the FSA published a feedback statement on “Transparency, disclosure and conflicts of interest in the commercial insurance market”.

8 January 2009 - Facing an unprecedented global economic crisis, businesses naturally are exploring ways to cut costs. In doing so, SEC registrants — investment advisers, investment companies and broker-dealers — should not compromise their compliance and risk management programs.

December 2008 - Analysis Review into insurance comparison websites It is fair to say that insurance comparison websites have grown significantly as a distribution channel of personal lines insurance over the past couple of years. For example, in 2007, almost 25% of all private motor insurance was sold through an aggregator site.

4 December 2008 - On November 25, 2008, the US Federal Reserve announced two new programs aimed at enhancing the availability, and lowering the cost, of consumer finance and small business loans...

A recent first instance decision in the English court has raised the prospect of expanding the circumstances in which springboard relief will be granted to employers in the face of losses caused by a mass defection of staff members to a competitor. This decision is at odds with recent High Court decisions in Hong Kong and introduces some uncertainty into this area which victims of such mass staff defections may want to test going forward.

The Royal Decree regulating Electronic Payment ("E-Payment") was published in the Government Gazette on 16 September 2008 and shall come into force 120 days thereafter.

30 October 2008 - Hedge funds and their managers are struggling to cope with a ‘tsunami’ of redemption requests, coinciding with poor investment liquidity. On top of this, certain funds have been impacted by the business dislocation caused by Lehman’s collapse, the ban on short selling, and a more risk averse approach by prime brokers.

22 October 2008 - Annual Seminar on Risk Management and Regulatory Examination/Compliance Issues Affecting International Banks Remarks of David R. Sahr

16 October 2008 - On October 14, 2008, the US Securities and Exchange Commission (SEC) issued three formal rulemaking orders effectively extending the “naked short selling” rules implemented under an emergency order issued on September 17, 2008 (the “September Emergency Order”).

14 October 2008 - On October 8, 2008, the US Securities and Exchange Commission (SEC) held a roundtable discussion exploring concepts for a new financial disclosure system as part of its 21st Century Disclosure Initiative, the Commission’s most recent effort to modernize its disclosure system.

7 October 2008 - The “Emergency Economic Stabilization Act of 2008” (the “Act”) that was enacted last week creates a program known as the “Troubled Asset Relief Program” or “TARP,” which allows “financial institutions” to sell certain “troubled assets” to the US Treasury. On October 6, 2008, Treasury issued a notice that briefly describes the process it will follow to select “asset managers” for different types of troubled assets covered by the Act. Treasury also issued three solicitations for “asset management” and “custodian” services.

On October 3, 2008, President Bush signed the Emergency Economic Stabilization Act of 2008 (the "EESA" or the "Act") into law. After a failed vote in the US House of Representatives on Monday, the US Senate passed the legislation on Wednesday as amended to increase temporarily deposit insurance overage and to provide numerous tax benefits.

3 October 2008 - On October 1, 2008, the Securities and Exchange Commission (SEC) announced its intention to extend the recently issued emergency orders related to short sales.

25 September 2008 - On September 24, 2008, the Seventh Circuit held that rescission of a mortgage – one of the remedies available under the Truth in Lending Act (TILA) – may not be awarded to an entire class of borrowers. In Andrews v. Chevy Chase Bank, No. 07‐1326 (7th Cir. Sept. 24, 2008), the court vacated the district court's certification of such a class, holding "as a matter of law that a class action for the rescission remedy under TILA may not be maintained." Mayer Brown represented the lender on this appeal.

In a major departure from prior precedent, New York Governor David A. Paterson announced on September 22, 2008, that the New York State Insurance Department (the “Department”) would start regulating certain types of credit default swaps (CDSs) as insurance.

Securitized products, when used wisely, have the potential to be one of the most valuable financial innovations of the modern financial era. The capital markets as a whole, and securitization in particular, possess the potential to increase the availability of, and make less expensive, financing for most businesses and consumers. The unprecedented crisis in the capital markets today, which many believe was precipitated by the crisis in the subprime mortgage financing space, has once again put the securitization industry on the defensive. It is not only on the defensive; it is also in need of reform and its practitioners are working earnestly now to put our house in order.

19 September 2008 - The Board of the Financial Services Authority (FSA) last night agreed to introduce new provisions to the Code of Market Conduct to prohibit the active creation or increase of net short positions in publicly quoted financial companies.

The Anti-Money Laundering Act (No. 2) B.E. 2551 (2008) ("AMLA No. 2") was published in the Government Gazette on 1 March 2008 and came into force on 2 March 2008. This Act, which amends the Anti-Money Laundering Act B.E. 2542 (1999), adds illegal gambling as a predicate offence, establishes the Anti-Money Laundering Fund and modifies the duties of the agencies responsible for controlling anti-money laundering.

23 July 2008 - On July 15, 2008, the Securities and Exchange Commission (SEC) issued an emergency order (the "Emergency Order") prohibiting anyone from engaging in the "naked" short selling of the securities of Fannie Mae, Freddie Mac and seventeen other financial firms identified in Appendix A to the Emergency Order (the "Appendix A Securities").

14 July 2008 - On June 27, 2008, the US Securities and Exchange Commission (the "SEC") published proposed amendments (the "Proposal") that, if adopted, will significantly liberalize Rule 15a-6under the Securities Exchange Act (the "Exchange Act").

The State Bank of Vietnam issued Decision No.06/2008/QD-NHNN on 12 March 2008 on the evaluation and rating of joint-stock commercial banks ("Regulation"). This sets forth certain criteria by which joint-stock commercial banks (the "Banks") may evaluate and rate themselves.

18 June 2008 - Rights issues: new disclosure regime for significant short positions

22 May 2008 - The US Court of Appeals for the Seventh Circuit and the US Supreme court issued decisions in two important cases impacting mutual funds.

9 May 2008 - Last week Sen. Dodd offered a brief summary of his Credit Card Accountability Responsibility and Disclosure Act.

8 April 2008 - The Securities and Exchange Commission (SEC) is proposing to amend Regulation S-P to require broker-dealers, investment companies, registered investment advisers and registered transfer agents to adopt comprehensive information security programs.

15 January 2008 - In a case argued by Mayer Brown partner Stephen Shapiro and previously described by the Wall Street Journal as "the biggest securities-litigation court clash in a generation," the Supreme Court today affirmed that third parties who do not themselves mislead investors cannot be held liable for damages under Section 10(b) of the Securities Exchange Act even if their conduct facilitates the fraud of another.

In one of the most highly anticipated business cases in years, the Supreme Court heard oral argument on October 9, 2007, in Stoneridge Investment Partners v. Scientific-Atlanta, Inc. Mayer Brown partner Stephen Shapiro argued the case for respondents Scientific-Atlanta, Inc. and Motorola, Inc.

On 18 April 2007, the State Bank of Vietnam ("SBV") issued Decision No 16/2007/QD-NHNN ("Decision 16") promulgating the Regulation on Financial Reporting Regime applicable to credit institutions.

According to the Securities and Exchange Commission ("SEC"), Thai individuals will be allowed to invest abroad directly starting from September 2007. Currently, the Bank of Thailand allows only mutual funds, provident funds and proprietary portfolios of securities and asset management companies to invest abroad.

We now have 3 different drafts for a new Foreign Business Act - what next?

The Bank of Thailand (BoT) has recently issued a Policy Statement for financial institutions regarding know your customer (KYC) / customer due diligence (CDD) practices, which are major components of any financial institution's measures against money laundering and towards combating the financing of terrorism (AML/CFT).

The media reported discussions relating to the Foreign Business Act which took place in the Thai Cabinet on 10 January 2007.