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President Biden signs repeal of OCC’s “True Lender” rule

On June 30, 2021, President Biden signed S. J. Res. 15, which had been passed by the U.S. Senate and House of Representatives, pursuant to the Congressional Review Act (the “CRA”), to nullify the Trump Administration’s “True Lender” final rule (the “True Lender Rule”). Under the CRA, the US Congress has a limited period of … Continue Reading

The LIBOR Transition – Regulators continue to stress importance of companies addressing LIBOR transition NOW

Global and US financial services regulators are increasing their warnings on the impending end to the use of the London Interbank Offering Rate (LIBOR) as a reference rate in financial contracts and the risk to the global financial system if there is inadequate preparation by financial institutions. Most LIBOR settings are ending this year, with … Continue Reading

House Passes Bill Directing Disclosure of ESG Metrics

On June 16, 2021, the U.S. House of Representatives passed H.R. 1187, the “ESG Disclosure Simplification Act of 2021” (“Act”), by a 215-214 vote. The Act, if passed by the U.S. Senate and signed into law by President Biden, would direct the U.S. Securities and Exchange Commission (“SEC” or “Commission”) to issue rules requiring public … Continue Reading

First New York City C-PACE Financing Closes

Norton Rose Fulbright represented Petros PACE Finance, LLC, a leading commercial property assessed clean energy (C-PACE) lender, as the lender in the first New York City C-PACE financing which closed in early June.  The C-PACE loan of $89 million on an existing building in the Wall Street area will be used to make the building … Continue Reading

NYDFS settles another cybersecurity enforcement action

On May 13, 2021, the New York Department of Financial Services (NYDFS) announced a $1.8 million settlement with two related insurance companies, relating to violations of two different requirements of the NYDFS cybersecurity regulation during the period 2018 to 2019. Read a discussion of the May 13 settlement by David Kessler, Susan Ross and Patrick … Continue Reading

Congress proposes overturning OCC’s “True Lender” rule, leading to lingering uncertainty in consumer loan portfolios

The U.S. Senate and House of Representatives have jointly proposed overturning the Trump Administration’s “True Lender” final rule (the “True Lender Rule”), as published by the Office of the Comptroller of the Currency (the “OCC”) on October 30, 2020 and effective December 29, 2020. The Congressional Review Act (the “CRA”) gives Congress a limited period … Continue Reading

Wyoming to Recognize DAOs as LLCs

On April 21, 2021, Wyoming Governor Mark Gordon signed Bill 38 into law allowing Wyoming to recognize decentralized autonomous organizations (DAOs) as limited liability companies. The bill was sponsored by Wyoming’s Select Committee on Blockchain, Financial Technology and Digital Innovation Technology and takes effect July 1, 2021. Generally, a DAO is an organization controlled by … Continue Reading

What is an NFT, anyway?

Once relegated to the fringe of the crypto/FinTech communities, non-fungible tokens (NFTs) have recently exploded to the forefront of modern pop culture and are taking on an ever increasing number of forms—from collectible digital kittens, to sport highlights, to music albums, to pieces of art auctioned off by Christie’s for US $69.3 million. But what, … Continue Reading

The LIBOR Transition – Guidance for assessing FRB-supervised firms planned transition away from LIBOR

Following up on our past posts on the transition away from the use of the London Interbank Offering Rate (“LIBOR”) as a reference rate, recently, the Board of Governors of the Federal Reserve System (FRB) issued a letter setting forth guidance for FRB examiners to assist in their assessment of the progress of FRB-supervised firms … Continue Reading

The LIBOR Transition – NY LIBOR Legislation Enacted

On April 6, 2021, New York Governor Mario Cuomo signed into law legislation tackling the uncertainties surrounding the LIBOR transition, particularly for legacy contracts. The new law amends the New York State General Obligations Law by adding a new Article 18-C, and is limited to contracts governed by New York law that are either silent … Continue Reading

AML Act of 2020: Topics of interest for international banks

The National Defense Authorization Act became law on January 1, 2021, after the U.S. Congress overrode a presidential veto. Division F of the Act is the “Anti-Money Laundering Act of 2020” (AMLA). In her latest The New York Law Journal column, “ AML Act of 2020: Topics of interest for international banks,” Kathleen Scott, Senior … Continue Reading

SEC taking steps to develop and implement mandatory ESG disclosures

On March 15, 2020, Allison Lee, Acting Chair of the Securities and Exchange Commission (SEC), delivered comments at the Center for American Progress via webcast, announcing the opening of a comment period regarding climate change disclosures. The submissions are to be used in developing future guidance and proposals on ESG (Environmental, Social and Governance) issues. … Continue Reading

New York State imposes a $1.5 million penalty in cybersecurity breach case

On March 3, 2021, the New York Department of Financial Services (NYDFS) announced a Consent Order with a NYDFS-licensed Maine-based mortgage banker and loan servicer settling alleged violations of the NYDFS cybersecurity regulations. (In the matter of Residential Mortgage Services, Inc., March 3, 2021). As a result of the regular safety and soundness examination of … Continue Reading

Commissioner Peirce Highlights Need for Regulators to Embrace Technology

In recent weeks, Commissioner Hester Peirce of the Securities and Exchange Commission (“SEC”) gave two speeches highlighting the need for legal clarity in the FinTech space and for legacy financial firms to embrace innovation. Speaking at a George Washington University Law School event – Regulating the Digital Economy Conference – Commissioner Peirce discussed the recent … Continue Reading

SEC’s Division of Examinations Releases Risk Alert for Digital Asset Securities

On February 26, 2021, the Securities and Exchange Commission’s (“SEC”) Division of Examinations (the “Division” and formerly known as “OCIE”) released a Risk Alert (the “Risk Alert”) reminding market participants – investment advisers, broker-dealers, exchanges, and transfer agents – of the framework surrounding digital assets that are securities (“Digital Asset Securities”). The Division also set … Continue Reading

The LIBOR Transition – ARRC commends FCA and IBA on confirmation of LIBOR endgame

On Friday, March 5, 2021, the US Alternative Reference Rates Committee (ARRC), the group of private sector and government agencies working on alternatives to the end of the use of LIBOR, issued a press release commending the issuances by ICE Benchmark Administration (IBA), the LIBOR administrator, and the UK Financial Conduct Authority (FCA), confirming that … Continue Reading

SEC Settles with BlueCrest: Algorithmic Trading and AI-Based Strategies Must be Disclosed to Investors

On December 8, 2020, BlueCrest Capital Management Limited (“BlueCrest”), a UK-based investment adviser, agreed to a $170 million settlement with the Securities and Exchange Commission (“SEC”) to settle charges involving insufficient and misleading disclosures to investors that BlueCrest was also operating a proprietary, internal fund, moving its best traders to such fund and replacing the … Continue Reading

OCC Conditionally Approves Bank Charter for Second Crypto Firm

The Office of the Comptroller of the Currency (OCC) granted crypto-focused Protego Trust Company, a Washington state trust company, conditional approval to convert to a national trust bank earlier this month, marking only the second time that a federal bank charter has been approved for a crypto firm – and the first since the January … Continue Reading

New NY Law requires disclosures for certain commercial loans

On December 23, 2020, New York Governor Mario Cuomo signed legislation adding a new Article 8 to the Financial Services Law, “Commercial Financing,” that requires nonbank commercial loan providers to make disclosures to small business borrowers. The law applies only to loans of $500,000 or less. The commercial lending to which the new law pertains … Continue Reading

Bank Regulation: A look back and ahead

In 2020, several federal regulatory changes affected banking organizations, such as the finalization of the long-awaited Federal Reserve Board “control” regulations and the revision of the “covered funds” prong of the Volcker Rule. But, what is ahead for 2021 in the regulatory sphere for banking organizations? In her latest New York Law Journal column, “International … Continue Reading

Dealers in antiquities added to the list of businesses to be subject to AML compliance requirements

The National Defense Authorization Act was enacted on January 1, 2021, after the US Senate joined the House of Representatives in overriding a presidential veto of the bill. In addition to authorizing appropriations for the Department of Defense, the new law also contains several provisions designed to improve policies and procedures aimed at policing money … Continue Reading

Under new rules, resource extraction issuers must disclose payments to governments

On December 16, 2020, the US Securities and Exchange Commission (SEC or Commission) announced that it had adopted final rules requiring resource extraction issuers to disclose payments to governments related to the commercial development of oil, natural gas or minerals (the Rules). The Rules implement Section 13(q) of the Securities Exchange Act of 1934, which … Continue Reading

US banking regulators propose a rule for 36-hour notice of breach

On December 18, 2020, the US Department of the Treasury (Office of the Comptroller of the Currency), Federal Reserve Board and Federal Deposit Insurance Corporation (FDIC) jointly announced a 53-page proposed rule that would require banks to notify their regulators within 36 hours of a “computer-security incident” that rises to the level of a “notification … Continue Reading

Congress Expands SEC Disgorgement Authority

On January 1, 2021, the National Defense Authorization Act became effective after Congress overrode President Trump’s veto. Although unrelated to national defense issues, Section 6501 of the legislation amends Section 21(d) of the Securities Exchange Act of 1934 to double the SEC’s statute of limitations for seeking disgorgement of a defendant’s unjust enrichment from five … Continue Reading
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