United States

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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

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

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

IOSCO work programme 2021/22

On 26 February 2021, the International Organisation of Securities Commissions (IOSCO) published its work programme for 2021/2022. Ashley Alder, Chair of the IOSCO Board, said: “In 2020, our agenda was dominated by the response to COVID-19 induced market stresses. IOSCO has actively taken steps to address potential financial stability risks including a particular focus on … 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

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

The LIBOR Transition — What US municipal securities issuers should know

The UK Financial Conduct Authority has warned that the London Interbank Offered Rate (LIBOR) is not likely to be published after 2021. What will happen to LIBOR-based municipal securities, loans, and derivatives that extend beyond 2021, if and when LIBOR goes away? The contracts could be remediated by pending New York and possible federal LIBOR … Continue Reading

US SEC amends rules to simplify and expand the exempt offering framework

On November 2, 2020, in an effort to harmonize and modernize the exempt offering framework under the Securities Act of 1933 (the Securities Act), the US Securities and Exchange Commission (SEC) adopted a final rule entitled “Facilitating Capital Formation and Expanding Investment Opportunities by Improving Access to Capital in Private Markets.” In a new legal … Continue Reading

Important SAFT court opinion; lawyers accepting virtual currency as payment

In a much-anticipated decision with important implications for the cryptocurrency industry, a second New York federal judge has now ruled that an offeror’s use of a two-stage “Simple Agreement for Future Tokens” or “SAFT” structure for issuing cryptocurrency tokens will not suffice to exempt the offering from the reach of US securities law. In this … Continue Reading

New SEC Final Rule clarifies whistleblower program

On September 23, 2020, the US Securities and Exchange Commission (SEC) adopted a Final Rule, effective 30 days after publication in the Federal Register, regarding various aspects of its whistleblower program (the Program). Two points are particularly noteworthy. First, the SEC “clarified” that it has the authority and discretion to adjust large awards. Second, there … Continue Reading

US SEC adopts amendments to expand scope of “accredited investor” definition

On August 26, 2020, the US Securities and Exchange Commission (SEC) adopted amendments to expand the scope of the “accredited investor” definition, allowing a greater pool of investors to access the private capital markets. The amendments add new categories of qualified natural persons who meet certain professional knowledge or certification requirements and expand the list … Continue Reading

SEC and CFTC issue Settlement and Order against Abra simultaneously

In what appears to be a coordinated effort, the Securities Exchange Commission (SEC) and Commodities Futures Trading Commission (CFTC) both issued orders relating to Plutus Financial—doing business as Abra—and its Philippines-centered partner, Plutus Technologies Philippine Corporation (Plutus Tech). The July 13, 2020 orders found Abra and Plutus Tech had violated sections of the Securities Act … Continue Reading

FINRA issues guidance on retail communications relating to private placements

On July 1, 2020, FINRA issued guidance to member firms on compliance with FINRA Rule 2210 (“Rule 2210”)) on the marketing of private placements to retail investors. These private placements are typically conducted under Rules 504, 506(b) or 506(c) of Regulation D under the Securities Act of 1933, as amended, as “safe harbors” that permit … Continue Reading

The SFA files court brief in bankruptcy court opposing Hertz’s attempt to alter an ABS arrangement

The US Structured Finance Association (the “SFA”), the securitization industry group, has filed an amicus brief in support of a challenge and objection to the Motion for Order Rejecting Certain Unexpired Vehicle Leases Effective Nunc Pro Tunc to June 11, 2020 Pursuant to Sections 105 and 365(A) of the Bankruptcy Code (the “Motion”) filed by … Continue Reading

Recent US federal court case examines SAFTs under federal securities laws

Cryptocurrency and token offerings present a regulatory paradox. The Securities and Exchange Commission contends that in various circumstances cryptocurrency and token offerings constitute “securities” that must comply with securities laws. A potential approach: “simple agreements for future tokens” or SAFTS. In a recent New York Law Journal column, Robert Schwinger, a partner in the New … Continue Reading

SEC Orders Third Ever Whistleblower Award to Compliance Officer

On March 30, 2020, the SEC ordered its third ever whistleblower award to a compliance officer in the amount of $450,000. In 2010, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act, which, among other things provided for the payment of monetary awards under certain circumstances to whistleblowers whose tips to the SEC … Continue Reading

FINRA (and selected SEC) regulatory matters at a glance: What compliance officers need to know

Glen Barrentine is Of Counsel in the New York office of Norton Rose Fulbright. His practice focuses broadly on SEC regulated financial service clients, including broker-dealers, securities exchanges, municipal advisors and investment advisers. Glen frequency represents clients in connection with SEC and FINRA enforcement proceedings and other contentious regulatory inquiries, purchases and sales, and the … Continue Reading

Federal Reserve establishes Commercial Paper Funding Facility

As part of a comprehensive effort to alleviate strain on the commercial paper markets due to the COVID-19 pandemic, on March 17, 2020 the Board of Governors of the Federal Reserve System (the “Federal Reserve”) announced the creation of the Commercial Paper Funding Facility (“CPFF”). Similar to the CPFF program implemented in 2008, which was … Continue Reading

Federal Reserve announces TALF 2.0 to assist asset-backed issuers

On March 23, 2020, the Board of Governors of the Federal Reserve System (the “Federal Reserve”) announced a wide array of actions intended to promote economic stability in light of the COVID-19 pandemic, including several different credit facilities. The Federal Reserve announced as one of these credit facilities a renewal of the Term Asset-Backed Securities … Continue Reading

SEC provides further COVID-19 relief relating to investment advisers regarding temporary locations and inadvertent adviser custody

On March 16, 2020, the Securities and Exchange Commission’s Division of Investment Management announced additional COVID-19 related relief. This relief is available on the SEC’s COVID-19 page, available here, and summarized below. Operation of Business From Temporary Locations. The conduct of business from temporary locations, such as an employee’s home, as part of a firm’s … Continue Reading

Coronavirus | COVID-19: US SEC provides temporary relief to assist funds and advisers by permitting virtual board meetings and providing reporting relief

On March 13, 2020, the Securities and Exchange Commission (“SEC”) announced conditional, temporary relief for funds (available here) and both registered and exempt reporting investment advisers (available here) impacted by COVID-19. The relief covers in-person board meetings by fund boards and certain filing and delivery requirements for both advisers and funds. Funds and advisers that … Continue Reading

FINRA (and selected SEC) regulatory matters at a glance: What compliance officers need to know

Glen Barrentine is Of Counsel in the New York office of Norton Rose Fulbright. His practice focuses broadly on SEC regulated financial service clients, including broker-dealers, securities exchanges, municipal advisors and investment advisers. Glen frequency represents clients in connection with SEC and FINRA enforcement proceedings and other contentious regulatory inquiries, purchases and sales, and the preparation … Continue Reading

“Crypto Mom” Proposes 3-Year Safe Harbor for Token Projects

In a speech to the International Blockchain Congress on February 6, 2020, Securities and Exchange (“SEC”) Commissioner Hester Peirce, sometime referred to as “Crypto Mom,” proposed a three-year safe harbor for virtual currency token projects.  The safe harbor would exempt (i) the offer and sale of tokens from the provisions of the Securities Act of … Continue Reading
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