MVA White Collar Defense, Investigations, and Regulatory Advice Blog

On June 6, 2023, the Board of Governors of the Federal Reserve System (the Federal Reserve), the Federal Deposit Insurance Corporation (FDIC) and the Office of the Comptroller of the Currency (OCC, and collectively with the Board and the FDIC, the Agencies) issued their final version of the Interagency Guidance on Third-Party Relationships: Risk Management (the Final Guidance). The Final Guidance is intended to promulgate effective risk management practices by banking organizations with respect to all of their third-party relationships.  

The Final Guidance replaces each ...

A Bloomberg article last week suggests potentially more bad news is on the way for Coinbase Global Inc. (“Coinbase”). Coinbase is reportedly facing an investigation by the U.S. Securities and Exchange Commission (“SEC”) into whether it let customers trade digital assets that the SEC believes should have been registered as securities. Rumors of investigations by the SEC do not necessarily suggest problems for the company at the center of those rumors, but the timing of a recent SEC complaint (SEC v. Wahi) may explain why this report had such a negative effect on Coinbase’s ...

In the fourteen years since the 2008 financial crisis, significant actions have been taken by Federal banking agencies to make the largest financial institutions more resilient and less likely to fail and to require planning that would facilitate their orderly resolution, if necessary. These risk mitigation measures are tailored, however, with the most stringent requirements, and highest regulatory expectations, appropriately reserved for the eight U.S. banks designated as posing the greatest risk to financial stability (global systemically important banks, or GSIBs ...

President Biden signed an executive order today setting forth an agenda across the U.S. government to address risks related to cryptocurrencies while encouraging continued innovation around digital assets and funds transfer and payment systems. The order represents an acknowledgement by the Biden administration of the prevalence of cryptocurrencies in the U.S. and global economies and their ability to facilitate access to financial services within traditionally underserved communities. The order conveys a need for the U.S. to keep up with these technological advances ...

Background

In February 2014, the Revolution of Dignity or Maidan revolution in Ukraine resulted in the ousting of Ukrainian President Viktor Yanukovych. In the months that followed, Russia annexed the Crimea region of Ukraine and supported separatist movements in the eastern regions of Luhansk and Donetsk. President Obama signed three Executive Orders in March 2014 imposing sanctions and prohibiting certain transactions because of Russia’s actions in Ukraine. Multiple Executive Orders relating to Russia followed over a period of years.

On February 21, 2022, Russia ...

On December 7, 2021, the Consumer Financial Protection Bureau (“CFPB”) published its final rule (“Rule”) facilitating the transition away from LIBOR for open-end and closed-end consumer financial products. The Rule amends provisions of Regulation Z, which implements the Truth in Lending Act to allow for the transition from U.S. dollar LIBOR to the Secured Overnight Financing Rate (“SOFR”) and other alternative reference rates. SOFR is deemed compliant as a replacement index whereas other alternative reference rates must pass the “comparability” or ...

In AMG Capital Management v. FTC, a unanimous Supreme Court recently struck the Federal Trade Commission’s (the FTC) power to obtain monetary relief under § 13(b) of the FTC Act (the Act). Under § 13(b), the FTC can seek the aid of a court to obtain a permanent injunction. The issue the court addressed is whether Congress, by enacting § 13(b) and using the words “permanent injunction”, granted the FTC authority to obtain monetary relief directly from the courts rather than through the administrative process, which ultimately allows for such relief. The Court held the FTC is not ...

For the first time in nearly a decade, the Office of the Comptroller of the Currency, Board of Governors of the Federal Reserve System, Federal Deposit Insurance Corporation, Farm Credit Administration, and the National Credit Union Administration (the Agencies) have proposed new, revised, and reorganized guidance on flood insurance (the Q&As). The Agencies published a first set of 118 proposed Q&As in July 2020, and a second set of 24 proposed Q&As relating to private insurance specifically on March 11, 2021. After the Q&As are consolidated into a single set and finalized, they ...

Moore & Van Allen (MVA) Litigation Member Jim McLoughlin and Financial Regulatory Advice & Response Member Neil Bloomfield‘s article titled, “3rd Circuit panel raises the bar on risk disclosures as the trend toward greater disclosure continues” was published by Westlaw on March 30, 2021.

The Article

It had been an article of faith in the securities legal community that a registrant has no obligation to disclose possible wrongdoing or a government investigation into its conduct absent some statement that would be rendered misleading without such a disclosure.

However, in ...

MVA Financial Services Member Lauren Biek, Co-head of Financial Regulatory Advice and Response Neil Bloomfield, and Financial Services Counsel Ed Ivey will serve as panelists during the NCBA: The Business Lawyer as First Responder, 2021 Business Law Section Program. This live webcast will take place on February 11. Additionally, Financial Services Member Kimberly Zirkle serves on the planning committee for the Business Law Section program.
 
The panel titled, “SOFR, So Good? Current Issues in Credit Agreements” will highlight the differences in approach ...

By Kate Wellman and Neil Bloomfield. As COVID-19 continues to spread globally, U.S. financial services regulators have released guidance to their supervised institutions to encourage proactive planning for what may be months of sustained impact to business infrastructure and the financial system.  The theme running through recent guidance released by the Federal Financial Institutions Examination Council (FFIEC), Financial Industry Regulatory Authority (FINRA), and federal and state banking agencies is the need for flexibility.  Financial institutions, like all of us ...

The transition away from LIBOR was born from the financial crisis.  For years regulators have been pushing for an alternative to the dominant market benchmark.  The underlying market was illiquid.  The rate was set by opinion, not transactions.  It was easily manipulated.  It was set by only the largest of financial institutions.  In the U.S., SOFR—the secured overnight funding rate—has been designated as the LIBOR replacement.  In many ways, it cures the ills of LIBOR.  The underlying market is liquid and the rate is set by actual transactions.  But in many ways it is wholly dissimilar to ...

Charlotte Financial Regulatory Advice & Response Co-Head Neil Bloomfield served as a panelist for Mecklenburg County Bar’s 19^th Annual Banking and Finance Forum which took place on November 22. Bloomfield joined others from Wells Fargo, Bank of America, and Bryan Cave to discuss “LIBOR Transition Challenges.”  During the panel, Mr. Bloomfield discussed the latest regulatory guidance and best practices in managing the transition away from LIBOR to SOFR.  

By Neil Bloomfield and Kristina Whittaker. Operational risk is a continuing and increasing focus of the Office of the Comptroller of the Currency, and, as a result, it needs to be a greater priority of the institutions it regulates. The OCC publishes a "Semiannual Risk Perspective" that addresses key issues facing banks and other federally chartered institutions.

In recent years, the OCC has categorized operational risks as elevated as banks respond to an evolving and increasingly complex environment. The OCC defines operational risk as the risk to current or projected financial ...

By Neil Bloomfield. In another sign of progress, the Federal Deposit Insurance Corporation (FDIC) proposed easing a rule that requires banks to put cash aside to safeguard derivatives trades among affiliates. The proposal would remove the current requirement for members within the same bank group to post margins upfront when trading derivatives.  According to a 2018 survey conducted by the International Swaps and Derivatives Association (ISDA), the new rule could free up to $40 billion across some of the largest banks. FDIC Chairman Jelena McWilliams also stated that revoking the ...

By Neil Bloomfield. The Task Force on Consumer Compliance of the Federal Financial Institutions Examination Council (FFIEC) recently published the modified interagency examination procedures for the Flood Disaster Protection Act (FDPA) designed to promote consistency and communication of supervisory expectations in the examination process. The Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, the Farm Credit Administration, and the National Credit Union Administration issued ...

By Neil Bloomfield. The Federal Reserve Board (Federal Reserve) recently announced it will develop a “new round-the-clock real-time payment and settlement service”, named the FedNow℠Service to support faster payments in the United States.  FedNow will be a national instant payment system that is designed to offer an option for consumers and businesses to transfer up to $25,000 24x7x365. Federal Reserve Board Governor Lael Brainard stated, “FedNow will permit banks of every size in every community across the country to provide real-time payments to their customers.”

By Kristina Whittaker and Neil Bloomfield. In the aftermath of sales practices, the Office of the Comptroller of the Currency (OCC) recently published a bulletin on fraud risk management principles that are applicable to all federally chartered financial institutions. The bulletin supplements existing OCC and interagency guidance and provides a roadmap of OCC expectations.  

The OCC highlights certain risk management principles:

• A bank should have sound corporate governance practices that instill a corporate culture of ethical standards and promote employee ...

On July 12, 2019, the U.S. Securities and Exchange Commission (SEC) joined the call to prepare for the transition away from LIBOR.  The staff of several Divisions of the SEC (the Divisions of Corporation Finance (DCF), Investment Management (DIM), and Trading and Markets (DTM)) and its Office of the Chief Accountant (OCA) issued a public statement regarding the impending transition away from using LIBOR as a benchmark and reference rate for commercial and financial contracts. Warning of the potential risks associated with the transition and the failure to prepare in advance, the SEC ...

 Noting that we are at “the start of the next critical stage in the transition away from LIBOR,” Federal Reserve Vice Chair for Supervision Randal K. Quarles delivered taped remarks at the June 3, 2019 Alternative Reference Rates Committee Roundtable, cohosted by the Alternative Reference Rates Committee and the New York University Stern School of Business and Salomon Center for the Study of Financial Institutions. Vice Chair Quarles reiterated warnings from regulators regarding the potential instability of LIBOR and stated that “[m]y key message to you today is that you ...

The article titled “The Time Is Now to Prepare for Congressional Inquiries from a Democrat-Led House,” written by Charlotte Members Neil Bloomfield and Edward O’Keefe, and Associate Elena Mitchell, was published and first appeared in the March 4, 2019 edition of Westlaw Journal Bank & Lender Liability.

The Article

At the start of a new year, we tend to make promises to ourselves. We often promise to address issues head-on — to be proactive[1] instead of reactive. While most New Year’s resolutions are quickly forgotten, we urge those involved with highly regulated ...

As government authorities around the world create a constantly evolving regulatory environment, conduct overlapping investigations, and bring parallel proceedings, companies are facing perhaps the most challenging regulatory and criminal enforcement environment. Our goal is to serve as a leading-edge resource for companies navigating these waters. Moore & Van Allen’s WCIRA News Clips is a complement to our White Collar Defense, Investigations, and Regulatory Advice Blog’s in-depth individual treatment of critical emerging issues. WCIRA News Clips hits the ...

Moore & Van Allen is pleased to be a Gold sponsor at the 2019 SIFMA C&L Annual Seminar. Charlotte Litigation Members Edward O'Keefe and Valecia M. McDowell have been invited to serve as panelists for this year’s seminar. O’Keefe will contribute to the Tuesday, March 26, 2019 afternoon panel entitled “Intersection of Banking and Wealth Management” and McDowell will join the discussion for the Wednesday, March 27, 2019 morning panel entitled “What is Conduct Risk Data and How do you use it?” 

SIFMA’s C&L Annual Seminar is the premier event for compliance and legal ...

2018 ANNUAL CONFERENCE (Nov. 2018): We are proud to once again be a sponsoring partner for The Clearing House + Bank Policy Institute Annual Conference, which will take place in New York on November 26–28, 2018.  The Annual Conference provides a forum for the industry’s leaders to examine the changing dynamics of the bank regulatory and payments landscape.  Keynote speakers for this year’s conference include Jelena McWilliams, Chair of the FDIC, Antony Phillipson, British Consul General in New York and HM Trade Commissioner for North America, Richard Clarida, Vice Chairman of ...

By: Edward P. O’Keefe, Neil T. Bloomfield, and Elena F. Mitchell. Elections have consequences and the recent midterm elections are no exception.  Having won the House majority, Democrats are expected to proceed with an ambitious agenda in January 2019.  Much of the focus has been on how the Democrats will use their control to scrutinize the Trump Administration, but lessons from the last time the Democrats controlled the House suggest there are also likely to be significant implications for the financial services industry in terms of proposed legislation and investigations.

Charlotte Litigation Members Neil Bloomfield and Ed O’Keefe will be serving as panelists at the upcoming SIFMA Compliance and Legal Society's Charlotte Regional Seminar on Monday, September 24, 2018. This one day seminar feature presentations by leading securities regulators and industry professionals.  Bloomfield will be speaking on the Privacy and Cybersecurity Issues panel alongside Keith Agisim (Moderator, Bank of America), Michael Adams (McGuireWoods), James Powell (LPL Financial LLC), and John Reed Stark (John Reed Stark Consulting, LLC).  O’Keefe ...

Members of MVA’s Privacy and Data Security team, Charlotte Member Neil Bloomfield, Charlotte Counsel Tandy Mathis and Charlotte Associate Nathan White were speakers for the latest Privacy and Data Security Seminar that was held on August 22, 2018. This seminar discussed the data management challenges in today’s government investigations. This is an area undergoing significant changes in light of GDPR, the CLOUD Act and the impending suspension of the Privacy Shield. This CLE focused on both the legal restrictions and practical challenges confronting U.S. counsel when ...

Financial Regulatory Advice and Response Team members Neil Bloomfield, Ed O’Keefe, Tom Pennington, and Kris Whittaker attended the Prudential Regulation Conference presented by SIFMA and The Clearing House in Washington, D.C.  This year’s conference was focused on the future of prudential regulation, including the new leadership at the prudential agencies.  The conference included insights from the Joseph M. Otting, Comptroller of the Currency, Mark E. Van Der Weide, General Counsel for the Federal Reserve, and Jelena McWilliams, Chairman of the FDIC, among others.   There ...

By Neil Bloomfield and Kristen Kenley  Double jeopardy prevents criminal defendants from being convicted of the same crime twice.  Res judicata prevents civil litigants from facing repeated claims by an overly aggressive plaintiff. Unfortunately, in the years after the financial crisis financial institutions were essentially unprotected from receiving multi-million dollar demands by multiple regulators for the same conduct.  The financial industry may soon experience a welcome shift from the Government’s burdensome and duplicative practice as policy changes at the ...

By Neil Bloomfield and Elena Mitchell.  The potential transition away from LIBOR has raised significant concerns in the financial markets, including whether LIBOR will end in 2021, what may replace it, what fallback language should be included in contracts in the interim, and how transition risks can be managed.  I was fortunate enough to participate in a recent panel entitled “LIBOR and the Potential Replacement Reference Rates: Where Do We Go from Here?” which was held at the University of North Carolina’s Banking Institute on Thursday, March 22, 2018.  The panel was moderated ...

Neil Bloomfield presented at the SIFMA C&L Annual Seminar on March 20, 2018.  Mr. Bloomfield provided an outside counsel perspective on managing large scale litigation and investigations.  The panel focused on incorporating project management techniques from business into the practice of law and innovations in technology and processes that can make the practice more efficient and effective. Mr. Bloomfield presented alongside experts from Integreon and Fidelity Investments.  SIFMA’s C&L Annual Seminar is the premier event for compliance and legal professionals working ...

By Neil Bloomfield and Lindsey Frye.  The legal and regulatory landscape continues to evolve in an effort to meet the pervasive and destructive effects of cyber attacks.  2017 brought a substantial increase in the number of attacks and the severity of the breaches.  Hacking victims disclosed former breaches to be more serious than originally reported, while others delayed disclosure of the hacks entirely.  Cyber attacks affected both the private and public sectors with equal force.  Attacks were launched by private and state-sponsored groups, making cyber defense a popular talking ...

Neil Bloomfield and Ed O’Keefe are coordinating a panel titled "LIBOR and the Potential Replacement Reference Rates: Where Do We Go from Here?" for the UNC Banking Institute on March 22 at the Ritz-Carlton in Charlotte, NC. Speakers on the panel include Ann Battle of the International Swaps and Derivatives Association, Inc., David Bloom of SunTrust Banks, Inc., Raymond Check of the Federal Reserve Bank of New York, Harriet Hunnable of the U.K. Financial Conduct Authority and Joaquin M. Sena of Bank of America.

The panel will discuss how the potential transition away from LIBOR has ...

As government authorities around the world create a constantly evolving regulatory environment, conduct overlapping investigations, and bring parallel proceedings, companies are facing perhaps the most challenging regulatory and criminal enforcement environment. Our goal is to serve as a leading-edge resource for companies navigating these waters. Moore & Van Allen’s WCIRA News Clips is a complement to our White Collar Defense, Investigations, and Regulatory Advice Blog’s in-depth individual treatment of critical emerging issues. WCIRA News Clips hits the ...

Neil Bloomfield, Rob Kenny, and Zack King joined with Jim Blair from WCM Global Wealth for a presentation to the Association of Corporate Counsel on a future of the markets where LIBOR may no longer exist. In a speech on July 27, 2017, Andrew Bailey, the Chief Executive of the U.K. Financial Conduct Authority (“FCA”), discussed the future of LIBOR. Mr. Bailey explained that work must begin in earnest to plan for the transition away from LIBOR. He explained that the FCA had spoken to “current panel banks about agreeing voluntarily to sustain LIBOR for a four to five-year period, i.e ...

By Neil Bloomfield and Nathan White. After the Panama Papers exposed efforts by wealthy individuals and government officials to hide funds offshore, government authorities around the world have responded with new legislation, regulations and enforcement actions that are beginning to reshape the landscape for anti-money laundering (AML) and Bank Secrecy Act (BSA) violations.  This post will be the first in a series of updates as the world begins to redefine these issues and what that means for companies that need to comply with the new standards. 

United States

In some areas, the ...

One of the most problematic questions facing companies simultaneously undergoing a review by external counsel and responding to a government inquiry is whether the information shared with or created by counsel will be protected from discovery in follow on civil litigation.  Unfortunately, despite significant efforts to shield this information, the answer often depends on where the litigation is brought and this fact has only been crystalized by recent decisions from courts in the Second Circuit and the U.K.

Second Circuit

Judge Batts in In re: Ex Parte Application of ...

James P. McLoughlin, Jr., Neil T. Bloomfield, and Elena F. Mitchell issued a Client Advisory Update titled "Judge Refuses to Dismiss SEC Action Against RPM International and Its General Counsel Alleging Loss Contingency Disclosure Failures." On Friday September 29, 2017, U.S. District Judge Amy Berman Jackson denied the motions to dismiss filed by RPM International, Inc. and its general counsel, Edward Moore, discussed in our previous Client Advisory. Judge Jackson concluded the SEC’s allegations stated plausible fraud claims against RPM and Moore and RPM and Moore had ...

By Neil Bloomfield and Lindsey Frye.  This will be our first in a series of updates on the status of regulation and enforcement in the context of cybersecurity related issues.  Regulation and liability in the context of a cyber attack present complex questions.  The easy target is the individual or organization that committed that attack—the criminal hacker.  Unfortunately, the easy target is often beyond the jurisdiction of U.S. courts, and even if they are not, they lack the resources to provide a meaningful recovery.  Secondary targets, which have become the focus of ...

James P. McLoughlin, Jr., Neil T. Bloomfield, and Frank E. Schall issued a Client Advisory titled "Timely Disclosure of Investigation Loss Contingencies: The SEC’s Aggressive Enforcement Stance." The Advisory discusses SEC v. RPM International, Inc., No. 16-01803 (D.D.C. filed Sept. 9, 2016), in which the SEC has pushed its aggressive litigation strategy in pursuit of its policy of compelling registrants to accelerate loss contingency disclosures. The SEC filed against RPM International, Inc. and its general counsel, Edward Moore, alleging the failure to disclose a ...