MVA White Collar Defense, Investigations, and Regulatory Advice Blog

On April 5, 2021 the Consumer Financial Protection Bureau (CFPB) published a proposed rule entitled Protections for Borrowers Affected by the COVID-19 Emergency Under the Real Estate Settlement Procedures Act (RESPA), Regulation X. The proposed amendments to Regulation X are aimed to ensure that the approximately 2.5 million borrowers still in forbearance programs will not be ushered immediately into foreclosure when their respective COVID-related forbearance ends. 

The proposed amendments, which apply only to mortgage loans secured by principal residences, contemplate a ...

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 ...

Moore & Van Allen (MVA) Financial Regulatory Advice & Response Counsel Nicole Schiavo is one of 11 diverse attorneys that has been selected for inclusion to the Wells Fargo Legal Department’s Class of 2021 Charlotte Diversity College. This is the second year in a row that MVA has had a candidate selected. 

Wells Fargo’s Charlotte office hosted its first year of the program in 2020. The program is designed to introduce individuals to Wells Fargo, its business operations, legal support needs and leadership teams. The 2021 program will include quarterly virtual training ...

Summary

Last Friday, the IBA published its Feedback Statement on Consultation on Potential Cessation.

The relevant dates regarding cessation are the same in the November request for comment – i.e., all LIBOR settings will either cease to be provided by any administrator or no longer be representative:

• immediately after 31 December 2021, in the case of all sterling, euro, Swiss franc and Japanese yen settings, and the 1-week and 2-month US dollar settings; and,
• immediately after 30 June 2023, in the case of the remaining US dollar settings.

Canada has designated the Proud Boys as a terrorist entity, meaning that banks and other financial services providers will no longer be allowed to deal with or facilitate transactions concerning property controlled by the group. The restrictions will apply to U.S. financial institutions in their activities within Canada and will extend to cover the activities of Canadian institutions outside of Canada.

Moore & Van Allen (MVA) Senior Counsel Tandy Mathis will be presenting during the NCBAR 2021 International Practice Section Program webcast, “The World Spins Madly On: Making Sense of the Current State of International Law Practicing International Law in the Digital Age,” taking place on March 25. Tandy will present on the session titled, “Practicing International Law in the Digital Age.”

This session concentrates on e-discovery, privacy, and security issues unique to international law practitioners. Explore how these issues and digital solutions are continuing to ...

MVA Financial Regulatory Advice and Response Member Barbara Meeks and Associate Jules Carter will serve as panelists for the Lorman webinar titled, “BSA/AML Customer Identification Program and Due Diligence Basics” which will take place on March 11.

This webinar will provide an overview of BSA/AML/Know Your Customer (KYC) components,  including the Customer Identification Program (CIP) and beneficial owner Customer Due Diligence (CDD) Rules. They will cover key definitions and procedural issues for compliance and highlight areas of risk for enhanced due ...

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 ...

Moore & Van Allen (MVA) Co-head of the White Collar, Regulatory Defense & Investigations practice and member of the firm’s Management Committee, Valecia McDowell has been highlighted in the Business North Carolina article titled, “Dynamic Diversity: The Changing Look of N.C. Executive Power,” published on February 1. The article also mentions area CEOs Marvin Ellison of Lowe’s and Gene Woods of Atrium Health.
 
To view the complete Business North Carolina article, please click here.

Moore & Van Allen (MVA) Co-head of the White Collar, Regulatory Defense and Investigations practice and a member of the firm’s Management Committee, Valecia McDowell, will be teaching the LAW 832 - Internal Investigations course during the winter session for Duke Law on February 19 - 21.
 
During this course, students will study the range of legal and practical issues in the conduct of in-house investigations of potential illegal conduct by corporate employees and officers. Students will participate in simulated exercises involving interviews of company employees in the ...

Moore & Van Allen (MVA) Financial Regulatory Advice and Response Member Ed O’Keefe will serve as the moderator for the panel titled, “Long-Term Effects of COVID-19 on Bank Health” during the Banking Institute Program which will take place March 18-19.  Ed’s panel includes senior representatives of the OCC, Federal Reserve, NC Department of Banking and the Bank Policy Institute.

This year's Institute agenda also includes panels on: 

• The Current State of the LIBOR Transition
• Diversity and Inclusion: A Business Imperative
• Bank Partnerships with FinTech Firms

And ...

Moore & Van Allen’s (MVA) White Collar Defense, Investigations, and Regulatory Advice Member Jim McLoughlin and Associate Kristen Kenley’s blog titled, “Healthcare: Indictment for Antitrust in Employment” was published on January 25.

MVA Financial Services Counsel Ed Ivey‘s article titled “Election Season Special: 2021 Candidates for LIBOR Replacement” was recently published in the Futures & Derivatives Law Report, a Thomson Reuters publication. The article provides an overview and analysis regarding the various non-SOFR alternative reference rates, such as Ameribor, and issues related to the chances such rates have at being adopted and widely used in the market.
 
The article
Get excited. The next big election season is about to kick-off. The London Inter- bank Offered Rate (“LIBOR”) is ...

In December, the Department of Justice filed its first ever criminal case for price fixing of wages. DOJ indicted the owner of a physical therapist staffing company for instigating a conspiracy among physical therapy services to suppress competition and fix wages for physical therapists and physical therapy assistants. Neerha Jindal, whose former company operated in the Dallas-Fort Worth area, was indicted in the Eastern District of Texas for violation of Section 1 of the Sherman Act. 

In Count One, DOJ alleges Mr. Jindal successfully encouraged his co-conspirators at other ...

MVA Financial Regulatory Advice and Response Counsel Nicole Schiavo’s MVA White Collar Defense, Investigations, and Regulatory Advice Blog article titled, “The Future After Forbearance: What’s Next?” was published on November 17.

On October 15, 2020, the Financial Crimes Enforcement Network of the U.S. Department of Treasury (FinCEN) released its Supplemental Advisory on Identifying and Reporting Human Trafficking and Related Activity (Supplemental Advisory). The last time FinCEN provided guidance on identifying trafficking in anti-money laundering (AML) processes was in Guidance on Recognizing Activity that May be Associated with Human Smuggling and Human Trafficking – Financial Red Flags on September 11, 2014. The evolving tactics of human traffickers and behaviors of victims required ...

By: Elena F. Mitchell and Frank Schall.

The U.S. Department of the Treasury (“Treasury”) recently published a proposed rule that would modify the mandatory filing requirements in place throughout the pilot program for certain foreign investment transactions subject to review by the Committee on Foreign Investment in the United States (“CFIUS”) pursuant to the Foreign Investment Risk Review Modernization Act of 2018 (“FIRRMA”). The proposed rule modifies the mandatory filing requirement for “critical technologies” transactions involving a U.S. business ...

The United Kingdom Home Office has released guidance to companies that are required to make a public statement about human trafficking risks and prevention measures under the U.K. Modern Slavery Act of 2015.  Organizations are to address the emerging risks of exploitation at the company and in the supply chain caused by COVID-19 in their statement against modern slavery.

The guidance encourages careful consideration of the risks posed by changes in operations and supply chains that may result from the current economic crisis, including fluctuation in product or service demands and ...

By: Elena F. Mitchell and Frank Schall.

As discussed in our related March 25, 2020 post, in early March 2020, the Department of the Treasury (“Treasury”) issued a proposed rule regarding filing fees for parties filing voluntary notices of certain transactions for review by the Committee on Foreign Investment in the United States (“CFIUS”) pursuant to the Foreign Investment Risk Review Modernization Act of 2018 (“FIRRMA”). Earlier this week, on April 28, Treasury filed an interim final rule implementing filing fees beginning May 1, 2020. In issuing the rule as an ...

By Kristina Whittaker and Ed O'Keefe.  For the last three weeks or so, the federal and state banking agencies, collectively and individually, have, with increasing urgency, called on financial institutions to meet the financial needs of customers impacted by the COVID-19. Congress has now codified some of the guidance in the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). To assist our clients in understanding the scale and scope of the regulatory actions, we describe the state of play as we know it today. 

As first discussed in the article by our colleagues Neil ...

The shuttered storefronts and grounded airplanes that by now have become an all too familiar image of the COVID-19 pandemic are quickly creating a ripple effect through the U.S. economy. As unemployment rises and Americans struggle to pay their bills, federal and state governments and agencies are rushing to provide aid to those most impacted by the virus. A key focus of those efforts has been on mortgage related relief. This article canvasses the rapidly changing regulatory environment related to single family mortgage loans and provides an overview of the relief available to ...

By: Elena F. Mitchell and Frank Schall.  Further implementing the Foreign Investment Risk Review Modernization Act of 2018 (“FIRRMA“), the U.S. Department of the Treasury recently published a proposed rule to establish filing fees for parties filing voluntary notices of certain transactions for review by the Committee on Foreign Investment in the United States (“CFIUS”). Under the proposed rule, CFIUS would accept a transaction for review only after payment of the filing fee. The proposed rule remains subject to public comment through April 8, 2020, and does not specify ...

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 ...

A black swan has arrived – the Pandemic of 2020 and with it a bear market. As with previous black swan events, experts and leaders are in learning mode, with the facts and events evolving hourly. As my financial advisor told me, this event cannot be modeled. Nonetheless, there are lessons learned from past crises – we are facing not just a health crisis uprooting lives and businesses, but also we can expect significant economic impact. The event will have effects longer than initially predicted or imagined.

In such circumstances, what should be on in-house lawyers’ and leaders ...

Last week, the House Financial Services Committee Subcommittee on National Security, International Development and Monetary Policy held a hearing on transnational trafficking networks and illicit finances.  Titled “The Traffickers’ Roadmap: How Bad Actors Exploit Financial Systems to Facilitate the Illicit Trade in People, Animals, Drugs, and Weapons,” the hearing was billed as the beginning of a bi-partisan counter-trafficking initiative to explore legislation to improve (i) the financial sector’s role in identifying trafficking; and (ii) communication ...

Charlotte White Collar, Regulatory Defense and Investigations Member Valecia M. McDowell and Financial Regulatory Advice and Response Member Edward O'Keefe will both serve as speakers at the 2020 SIFMA C&L Annual Seminar.

MVA's Human Trafficking Pro Bono Project Leader, Sarah Byrne and her fight for victims of human trafficking was highlighted by Charlotte Magazine. The article titled, "Charlotte Attorney Sarah Byrne on Fighting for Victims of Human Trafficking" was published on February 13. Read the full article here.

By: Elena F. Mitchell and Frank Schall.  The U.S. Department of the Treasury recently published final regulations to further implement the Foreign Investment Risk Review Modernization Act of 2018 (“FIRRMA“) and to better address national security concerns resulting from certain investments and transactions in the U.S.

The Committee on Foreign Investment in the United States (“CFIUS”) is an interagency committee chaired by the U.S. Department of the Treasury and tasked with evaluating certain foreign investments and transactions for national security-related ...

On January 24, 2020 the CFPB issued a long-awaited policy statement about the meaning of “abusiveness” in the Bureau’s frequently-used enforcement weapon, 1031(d) of the Dodd-Frank Act, commonly referred to as UDAAP.  Unlike the standards for unfairness and deceptiveness (the “U” and “D” in UDAAP), there is virtually no historical guidance on the meaning of abusiveness, yet the CFPB has applied the abusiveness standard since it commenced operation in 2011 and has brought 32 enforcement actions that involved an abusiveness claim. Enforcing violations of an ...

Anti-Money Laundering and Know Your Customer departments at financial institutions are on the front lines of human trafficking.  Not only does enhanced transaction monitoring help law enforcement identify trafficking circumstances through generation of Suspicious Activity Reports but it helps avoid high risk lending relationships and cuts the power source of businesses or people who facilitate trafficking.

Recently, there has been an emergence of legal action related to organizational responsibility for human trafficking.  In November, the Australian Transaction ...

On November 6, 2019, the Fraud Section of the Department of Justice with the Office of the U.S. Attorney for the Southern District of Texas, and the CFTC, announced settlements of their spoofing and market manipulation investigations of Tower Research Capital LLC (Tower Research).  The penalties are the highest in a spoofing case to date. The Department’s settlement again indicates that the Fraud Section has concluded spoofing and market manipulation are widespread, so general deterrence requires harsher sanction. However, there is also important history.  The predicted ...

Charlotte Financial Regulatory Advice & Response Co-Head Neil Bloomfield served as a panelist for Mecklenburg County Bar’s 19^thAnnual 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.  

MVA is proud to once again be a sponsoring partner for The Clearing House + Bank Policy Institute Annual Conference, which took take place in New York on November 19–21. Now in its ninth year, The Clearing House + Bank Policy Institute Annual Conference is the leading conference for key regulatory, legal, and payments issues facing America’s largest commercial banks. Held for two and a half days at The Pierre Hotel in New York, the TCH + BPI Annual Conference brings together the industry’s leading executives and thought leaders – C-suite financial services executives ...

On September 16, 2019, the Department of Justice and the CFTC jointly announced the indictment of three precious metal traders for an alleged eight year conspiracy to manipulate gold, silver, platinum, and palladium futures prices and civil charges based upon the same conduct. (One former trader from the institution had already pleaded guilty to one count of commodities fraud and one count of conspiracy to commit wire fraud, commodities fraud, price manipulation, and spoofing; a second former trader had pleaded guilty to one count of conspiracy to engage in spoofing and one count of ...

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 Nicole Schiavo. Earlier this month the Federal Housing Finance Agency (FHFA) announced that it had directed Fannie Mae and Freddie Mac to make several changes to the Uniform Residential Loan Application (URLA), including the removal of a question asking applicants to indicate their preferred language.  This election, the announcement stated, will be part of a voluntary consumer information form instead of part of the standard URLA. 

In 2017, under different leadership and in response to pressure from consumer advocate groups, the FHFA announced it would include the language ...

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 Nicole Schiavo. Late last month the CFPB reignited debate when it issued an Advance Notice of Proposed Rulemaking (“ANPR”) stating its intention to allow the “GSE Patch” to expire in January 2021.  The GSE Patch allows what would otherwise be ineligible mortgage loans to be considered a Qualified Mortgage under the CFPB’s Ability to Repay/Qualified Mortgage Rule, if they are eligible for purchase or guarantee by government sponsored entities (“GSE”) Fannie Mae and Freddie Mac.

To comply with the Ability to Repay Rule, lenders must make a reasonable determination ...

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 Barbara Meeks and Kristina Whittaker. Last month the Financial Crimes Enforcement Network (FinCEN) and the federal bank regulators issued a Joint Statement aimed at improving transparency into their risk-focused examination and supervision of banks’ compliance with Bank Secrecy Act/Anti-money Laundering (BSA/AML) requirements. 

The statement outlines common supervisory practices for assessing a bank’s BSA/AML risk profile, scope and planning of examinations and evaluating the adequacy of BSA/AML compliance programs.  The risk-focused approach enables federal ...

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 ...

Charlotte Financial Regulatory Advice and Response Members Barbara Meeks and Ed O'Keefe's article titled, "Pursuit of a Regulatory Practice Dream: The Story of 2 Powerhouse Bank GCs Uniting," was published by Corporate Counsel on July 26, 2019. In the article, Meeks and O'Keefe share their personal vision for a world-class bank regulatory practice that would provide practical, innovative results while retaining Southeastern rates and culture.

The Article

Historically, financial regulatory lawyers have rooted themselves in New York or Washington, D.C. to develop thriving ...

Colleagues, I hope you are enjoying your summer and have had or are planning a break. Summer breaks help us maintain a healthy balance of rest and work.  

Speaking of balance, over a recent beach vacation, I had time to study Tom Baxter’s article on the current role of lawyers in financial institutions: The Rise of Risk Management in Financial Institutions and a Potential Unintended Consequence – The Diminution of the Legal Function. Tom analyzes the effect of well-intended post Crisis regulatory governance changes on legal departments. Starting with the three lines of ...

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 ...

By Elena F. Mitchell, Barbara S. Meeks, and Neil T. Bloomfield*

A final interagency rule taking effect on July 1, 2019, provides federally regulated lending institutions with eagerly awaited guidance concerning private flood insurance for improved properties located in special flood hazard areas. Pursuant to the final rule, the OCC, Federal Reserve, FDIC, Farm Credit Administration and National Credit Union Administration seek to increase availability and use of private flood insurance coverage by instructing regulated lending institutions to accept certain private ...

 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 ...

Charlotte Associate Brian Soja, a member of MVA’s Financial Regulatory Advice and Response and White Collar, Regulatory Defense, and Investigations practice groups, served as a panelist at Mecklenburg County Bar’s 18^th Banking and Finance Forum on November 9.  Soja participated in the Forum’s Regulatory Highlights panel along with Phil Wertz of Bank of America, John Stoker of Wells Fargo, Grant Harbrecht of Fifth Third, and Scott Cammarn of Cadwalader Wickersham & Taft.  During the panel, which focused on significant regulatory developments over the past year, Soja ...

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.

As cybersecurity attacks have continued to gain prominence as a threat posing critical risk management and compliance challenges for financial institutions, the Securities and Exchange Commission (SEC) has emerged as an active federal regulator in this arena. In September 2017, the SEC announced creation of a Cyber Unit housed within the SEC’s Enforcement Division that targets cyber-related misconduct, including hacking to obtain material nonpublic information, intrusions into retail brokerage accounts, and cyber-related threats to trading platforms and other ...

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 ...

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 ...

By Mark Nebrig and Fielding Huseth.  No one doubts that Judge Brett Kavanaugh, President Trump’s pick for the Supreme Court, would have an impact on the court’s jurisprudence if confirmed.  For financial services and publicly-traded companies, as well as those that support them, one area that should not be overlooked is his potential influence on securities fraud prosecutions.  If Judge Kavanaugh joins the Court and brings along his current interpretation of the securities laws, the Supreme Court may soon reshape a major securities fraud enforcement tool.

This fall, the ...

By John Han and Katherine Lamberth. President Trump piqued the interest of participants in and observers of the marijuana industry when he stated in early June that he would “probably” support recently proposed bipartisan legislation aimed at removing the federal prohibition on certain marijuana-related activity. President Trump’s statement is significant because it:

• indicates presidential support for the bill, which other legislative attempts at reforming federal marijuana laws have generally lacked, and
• signals a shift from the strict enforcement position taken ...

By Kim Cochran[1] and Frank Schall  In a decision with far-reaching implications for corporate victims of fraud, the U.S. Supreme Court recently held that the Mandatory Victims Restitution Act of 1996 (MVRA) does not entitle victims of certain federal offenses, including wire fraud, to reimbursement for costs incurred conducting investigations and participating in civil or bankruptcy proceedings related to the fraud.

Before Lagos, Many Courts of Appeal Allowed Recovery of Investigation Costs

In Lagos v. United States, 584 U.S. ___ (2018), Sergio Fernando Lagos pleaded ...

By John Fagg, Nader Raja, and Kristen Kenley.  On July 11, 2018, pursuant to a Presidential Executive Order, the Department of Justice announced the formation of a new multi-agency task force on Market Integrity and Consumer Fraud that will focus on combating consumer and market fraud.  Deputy Attorney General Rod Rosenstein, who will chair the new task force, unveiled plans for the initiative at a press conference that brought together top regulators at the Department of Justice, the Securities and Exchange Commission, the Consumer Financial Protection Bureau, and the Federal ...

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 Kristina Whittaker[1]. Mick Mulvaney was appointed Acting Director of the Consumer Financial Protection Bureau (Bureau) on November 25, 2017.  His term will end on June 22, 2018, unless the President nominates a Director prior to that date, in which case Mr. Mulvaney will remain as Acting Director until a new Director is confirmed.  During his time as Acting Director, Mr.  Mulvaney has sought to change the priorities and culture of the Bureau, starting by changing its name to align with Title X of the Dodd Frank Act to the Bureau of Consumer Financial Protection.  His recent public ...

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 ...

On February 12, 2018, the U.S. Securities and Exchange Commission announced an initiative to address undisclosed conflicts of interest by investment advisers in the context of mutual fund share classes. Dubbed the Share Class Selection Disclosure (“SCSD”) Initiative, the program encourages investment advisers to self-report potential violations by June 12, 2018, in exchange for favorable settlement terms.

The Potential Violations

An investment adviser often has several share classes to choose from when investing in a mutual fund for a client. One share class may charge a ...

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 ...

In a series of interviews, speeches and other public releases, OCC Comptroller Joseph Otting has set out a number of priorities, some substantive, some related to how the agency operates.  It is clear that Mr. Otting intends to roll back or “modernize” regulations that have been viewed as burdensome or ineffective by the financial industry.  In addition, he intends to make changes to the agency in ways that pull back on the Washington-centric structure and puts more authority in the hands of local supervisors.   All of these are works in progress and some require action and/or ...

On Feb. 22, 2018, the Securities and Exchange Commission (SEC) issued its first interpretive guidance since October 2011 on public companies’ cybersecurity risk and incident disclosure obligations. Although public companies are not subject to an express obligation to disclose data security threats under federal law or SEC regulations, the latest guidance confirms that “companies nonetheless may be obligated to disclose such risks and incidents.”

The purposes of the SEC’s new guidance are threefold:

1. Reinforce and expand upon the October 2011 guidance;
2. Address the ...

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 ...

The CLOUD Act Overhauls an Outdated Stored Communications Act (SCA ...

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 ...

Charlotte Litigation Member Ed O’Keefe will be presenting at the 2018 Financial Markets Association Conference on April 18, 2018. His presentation will discuss key legislative and regulatory initiatives affecting financial services companies, the rulemaking agenda for the SEC and the CFTC, and regulatory burden relief initiatives undertaken by the banking agencies to date.

For additional information on this event, click here.

Moore & Van Allen PLLC is pleased to announce that Kristina (“Kris”) B. Whittaker, former Deputy Comptroller for Special Supervision in the Office of the Comptroller of the Currency (OCC), has joined the firm’s Charlotte office as Counsel. Whittaker will practice on Moore and Van Allen’s growing Financial Regulatory Advice and Response team. *

“Kris’ valuable experience and longstanding esteem within the OCC will greatly benefit our clients and increase our practice capabilities,” said Charlotte Member Edward P. O’Keefe. “Kris brings more ...

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 ...

With the official announcement that Charles Cain will replace Kara Brockmeyer as head of the SEC's Foreign Corrupt Practices Act (FCPA) Unit, it is more likely that we will see a return to the enforcement trends and outcomes of recent years. Mr. Cain has served as Acting Chief of the FCPA Unit since April 2017, and directly supervised recent enforcement actions, including the $965 million global settlement with Sweden-based telecommunications provider Telia Company AB announced in September this year.

Mr. Cain helped write the book on the SEC and DOJ's enforcement views and ...

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 ...

Jim McLoughlin, Ed O’Keefe and Tom Pennington issued a client alert titled, “Focusing on the Mission While Watching Macro Trends,” on August 16, 2017. The alert provides clients with guidance on how to focus on a commonly understood corporate mission while watching for macro trends which ultimately will reduce the risk of unstable environments. The three macro trends discussed in the article include: The US Common Market Is Fraying; Reduced Returns Heighten Focus on Costs; and Process-Based Management Can Be More Fully Deployed. Click here to read more.