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Category Archives: Financial Institutions

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Registered investment advisers and anti-money laundering compliance: Is it practical?

Posted in Financial Institutions

Earlier this week, the Financial Crimes Enforcement Network (“FinCEN”) proposed a rule that would require investment advisers registered with the Securities Exchange Commission (“SEC”) to establish anti-money laundering (“AML”) programs and report suspicious activity to FinCEN pursuant to the Bank Secrecy Act (“BSA”). FinCEN’s proposed rule would also add “investment advisers” to the general definition… Continue Reading

Bad laws make hard cases

Posted in Bob's Upticks, Corporate Governance, Financial Institutions

There have been a number of press reports in recent days about attempts by the new Republican majority to repeal all or part of Dodd-Frank.  Depending upon whom you choose to believe (assuming you choose to believe anyone in the current political environment), the Republicans want to eviscerate it, and the Democrats refuse to change… Continue Reading

FATCA: What it is, and why it may apply to your business

Posted in Financial Institutions

The Foreign Account Tax Compliance Act (“FATCA”) is a US law designed to counter offshore tax avoidance by US persons. Controversial because of its wide-ranging breadth and application to non-US financial institutions, in the most general sense, FATCA imposes a 30% withholding tax on payments of US source income made to foreign financial institutions (“FFIs”)… Continue Reading

SEC increases focus on cybersecurity

Posted in Financial Institutions

The SEC continues to increase its focus on cybersecurity preparedness. As we have reported in prior blogs here and here, we believe that cybersecurity will become an increasingly important element of the SEC’s disclosure and enforcement efforts. Recent events show that the SEC is ramping up its efforts in the cybersecurity area, and we believe… Continue Reading

Bank Secrecy Act: Broker-Dealers Must Also Comply

Posted in Financial Institutions

Generally speaking, the Bank Secrecy Act (“BSA”) requires financial institutions in the United States to assist U.S. government agencies to detect and prevent money laundering. But while anyone can imagine that the BSA and its implementing regulations apply to those entities we typically classify as “financial institutions” such as banks and other depository institutions, it… Continue Reading

Uniform Fiduciary Standard for Broker-Dealers: An Update

Posted in Financial Institutions

As we blogged about last August, Section 913 of the Dodd-Frank Act directed the SEC to study the need for establishing a new, uniform, federal fiduciary standard of care for brokers and investment advisers providing personalized investment advice. Recall that, traditionally, broker-dealers and investment advisors are subject to different duties of care: a suitability standard… Continue Reading

Volcker Rule exception for trust preferred securities: A break for banks or a sign of uncertainty?

Posted in Financial Institutions

In a joint press release issued on January 15, 2014, five federal agencies indicated their approval of an interim final rule to permit banking entities to retain interests in collateralized debt obligations backed primarily by trust preferred securities (“TruPS CDOs”).  These interests would have otherwise been prohibited under the new Volcker Rule, which prohibits certain… Continue Reading

Publicly Traded Banks Illustrate the Side Benefits of EDGAR

Posted in Financial Institutions

Did you know that banks can go public and trade on Nasdaq and not have to file reports on the SEC’s EDGAR filing system?  Well, they can, but it may not be such a good thing.  You get this result when a bank goes public without a holding company.  These banks are instead required to… Continue Reading

The FDIC should consider updating its outdated statement of policy on bank stock offerings

Posted in Capital Raising, Financial Institutions

With the costs of compliance on the rise, we are seeing some significant consolidation in the banking industry, particularly among community banks. In a recent article on www.bankdirector.com, Rick Maroney writes that although bank M&A has been tepid thus far in 2013, some key drivers of M&A activity are starting to emerge and he predicts… Continue Reading

Uniform fiduciary standard for broker-dealers and investment advisers? Proceed with caution!

Posted in Financial Institutions

When managing investments and strategies for personal financial goals, retail investors often seek guidance from their investment advisers, and on an increasing basis, from their broker-dealers.  Broker-dealers and investment advisers are regulated extensively, but the regulatory requirements differ.  Broker-dealers and investment advisers are also subject to different standards under federal law when providing investment advice… Continue Reading

Social media and brokers: FINRA wants broker-dealers to be “friends” with their employees

Posted in Financial Institutions

With newer methods to communicate and interact with the so-called social network popping up on almost a daily basis, securities regulators have been giving more and more attention to social media and how companies and certain regulated professionals are employing it. As we discussed in a previous blog, the SEC has signed off on public… Continue Reading

Securities Law 101 (Part II): Avoiding the pitfalls in a private placement

Posted in Capital Raising, Financial Institutions

This is the second part of our Securities Law 101 series.  Because capital raising is such a critical function for emerging start-up companies, we designed this series to introduce their management teams to some of the fundamental concepts in securities law.  We hope that this series will prevent some of the most common mistakes management… Continue Reading

Banks going dark under the new JOBS Act may have to wait

Posted in Financial Institutions

Just when it appeared that small banks and their holding companies could simply go private or “go dark” under the new rules in the Jumpstart Our Business Startups (JOBS) Act, legacy rules are significantly slowing the process for some.  Under the JOBS Act, banks and bank holding companies may now go dark if they have… Continue Reading

SEC grants accelerated approval of new FINRA private placement rules

Posted in Capital Raising, Financial Institutions

Bowing to industry pressure, FINRA has adopted vastly scaled back private placement requirements under FINRA Rule 5123.  Originally proposed in October 2011, the proposed rule was highly controversial because it significantly infringed on the capital raising process.  In particular, the originally proposed rules would require each offering to have an offering document, which must include… Continue Reading

The race is on: JOBS Act allows smaller banks, companies to go private

Posted in Financial Institutions

With the passing of the Jumpstart Our Business Startups (JOBS) Act, the thresholds for whether a company must be public changed dramatically. This is particularly true for smaller banks and bank holding companies.  The prior rule required registration with the SEC if the institution reached 500 or more holders of a single class of stock and… Continue Reading

New MD&A guidance for smaller financial institutions

Posted in Disclosure Guidance, Financial Institutions

The SEC Division of Corporate Finance recently issued guidance to smaller financial institutions concerning Management’s Discussion and Analysis and accounting policy disclosures. The guidance can be found in CF Disclosure Guidance: Topic No. 5, dated April 20, 2012 and amounts to rules to follow for future filings that should not be ignored. The Division focused… Continue Reading

Disclosure Guidance for European Debt Exposure

Posted in Disclosure Guidance, Financial Institutions

Last Friday, the SEC’s Division of Corporate Finance issued its fourth topic in its CF Disclosure Series, which periodically provides the SEC’s views on various topics.  This time, the SEC addressed, what it believes to be, inconsistent disclosures on European sovereign debt holdings.  The SEC reminds registrants, particularly bank holding companies, of their obligations to… Continue Reading

Want to Sign Up for Regulation by the Federal Reserve?

Posted in Financial Institutions

Considering the time and expense it takes to comply with many of the Federal Reserve rules, it seems odd that any company would volunteer to be regulated.  But some want to sign up.  In particular, some foreign companies that own a securities broker or dealer are required to register in the U.S. to do business… Continue Reading

SEC Publishes Notice of Proposed Amendments to “Qualified Client” Test

Posted in Financial Institutions

 Section 205(a)(1) of the Investment Advisers Act generally prohibits an investment adviser from collecting performance based compensation that is based on a share of capital gains on, or capital appreciation of, a client’s funds or assets under management. The Securities and Exchange Commission (“SEC”) adopted Rule 205-3 to provide exceptions to this prohibition if the… Continue Reading