Having completed our detour into regulations and interpretations other than re-proposed Rule 18f-4, this post returns to considering possible justifications for carving out “unfunded commitment agreements” from the proposed Value at Risk limitations of Rule 18f-4. We have previously explained why the first two justification identified in the proposing release are ill-founded, which leaves only the following argument for a carveout:

Commenters also asserted that unfunded commitment agreements do not give rise to the risks that Release 10666 identified and do not have a leveraging effect on the fund’s portfolio because they do not present an opportunity for the fund to realize gains or losses between the date of the fund’s commitment and its subsequent investment when the other party to the agreement calls the commitment.”

We believe this is true of some, but not all, commitments. To explain why, we begin with the most important element of the proposed definition of “unfunded commitment agreement:” that it is a commitment to the company receiving the loan or other investment. Continue Reading Re-Proposed Rule 18f-4: Why Some Commitment Agreements may not have “Leveraging Effects”

Not content with Steve’s detour into the relationship between Rule 2a-7 and re-proposed Rule 18f-4, we would also like to point out a set of rules under which the Securities and Exchange Commission (“SEC”) and the Commodity Futures Trading Commission (“CFTC”) have wrestled with the distinctions between “swaps, security-based swaps and security-based swap agreements” and non-derivative transactions. Release No. 33-9938 (the “Release”) not only adopted regulations distinguishing swaps from other types of derivatives instruments (such as securities forwards) and securities, but also included interpretive guidance for distinguishing swaps from consumer and commercial agreements, contracts, and transactions. Several of the commercial transactions discussed in this Release correspond to the type of loan commitments the SEC proposes to include in the definition of “unfunded commitment agreement” in Rule 18f‑4. We suggest that some factors used to distinguish one type of derivative instrument (a swap) from commercial lending transactions may also help distinguish these transactions from derivatives instruments more generally.

Continue Reading Re-Proposed Rule 18f-4: Not Reinventing the Derivatives Wheel

Earlier this year, the staff of the SEC’s Office of Compliance Inspections and Examinations (“OCIE”) published its annual list of examination priorities, which included firms’ preparation for the transition away from LIBOR as a widely used reference rate for various financial instruments. On June 18, OCIE followed-up with a risk alert that provides additional details about how it evaluates firms’ LIBOR transition preparedness. Continue Reading OCIE Issues Risk Alert on LIBOR Transition Preparedness

FINRA and the CFTC each issued recent advisories on commodity-linked exchange traded products. Directed at retail investors and broker-dealers, the advisories each highlighted certain issues unique to commodity-linked exchange traded products that were recently demonstrated by market reactions to fluctuating oil prices caused by the COVID-19 pandemic. The advisories provided guidance on relevant considerations in connection with oil-linked and commodity-linked exchange traded products. Read the full article here.

The Investor Protection Bureau of the New York Attorney General’s Office (“IPB”) recently proposed a series of changes to its rules regulating broker-dealers. The proposal would require “finders” in New York to register as broker-dealers and pass broker-dealer examinations. In doing so, IPB would codify its regulation of finders in a manner similar to several other states. Continue Reading New York State Proposes to Regulate “Finders” as Broker-Dealers

On May 15, 2020, the U.S. Securities and Exchange Commission adopted amendments to the national market system plan governing the consolidated audit trail. The release adopts amendments to the CAT NMS Plan to address goals of increasing operational transparency and financial accountability.
Continue Reading

On May 6, 2020, the U.S. Securities and Exchange Commission (“SEC”) issued an order that required equity exchanges and FINRA to submit a new National Market System (“NMS”) plan with a modernized governance structure for the production of public consolidated equity market data and the dissemination of trade and quote data. As explained in its order, the SEC hopes that a consolidation of equity market data systems will help to eliminate duplicative systems and reduce lags in data dissemination as well as data inaccuracies. Continue Reading SEC Orders Equity Exchanges and FINRA to Modernize Consolidated Market Data

On May 4, 2020, the U.S. Securities and Exchange Commission (“SEC”) approved MEMX LLC (“MEMX”), standing for “Members Exchange,” as a new national securities exchange under Section 6 of the Securities Exchange Act of 1934. According to the MEMX website, the investors in MEMX include global financial institutions, comprised of online retail broker-dealers, global banks and financial services firms, and global market makers. MEMX will operate a fully automated electronic order book, and will not operate a physical trading floor. Similar to other national securities exchanges, only broker-dealer members of MEMX and entities that enter into market access arrangements with members will have access to the MEMX system. As a national securities exchange, MEMX will be a self-regulatory organization and will be responsible for oversight of its members.

Continue Reading SEC Approves MEMX as a new National Securities Exchange

The Securities and Exchange Commission recently provided a long-promised and needed update, in the form of a proposed rule, to guidance on determining the fair value of securities held by registered investment companies. Although the Investment Company Act of 1940 tasks the boards of directors of these funds with determining in good faith the fair value of securities for which market quotations are not readily available, the proposed rule would permit fund boards to assign responsibility for determining the fair value of all, or a portion, of these securities to the fund’s investment advisers (including any sub-advisers).

The proposed rule would also require written policies and procedures for determining fair values, which must address the following:

  • Assessment and management of valuation risks
  • Selection and application of fair value methodologies
  • Periodic testing of such methodologies
  • Oversight of pricing service providers

Finally, the proposed rule would define when market quotations are “readily available” using terminology from Topic 820 of the FASB Accounting Standards Codification and thus align the proposed rule with accounting standards for determining fair value.

In this update, we provide an overview of the proposed rules and the implications for trustees, directors and advisers.

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My previous post tried to explain how Rule 2a-7 limits the “leveraging effects” of “firm commitments” made by money market funds. This post will add some important qualifications, compare the approach taken by Rule 2a-7 to the proposed approach in Rule 18f-4 and discuss the need to reconcile these rules. Continue Reading What Rule 2a-7 Tells Us about Re-Proposed Rule 18f-4