On March 9, 2020, FINRA released Regulatory Notice 20-08 (the “Regulatory Notice”) providing guidance and limited relief to its member broker-dealers during the COVID-19 pandemic. In particular, the Regulatory Notice requests that broker-dealers evaluate their compliance with FINRA Rule 4370, which requires broker-dealers to create, maintain, and update upon any material change, BCPs (Business Continuity Plans) identifying procedures relating to emergency or significant business disruption. Continue Reading FINRA Issues Notice Regarding Business Continuity Planning During COVID-19 Outbreak
I. DERIVATIVES ISSUES
1. Inventory “relationship level” considerations in legal documentation that governs your derivatives trading relationships (ISDA Master Agreements, Futures Customer Agreements, Master Securities Forward Transaction Agreements, etc.)
a. Example: Decline in Net Asset Value Provisions (Common in ISDAs)
i. Identify the trigger decline levels and time frames at which transactions under the agreement can be terminated (25% over a 1-month period – is that measured on a rolling basis or by reference to the prior month’s end?)
ii. Confirm whether all or only some transactions can be terminated (typically, it is all transactions)
iii. Identify the notice requirements that apply when a threshold is crossed
iv. Identify whether the agreement includes a “fish or cut bait clause” that restricts the ability of the other party to designate the termination of the transactions under the trading agreement
On March 25, 2020, the Securities and Exchange Commission (“SEC”) issued an order granting temporary relief for filing and delivery obligations of Form ADV and Form PF for investment advisers whose operations may be affected by the coronavirus. This relief supersedes the SEC’s previous order from March 13. The March 25 order extends the time of the relief to June 30, 2020, and eliminates the requirement for the adviser to provide the SEC and clients with a description of the reasons why the adviser is relying on the order and an estimated date by which the required filing will occur.
The relief applies to both registered investment advisers and exempt reporting advisers. In providing the relief, the SEC explained that it is necessary “[i]n light of our current understanding of the nationwide scope of COVID-19’s disruptions to businesses and everyday activities, and the uncertainty as to the duration of these disruptions.”
On two separate days last week and again this morning, markets hit critical circuit breaker levels triggering U.S. exchanges to halt trading. Such large market declines remind us of the prospect of an early close if the S&P 500 falls more than 20% from the previous day’s close. If such an event occurs, open-end investment companies (“mutual funds”) will need to either (1) calculate their net asset values (“NAVs”) at the time of the early close or (2) find alternative pricing sources for calculating their NAVs as of 4:00 pm (ET). The options available will depend in part on the mutual fund’s prospectus disclosure. Continue Reading Navigating Mutual Funds in Rough Markets—Preparing for an Early Close
The publication of the SEC’s re-proposed rules for regulating the use of derivatives by investment companies in the Federal Register provides an opportunity to continue our consideration of this proposal. The publication fixes the deadline for comments at March 24, 2020. The proposed classifications of how funds may use derivatives, the taxonomy of these funds if you will, provides a useful starting place for organizing our consideration of re-proposed Rule 18f-4. Continue Reading Re-Proposed Rule 18f-4—Fund Taxonomy
On January 27, 2020, the Office of Compliance Inspections and Examinations (“OCIE”) of the U.S. Securities and Exchange Commission (“SEC”) released observations on cybersecurity and resiliency (the “Observations”). In them, OCIE presented several key cybersecurity issues that industry participants should seek to address such as the construction and implementation of a comprehensive cybersecurity program, the prevention of unauthorized access to systems, the theft of information, responding to cyber incidents, and vendor management. In doing so, OCIE highlighted elements of successful cybersecurity efforts.
Perkins Coie LLP is pleased to bring you this Digital Asset SEC Timeline. This Timeline is an interactive compilation of select SEC guidance, enforcement actions, and speeches relating to the application of the federal securities laws to digital assets. Beginning with the release of the DAO Investigative Report in July 2017, the Timeline includes relevant information for analyzing the offering, issuance, and trading of certain digital assets in the context of the federal securities laws.
This Timeline is meant to be a resource for those following SEC actions and guidance related to digital assets and to assist experienced securities counsel in assessing the applicability of the federal securities laws. The Timeline is for informational purposes only and does not constitute legal advice. If you are, or are planning to engage in transactions involving digital assets, you may want to contact experienced securities counsel.
Information in the Timeline is provided “as-is,” and may not reflect the latest guidance from the SEC and/or other federal or state regulatory authorities. The Timeline contains links to third-party websites. Such links are only for the convenience of the reader or user. Use of and access to the Timeline, including the links contained within the Timeline, do not create an attorney-client relationship with Perkins Coie LLP.
The convergence of several events makes this an appropriate time to reassess the impact of the SEC’s 2014 money market fund reforms (the “Reforms”). First, the SEC has released official money market fund (“money fund”) statistics for October 2019, three years after the effective date of the Reforms. Second, total money fund assets are very near $4 trillion, just over $1 trillion higher than they were before the SEC adopted the reforms in July 2014. Third, prime money fund assets are back over $1 trillion. Finally, former Fed Chairman Volcker, an implacable opponent of money funds, recently passed away.
Money funds have demonstrated remarkable resilience in the face of zero interest rates, FSOC activism, and Chairman Volcker’s critiques. What else might we discern from the post-Reform state of money funds.
In my initial post on the SEC’s reproposed rules for regulating the use of derivatives by investment companies (“funds”), I noted favorably that the regulations would extend beyond funds to registered broker/dealers and investment advisers. I think this reflects a more comprehensive, less piecemeal, approach to these proposed rules. I also appreciate the coordination of the Divisions of Investment Management and Trading and Markets in drafting the proposed rules.
There are other praiseworthy aspects of the general approach taken in developing the revised proposals. Chief among these is the SEC’s willingness to take a fresh look at the means of regulating the risks of derivatives usage. Historically, the SEC’s principal means for regulating these risks was to require funds to “segregate” liquid assets to cover a fund’s potential obligations for derivative transactions. The revised proposals would eliminate asset segregation in favor of more direct limits on potential volatility resulting from derivative transactions. Risks posed by payment or delivery obligations would represent just one, no longer paramount, component of a comprehensive risk management program.