Posts from October 2014.

Last week the Fifth Circuit weighed in on how inartfully crafted arbitration and forum-selection clauses might trump one another. Together with recent decisions from the Second and Ninth Circuits - each with cert petitions pending - the issue seems poised for Supreme Court determination. Forum-Selection vs Arbitration Pending Supreme Court? The Second and Ninth Circuits held that a subsequent contractual forum-selection clause requiring all disputes to be resolved in a specified federal-court trumps FINRA's base requirement that FINRA member firms must arbitrate upon a ...

The MSRB last week proposed an extension of its gift-limitations Rule G-20 to encompass municipal advisors. The Proposed Rule generally limits gifts in relation to municipal securities or advisory services to $100 per year. The limit excludes normal-course (not excessive) business entertainment or sponsorships, transaction commemoratives, or personal gifts (e.g. birthdays, weddings). Comments on the G-20 proposal are due by December 8 and the MSRB will hold a webinar on the release November 13. See MSRB Reg. Not. 2014-18, here. The MSRB also has proposed amendments extending ...

Posted in: MSRB

The SEC last week approved new MSRB Rule G-44 implementing supervision and compliance requirements for municipal advisors. The MSRB touted the Rule as "its first dedicated rule for municipal advisors" under the Dodd-Frank mandate for greater regulation of the nation's municipal-securities markets. See MSRB Reg. Not. 2014-19, here. New Rule G-44 requires Municipal Advisors to follow the same supervision and compliance regime otherwise applicable to registered broker-dealers under FINRA Rules 3110- 3130. It requires, among others: - Written supervisory procedures ...

Posted in: Dodd-Frank, SEC

The drumbeats of discontent grow louder against the SEC's more frequent use of its internal administrative forum for enforcement cases. I wrote about the current spate of Constitutional challenges to the agency's forum in an October 9 Law360 article, A Renewed Fight Over SEC's Admin Forum's Constitutionality, here. The SEC instituted administrative proceedings accusing Canadian Jordan Peixoto of insider-trading in options on shares of Herbalife Ltd. in advance of a hedge fund's announcement of its short position in the stock. See In re Peixoto, Admin. Proc. File No. 3-16184 ...

Posted in: SEC
The Class Action Fairness Act of 2005 ("CAFA") outlines the federal courts' diversity jurisdiction over class actions. Among other things, it increased the amount in controversy to $5 million (28 U.S.C. § 1332(d)(2), (6)), and rather than complete diversity, only requires one plaintiff be diverse from one defendant (28 U.S.C. § 1332(d)(2)). In a recent case, the issue arose as to whether the defendant merely had to allege jurisdictional facts to support removal of the matter to federal court, or whether it had to submit evidence to support, for instance, the amount in controversy ...

Since 2004, FINRA has required its member firms to include in settlement-agreement confidentiality clauses an exception expressly allowing a customer to respond to regulatory inquiries. See Notice to Members 04-44. FINRA recently updated that requirement to include express permission to be a whistleblower. FINRA's suggested language provides: Any non-disclosure provision in this agreement does not prohibit or restrict you (or your attorney) from initiating communications directly with, or responding to any inquiry from, or providing testimony before, the SEC, FINRA, any ...

Posted in: FINRA

Carlo DiFlorio, FINRA's Chief Risk Officer and Head of Strategy, told the annual meeting of the National Society of Compliance Professionals Monday that FINRA is emphasizing efforts to mitigate market risks, even as it regards US capital-market integrity as at its strongest historically. HFT & Algorithmic Trading DiFlorio addressed thee initiatives. First, FINRA examiners are focusing on firms' supervision of HFT and algorithmic trading, including pre-implementation testing and firm-wide "kill switch" procedures when something goes awry. Second, FINRA's Board decided ...

Posted in: FINRA
State or local government entities, special tax districts, hospital districts and other municipal bond issuers face a December 1 deadline to respond to the SEC Enforcement Division's "Municipalities Continuing Disclosure Cooperation Initiative." The MCDC Initiative is part of regulatory and enforcement emphasis on the municipal-securities world resulting from Dodd-Frank. Municipal issuers are supposed to make continuing-disclosure filings of events affecting their outstanding bond issues (financial statements, ratings changes, tax shortfalls, etc.) like SEC ...

The US Sixth Circuit last week narrowed its standard for adequately pleading scienter in PSLRA cases using a collective-knowledge theory to impute knowledge to a corporate defendant from among various employees. In Omnicare, the Court limited collective-knowledge scienter by imposing the helpful, but unremarkable, requirement that such a pleading demonstrate a reasonably close connection between the collectively-held-knowledge and the issuance of the misstatement (or decision not to correct a prior omission). In re Omnicare, Inc. Securities Litigation, No. 13-5597 (6th

Posted in: PSLRA
Twenty-seven European markets are transitioning to a T + 2 settlement cycle today, October 6, 2014. Until today, those markets settled transactions three days after the transaction date; beginning today, securities settlements will occur two days after the transaction date. The move puts Europe ahead of the United States, as the US has a T + 3 settlement date for most of its securities transactions. By shortening the cycle, the European Commission seeks to standardize settlement procedures across all of the affected European markets and to shorten the time needed to observe and ...
On September 30th, the Financial Industry Regulatory Authority (FINRA) announced a proposed rule that would implement the controversial Comprehensive Automated Risk Data System (CARDS). Under the proposed rule, FINRA seeks to implement automated data gathering from clearing firms and brokerages in a two-phase approach. The proposal seeks to take advantage of "technological advances [that] can be leveraged to obtain, store, manage and access large quantities of data to identify and quickly respond to potentially fraudulent and abusive behavior." In the first phase, "CARDS ...
Posted in: FINRA
On September 30, the D.C. District Court rejected two GOP state committees' challenge to the SEC's regulation prohibiting pay-to-play among investment advisors. Bowing to "curious" precedent in which words don't mean what they say and produce inconsistent results, the Court held the challenge must be filed in the U.S. Court of Appeals, not the District Court. The New York and Tennessee GOP Committees sought declaratory and injunctive relief to prevent the SEC from enforcing its four-year-old investment adviser pay-to-play prohibitions. 17 C.F.R. § 275.206(4)-5. The Court ...
Posted in: SEC

Ruling in a case of first impression, the Sixth Circuit rejected an implied cause of action under Section 36(a) of the Investment Company Act of 1940, 15 U.S.C. § 80a-1 et seq. Although the Circuits remain split, recent decisions (after 2001) agree on the point. Two pension funds sued an exchange-traded fund (ETF), its investment advisor (IA) and its trust-company-affiliate (BTC), claiming BTC's Lending Agent fee "' 35% of all net revenue on the ETF's securities-lending activity - was excessive. The Court affirmed dismissal of the express Section 36(b) claim for breach of fiduciary ...

Posted in: SEC
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