Landmark US financial regulatory reform legislation signed into law | Practical Law

Landmark US financial regulatory reform legislation signed into law | Practical Law

This article is part of the PLC Global Finance August 2010 e-mail update for the United States.

Landmark US financial regulatory reform legislation signed into law

Practical Law UK Legal Update 4-503-1160 (Approx. 4 pages)

Landmark US financial regulatory reform legislation signed into law

by Bradley K. Sabel, Gregg L. Rosansky and Zachary W. Bodmer, Shearman & Sterling LLP
Published on 31 Aug 2010USA (National/Federal)

Speedread

On 21 July 2010, President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act, an event which marked the culmination of a multi-year effort in Washington to enact legislation intended to respond to the financial crisis. The Act, enormous in number of words and expansive in scope, is the most comprehensive revamping of the US financial regulatory framework since the Great Depression.
On 21 July 2010, President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act, an event which marked the culmination of a multi-year effort in Washington to enact legislation intended to respond to the financial crisis. Several provisions of the Act became effective on enactment, while many more will be phased-in over the next few years.
The Act, enormous in number of words and expansive in scope, is the most comprehensive revamping of the US financial regulatory framework since the Great Depression. It is intended to achieve wide-ranging and lofty objectives, including:
  • To require comprehensive supervision of all systemically-important financial institutions.
  • To create an advance warning system for the build up of systemic risks in the financial system.
  • To improve transparency in financial markets.
  • To protect consumers from unsafe or fraudulent financial products.
  • To enhance corporate governance and executive accountability at US public companies.
Given the breadth of the Act, nearly every financial institution operating in the US as well as many commercial companies (including companies with securities that are registered in the US) will see their operations impacted in some way. US and non-US institutions subject to the Act will need to take necessary actions to conform their practices and policies to the many new requirements and restrictions. In some areas, it is already apparent where companies will need to make significant adjustments. In others, the implications of the Act will not become known until interpretive issues are addressed through the issuance of administrative regulations and guidance.
Meeting statutory deadlines for the issuance of implementing regulations and the release of studies required by the Act will require a considerable effort on the part of the US financial regulatory agencies. Another major test for the agencies will be to realise a key objective of the Act by fostering, and incorporating into policy and practice, advances relating to systemic risk-management to reduce the risk of another financial crisis.
The Act is divided into sixteen titles. A few important reforms include:
  • Financial Stability Oversight Council. The Act creates the Financial Stability Oversight Council (FSOC), principally composed of the heads of the federal financial regulatory agencies. The FSOC is tasked with identifying, monitoring and responding to emerging threats to the stability of the US financial system as a whole (that is, systemic risks).
  • Comprehensive supervision for systemically-important financial institutions. The Act places systemically important banking and non-bank financial institutions under the supervision of the Federal Reserve, which is directed to subject such institutions to heightened scrutiny and standards (for example, capital and liquidity requirements) designed to prevent such entities from taking on an inappropriate level of risk.
  • Orderly liquidation authority. The Act creates a special liquidation process (a receivership administered by the Federal Deposit Insurance Corporation) as an alternative to the normal bankruptcy process for certain US financial companies considered systemically important. The Act uses the term "orderly liquidation" to emphasise the point that the troubled financial company is to be closed, rather than provided with assistance (that is, a bail-out) to remain open.
  • Derivatives reform. The Act aims to enhance oversight and transparency of the derivatives (or swaps) market through central clearing and exchange trading for many swaps transactions, and minimum safeguards (for example, additional margin and capital requirements) for uncleared trades. The Act also creates two new categories of regulated entities: swap dealers and major swap participants. These entities will be required to register with the Commodity Futures Trading Commission (CFTC) and/or the SEC and to comply with a host of prudential and business conduct standards.
  • The Volcker Rule. The Act instructs the US federal financial agencies to prohibit (subject to certain limited exceptions) US banking institutions and non-US banks with US banking operations from conducting proprietary trading, sponsoring and investing in a hedge fund or a private equity fund, and guaranteeing the performance of, or lending to, a sponsored or advised hedge fund or private equity fund. One important exception would allow banking institutions to make a "seed" money investment in a hedge fund or private equity fund open to fiduciary or advisory clients of the bank, so long as the bank's percentage interest in the fund is below 3% within one year, and aggregate investments in all such funds are immaterial to the institution (that is, at most, 3% of the banking entity's Tier I capital).
  • Bureau of Consumer Financial Protection. The Act establishes the Bureau as a new arm of the Federal Reserve for the purpose of better protecting the interests of consumers of financial products. The Bureau's supervisory and/or rule-making reach would extend to bank and non-bank providers of consumer financial products such as deposits, residential mortgage loans, credit cards and payment services.
  • Elimination of the private adviser exemption. The Act eliminates the so-called "private adviser" exemption from US federal investment adviser registration requirements previously available to advisers with fewer than 15 clients. As a result, additional hedge and private equity fund managers, as well as many non-US investment advisers generally, will become subject to a wide range of requirements (including advertising, disclosure, conflict-of-interest, and reporting requirements) that apply to registered advisers.