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Regulators Roll Out Proposals for New Dodd-Frank Lending Rules

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Three federal agencies have rolled out plans to jointly update the thresholds the government uses to determine if regulators need to vet or appraise lending transactions that are exempt from U.S. laws, the Morning Consult reported on Friday. The two proposals from the Consumer Financial Protection Bureau, the Office of the Comptroller of the Currency and the Federal Reserve deal with thresholds that the 2010 Dodd-Frank law established for small loans, consumer lending and leases. Dodd-Frank updated the Truth in Lending Act and the Consumer Leasing Act with changes to how the government adjusts the thresholds related to inflation and the Consumer Price Index for Urban Wage Earners and Clerical Workers. The agencies have not yet published the proposals in the Federal Register for public comment.
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Many Critics Fear Changes to U.S. SEC's In-house Trials Are Not Enough

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The top U.S. securities regulator yesterday tried to respond to complaints that the deck is stacked against defendants at in-house trials by approving the first major revisions to its administrative proceedings in two decades, Reuters reported yesterday. But the changes by the Securities and Exchange Commission may not silence critics. The 13 comment letters it received after proposing the revisions last September all sent the same message: They do not go far enough. The final version, approved unanimously by the three-member commission without debate, did make minor changes. Still, it will not likely appease those who say the trials deny constitutional protections to defendants. "While I appreciate the SEC acknowledging the serious due process concerns that have been raised because of their unfair use of in-house judges, the changes adopted today effectively put a Band-Aid on a wound that requires stitches," said Rep. Scott Garrett (R-N.J.), who sponsored legislation to push more cases into federal courts. "This is an extremely modest step in the right direction, but defendants ultimately deserve a right to remove themselves from the SEC's tribunals so they can have their case heard in federal court." The 2010 Dodd-Frank Wall Street reform law allowed the SEC to pursue cases against a wider universe of defendants before its in-house judges in what are called administrative proceedings. That raised the ire of defense lawyers, who say the SEC has an outsized advantage in the proceedings.

SEC to Vote Tomorrow on Rule Changes for Administrative Proceedings

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The Securities and Exchange Commission’s three commissioners will vote tomorrow on tweaks to rules governing administrative proceedings before SEC in-house judges, despite complaints from the white-collar defense bar that the proposed rule changes do not resolve the fundamental unfairness of trying enforcement actions before in-house SEC judges, Reuters reported yesterday. The Dodd-Frank financial reform act of 2010 gave the SEC leeway to bring even complex securities fraud cases as administrative proceedings before judges hired by the agency, rather than as federal-court enforcement actions overseen by U.S. district judges. Ever since, defense lawyers have insisted that SEC administrative proceedings curtail their clients’ due process rights because the federal rules of civil procedure don’t apply. Those arguments mostly failed to persuade judges to enjoin administrative proceedings, which is why defense lawyers developed alternative constitutional challenges to the SEC in-house trials. The inherent constitutionality of the proceedings is now at issue before the District of Columbia U.S. Circuit Court of Appeals.

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SEC Victories Delay Challenge on In-House Judges

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The Securities and Exchange Commission has successfully fended off recent challenges to its use of administrative proceedings to hear cases about potential violations, but the courts did not resolve the underlying constitutional issues regarding the use of administrative courts to decide cases, the New York Times reported today. That issue is one part of a larger debate over the SEC’s increased use of administrative proceedings to impose penalties, which some have claimed gives the agency an improper “home court” advantage. The commission will have to continue to defend how it channels cases into administrative proceedings from congressional efforts to push enforcement actions into federal court. A broad financial overhaul proposal offered by Representative Jeb Hensarling, the Texas Republican who is chairman of the House Financial Services Committee, includes provisions that would effectively gut the use of in-house courts for cases. The roots of the dispute can be traced to when Congress, in the Dodd-Frank Act, gave the agency almost unfettered discretion to choose to seek penalties in court or in an administrative proceeding. The change raised the ire of defense lawyers, who saw cases routed to the administrative process rather than being filed in a court, where the lawyers would have greater rights to obtain evidence and have a jury decide the case. In response, defendants filed a number of lawsuits, claiming that the administrative proceedings are unconstitutional because of the way in which the in-house judges are appointed, asking that the cases be halted until the constitutional issue can be decided.

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Merrill Lynch to Pay $415 Million for Misusing Customer Cash and Putting Customer Securities at Risk

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The Securities and Exchange Commission announced that Merrill Lynch has agreed to pay $415 million and admit wrongdoing to settle charges that it misused customer cash to generate profits for the firm and failed to safeguard customer securities from the claims of its creditors, according to a SEC press release yesterday. An SEC investigation found that Merrill Lynch violated the SEC’s Customer Protection Rule by misusing customer cash that rightfully should have been deposited in a reserve account. Merrill Lynch engaged in complex options trades that lacked economic substance and artificially reduced the required deposit of customer cash in the reserve account. The maneuver freed up billions of dollars per week from 2009 to 2012 that Merrill Lynch used to finance its own trading activities. According to the SEC’s order instituting a settled administrative proceeding, Merrill Lynch further violated the Customer Protection Rule by failing to adhere to requirements that fully-paid for customer securities be held in lien-free accounts and shielded from claims by third parties should a firm collapse. From 2009 to 2015, Merrill Lynch held up to $58 billion per day of customer securities in a clearing account that was subject to a general lien by its clearing bank and held additional customer securities in accounts worldwide that similarly were subject to liens.

Republican Lawmaker’s Plan Details Curbs on Bank Regulators

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A plan by a top Republican lawmaker overseeing Wall Street banks would impose new strings and constraints on regulators, The Wall Street Journal reported yesterday. A summary plan of a bill by House Financial Services Committee Chairman Jeb Hensarling (R.-Texas) includes initiatives such as requiring the Federal Reserve to disclose the models used to test banks’ health yearly, curtailing policymakers’ authority to request a “living will” annually and dismantling their authority to curb Wall Street pay. Hensarling is expected to unveil the legislative text of his bill next week. The 18-page summary plan provides details of Hensarling’s proposal, including a litany of initiatives to kill core elements of the 2010 Dodd-Frank regulatory-overhaul law. It also provides greater detail on how banks can opt into an alternative regulatory regime that would free them from complying with the so-called Volcker rule, which attempts to bar them from betting with taxpayer-insured deposits, and from having banks show how they could go through a bankruptcy without a taxpayer bailout. Among the proposals contained in the plan include a repeal of the so-called Chevron doctrine, which requires courts to give deference to an agency’s interpretations under administrative law, opening the possibility of a greater number of legal challenges to the regulatory law passed six years ago.

Ryan’s ‘Better Way’ for Wall Street Includes Hensarling’s Dodd-Frank Rollback

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House Speaker Paul Ryan (R-Wis.) rolled out a regulatory policy agenda that includes a warm embrace of House Financial Services Committee Chairman Jeb Hensarling’s (R-Texas) plan to replace the 2010 Dodd-Frank Act, The Morning Consult reported yesterday. The latest installment of the House GOP’s “Better Way” agenda includes detailed plans to roll back the Obama administration’s hallmark financial regulation law. Hensarling wants to strip the federal government’s role in designating systemically important financial institutions and exempt those institutions from numerous regulatory requirements if they hold sufficient capital. Other priorities include getting rid of federal authority to infuse failing institutions with bankruptcy procedures. One of the plan’s unifying principles is that Congress should have a greater say in the financial regulatory sphere, including by subjecting rules to an up-or-down vote. The task force’s plan also suggests additional restrictions on several agencies and regulatory bodies, including the Consumer Financial Protection Bureau (CFPB), which would face a number of new restrictions under the Ryan plan. The plan posits “fundamentally reforming the CFPB” by installing an agency inspector general, removing its director position in favor of a five-member bipartisan commission and subjecting the agency to the congressional appropriations process. Currently, the CFPB’s funding comes from the Federal Reserve coffers, rather than congressional appropriations.

U.S. House Passes Puerto Rico Debt Bill

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U.S. House Passes Puerto Rico Debt Bill
The House this evening overwhelmingly passed a rescue package for debt-stricken Puerto Rico, clearing a major hurdle in the ongoing effort to bring relief to the U.S. territory of 3.5 million Americans, ABC News reported today. The strong bipartisan vote was 297-127 for the legislation that would create a financial control board and allow restructuring of some of Puerto Rico's $70 billion debt. The measure heads to the Senate just three weeks before the territory must make a $2 billion payment. In a rare display of bipartisanship, the bill had the strong support of President Barack Obama, House Speaker Paul Ryan (R-Wis.) and Minority Leader Nancy Pelosi (D-Calif.) "The Puerto Rican people are our fellow Americans. They pay our taxes, they fight in our wars. We cannot allow this to happen," Ryan said in imploring lawmakers, especially reluctant conservatives in the GOP caucus, to back the bill during debate. The legislation would allow the seven-member control board to oversee negotiations with creditors and the courts over reducing some debt. It does not provide any taxpayer funds to reduce that debt. It would also require the territory to create a fiscal plan. Among other requirements, the plan would have to provide "adequate" funds for public pensions, which the government has underfunded by more than $40 billion. Hours before the vote, the White House strongly endorsed the bill, saying that failing to act could result in an "economic and humanitarian crisis" in the U.S. territory beyond what the island is already facing.

Click here to read an op-ed on the legislation.

To view the full text of H.R. 5278 (PROMESA), click here.
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Jeb Hensarling Plan Rekindles Debate as Republicans Aim to Dismantle Dodd-Frank
A proposal by a senior House Republican to dismantle portions of the 2010 Wall Street reforms known as the Dodd-Frank Act has rekindled a partisan debate over the state of banking regulation eight years after the financial crisis, the New York Times reported yesterday. Representative Jeb Hensarling of Texas, chairman of the House Financial Services Committee, outlined the main parts of his plan Tuesday during a speech in New York and plans to introduce the legislation this month. The debate shows how divided Washington remains over how to supervise the financial industry, from big banks to small community institutions. Hensarling’s plan, called the Financial Choice Act, rolls back significant provisions and limits the role of regulators in overseeing the country’s biggest banks, but it also advocates stronger penalties for financial fraud and puts a focus on capital buffers for large banks. One of the plan’s central provisions would allow the country’s biggest banks to exempt themselves from capital and liquidity requirements and other regulatory standards if they held enough capital to surpass a certain threshold. Hensarling estimates that the biggest banks would be required to collectively raise “several hundred billion dollars in new equity” to benefit from the proposal. That is likely to dissuade many of the top financial institutions from offering broad support for the measure. The bill would also repeal the Volcker Rule, which restricts trading activities at banks, and replace the Dodd-Frank Act’s process for winding down a failing institution with a new chapter of the Bankruptcy Code.
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Analysis: CFPB Needs a Rule to Regulate Debt Collection
Debt collectors are facing increasing pressure from the Consumer Financial Protection Bureau through aggressive regulation by enforcement, according to an analysis inAmerican Banker yesterday. In the past few years, the CFPB has entered into consent orders with debt buyers, banks and other lenders. The orders limit debt sales, increase data requirements and forbid various collection practices. But without the agency offering an alternative to these commonly used tools, preferably through rulemaking, debt collectors resort to the next “best” alternative they know of to settle a debt: lawsuits. Clearly, it is those lawsuits that are of particular concern to the CFPB. In the last few years, collection suit numbers have soared, and the CFPB has responded by closing or fining what they call “lawsuit mills.” Still, most collection agencies follow the law and will still find a technological way to file large volumes of lawsuits without violating federal measures. According to the analysis, however, consumers will still end up losing by being subjected to aggressive yet absolutely legal tactics in the collection process.
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Regulators Fear $1 Billion Coal Cleanup Bill
Regulators are wrangling with bankrupt coal companies to set aside enough money to clean up Appalachia’s polluted rivers and mountains so that taxpayers are not stuck with the $1 billion bill, the New York Times DealBook reported Tuesday. The regulators worry that coal companies will use the bankruptcy courts to pay off their debts to banks and hedge funds, while leaving behind some of their environmental cleanup obligations. The industry asserts that its cleanup plans — which include turning defunct mines back into countryside — are comprehensive and well funded. But some officials say those plans could prove unrealistic and falter as demand for coal remains weak. Regulators and environmental groups in Appalachia have tangled with coal companies for decades over their mining practices, particularly mountaintop removal mining, which involves removing mountain summits to extract coal. But in the bankruptcy cases, West Virginia has been pressuring the industry’s lenders to share more of the responsibility for mine reclamation and water remediation, arguing that they exert great influence, if not outright control in some cases, over the bankrupt mining companies.
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U.S. Credit Card Debt to Hit $1 Trillion in 2016
Since 2010, when Americans actually paid more on their credit card bills than they charged, the amount owed on credit cards has steadily risen from $2.5 billion in 2011 to $71 billion in 2015. However, total credit card debt at the end of last year had reached $919.1 billion, and at current growth rates, should wind up 2016 at roughly $1 trillion, 24/7 Wall St. reported yesterday. In the first quarter of 2016, Americans paid down $33.8 billion in credit card debt, including a $7 billion charge-off. According to research at CardHub, however, that’s the smallest first-quarter pay-down since 2008 and almost 25 percent below the post-recession average. Average U.S. household indebtedness dropped to about $7,600 during the first quarter, which represents an increase of 6 percent in indebtedness compared with the first quarter of 2016. CardHub projects that average indebtedness will rise to more than $8,500 by the end of 2016.
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IRS Shuts Down Remaining Channels for REIT Spinoffs

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The Internal Revenue Service shut down an apparent gap in a tax law that otherwise could have allowed companies across industries to continue spinning off their property holdings into tax-advantaged real-estate investment trusts (REITs), The Wall Street Journal reported yesterday. The law was written in response to a wave of deals by retailers, hotels and others that sought the tax-beneficial status of being REIT. The law banned companies created in tax-free spinoffs from electing REIT status for 10 years after the transaction, but the law didn’t prevent spun-off companies from merging into an existing REIT, among other possible workarounds. The regulations from the IRS and Treasury Department take effect immediately and “are necessary to prevent abuse,” the government said.

Yellen Calls Weak Jobs Numbers ‘Concerning,’ but Says Overall Economy Is Healthy

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Federal Reserve Chair Janet Yellen painted an optimistic picture of the health of the U.S. economy, but she noted worries about slowing job creation, suggesting that interest rates would not rise until the labor market shows more signs of life, The Washington Post reported yesterday. Analysts greeted the comments as a sign that the central bank is not likely to raise rates in June. Yellen emphasized the progress that the economy continues to make in recovering from the Great Recession but she called last Friday's jobs report, "disappointing" and "concerning.” Yellen said that the current level of interest rates is "generally appropriate," but that she expects the Fed to raise rates in the future, "provided that labor market conditions strengthen further and inflation continues to make progress toward our 2 percent objective." The weak jobs report had raised a new batch of questions about the recovery, to go along with uncertainties over global growth, a slowdown of productivity growth in America and the possibility that Great Britain could vote later this month to exit the European Union.
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