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On June 8, the Federal Reserve Bank of New York updated its frequently asked questions (previously covered here and here) regarding the Term Asset-Backed Securities Loan Facility (TALF). Among other things, the changes clarify (i) who qualifies as a “material investor,” (ii) when asset-backed securities (ABS) are eligible to secure a TALF loan, (iii) the documentation required for ABS issued during a specific period in order for the ABS to be eligible collateral for a TALF loan, and (iv) for newly-issued ABS to be considered for a subscription date, when the issuer must price such ABS. The Federal Reserve Bank of New York also updated several TALF-related forms.
On May 26, the Federal Reserve Bank of New York updated its frequently asked questions), previously covered here, regarding the Term Asset-Backed Securities Loan Facility (TALF). The changes clarify (i) requirements regarding certification of a TALF borrower’s inability to secure adequate credit accommodations, (ii) which nationally recognized statistical rating organizations are eligible rating agencies under the TALF, and (iii) how unsolicited credit ratings are treated.
On May 20, the Federal Reserve Bank of New York announced the first loan subscription date for the Term Asset-Based Securities Loan Facility (TALF) and released an expanded set of Frequently Asked Questions and other documents relating to the facility’s operations. The first subscription date will be June 17, 2020, and the first closing date will be June 25, 2020. The FAQs contain information on why the TALF was established, how the TALF will work, borrower eligibility, eligible collateral, eligible underlying assets, master trust requirements, credit ratings, collateral review, interest rates, and loan subscription and closing, among other things.
On March 31, the Federal Reserve announced the establishment of a temporary repurchase agreement facility (FIMA Repo Facility) to be available to foreign and international monetary authorities. The FIMA Repo Facility will allow central banks and other international monetary authorities with accounts at the Federal Reserve Bank of New York to enter into repurchase agreements with the Federal Reserve to temporarily exchange their U.S. Treasury securities held with the Federal Reserve for U.S. dollars, which can then be made available to institutions in their jurisdictions. The facility is intended to provide an alternative temporary source of U.S. dollars other than sales of securities in the open market. The Federal Reserve also issued FAQs that answer question about, among other things, the purpose of the facility, eligibility to participate in the facility, and how the facility is structured.
On March 6, the Alternative Reference Rates Committee (ARRC) announced a legislative proposal for New York state legislation for U.S. dollar LIBOR contracts intended to “minimize legal uncertainty and adverse economic impacts associated with LIBOR transition.” The ARRC—a group of private-market participants convened by the Federal Reserve Board and the Federal Reserve Bank of New York in cooperation with a number of other federal financial regulatory agencies—explained that it proposed legislation in New York because the state’s law governs a substantial number of financial contracts that refer to U.S. dollar LIBOR. The proposed bill includes measures to address the absence of sufficient LIBOR fallback or transition language in existing financial contracts referencing LIBOR. The proposed legislation would prohibit parties from being able to use the discontinuance of LIBOR as a reason for declaring a breach of contract, establish a recommended benchmark replacement index as a commercially reasonable substitute for LIBOR, and override contractual language referencing a LIBOR-based rate and require use of the benchmark replacement. Contractual parties would also be permitted to mutually opt-out of any mandatory application of the proposed legislation under the bill. The ARRC specifically highlighted that its proposed legislation would not override existing contract language that already delineated a non-LIBOR rate as a fallback to LIBOR.
In January, the Federal Reserve Bank of New York (New York Fed) released a staff report that analyzes how a cyber attack transmitted through a payment network could be amplified throughout the U.S. financial system. According to the report, Cyber Risk and the U.S. Financial System: a Pre-Mortem Analysis, cyber attacks that impair the most active U.S. banks’ ability to send payments “would likely be amplified to affect the liquidity of many other banks in the system,” including smaller or mid-sized banks that are connected through a shared service provider. The New York Fed notes, however, that the report’s primary focus is on a cyber attack’s impact within a single day, and cautions that should a cyber attack compromise the integrity of the banking system, “the reconciliation and repercussion process would be an unprecedented task.” Among other things, the report (i) establishes a framework for estimating “cyber vulnerability” and understanding the impairments of a cyber attack on a bank’s payment activities; (ii) creates a baseline scenario to study the five largest institutions within the wholesale payment network and the high concentration of payments between large institutions, as well as the resulting imbalance in liquidity that occurs if even a single large institution is unable to remit payments to its counterparties; and (iii) conducts a reverse stress test exercise, in which it analyzes “how many smaller institutions it would take to impair any of the most active ones,” in order to highlight “how the impairment of many smaller institutions also presents a systemic risk.”
On March 22, the Federal Reserve Bank of New York (New York Fed), one of the 12 regional Federal Reserve System banks that make up the United States' central banking system, announced the launch of its Fintech Advisory Group, which is designed to offer “views and perspectives on the emerging issues related to financial technologies, the application and market impact of these technologies, and the potential impact on the New York Fed’s ability to achieve its missions.” The group’s members will participate on a rotating basis, and will include representatives from financial institutions, nonprofits, and research providers. According to the head of the Supervision Group at the New York Fed, “The Fintech Advisory Group will provide the New York Fed with a more complete picture of the rapidly evolving fintech landscape. The Advisory Group will also gather insights that may inform our interaction with market participants and institutions, our training and hiring efforts, and the application of innovative approaches for internal business use.” The group’s first meeting will be held on April 1.
The Federal Reserve Bank of New York (New York Fed) released a February 2018 Staff Report titled, “The Role of Technology in Mortgage Lending,” which concludes that technological innovation by fintech mortgage lenders has improved the efficiency of lending in the U.S. mortgage market. In the report, the New York Fed defines a fintech mortgage lending model as one that features “an end-to-end online mortgage application platform and centralized mortgage underwriting and processing augmented by automation.” The report uses quantitative analysis to study the effects of technological innovation in the U.S. mortgage market by identifying several areas of friction in traditional lending and examining whether fintech lending improves them. Among other things, the report finds that, without increasing risk, fintech lenders (i) process mortgages more quickly; (ii) respond more elastically to fluctuations in demand; and (iii) increase borrowers’ propensity to refinance. However, the report notes that there is little evidence that fintech lending is more effective than traditional lending at providing financially constrained borrowers access to credit.
Global Bank and U.S. Subsidiaries Fined $246 Million for Deficiencies in Internal Foreign Exchange Trading Controls
On July 17, the Board of Governors of the Federal Reserve (Board) fined a global bank and two of its U.S. subsidiaries $246 million for allegedly lacking appropriate oversight and controls to ensure the bank’s foreign exchange (FX) trading activities were in compliance. According to the cease and desist order, the Board alleged that the bank’s “deficient policies and procedures” prevented it from detecting unsafe and unsound conduct and communications between bank traders and traders at other financial institutions concerning their trading positions. In addition to the fine, the bank is required to improve its oversight and controls over its FX trading activities, submit a written plan to improve its compliance risk management program, and provide an enhanced written internal audit program, subject to Board approval. Furthermore, the bank is prohibited from re-employing any individuals involved in the illegal communications.
It was noted in the order that the bank conducted a review of its FX trading activities covering the investigation time period, identified and reported the illegal conduct to the Board and the Federal Reserve Bank of New York, and fully cooperated with the investigation. Improvements to address identified deficiencies have already begun.
New York Fed Unveils Community Advisory Group to Offer “Views and Perspectives” Held by Local Community Stakeholders
On April 12, the Federal Reserve Bank of New York (New York Fed) launched the “Community Advisory Group” (CAG)—a “private-sector advisory group,” that is composed of leaders from the non-profit sector and will meet at least three times a year to advise the New York Fed “on socio-economic and financial conditions faced by communities in the Second District” of the Federal Reserve System. According to the Community Advisory Group Charter, “[t]he primary goal of the Group is to present . . . views and perspectives on the economy and monetary policy held by individuals and households in a diverse set of communities.” The Charter also explains that the 10-15 Group members, selected by the New York Fed to serve a three year term, will be appointed “based on their ability to represent the views of one or more communities in the Second District.” The Group’s first meeting is scheduled for April 19.
- Jonice Gray Tucker to moderate “Pandemic relief response and lasting impacts on access, credit, banking, and equality” at the American Bar Association Business Law Section Spring Meeting
- Jeffrey P. Naimon to discuss "Post-pandemic CFPB exam preparation" at the Mortgage Bankers Association Spring Conference & Expo
- Jonice Gray Tucker to discuss "Making fair lending work for you" at the Mortgage Bankers Association Spring Conference & Expo
- Jonice Gray Tucker to discuss "Reading the tea leaves of President Biden’s initial financial appointees" at LendIt Fintech
- Moorari K. Shah to discuss “CA, NY, federal licensing and disclosure” at the Equipment Leasing & Finance Association Legal Forum
- Jonice Gray Tucker to discuss "Compliance under Biden" at the WSJ Risk & Compliance Forum
- Sherry-Maria Safchuk to discuss UDAAP at an American Bar Association webinar
- Jonice Gray Tucker to discuss “The future of fair lending” at the Mortgage Bankers Association Legal Issues and Regulatory Compliance Conference