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DOJ Announces SCRA Pilot Program Offering Dedicated Legal Support to Military Communities
On November 2, the DOJ announced a new pilot program to provide military communities across the country with dedicated legal support as part of a broader effort by federal prosecutors to enforce the Servicemembers Civil Relief Act (SCRA). Under the program, the DOJ will fund assistant U.S. Attorney and trial attorney positions devoted to providing targeted support on SCRA-related cases in districts with major military bases. In addition, military judge advocate officers serving as legal assistance attorneys will be eligible for designation as “Special Assistant U.S. Attorney” for purposes of handling SCRA litigation matters.
Release Updated FHA Guidance on State and Local Land Use Laws
On November 10, DOJ and HUD issued a Joint Statement updating guidance on the application of the FHA to state and local land use and zoning laws. The guidance—which is provided in the form of frequently asked questions and answers thereto—is designed to help state and local governments better understand how to comply with the FHA when making zoning and land use decisions as well as to help members of the public understand their rights under the FHA. The first section of the Joint Statement, questions 1–6, describes generally the FHA’s requirements as they pertain to land use and zoning. The second and third sections, questions 7–25, discuss more specifically how the FHA applies to land use and zoning laws affecting housing for persons with disabilities, including guidance on regulating group homes and the requirement to provide reasonable accommodations. The fourth section, questions 26–27, addresses HUD’s and DOJ’s enforcement of the FHA in the land use and zoning context.
GAO Report Recommends Additional Actions to Help Achieve Dodd-Frank Stress Test Goals
On November 15, the GAO released its report entitled Federal Reserve: Additional Actions Could Help Ensure the Achievement of Stress Test Goals. The report had been requested in September 2014 by House Financial Services Committee Chairman Jeb Hensarling in order to determine the costs, benefits, effectiveness and transparency of the Fed’s stress tests. Highlights of the Report can be found here.
The GAO was asked to review and assess the effectiveness of each of the Fed’s two stress test programs for certain banking institutions. Accordingly, the GAO analyzed Fed rules, guidance, and internal policies and procedures and assessed practices against federal internal control standards and other criteria. The GAO also interviewed Federal Reserve staff and officials at 19 banking institutions. The report sets forth 15 recommendations that the GAO believes will help improve the effectiveness of the Fed’s stress test programs. The recommendations include, among other things, improving disclosures and communications to firms, expanding model risk management, and reconsidering potential consequences of the Fed’s scenario design choices. The GAO has reported that the Fed “generally agreed with the recommendations and highlighted select ongoing and future efforts.”
In a November 15 press release, House Financial Services Committee Chairman Jeb Hensarling used the GAO report to critique the Fed’s lack of transparency with regard to certain activities under the Dodd-Frank Act. Among other things, Rep. Hensarling stated, “[t]he GAO report confirms the secrecy surrounding the stress tests makes it almost impossible to measure the effectiveness of the Fed’s regulatory oversight or the integrity of the tests’ findings. When it comes to the Fed’s stress tests, not only are they not transparent, they are often duplicative and impose unnecessary costs and burdens on financial institutions that are ultimately passed on to consumers.” Rep Hensarling cautioned further that “[t]he changes recently proposed by the Federal Reserve to its stress testing process are inadequate,” and the GAO report “demonstrates the absolute need for the new President to designate a Vice-Chairman for Supervision at the Federal Reserve who will have the power to ‘oversee the supervision and regulation’ of financial firms supervised by the Federal Reserve.”
FDIC Vice-Chairman Speaks On Strengthening Global Capital
FDIC Vice-Chairman Thomas M. Hoenig spoke at the 22nd Annual Risk USA Conference in New York on November 9. He delivered prepared remarks on “Strengthening Global Capital: An Opportunity Not To Be Lost.” Hoenig discussed his views on key factors at the core of the debate over what defines adequate capital. Specifically, he discussed the controversy over alternative measurements for judging adequate capital currently being considered by the Basel Committee, which he believes will weaken current standards and ultimately justify lower levels of capital. According to Hoenig, “[m]omentum is developing within the Basel Committee to undermine measures that could increase bank capital levels, and some jurisdictions are threatening to walk away if the measures are thought too strict.” Hoenig recommended that the United States “should avoid joining this race to the bottom.”
OCC Proposes Revisions to Stress Test Information Collection
On November 15, the OCC published a notice and request for comment on proposed changes to its rules requiring certain covered financial institutions, including national banks and federal savings associations with assets over $50 billion, to report certain financial information as part of stress testing. The proposed revisions to the OCC’s reporting requirements are “intended to promote consistency with” the Fed’s proposed changes to its form FR Y-14A, and consist generally of clarifying instructions, shifting the “as-of date”, adding data items, deleting data items, and redefining existing data items—including an expansion of the information collected in the scenario schedule. The proposed revisions also reflect the implementation of the final Basel III regulatory capital rule, which is set to revise and replace the OCC’s risk-based and leverage capital requirements to be consistent with agreements reached by the Basel Committee on Banking Supervision in ‘‘Basel III: A Global Regulatory Framework for More Resilient Banks and Banking Systems’’ (Basel III). All comments must be received by January 19, 2017.
GAO Finds Continuing Significant Deficiency in CFPB's Internal Controls, Some Progress Made
On November 15, the GAO released is annual review of the CFPB’s financial statements. The GAO report (GAO-17-138R) found: (i) that the CFPB’s financial statements were presented fairly and in accordance with generally accepted accounting principles; (ii) although internal controls could be improved, the CFPB maintained effective internal controls over financial reporting as of September 30, 2016; and (iii) no reportable noncompliance for fiscal year 2016 with provisions of applicable laws, regulations, contracts, and grant agreements the GAO tested. The GAO did identify a continuing significant deficiency in internal controls over accounting for property, equipment, and software, but also noted that the CFPB has made progress in correcting the deficiency, which was first identified in the previous year’s report.
Commenting on the report, the CFPB stated that “it was pleased to receive an unmodified audit opinion on its fiscal years 2016 and 2015 financial statements.” The CFPB further concurred with the significant deficiency over accounting for its property, equipment, and software that GAO reported, and added that “it will continue to work to enhance its system of internal control and ensure the reliability of CFPB’s financial reporting.”
OCC Seeks Comments on Volcker Rule Reporting, Recordkeeping, and Disclosure Requirements
On November 18, OCC published a notice seeking comments on various reporting, recordkeeping, and disclosure requirements associated with its regulations that implemented the Volcker Rule. Among other things, the OCC is seeking comments on: (i) whether the information sought is necessary for the OCC to perform its supervisory functions; (ii) the accuracy of the OCC’s estimate of the information collection burden; (iii) ways to enhance the quality, utility, and clarity of the information to be collected while also minimizing the collection burdens on respondents; and (iv) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide the information. Comments must be submitted on or before January 17, 2017.
Israel-Based Pharmaceutical Company Sets Aside $520 Million for Potential FCPA Settlement
An Israel-based pharmaceutical company, stated in its Form 6-K filed with the SEC on November 15, 2016, that it has set aside approximately $520 million for a potential settlement of FCPA matters being investigated by the SEC and DOJ. The company explained that the reserve relates to conduct that occurred between 2007 and 2013 in Russia, Mexico, and the Ukraine, and that it was discovered in the course of the investigation that began in early 2012 with the issuance of an SEC subpoena to the company, as well as a concurrent internal investigation of its worldwide business practices.
Should the pharmaceutical company enter into a settlement, it will top the growing list of pharmaceutical companies that have been subject to multimillion dollar penalties for conduct in violation of the FCPA, including the following:
- A $5.5 million settlement in 2016 of allegations relating to bribery of Chinese and Russian doctors;
- A $20 million settlement in 2016 of allegations relating to bribery of Chinese health care professionals;
- A $25 million settlement in 2016 of allegations relating to bribery of Chinese doctors;
- A $14 million settlement in 2015 of allegations relating to bribery of healthcare professionals at state-owned hospitals in China;
- A$29 million settlement in 2012 of allegations relating to bribery of government employed physicians in Russia, Brazil, China and Poland; and
- A $70 million settlement in 2011 of allegations relating to conspiracy and bribery of doctors employed by state-controlled health care systems in Greece.
Major Global Financial Company Pays $264 Million to Settle FCPA Investigation of its Referral Hiring Practices in China
A major global financial company (“Company”) and a Hong Kong subsidiary (“Subsidiary”) agreed on November 17, 2016, to pay approximately $264 million to the DOJ, SEC, and the Federal Reserve, putting an end to a nearly three year, multi-agency investigation of the Subsidiary’s “Sons and Daughters” referral program through which the children of influential Chinese officials and executive decisions makers were allegedly given prestigious and lucrative jobs as a quid pro quo to retain and obtain business in Asia. The conduct occurred over a seven year period, included the hiring of approximately 100 interns and full-time employees at the request and referral of Chinese government officials, and resulted in more than $100 million in revenues to the Company and approximately $35 million in profit to the Subsidiary.
The Subsidiary entered into a non-prosecution agreement and agreed to pay a $72 million criminal penalty, as well as to continue cooperating with the ongoing investigation and/or prosecution of individuals involved in the conduct. Additionally, the Subsidiary agreed to enhance its compliance programs and report to DOJ on the implementation of those programs. DOJ asserts in its press release that the Subsidiary admitted that, beginning in 2006, senior Hong Kong-based investment bankers set up the referral program as a means to influence the decisions of Chinese officials to award business to the Subsidiary, going so far as to link and prioritize potential hires to upcoming business opportunities, as well as to create positions for unqualified candidates where no appropriate position existed. The Subsidiary also admitted that its bankers and compliance personnel worked together to paper over these arrangements and hide the true purpose of the hire.
DOJ acknowledged that while the Subsidiary did not voluntarily or timely disclose its conduct, in determining an appropriate resolution DOJ considered a number of actions taken by the Company, including the commencement of a thorough internal investigation, the navigation of foreign data privacy law to produce documents from foreign countries, and the provision of access to foreign-based employees for interviews in the US. Additionally, DOJ considered the employment actions taken by the Subsidiary, which resulted in the departure of 6 employees and the discipline of 23 employees.
In connection with the same conduct, the Company also settled allegations with the SEC and the Federal Reserve. In a cease and desist order filed today, the SEC found that the Company violated the anti-bribery, books and records, and internal controls provisions of the Securities Exchange Act of 1934. The SEC considered the Company’s remedial actions and cooperation with the ongoing investigation, ordering the Company to pay over $105 million in disgorgement and $25 million in interest. Finally, in a consent cease and desist order filed today, the Federal Reserve Board imposed an approximately $62 million civil monetary penalty on the Company for operating an improper referral hiring program and failing to maintain adequate enterprise-wide controls to ensure candidates were vetted and hired appropriately and in accordance with anti-bribery laws and company policies. This order, among other things, requires the Company to enhance its oversight and controls of referral hiring practices and anti-bribery policies, as well as to continue cooperating with the ongoing investigation.
Election Results: Preliminary Thoughts and Reactions
As a result of last Tuesday’s election, Republicans will control the White House and both houses of Congress in 2017. It is likely there ultimately will be some significant changes affecting financial services regulation and enforcement, but they will take time to implement. The President-elect has articulated sympathy for less regulation and opposition to the Dodd-Frank Act but also an unconventional economic populism. The Congressional Republicans have already prepared, and in some cases passed, more specific changes to limit and cabin the CFPB. We anticipate efforts focused on changing the CFPB Director and CFPB structure, reduced regulation that may encourage product innovation (particularly in the FinTech space), and potentially less emphasis on certain Department of Justice (“DOJ”) enforcement initiatives such as fair lending and the Residential Mortgage-Backed Securities (“RMBS”) task force. Nonetheless, we expect continued enforcement and supervisory activity, including by states and by prudential regulators that are less directly tied to shifting political winds.
Click here to read the full special alert
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Questions regarding the matters discussed in this alert may be directed to any of our lawyers listed below, or to any other BuckleySandler attorney with whom you have consulted in the past.
- Jeremiah S. Buckley, (202) 349-8010
- Joseph M. Kolar, (202) 349-8020
- John P. Kromer, (202) 349-8040
- Jon D. Langlois, (202) 349-8045
- Jeffrey P. Naimon, (202) 349-8030
- Clinton R. Rockwell, (310) 424-3901
- Christopher M. Witeck, (202) 349-8051