221 research outputs found
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The Volcker Rule: A Legal Analysis
This report provides an introduction to the Volcker Rule, which is the regulatory regime imposed upon banking institutions and their affiliates under Section 619 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (P.L. 111-203). The Volker Rule is designed to prohibit “banking entities” from engaging in all forms of “proprietary trading” (i.e., making investments for their own “trading accounts”)—activities that former Federal Reserve Chairman Paul A. Volcker often condemned as contrary to conventional banking practices and a potential risk to financial stability. The statutory language provides only general outlines of prohibited activities and exceptions. Through it, however, Congress has empowered five federal financial regulators with authority to conduct coordinated rulemakings to fill in the details and complete the difficult task of crafting regulations to identify prohibited activities, while continuing to permit activities considered essential to the safety and soundness of banking institutions or to the maintenance of strong capital markets. In December 2014, more than two years after enactment of the law, coordinated implementing regulations were issued by the Office of the Comptroller of the Currency (OCC), the Federal Deposit Insurance Corporation (FDIC), the Board of Governors of the Federal Reserve System (FRB), the Securities and Exchange Commission (SEC), and the Commodity Futures Trading Commission (CFTC).
The Rule is premised on a two-pronged central core restricting activities by “banking entities”—a term that includes all FDIC-insured bank and thrift institutions; all bank, thrift, or financial holding companies; all foreign banking operations with certain types of presence in the United States; and all affiliates and subsidiaries of any of these entities. Specifically, the Rule broadly prohibits banking entities from engaging in “proprietary trading” and from making investments in or having relationships with hedge and similar “covered funds” that are exempt from registering with the CFTC as commodity pool operators or with the SEC under the Investment Advisors Act. The Rule couples its broad prohibitions with numerous exclusions and by designating myriad activities as permissible so long as various terms and conditions are met, unless they otherwise would involve or result in a material conflict of interest; a material exposure to high-risk assets or high-risk trading strategies; pose a threat to the safety and soundness of the banking entity; or pose a threat to the financial stability of the United States.
The exceptions to the ban on proprietary trading include underwriting by securities underwriters; market-making “designed not to exceed the reasonably expected near term demands of clients”; trading in government securities; fiduciary activities; insurance company portfolio investments; and risk-mitigating hedging activities. The ban on investing in and owning “covered funds” exempts certain types of funds, under specified conditions, and permits de minimis investment in any such fund up to 3% of the outstanding ownership interests of the fund with an aggregate cap on the total ownership interest in “covered funds” of 3% of the banking entity’s core capital.
To prevent evasion, the Rule has extensive requirements mandating comprehensive compliance programs that include ongoing management involvement, precise metrics measuring risk assessment, verification and documentation of any activities conducted under one of the Rule’s exceptions or exclusions, and recurring reports and assessments. Full compliance is required by July 21, 2015, subject to the possibility that further extensions may be provided by the regulators. In the case of investments involving “illiquid funds” subject to contractual provisions seriously impacting their marketability or sale, full divestiture might not be required until July 21, 2022
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Executive Order 13438: Blocking Property of Certain Persons Who Threaten Stabilization Efforts in Iraq
Report that provides a brief history of the development of presidential powers in peacetime. It discusses some of the issues that might be raised in light of the contrast between the executive order's broad language and its narrow aim. It examines the reach of the executive order and provides legal analyses of some of the constitutional questions raised in the courts by similar sanctions programs
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Comparison of California's Financial Information Privacy Act of 2003 with Federal Privacy Provisions
The California Financial Information Privacy Act,1 enacted on August 28, 2003, and effective on July 1, 2004, governs the rights of California residents with respect to the dissemination of nonpublic personal information by financial institutions. In some respects, it diverges from two federal laws that impose restrictions on the dissemination of nonpublic personally identifiable customer information by financial information
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Privacy Protection for Customer Financial Information
Title V of the Gramm-Leach-Bliley Act of 1999 (P.L. 106-102, H.Rept. 106-434) requires financial institutions to provide their customers with notice of their privacy policies, including those relating to sharing of customer information with affiliated entities. It prohibits sharing personally identifiable customer information with non-affiliated third parties and prohibits financial institutions from providing account numbers to non-affiliated third parties for marketing purposes
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The Dodd-Frank Wall Street Reform and Consumer Protection Act: Titles III and VI, Regulation of Depository Institutions and Depository Institution Holding Companies
This report discusses Titles III and VI of the Dodd-Frank Act, which effectuate changes in the regulatory structure governing depository institutions and their holding companies and, thus, constitute a substantial component of the reform effort
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United States v. Santos: "Proceeds" in Federal Criminal Money Laundering Statute, 18 U.S.C. Section 1956, Means "Profits," Not "Gross Receipts"
On June 2, 2008, the U.S. Supreme Court, in United States v. Santos (No. 96-1005), vacated convictions of the operator of an illegal lottery and one of his runners who had been charged with conducting financial transactions involving the "proceeds" of an illegal lottery and one of his runners who had been charged with conducting financial transactions involving the "proceeds" of an illegal gaming business. The ruling is that "proceeds," as used in this money laundering statute, means "profits" rather than "gross receipts" of the underlying unlawful activity. This report analyzes this decision, the factors contributing to the decision, the principles upon which the decision was based, and the possible future effects of the ruling
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Executive Order 13438: Blocking Property of Certain Persons Who Threaten Stabilization Efforts in Iraq
This report provides a brief history of the development of presidential powers in peacetime. It discusses some of the issues that might be raised in light of the contrast between the executive order's broad language and its narrow aim. It examines the reach of the executive order and provides legal analyses of some of the constitutional questions raised in the courts by similar sanctions programs
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