87 research outputs found
Muslim Profiles Post-9/11: Is Racial Profiling an Effective Counterterrorist Measure and Does it Violate the Right to be Free from Discrimination?
Too Big to Fail ā U.S. Banksā Regulatory Alchemy: Converting an Obscure Agency Footnote into an āAt Willā Nullification of Dodd-Frankās Regulation of the Multi-Trillion Dollar Financial Swaps Market
The multi-trillion-dollar market for, what was at that time wholly unregulated, over-the-counter derivatives (āswapsā) is widely viewed as a principal cause of the 2008 worldwide financial meltdown. The Dodd-Frank Act, signed into law on July 21, 2010, was expressly considered by Congress to be a remedy for this troublesome deregulatory problem. The legislation required the swaps market to comply with a host of business conduct and anti-competitive protections, including that the swaps market be fully transparent to U.S. financial regulators, collateralized, and capitalized. The statute also expressly provides that it would cover foreign subsidiaries of big U.S. financial institutions if their swaps trading could adversely impact the U.S. economy or represent the use of extraterritorial trades as an attempt to āevadeā Dodd-Frank. In July 2013, the CFTC promulgated an 80-page, triple-columned, and single-spaced āguidanceā implementing Dodd-Frankās extraterritorial reach, i.e., that manner in which Dodd-Frank would apply to swaps transactions executed outside the United States. The key point of that guidance was that swaps trading within the āguaranteedā foreign subsidiaries of U.S. bank holding company swaps dealers were subject to all of Dodd-Frankās swaps regulations wherever in the world those subsidiariesā swaps were executed. At that time, the standardized industry swaps agreement contemplated that, inter alia, U.S. bank holding company swaps dealersā foreign subsidiaries would be āguaranteedā by their corporate parent, as was true since 1992. In August 2013, without notifying the CFTC, the principal U.S. bank holding company swaps dealer trade association privately circulated to its members standard contractual language that would, for the first time, ādeguaranteeā their foreign subsidiaries. By relying only on the obscure footnote 563 of the CFTC guidanceās 662 footnotes, the trade association assured its swaps dealer members that the newly deguaranteed foreign subsidiaries could (if they so chose) no longer be subject to Dodd-Frank. As a result, it has been reported (and it also has been understood by many experts within the swaps industry) that a substantial portion of the U.S. swaps market has shifted from the large U.S. bank holding companies swaps dealers and their U.S. affiliates to their newly deguaranteed āforeignā subsidiaries, with the attendant claim by these huge big U.S. bank swaps dealers that Dodd-Frank swaps regulation would not apply to these transactions. The CFTC also soon discovered that these huge U.S. bank holding company swaps dealers were āarranging, negotiating, and executingā (āANEā) these swaps in the United States with U.S. bank personnel and, only after execution in the U.S., were these swaps formally āassignedā to the U.S. banksā newly ādeguaranteedā foreign subsidiaries with the accompanying claim that these swaps, even though executed in the U.S., were not covered by Dodd-Frank. In October 2016, the CFTC proposed a rule that would have closed the ādeguaranteeā and āANEā loopholes completely. However, because it usually takes at least a year to finalize a āproposedā rule, this proposed rule closing the loopholes in question was not finalized prior to the inauguration of President Trump. All indications are that it will never be finalized during a Trump Administration. Thus, in the shadow of the recent tenth anniversary of the Lehman failure, there is an understanding among many market regulators and swaps trading experts that large portions of the swaps market have moved from U.S. bank holding company swaps dealers and their U.S. affiliates to their newly deguaranteed foreign affiliates where Dodd- Frank swaps regulation is not being followed. However, what has not moved abroad is the very real obligation of the lender of last resort to rescue these U.S. swaps dealer bank holding companies if they fail because of poorly regulated swaps in their deguaranteed foreign subsidiaries, i.e., the U.S. taxpayer. While relief is unlikely to be forthcoming from the Trump Administration or the Republican-controlled Senate, some other means will have to be found to avert another multi-trillion-dollar bank bailout and/or a financial calamity caused by poorly regulated swaps on the books of big U.S. banks. This paper notes that the relevant statutory framework affords state attorneys general and state financial regulators the right to bring so-called āparens patriaeā actions in federal district court to enforce, inter alia, Dodd- Frank on behalf of a stateās citizens. That kind of litigation to enforce the statuteās extraterritorial provisions is now badly needed
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