President nominates SEC commissioners

President Obama plans to nominate Republican Daniel Gallagher and Democrat Luis Aguilar as commissioners at the U.S. Securities and Exchange Commission.

Gallagher is currently a partner in the securities department of Wilmer Cutler Pickering Hale and Dorr LLP.  He previously worked at the SEC from 2006 through 2010.  Gallagher would replace Commissioner Kathleen Casey should he be confirmed.  Kathleen Casey’s term expires later this year.  She is one of two Republicans on the five-person Commission and Gallagher would keep the party split 3-2.

Current SEC Commissioner Luis Aguilar was appointed in 2008.  The term expired last year but he has continued serving in that position, as permitted by law.

Both nominations are subject to approval by the U.S. Senate.

No New Funds Expected for SEC and CFTC

The Wall Street Journal Online reports that the Senate voted 82-14  this morning to end debate on a continuing resolution for $250 billion to fund the government through March 4, 2011.  It is expected that, after a final vote in the Senate, the resolution will be sent to the House of Representatives for a vote prior to the expiration of the current stop-gap measure at midnight tonight.

According to a Senate Appropriations Committee summary produced late Sunday, the resolution provides a small increase of $1.16 billion over 2010 spending, but it appears that there will be no new funds to help the SEC or CFTC with regulatory reform under Dodd-Frank.  According to the Wall Street Journal Online, the proposed spending plan would give the SEC authority to set up five offices mandated by Dodd-Frank, including a whistleblower office.

A $1.1 trillion omnibus bill, supported by the Democrats and hailed by the SEC and CFTC, would have included an 18% increase in the SEC’s budget ($200 million in new funding), and a 69% increase in the CFTC’s budget ($100 million of additional money).  That bill failed to garner sufficient support and, last Thursday night,  the Dow Jones Newswire reported that  Senate Majority Leader Harry Reid (D-Nev.) had announced that the Senate would focus instead on a short-term funding measure.  At that time, it was reported that the Senate Republicans were considering only a resolution proposed by Minority Leader Mitch McConnell (R-Ky.), which would have simply maintained funding at the 2010 budget levels until February 18, 2011.  The House’s version of a new measure, released in early December, would have shifted more funds to the SEC and the CFTC while maintaining the 2010 budget.

The SEC and CFTC had expected to use the new funding under the omnibus bill to allow the agencies to more  effectively carry out their new responsibilities and implement the many new rules under the Dodd-Frank Act.  These include both agencies’ supervision of the over-the-counter derivatives markets and the SEC’s new power to regulate and examine certain private fund advisers and municipal advisers.   Now, it appears that, despite these  new duties, which both SEC Chairman Mary Schapiro and CFTC Chairman Gary Gensler have said require hiring hundreds of new staff members and significant upgrades in technology, the SEC and CFTC will  be forced to operate within their 2010 budgets.

Although the Obama administration could shift money around to help the SEC and CFTC, it is likely that the Republicans, who did not support Dodd-Frank and will take control of the House of Representatives in January 2011, will attempt to block any such shifts through legislation.

The Wall Street Journal Online reports that Senate Finance Committee Chairman Max Baucus (D., Mont.) remains confident that the Democrats could still win funding battles for financial regulation.  Sen. Richard Shelby (R., Ala.), however, is quoted as  saying, “It’s going to be a big political fight. I think the odds shift toward Republicans.”

New Dodd-Frank FAQ for Private Advisers

HedgeOp Compliance, LLC has posted a new FAQ on the Dodd-Frank Wall Street Reform and Consumer Protection Act for hedge fund managers, and other private advisers. In advance of the July, 2011 deadline, managers should start thinking about how the Act affects their business and what steps they need to take.  These FAQ’s give a brief overview of the new regulations and the issues that managers will need to think about.

HedgeOp plans on updating the FAQ page frequently over the next several months, especially as more rulemaking and guidance comes out from the SEC.

Click here to view the Dodd-Frank FAQs.

Uncertain Future for New Dodd-Frank FOIA Confidentiality Provision Applicable to Hedge Fund Managers

As the SEC increases the frequency and intensity of its periodic examinations of hedge fund managers, many will wonder whether materials produced to the SEC during the course of  examinations will be kept confidential upon a request for such materials made pursuant to the Freedom of Information Act.  FOIA, a complex law designed to give citizens a window into the operations of government, contains a number of exemptions that permit the SEC to withhold the production of materials in its possession.  The Dodd-Frank Wall Street Reform and Consumer Protection Act added a new confidentiality provision that attracted little attention at first, but has recently become a lightning rod for criticism.

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FinReg Conference This Week Will Take Up Toughest Issues Remaining on Wall St. Reform

As reported this morning by TheHill.com’s On the Money finance and economy blog, lawmakers finalizing Wall Street overhaul legislation are set this week to take up the hardest issues remaining in the 2,000-page bill.

The 43-member House-Senate conference committee last week worked through some differences between the House and Senate versions, but put off  dealing with several of the toughest issues, including the four issues expected to headline the coming talks this week:

  1. Derivatives spin-off: Big banks are lobbying hardest against a provision in the Senate bill that would require banks to push out their derivatives trading desks.
  2. Volcker rule: Banks are also lobbying intensely against the controversial provision that would ban proprietary trading at banks and limit their ability to sponsor or co-invest with hedge funds and other alternative funds. Democratic Sens. Carl Levin (Mich.) and Jeff Merkley (Ore.) want to strengthen the rule by making it more explicit in the legislation. They expressed confidence Thursday that lawmakers were generally headed in their direction.
  3. Interchange fees: The conference is slated Tuesday to consider whether the Federal Reserve should have the authority to set “reasonable and proportional” fees paid by merchants and retailers to banks and credit unions that issue debit cards. Senate Majority Whip Dick Durbin (D-Ill.), the main backer of the provision, is pushing hard to keep it in the final legislation. The House bill did not include the provision. Small banks and credit unions are lobbying aggressively against it, while merchants and retailers are pushing for it to remain.
  4. Auto dealer exemption: Auto dealers have lobbied for more than a year for an exemption from a new consumer financial protection regulator. They won their case in the House in December, but the Senate bill did not include the exemption.

In addition, certain of the issues the conference committee took up last week were not fully resolved, including:

  1. Broker-Dealer Fiduciary duty: The House and Senate are split on whether broker-dealers and insurance agents should have the same fiduciary duty to their clients as financial planners. The House bill extended the fiduciary duty; however, the language in the Senate bill contains a mandate for an SEC study on the issue, but would delay reform while the study is conducted and would withhold authority from the SEC to deal with brokers who provide investment advice. The Investment Adviser Association (a not-for-profit organization that exclusively represents the interests of SEC-registered investment adviser firms), together with consumer groups, state regulators and financial planners, co-signed a letter last week urging House and Senate conferees to adopt the House language that extends the fiduciary duty standard of care to all financial professionals who give investment advice.
  2. Proxy access: The Senate is pushing to significantly scale back a provision that would grant shareholders stronger power to name directors on corporate boards (a longtime goal of shareholders and institutional investors), by limiting proxy access to shareholders who collectively own at least 5 percent of outstanding shares.
  3. State insurance regulations: The House and Senate are divided on the power of a new federal insurance office to negotiate international insurance agreements and then pre-empt state regulations.

Banks Worry As Volcker Rule Looms

Although the fate of the Volcker Rule is far from certain as the House and Senate continue to hammer out their differences on the U.S. financial regulation overhaul, it appears that some banks are starting to deal with the notion that some form of the Volcker rule will become a reality.

As reported today by  FINalternatives, banks are sounding less confident that the final financial regulation bill will allow them to continue to hold on to all of their alternative investment businesses.  Please refer to the FINalternatives article for more on this story.

For a related Compliance Avenue post on this topic, please refer to “Volcker Rule May Survive“, which was posted earlier this week.

Senate Financial Overhaul Bill Passes

Right on the heels of the cloture vote last night, the Senate passed its Financial Overhaul / Regulatory Reform bill in a 59-39 vote. 4 Republican senators voted for the bill.  As the bill stands now, hedge fund managers with greater than $100 million AUM will need to become registered advisers with the SEC.  The bill still needs to be reconciled with the House version which was passed in December.   A final bill may get to President Obama’s desk by July or sooner.