GAO Report Examines Effectiveness of the Financial Regulatory System

Recently, the Government Accountability Office (GAO) released a report on the effectiveness of the U.S. financial system’s existing regulatory structure. In examining the financial regulatory system, the GAO conducted a performance audit from April 2014 to February 2016, dividing the regulatory system into the following sectors based on the various agencies’ missions: (i) safety and soundness oversight of depository institutions; (ii) consumer protection oversight; (iii) securities and derivatives markets oversight; (iv) insurance oversight; and (v) systemic risk oversight. The GAO found that “[f]ragmentation and overlap have created inefficiencies in regulatory processes, inconsistencies in how regulators oversee similar types of institutions, and differences in the levels of protection afforded to consumers.” Based on its audit, the GAO concluded that the regulatory structure as it stands does not always guarantee (i) efficient and effective oversight; (ii) consistent financial oversight; and (iii) consistent consumer protections. The report further identified problems with the Financial Stability Oversight Council (FSOC) and the Office of Financial Research (OFR), which are regulatory groups created out of the Dodd-Frank Act to address gaps in systemic risk oversight. Specific problems highlighted in the GAO’s findings include: (i) potential missed opportunities and duplicative analyses as a result of the Federal Reserve’s and the OFR’s similar systemic risk monitoring goals but lack of key collaboration; (ii) a lack of reliance by FSOC on the Federal Reserve’s and the OFR’s systemic risk monitoring efforts; and (iii) limitations on FSOC’s authority to address broader systemic risks that are not specific to a particular entity. The GAO emphasized that, “[w]ithout congressional action it is unlikely that remaining fragmentation and overlap in the U.S. financial regulatory system can be reduced or that more effective and efficient oversight of financial institutions can be achieved.”

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Fed Issues Final Rule Limiting Bank Mergers of Large Financial Firms

On November 5, the Board finalized Reg. XX thereby implementing Section 622 of the Dodd-Frank. The final rule, which was proposed in May, prohibits a financial company from combining with another company if the resulting company’s liabilities exceed 10 percent of the aggregate consolidated liabilities of all financial companies. The final rule also adds an exemption to clarify that a financial company may continue to engage in securitization activities if it has reached the limit and establishes reporting requirements for financial companies that do not otherwise report consolidated information to the Board or other Federal banking agency. Financial companies subject to the limit include insured depository institutions, bank holding companies, savings and loan holding companies, foreign banking organizations, companies that control insured depository institutions, and nonbank financial companies designated by the Financial Stability Oversight Council for Board supervision. The final rule will be effective on January 1, 2015.

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FSOC Annual Report Calls For Heightened Scrutiny Of Nonbank Mortgage Servicers

On May 7, following a short open meeting, the Financial Stability Oversight Council (FSOC)—the body established by the Dodd-Frank Act to identify and respond to risks to the stability of the U.S. financial system—released its 2014 annual report. As with past reports, this report reviews market and regulatory developments, and identifies emerging risks to the financial system. Among several new risks identified by the FSOC are those related to the increase in the transfer of mortgage servicing rights (MSRs) from banks to nonbank servicers. The report asserts that many nonbank servicers “are not currently subject to prudential standards such as capital, liquidity, or risk management oversight,” and that where mortgage investors’ ability to collect on mortgages is dependent on a single mortgage servicing company, “failure could have significant negative consequences for market participants.” The FSOC recommends that, in addition to continuing to monitor risks associated with transfers to nonbanks, state regulators should work together and with the CFPB and the FHFA on prudential and corporate governance standards for nonbank servicers. The report elevates and reinforces recent regulatory scrutiny of MSRs and nonbank servicers. Earlier this year, the CFPB’s deputy director detailed the CFPB’s expectations with regard to the transfer of MSRs and compliance with the CFPB’s mortgage servicing rules, and New York financial services regulator Benjamin Lawsky expressed his view that nonbank mortgage services are insufficiently regulated and that state regulators need to intervene on the front end of MSR transactions to prevent undue harm to homeowners before it occurs.

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Federal Reserve Board Issues Final Large Bank Assessment Rule

On August 16, the Federal Reserve Board issued a final rule establishing the process by which it will assess annual fees for its supervision and regulation of large financial companies. The Dodd-Frank Act directed the Board to collect assessment fees equal to the expenses it estimates are necessary or appropriate to supervise and regulate bank holding companies and savings and loan holding companies with $50 billion or more in total consolidated assets and nonbank financial companies designated by the Financial Stability Oversight Council. The final rule outlines how the Board will (i) determine which companies are assessed, (ii) estimate the total anticipated expenses, (iii) determine the assessment for each of the covered companies, and (iv) bill for and collect the assessment from the companies. For the 2012 assessment period, the first year for which assessment fees will be collected, the Board will notify each company of the amount of its assessment when the rule becomes effective in late October.  Payments for the 2012 assessment period will be due no later than December 15, 2013. The Board estimates it will collect about $440 million for the 2012 assessment period. Beginning with the 2013 assessment period, the Federal Reserve will notify each company of the amount of its assessment fee no later than June 30 of the year following the assessment period.  Payments will be due by September 15.

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Federal District Court Dismisses Challenge to Dodd-Frank Act, CFPB

On August 1, the U.S. District Court for the District of Columbia dismissed in its entirety a lawsuit that challenged Titles I, II, and X of the Dodd-Frank Act as unconstitutional.  The lawsuit was brought originally by three private parties and later joined by several state attorneys general.  The court determined that that the plaintiffs lacked standing and had not demonstrated injury sufficient to permit a challenge of the law on any of their claims.

The private plaintiffs’ challenge to Title X, which created the CFPB, was based on “financial injuries directly caused by the unconstitutional formation and operation of the [CFPB,]” including substantial compliance costs, increased costs of doing business, and forced discontinuance of profitable and legitimate business practices in order to avoid risk of prosecution.  The court concluded that such “self-inflicted” harm could not confer standing to challenge Title X.  With respect to the private plaintiffs’ challenge to the Financial Stability Oversight Council (FSOC) created by Title I, the court concluded that while an unregulated party is not precluded from establishing standing to challenge the creation and operation of FSOC, standing is “substantially more difficult to establish” under such circumstances and the theories asserted by the plaintiffs were too remote to confer standing.

Both the private plaintiffs and the state attorneys general challenged Title II, claiming that the “orderly liquidation authority” (OLA) provisions violate the separation of powers, deny due process to creditors of a liquidated firm, and violate the requirement for uniformity in bankruptcy.  The court again concluded that none of the plaintiffs established either present or future injury sufficient to confer standing to challenge the OLA.

According to media reports, an appeal of the ruling by at least one of the private plaintiffs is anticipated.

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