Fourth quarter 2015 was a hard precursor to 2016 both in capital markets and financial corporate governance. Highly volatile commodities and equities markets, an overall slowing of economic growth and a cooling of tech business growth have left the investing landscape bearish. In addition, corporate governance of major financial and business institutions showed signs of increased shakiness; in 2015 HSBC took the governance world by storm with tax evasions, Bank of America and Citi continued to fail bank stress tests and capital requirements and JPMorgan’s stock has significantly underperformed analysts’ expectations. We now open the year 2016 with an SEC fraud charge against the entire executive management and Board of Superior Bank for overstating loan performance. In this light, 2016 will be a year of continued US Federal Reserve and Securities and Exchange Commission (SEC) financial regulation.
It is noteworthy to mention that the US Federal Reserve may raise rates for 2016. However, in this outlook we have decided to focus on specific regulatory requirements linked to the Dodd-Frank Act of 2010 and to Securities and Exchange Commission rules that will also shape the regulatory framework of financial institutions and corporations for 2016.Key regulations are as follows:
Capital Requirements and Asset-Liability Management:
The Dodd-Frank Act of 2010 has clearly stipulated capital requirements for financial institutions, of which systematically important financial institutions such as Bank of America and Citibank have failed within the past two years. For assurance that banks are better capitalized, the Federal Reserve and the Federal Deposit Insurance Corporation (FDIC) plan to enforce further Basel III agreement factors, requiring higher leverage ratios and a larger liquid asset base. The Financial Services Roundtable, a top US Financial Service advocacy group, has cited the Net Stable Funding Ratio as the standout rule which banks will need to apply for asset-liability management to comply with Basel III requirements. The upside to continued monitoring of capital reserve requirements is financial stability. The downside is, of course, further dampening of bank earnings growth.
Single Point of Entry and Source of Strength:
In 2015 regulators called for stronger resolution strategies of 12 major banks operating in the US, to ensure that if these financial institutions needed to be liquidated there would not be significant strain on US financial stability. The Federal Reserve and FDIC have demanded that bank holding companies be able to be resolved within themselves as well as for all subsidiaries. Ten out of the twelve major banks have opted for the Single Point of Entry (SPOE) resolution strategy under Title I of the Dodd-Frank Act of 2010. Under this strategy, banks will rely on the holdings company as the major “source of strength” for all operating subsidiaries, before FDIC intervention. Sharon Haas et al. of Columbia Law School’s Corporate Governance Program explain that SPOE is different to the Bridge Bank resolution strategy, by which the bank automatically goes into receivership under the FDIC. The Financial Services Roundtable has stated that regulators will seek a firm implementation of the source of strength stipulation for banks in 2016.
Stress Testing and Risk Management For Non-Bank Financial Institutions
The non-bank financial industry is of equal importance to major banks as systematically important financial institutions. In 2015, the SEC played a major role in setting risk management parameters for investment funds, mutual funds and ETFs. Under 2015 amendments to the Investment Company Act of 1940, the SEC stipulates more stringent liquidity risk management, requiring set minimum cash and liquid asset quotas based on the fund’s net assets, with a three day time to liquidation. In addition, the Financial Services Roundtable cites more implementation of stress testing, securities disclosure requirements and qualified standard of conduct from investment advisors on all investment company types for 2016 via the US Department of Treasury’s Financial Stability Oversight Council (FSOC) in conjunction with the SEC, under Section 913 of the Dodd-Frank Act.
Executive Compensation And Clawback Policy
In 2015 the SEC majority voted to implement firmer requirements with regards to executive compensation within financial institutions and major corporations, in cases where the financial institution displays significant noncompliance with financial reporting standards. SEC Rule 10D-1, based on Section 954 of the Dodd-Frank Act, requires a corporation that seeks financial recovery due to an accounting restatement for compliance purposes to seek recovery from both current and former executive management who obtained “excess incentive based compensation” over the course of prior three fiscal years. Public companies are thus required to file a detailed clawback recovery policy with each 10-K. In addition to a stronger enforcement of SEC Rule 10D-1 in 2016, the Financial Services Roundtable cites a need to have a stronger enforcement of Dodd-Frank Section 956, which requires regulators set specific standards to “prohibit salary arrangements that encourage “inappropriate risks.”” To date a final draft on executive compensation guidelines for banks has not been produced; however, with the implementation of the claw back policy we expect to see more examination of executive remuneration by regulators in 2016.
Commodities Income and Payments To Governments
This SEC regulation is non-financial institution related. Regulations on tracking the income flow of oil trading are now a highlighted part of the regulatory landscape, given the commodities markets climate as well as the geopolitical nature of commodities trading. The SEC has proposed a rule to enforce Section 1504 of the Dodd-Frank Act, which requires “issuers that extract natural resources” to specifically delineate all payments, transactions and income made to the US government and to foreign governments for any commercial development of commodities. Elizabeth Ising et al. of Gibson Dunn & Crutcher LLP via Harvard Law Corporate Governance explain that all resource extraction issuers are required to publicly file an annual report stating all government payments, with only case-by-case country exemptions. This disclosure would be required of all holding companies and subsidiaries under the issuer. In addition to payment amounts, all fiscal years when payments were made, as well as the actual geographical areas linked to these payments will be mandatory to disclose. In a geopolitical atmosphere of terrorism funding linked to oil and commodity trading, it is most acceptable to see strong SEC commodities income disclosure requirements for 2016.
Haas, Sharon et al. 2015. “PwC discusses Resolution: Single point of entry strategy ascends.” The Columbia Law School Blue Sky Blog.
Hatch, Robert. 2016. “10 Regulatory Issues the Financial Industry Is Watching in 2016.” Financial Services Roundtable.
Ising, Elizabeth et al. 2015. “One More Time! SEC Seeks to Re-Adopt Resource Extraction Disclosure Rules.” Gibson Dunn & Crutcher LLP. Harvard Law School Forum on Corporate Governance and Financial Regulation.
Ising, Elizabeth et al. 2015. “SEC Propses Rules Regarding Clawbacks.” Gibson Dunn & Crutcher LLP. Harvard Law School Forum on Corporate Governance and Financial Regulation.