Structured Products: An Update of Recent US and EU Regulatory Developments

The US Securities and Exchange Commission (SEC) recently indicated it was intensifying scrutiny of public companies’ cybersecurity practices. In this webinar we will cover:
- The latest SEC guidance on cyber risk disclosure and insider trading practices for public companies;
- The impact of the guidance on public company disclosure regarding cyber risk disclosure;
- Insider trading practices following the guidance; and
- Recent SEC enforcement action regarding cyber risk disclosure.

In this session, we will provide an update on recent developments affecting derivatives in the US and EU and prospects for regulatory harmonization between the two jurisdictions. Topics covered include:

With respect to the EU:
- aspects of Mifid II relating to derivatives, including requirements in relation to trading, margin, transaction reporting and position limits; and
- current proposals regarding the supervision of central counterparties and potential amendments to Emir.

With respect to the US:
- the recent Treasury Reports and their suggestions for cross-border matters; and
- the CFTC’s order exempting EU trading facilities from the requirement to register with the CFTC, comparability determination with respect to the EU margin rules and extension of existing relief in relation to swaps data reporting.

There was no shortage of news in 2017 and the year ended as dramatically as it began. In this session, we will provide a focused recap of the most significant developments related to regulatory burden relief in the United States. We also will share our insights and predictions regarding the changes to anticipate and prepare for in 2018 in the following key areas:
· regulatory relief measures taken by or under consideration by the banking agencies;
· legislative regulatory relief measures affecting financial institutions;
· the future of the CFPB and fintech related developments;
· a fiduciary or best interests standard for broker-dealers, the likely next steps to be taken by the SEC and where things stand with the Department of Labor’s rule;
· the SEC’s rulemaking and enforcement agenda for investment funds and investment advisers;
· SEC rulemaking priorities likely to affect capital formation; and
· legislative proposals relating to the securities laws.

With companies remaining private longer, their stockholder base often becomes more widely dispersed. More and more privately held companies are facing interesting challenges in communicating effectively with various stakeholders, without violating securities laws. Companies contemplating or undertaking an initial public offering face particularly acute issues as they try to establish effective communications approaches. Finally, public companies face Regulation FD and other regulatory requirements that may require that they map out a careful communications approach. During this session, we will address the following:

Trends and developments in capital markets communications;
New modes of communication and engagement (e.g., social, digital);
Non-GAAP financial measures;
Navigating disclosure risks and requirements, including Regulation FD;
Assessing materiality and whether there is an obligation to disclose (and when);
Forward-looking statements, financial guidance and communicating with investment professionals, including analysts and rating agencies;
Competitive benchmarking and key metrics;
Optimizing value in an exit strategy, whether it is an IPO or an M&A exit; and
Best practices in public debt communications (as a private company).

Token sales, also known as ICOs, represent a new capital-raising method that is being explored by a variety of companies in the market. In the past few months, the US Securities and Exchange Commission (SEC) has provided guidance concerning token sales. Although the SEC did not declare that all digital tokens constitute securities, it cautioned that certain tokens may be securities and that existing securities frameworks apply to token sales, notwithstanding that digital tokens may be distributed via distributed ledger technology.

In addition, the IRS has published guidance relating to tokens that are “convertible virtual currencies” and has indicated that such tokens generally are treated as property for US federal income tax purposes.
Token sales, and the legal and regulatory landscapes in the US and around the world with respect to digital tokens, continue to evolve.

This webinar will explore the current legal, regulatory and tax landscape relating to token offerings and will consider the following:

•What are digital tokens and how are they typically used and sold?
•What guidance has the SEC provided regarding token sales, and what is the significance of that guidance?
•What guidance has the IRS provided regarding tokens and what tax considerations are relevant to tokens and token sales?
•What are some of the other legal matters that token issuers and their counsel should be aware of when contemplating launching token sales?

The cross-border private placement market has continued to grow, providing issuers with an opportunity to raise capital from US and European financial institutions. This market, which has seen incredibly robust activity this past year, has continued to attract issuers across a myriad of industries and from multiple worldwide jurisdictions. These issuers seek to, among other things, diversify their funding sources or supplement their bank lending, lengthen their existing debt profile, refinance acquisition debt or finance certain single-asset projects. In this webinar, speakers will discuss:

•The global private placement market and recent trends;
•Market participants;
•Documentation requirements for traditional and structured transactions;
•Financial covenants, MFLs and model form provisions;
•New issuers using the market (social housing trusts, universities, investment trusts, etc);
•Marketing process with Agented and direct Private Placements; and
•Ratings and the NAIC.

Join IFLR, Morrison & Foerster and the American Enterprise Institute as presenters share their views and predictions regarding:

· the Presidential Orders relating to deregulation;
· the Treasury Department’s initial report regarding the core principles of financial regulation;
· the Financial CHOICE Act and its principal provisions;
· the areas of regulatory reform as to which compromise may be possible; and
· the likely path forward for regulatory reform and what you should expect in 2017.

The first phase of the Department of Labor’s (DOL) new fiduciary rule (Fiduciary Rule) was implemented on June 9 2017. The Fiduciary Rule greatly expands the categories of persons who are deemed fiduciaries when dealing with retail retirement investors. Many investment professionals will now be deemed fiduciaries and need to comply with the new standards.

Join Morrison & Foerster and the ACA Compliance group for this timely webinar in conjunction with the International Financial Law Review.

Topics Will Include:

· An overview of the history of the DOL rule;
· The substance of the rule;
· The exemptions;
· Changes we’re already seeing in how broker dealers interact with clients and organize their offerings;
· What we can expect in terms of future challenges and changes to the rule;
· Legal liability and potential litigation.

The webinar will discuss the current state of fintech services in the US, including state licensing requirements, bank partnership arrangements, and the potential for special purpose bank charters at both the state and federal levels.

The presenters will also discuss the benefits and potential difficulties of these arrangements. Finally, the discussion will touch on fintech enhancements to existing bank services, including distributed ledger technology. Topics will include:

•An update on the state of fintech services;
•Lending and payments models;
•Bank partnerships;
•State licenses;
•Bank Charters;
•True Lender; and
•Madden.

After the 2016 decline in the number of US initial public offerings (IPOs), commentators questioned whether the trend toward companies deferring listings and remaining private longer would be a new norm.

Already this year’s IPO market appears to be rebounding. During the session, the presenters will discuss:

• Whether cross-over (or late stage) private rounds still remain an important milestone on the road to the IPO;
• US IPO activity (sectors, VC- and PE-backed companies, foreign private issuer activity, syndicate structures);
• Disclosure and governance trends among IPO issuers;
• Dual track processes and the legal and business considerations;
• Multiple share classes; and
• Other developments.

The end of 2016 saw the publication of the US Federal Reserve Bank’s final TLAC rules and the European Commission’s legislative proposals for the implementation of TLAC into the Bank Recovery and Resolution Directive and Capital Requirements Regulation in the EU. We will discuss the details of these rules and proposals and their effect on both future capital raisings by banks and existing stocks of bank debt, including:

• MREL subordination requirements and the effect of jurisdictional differences;
• Key cross-Atlantic differences in TLAC;
• Eligibility of different products, including structured notes;
• Recent TLAC/MREL issuances; and
•The resolution process for GSIBs.

We will provide an update on cross-border derivative issues including recent developments in the US and the EU. Among the topics to be considered are:

An update on the rollout of the margining rules relating to uncleared derivatives in both the US and the EU;

Ongoing implementation of clearing requirements for OTC derivatives;

What is the current position in relation to exchange trading of derivatives – in particular, what effect will Mifid II have in the EU?

Where are we on substituted compliance/equivalence as between the US and the EU?

Will Brexit and/or the new Trump administration have any effect on the international framework for derivative regulation?

Traditionally, most public companies in the US were organised as C-corporations. However, tax developments in recent years have given corporate planners a wide range of new tools to structure a public company. For example, tax pass-through MLP and Reit structures are spreading into new asset classes. Also, traditional double taxed ‘C’ corporations are using tax pass-through entities, including partnerships, to reduce or eliminate entity-level taxes as well as optimise their internal structures with tax ‘disregarded entities’. These new tools lead to a variety of tax choices in deciding how to structure a public company.

During this briefing, which is intended for a general audience, the speakers will explain the structures, restrictions and pitfalls in this evolving hybrid world of C-corporations mixed with tax pass-throughs. Specifically, they will discuss:

•Master limited partnerships;
•Reits and alternative assets that may qualify as ‘real estate’;
•Business development companies;
•Consolidated groups of corporations and disregarded entities; and
•Up-C structures.

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IFLR Women in Business Law Group members are invited to join a webinar on Communicating with Impact. Topics include:
•The ‘psychology’ of being heard
•The ‘double bind’ stereotypes of female communication
•The essential rules of getting your point across
•Establishing your presence
•Influencing others to get the results you want

The cross-border private placement market has continued to grow, providing non-US issuers with an opportunity to raise capital from US and European financial institutions. This market, which has seen incredibly robust activity this past year, has continued to attract issuers across a myriad of industries and from multiple worldwide jurisdictions. These issuers seek to, among other things, diversify their funding sources or supplement their bank lending, lengthen their existing debt profile, refinance acquisition debt or finance certain single-asset projects. In this webinar, speakers will discuss:

•The global private placement market and recent trends;
•Market participants;
•Documentation requirements for traditional and structured transactions;
•Financial covenants, "MFLs" and model form provisions;
•New Issuers using the market (social housing trusts, universities, investment trusts, etc);
•Marketing process with Agented and "direct" Private Placements; and
•Ratings and the NAIC.

Foreign banks are increasingly looking to diversify their financing options. With careful planning, they can access US investors without subjecting themselves to the securities registration requirements applicable to public offerings, or the ongoing disclosure and governance requirements applicable to US reporting companies. This webinar will explain how non-US banks can pursue these funding avenues. Topics of discussion will include:

•Issuances exempt from registration under Rule 144A;
•Issuances that rely on registration exceptions provided by Securities Act Section 3(a)(2) for securities offered or guaranteed by banks;
•Setting up a Rule 144A or bank note program for straight debt;
•Issuing contingent capital or other securities convertible into equity upon the occurrence of a non-viability event;
•Yankee CD programmes; and
•Banking and securities regulatory requirements to consider before setting up an issuance program.

Speakers:

Anna Pinedo, Partner, Morrison & Foerster
Bradley Berman, Of Counsel, Morrison & Foerster
Tom Young, Managing editor, IFLR

Volatile capital markets and the rapidly changing financial landscape make it important for issuers to recognise changes quickly and adjust their financing strategies accordingly.

For example, for an issuer that contemplated an IPO or is in the IPO queue, it is important to become familiar with other financing alternatives, such as venture debt or late-stage or mezzanine debt, as well as institutional equity private placements. Each of these markets is quite different. Familiarity with investor expectations and documentation requirements is essential in order to put your company in the best position to make crisp decisions. For issuers that already have their securities listed on a non-US securities exchange, which may offer limited liquidity, it may be time to consider undertaking a US IPO in order to establish a more liquid market for their securities. Already public companies considering their next capital raise also must be nimble - a PIPE transaction may be an attractive (and available) financing alternative. During this session, the speakers will discuss:

•Current market conditions;
•Financing alternatives for pre-IPO companies;
•The market for venture debt;
•The late-stage (or cross-over) private placement market;
•Options to consider on the way to an IPO;
•The ReIPO™
•Financing alternatives for recently public companies; and
•PIPE transactions and other financing alternatives.

The webinar's speakers will be:

-Geoffrey Goodman, managing director, equity capital markets, Wells Fargo
-Gregory Ogborn, director, equity capital markets, Wells Fargo
-Brian Maier, vice chairman, Wells Fargo
-Anna Pinedo, partner, Morrison & Foerster
-James Tanenbaum, partner, Morrison & Foerster

As jurisdictions continue to move forward with strategies for resolving large banking organisations, recent turmoil in relation to European bank stocks has raised questions as to how markets will react to the initiatives and perceived differences between them. This webinar will take stock of comparative bank resolution regimes and the stated strategies of the resolution authorities under those regimes. We will also look at ‘pre-emptive’ measures such as structural changes and changes to the terms of bank instruments. From a market point of view, we will also discuss the effect that the above factors, the possibility of bail-in, and the need to raise TLAC/MREL/PLAC, will affect the market for bank capital and debt instruments as well as other banking transactions.

Speakers
Oliver Ireland, Morrison & Foerster
Jeremy Jennings-Mares, Morrison & Foerster
Doncho Donchev, Crédit Agricole Corporate and Investment Bank
Tom Young, IFLR

There has been much demand from the US financial services industry for a Cayman Islands LLC and the establishment of this product solidifies the Cayman Islands' commitment to providing sponsors, promoters and investors with flexible, commercial solutions.

The Cayman Islands LLC will be very similar to a Delaware limited liability company with some subtle differences that make it an attractive investment fund or structuring vehicle.

This webinar will provide:
• a practical overview of the Cayman LLC regime;
• a useful comparison to the current Delaware LLC law; and
• tangible tax benefits investors can expect as result of this new product.

Presented by: Melissa Lim, Walkers; Len Lipton, GlobeTax; and Nick Pettifer, IFLR