Memorandum
Dodd-Frank Reconsidered: The Financial CHOICE Act 2.0
April 26, 2017

On April 26, 2017, the House Financial Services Committee held hearings on the Financial CHOICE Act, a
proposal that aims to reverse many features of the landmark Dodd-Frank Wall Street Reform and Consumer
Protection Act of 2010 (“Dodd-Frank”). The bill—sometimes referred to as the “CHOICE Act 2.0”—is thesecond version of a reform bill that was introduced last summer by Committee Chairman Jeb Hensarling (RTX).
The CHOICE Act 2.0 would not repeal Dodd-Frank in its entirety, but it would make targeted changes tomany of the most controversial aspects of Dodd-Frank. Significantly, it would repeal the Volcker Rule, theDurbin Amendment and the authority of the Financial Stability Oversight Council to designate non-bankfirms as systemically important, as well as the “orderly liquidation authority” in Title II of Dodd-Frank(which would be replaced by new Bankruptcy Code provisions). The bill would also retain the signature “offramp” concept from the original bill, which would exempt qualifying banking organizations from a numberof capital, liquidity and other enhanced prudential supervision requirements.
The CHOICE Act 2.0 would also address a variety of other capital markets and corporate governancematters, repeal the Chevron doctrine of judicial deference to agency rule-making and interpretation, andintroduce a new procedure requiring affirmative Congressional approval for “major” rule-makings andproviding Congress the ability to vote to block other rule-makings.
Passage of the bill is uncertain, and it is likely that significant changes will be made, including during theCommittee’s markup process, which is expected to commence in early May. The final terms of the bill will
likely also be affected by the report regarding possible modifications to financial services regulations that theTreasury Department is required to finish by early June pursuant to President Trump’s February 3 executive
order.
This memorandum provides a high-level summary of certain key features of the CHOICE Act 2.0.

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Volcker Rule
The Volcker Rule, arguably one of the most controversial aspects of Dodd-Frank, would be repealed in its
entirety. Under the bill, the rule would be treated “as if . . . [it] had not been enacted.”“Off-Ramp” Relief For Qualifying Banking Organizations•

Election for “Off-Ramp” Relief. The bill would allow a qualifying banking organization(“QBO”) to elect to be exempt from risk-weighted capital requirements, liquidity requirements and avariety of other regulations if the QBO maintains an average non-risk weighted leverage ratio of atleast 10%. For banking organizations other than “traditional banking organizations” (which have no
trading assets or liabilities and not more than $8 billion notional amount of interest rate and foreignexchange swaps), this leverage ratio calculation would include off-balance sheet as well as onbalance sheet assets (calculated in the same manner as used by advanced approaches banks to
calculate their leverage exposure under the existing Basel III capital rules). For a depository
institution holding company making such an election, each of the holding company’s depository
institution subsidiaries must make the same election. While the CHOICE Act 1.0 would haverequired a QBO to have a composite CAMELS rating of 1 or 2 at the time of the election, theCHOICE Act 2.0 eliminated this CAMELS rating component for QBOs.


If a banking organization that has made a qualifying capital election fails to maintain a 10%
leverage ratio for the most recently completed calendar quarter, the banking organization
will be: (1) prohibited from making a capital distribution if its primary federal regulator
objects to such distribution; (2) required to submit a capital restoration plan to its primaryfederal regulator within three months; and (3) required to restore its leverage ratio to atleast 10% within one year.



If a banking organization fails to restore its leverage ratio to at least 10% within one year,
then the banking organization will lose all regulatory relief. In addition, if a banking
organization that has made a qualifying capital election fails to maintain a 6% leverage
ratio, then the banking organization will immediately lose all regulatory relief.

The term “banking organization” for purposes of the CHOICE Act 2.0 off-ramp would include aninsured depository institution, a depository institution holding company, a foreign banking
organization that is treated as U.S. bank holding company under the International Banking Act (byvirtue of maintaining a U.S. branch or agency or controlling a U.S. commercial lending company)
and a U.S. intermediate holding company of a foreign banking organization.
•

Regulatory Relief Following “Off-Ramp” Election. A banking organization making aqualifying capital election would be exempt from any federal law or regulation:

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liquidity standards developed by the Basel Committee);permitting a federal banking agency to block a capital distribution by the banking
organization (including rules permitting the Federal Reserve to block a capital distribution
if the Federal Reserve objects to an organization’s CCAR capital plan);

permitting a federal banking agency to consider the risk to the stability of the U.S. banking
or financial system (a standard added to various federal banking laws by Section 604 of
Dodd-Frank) when reviewing an application to consummate an acquisition or commence anactivity;providing limitations on mergers, consolidations or acquisitions of assets or control, to theextent the limitations relate to capital or liquidity standards or concentrations of deposits orassets; orimplementing the “enhanced prudential standards” provisions of Dodd-Frank (to the extent
not already covered by the above), including the governance and stress testing
requirements, resolution planning requirements, single-counterparty credit limits andshort-term debt limits.

A QBO would also be exempt from the Federal Reserve’s authority under Dodd-Frank to set more
stringent prudential standards for bank holding companies. In addition, a QBO would be exempt
from any prior notice requirement under Section 163 of Dodd-Frank, which currently requires abank holding company with assets of $50 billion or more to notify the Federal Reserve prior toacquiring ownership of any voting shares of a company (other than an insured depository
institution) that is engaged in financial activities and that has assets of $10 billion or more.

CCAR and Stress Testing
For banking organizations that are not QBOs, the bill would make several changes to the CCAR and stresstesting process.
•Only an annual company-run stress test would be required (mid-term stress tests would be
eliminated).

•

CCAR would change from an annual cycle to a two-year cycle.

•

The Federal Reserve would be prohibited from objecting to a capital plan on the basis of qualitative
deficiencies in a banking organization’s capital planning process.

•

The Federal Reserve would be required to have procedures for responding to inquiries from banking
organizations subject to CCAR, including procedures for establishing a time frame in which such
responses will be made.

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Living Wills
Section 165(d) of Dodd-Frank requires certain financial institutions to submit resolution plans, or “living
wills,” to the Federal Reserve and the FDIC, which have joint authority to review and determine whether
such plans are credible. Under the bill, the FDIC’s role in evaluating living wills would be eliminated. The
bill also makes changes to the submission and review procedures for living wills. Bank holding companies
subject to resolution planning requirements would need to submit living wills only once every two years. In
addition, the Federal Reserve would be required to review and provide feedback within six months ofreceiving a living will, and it would also have to disclose the framework used to assess the adequacy of living
wills.

“Too Big to Fail” and Bank “Bailout” Related Provisions•

Repeal of Orderly Liquidation Authority. Title II of Dodd-Frank, which established aframework for the resolution of systemically important financial companies and gave the FDIC
expanded resolution powers, would be repealed in its entirety. In its place, there would be a new
subchapter of the Bankruptcy Code specifically designed to address the failure of large, complex
financial institutions.

•

Curtailment of Emergency Authorities. The bill would further curtail the Federal Reserve’s
emergency lending authority under Section 13(3) of the Federal Reserve Act. In addition, it would
eliminate the FDIC’s authority to establish a “widely available” guarantee program during times ofsevere economic distress, prohibit the use of the Exchange Stabilization Fund to establish aguarantee program for any nongovernmental entity, and repeal the “systemic risk” exception to therequirement that the FDIC resolve insured depository institutions on a “least cost” basis.

Financial Stability Oversight Council and Related Changes•

Non-Bank SIFI Designation Authority Repealed. The authority of the Financial Stability
Oversight Council (“FSOC”) to designate non-bank financial companies as systemically importantfinancial institutions (“SIFIs”) would be repealed retroactively. The bill also would retroactively
repeal all designations of certain payments and clearing organizations as systemically importantfinancial market utilities (“FMU”).


The bill would also repeal Dodd-Frank’s “Hotel California” provision, originally aimed atGoldman Sachs and Morgan Stanley, which provides that any company that was a bankholding company with more than $50 billion of assets as of January 1, 2010 and thatreceived TARP assistance will be treated as a non-bank financial company supervised by theFederal Reserve even if the company subsequently ceases to be a bank holding company.

•

Non-Bank SIFI Supervision Authority Repealed. In connection with the repeal of the
FSOC’s authority to make systemic risk designations, the bill would strip the Federal Reserve of its
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Memorandum – April 26, 20175authority to supervise and set regulations for designated non-bank financial companies. The billwould also repeal the application of several restrictions to such non-bank financial companies,
including:management interlock restrictions;

Section 163 of Dodd-Frank, which requires prior notice to the Federal Reserve for theacquisition of shares of any company with assets of $10 billion or more that is engaged infinancial activities; andSection 14 of the Bank Holding Company Act, which was added by Section 622 of DoddFrank and restricts “financial companies” (including non-bank financial companies
supervised by the Federal Reserve) from engaging in certain M&A transactions if the total
consolidated liabilities of the acquirer would, on a pro forma basis, exceed 10% of theaggregate consolidated financial sector liabilities.

In addition, the bill would repeal the Federal Reserve’s authority under Section 121 of Dodd-Frankto limit M&A activity, impose restrictions on product offerings or terminate certain activities of abank holding company with assets of $50 billion or more, or a non-bank financial company subject
to Federal Reserve supervision, on the basis that such institution poses a “grave threat” to U.S.
financial stability.
•

Less Authority, More Transparency and Other Changes. The FSOC itself would not be
eliminated, but it would be substantially weakened. In addition to no longer being able to makenon-bank SIFI and FMU designations, its authority to recommend enhanced prudential standards
and reporting and disclosure requirements for large, interconnected bank holding companies would
be repealed. It would also be subject to heightened transparency and open-meeting requirements,
as well as limited funding ($4 million for fiscal year 2017, for example) subject to the Congressional
appropriations process. Its membership would be broadened to include each member of theFederal Reserve Board, the FDIC, the SEC and the CFTC, among others. The FSOC would no longer
benefit from any research or studies of the Office of Financial Research, which would be eliminated.

Consumer Financial Protection Bureau•

Restructuring. The Consumer Financial Protection Bureau (“CFPB”) would be restructured,from an independent bureau within the Federal Reserve System to an executive agency, andrenamed the Consumer Law Enforcement Agency (“CLEA”). The CLEA’s Director and Deputy
Director would be appointees removable by the President at will. Funding would be subject to theCongressional appropriations process (in contrast, the CFPB is currently funded out of earnings ofthe Federal Reserve System).

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A More Limited Mandate. The CLEA would have significantly less authority than the CFPB has
under current law.
In a significant break with the CFPB’s current mandate, the CLEA would not havesupervision authority.



Its authority to prescribe rules to implement federal consumer protection laws would be
limited in several ways, including by requiring the CLEA to consider the impact of a
proposed rule on the financial safety and soundness of an insured depository institution.



Before initiating any administrative enforcement actions or civil lawsuits or entering into a
consent order, the CLEA would be required to consider a cost-benefit analysis of suchactions.



The CLEA would have no authority exercise any rulemaking, enforcement or otherauthority with respect to payday loans, vehicle title loans or other similar small-dollar loans.



The CLEA would have no authority to take any action against unfair, deceptive or abusive
acts and practices, so-called “UDAAP” authority. Instead, the bill would transfer theauthority to prevent unfair or deceptive acts or practices—so-called “UDAP” authority—by
depository institutions back to the federal banking regulators.

•

Auto Lending Guidance and Arbitration Matters. The CFPB’s prior indirect auto lending
guidance (Bulletin 2013-02) would be nullified. In addition, the CFPB’s authority to restrict predispute arbitration would be repealed.

•

Advisory Opinions. The bill would establish an advisory opinion procedure whereby inquiries
could be made concerning the conformance of specific conduct with federal consumer financial
laws. The Director would generally be required to respond within 90 days of a request for an
opinion.

Securitization Risk Retention Requirements
The bill would remove the risk retention requirement mandated by Section 941 of Dodd-Frank, which
generally requires sponsors of asset-backed securities (“ABS”) to retain at least 5% of the credit risk relating
to the assets that underlie such asset-backed securities, for all ABS securitizations other than non-qualified
residential mortgage securitizations.

Mortgage and Other Financing Related Reforms•

Codification of “Valid When Made” Doctrine. The bill would provide that a loan thatcomplies with applicable usury limits when made will remain valid with respect to its interest rate
regardless of whether the loan is subsequently sold or transferred, and may be enforced by thebuyer or transferee notwithstanding any state law to the contrary. This would essentially invalidate
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the ruling in Madden v. Midland Funding, LLC, which held that a non-bank entity taking
assignment of debts originated by a national bank is not entitled to protection under the National
Bank Act from usury claims under state law.
•

Mortgage Lending on Manufactured Housing. The bill would clarify that a retailer of amanufactured home is not a “mortgage originator” for purposes of the Truth in Lending Act(“TILA”) unless the retailer receives compensation for engaging in mortgage loan application or
negotiation activities. The bill would also amend the definition of a “high-cost mortgage” forpurposes of the Home Ownership and Equity Protection Act by modifying the interest rate andpoints-and-fees thresholds with respect to manufactured housing mortgages. In particular, the billwould increase the maximum loan amount for “high cost” manufactured housing mortgages from
$50,000 to $75,000, increase the interest rate threshold for “high cost” manufactured housing
mortgages from 8.5% to 10% over the average prime rate, and add a points-and-fees threshold of 5%
or $3,000 (whichever is greater) with respect to manufactured housing mortgages of less than
$75,000.

•

Points and Fees Included in “High-Cost Mortgage” Calculation. The bill would modify thecalculation of points and fees for purposes of the “high-cost mortgage” rule by excluding escrowcharges for insurance and fees retained by a creditor or its affiliate in connection with an affiliatedbusiness transaction.

•

More Flexible Lending Standards for Non-Qualified Mortgages. The bill would create asafe harbor from TILA’s “ability to repay” requirements, homeownership counseling requirements
and prohibition against prepayment penalties for non-qualified mortgage loans that are kept on adepository institution’s balance sheet and that comply with the prepayment penalty limitations
applicable to qualified mortgages. The bill would also allow mortgage loan originators to steer
customers from a qualified mortgage to a non-qualified mortgage if the lender is a depository
institution and has informed the mortgage originator that it intends to hold the loan on its balance
sheet for the life of the loan.

•

Small Bank Mortgage Lending Compliance Relief. For any mortgage lender with $10 billion
or less in total assets, the bill would create a safe harbor from TILA’s requirement that a mortgage
lender establish an escrow account for the payment of taxes and insurance premiums prior to theclosing of a mortgage loan, provided that the mortgage lender holds the loan on its balance sheet fora three-year period beginning on the date of the origination of the loan. The bill also would require
the CLEA to provide regulatory exemptions from certain escrow requirements under the Real Estate
Settlement Procedures Act for mortgage loan services that service 20,000 or fewer mortgage loans
annually.

•

Transitional Mortgage Loan Licensing. For registered loan originators who were employees
of a depository institution and transition to a non-bank state-licensed mortgage company, the bill
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would provide a 120-day grace period from state licensing requirements applicable to loan
originators.
•

Loan and Borrower Reporting Requirements. The bill would exempt a depository
institution from the Home Mortgage Disclosure Act reporting and recordkeeping requirements withrespect to closed-end mortgage loans and open-end lines of credit if the depository institution
originated less than 100 of such mortgage loans and less than 200 of such lines of credit in each of
the two preceding years. The bill would also repeal the recordkeeping requirements under the
Equal Credit Opportunity Act with respect to women-owned, minority-owned and small businesses.

Other Key Bank Regulatory Reforms•

Durbin Amendment. Dodd-Frank’s Durbin Amendment, which set price controls forinterchange fees on debit card transactions, would be repealed entirely.

•

Small Bank Holding Company Policy Statement. The bill would require the Federal Reserve
to increase the asset threshold for application of its Small Bank Holding Company Policy Statementfrom $1 billion to $5 billion, thereby permitting a greater number of community banking
institutions to finance the acquisition of banks or other companies with debt levels higher thanwould be permitted for larger holding companies.

•

Customer Account Closures. The bill would prohibit a federal banking agency from formally or
informally requesting or ordering a depository institution to terminate customer accounts, orotherwise restricting depository institutions from maintaining a banking relationship with acustomer, unless the agency has a material reason, based on something other than reputational risk,
to do so. This provision is in response to the Department of Justice’s “Operation Choke Point,” inwhich the DOJ reportedly applied pressure to financial institutions to restrict financial services tocustomers in particular industries.

•

Bank Exam Reform. The bill would reform the examination process for financial institutions byrequiring the federal banking agencies to issue timely final examination reports, conduct timely exit
interviews following an examination, and provide supporting information for any material
supervisory determination upon request. The bill would also create a new “Office of Independent
Examination Review” with the authority to conduct independent reviews of the examination
practices, reports and supervisory determinations of the federal banking agencies.

•

Federal Savings Association Charter Flexibility. The bill would allow federal savings
associations to elect, upon 60 days’ prior notice to the OCC, to be subject to the same rights,
privileges, duties and restrictions as a national bank. This would seem to exempt electing federalsavings associations from, among other things, certain asset-based limitations such as those

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Memorandum – April 26, 20179applicable to a federal savings association’s holdings of commercial and consumer loans, unsecured
construction loans, and non-residential real property loans.

Incentive-Based Compensation Requirements
The bill would repeal Section 956 of Dodd-Frank, which requires the major banking and financial regulators
to jointly issue regulations or guidelines that prohibit certain kinds of incentive-based payment
arrangements by financial institutions (broadly defined to include banking organizations, broker-dealers andinvestment advisers) that have $1 billion or more in assets. In April 2016, the banking and financial
regulators had re-proposed incentive-based compensation rules to implement Section 956 of Dodd-Frank,
more than five years after the rules were initially proposed. Regardless of whether the CHOICE Act 2.0 is
ultimately enacted, it seems unlikely that such incentive-based compensation rules will become effective.

Investment Management and Advisory Related Reforms•

DOL Fiduciary Rule. The bill would repeal the fiduciary rule finalized by the Department ofLabor (“DOL”) in April 2016, which expanded the scope of financial service providers treated as
fiduciaries under both the Employee Retirement Income Security Act of 1974 and Section 4975 of
the Internal Revenue Code by reason of providing investment advice to retirement plans andindividual retirement accounts.
The bill would further restrict the DOL from issuing any other similar regulations until atleast two months after the SEC issues a final rule relating to the standards of conduct for
brokers, dealers and investment advisers pursuant to Section 913 of Dodd-Frank. Any DOL
rule issued after this two-month period would need to be substantially identical to the SEC’s
rule regarding what constitutes fiduciary investment advice, and impose standards of careon fiduciaries substantially identical to those imposed by the SEC on brokers, dealers orinvestment advisers.



Before the SEC would be permitted to issue a final rule to implement Section 913 of DoddFrank, the bill would require the SEC to report to the House Financial Services Committee
and Senate Banking Committee regarding the impact that a uniform fiduciary standard for
brokers, dealers and investment advisers would have on retail investors and their access topersonalized and cost-effective investment advice.

•

Private Equity Fund Adviser Exemption. The bill would exempt investment advisers to
private equity funds from registration under the Investment Advisers Act of 1940, at least withrespect to the provision of advisory services to private equity funds, which registration obligation
was largely a result of Dodd-Frank. In connection with that exemption, the SEC would be required
to adopt rules that would define the term “private equity fund” for these purposes and require
advisers to such funds to adhere to limited recordkeeping and reporting requirements. Given the
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expansion of business lines by many private equity firms, among other factors, it is unclear if the
exemption from registration would significantly reduce the number of SEC-registered private equity
advisory firms.
•

Expansion of BDC Authority. The bill would amend the Investment Company Act of 1940 (the“1940 Act”) to significantly expand the range of eligible investments for business development
companies (“BDCs”) and allow BDCs to increase leverage beyond current statutory limits if certain
conditions are met. The bill would also lift a 1940 Act restriction on investments in registeredinvestment advisers by BDCs. Additionally, BDCs would be allowed to invest up to 50% of theirassets in companies relying on certain exemptions from the definition of “investment company”
under the 1940 Act, including finance companies, banks and financial intermediaries. The billincludes a variety of other measures that would facilitate offerings including by eliminating theexclusion of BDCs from the definition of “well-known seasoned issuer.”

SEC Reporting and Governance Reforms•

Shareholder Thresholds for Registration and Deregistration. The bill would promoteprivate company flexibility and growth by amending the shareholder thresholds for registration andderegistration under the Exchange Act.


Section 12(g) of the Exchange Act. Currently, companies must register under Section 12(g)if they have over $10 million in assets and either at least 2,000 holders of record or 500
holders of record that are not accredited investors. The bill directs the SEC to index the $10
million dollar figure for inflation every 5 years and strikes the 500 holders registration
requirement. The bill would also allow deregistration under Section 12(g) if the issuer files acertification that its holders of record are reduced to less than 1,200 persons, as opposed tothe current 300 person threshold.

Section 15(d) of the Exchange Act. Currently, companies are required to file periodic
reports with the SEC if they have an effective registration statement pursuant to the
Securities Act. The duty to file is automatically suspended if the securities to which theregistration statement relates are held of record by fewer than 300 persons. The bill would
amend this threshold to 1,200 persons.

•Shareholder Proposals. The bill includes a number of provisions related to shareholder
proposals, including:Eligibility to Submit a Shareholder Proposal. Under Exchange Act Rule 14a-8, ashareholder is eligible to submit a shareholder proposal for inclusion in the company’s
proxy materials if such shareholder has “continuously held at least $2,000 in market value,
or 1%, of the company’s securities entitled to be voted on the proposal at the meeting for at
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Memorandum – April 26, 201711least one year” by the date the shareholder submitted the proposal. The bill would
eliminate the option to satisfy the holding requirement by holding a fixed dollar amountand instead require that the shareholder hold at least one percent of the company’s
securities entitled to be voted on the proposal or such greater percentage as the SEC may
determine. The bill would also increase the holding period requirement from one year to
three years.


Shareholder Proposal Resubmission Thresholds. Under Rule 14a-8, if a shareholder
proposal relates to substantially the same subject matter as a proposal included in theissuer’s proxy materials within the previous five calendar years, it may be excluded from thecompany’s proxy materials for any meeting held within three calendar years of the last time
it was included, if the proposal received (1) less than 3% of the vote if proposed once within
the preceding five calendar years; (2) less than 6% of the vote on its last submission toshareholders if proposed twice previously within the preceding five calendar years; or (3)less than 10% of the vote on its last submission to shareholders if proposed three times ormore within the preceding five calendar years. The bill would amend these resubmission
thresholds to 6%, 15%, and 30%, respectively.

Prohibition of Shareholder Proposals by Proxy. In addition to modifying eligibility andresubmission thresholds for shareholder proposals, the bill would amend Section 14 of the
Exchange Act by providing that “[a]n issuer may not include in its proxy materials ashareholder proposal submitted by a person in such person’s capacity as a proxy,
representative, agent, or person otherwise acting on behalf of a shareholder.”•Say-on-Pay Frequency. Under Section 14A(a) of the Exchange Act, an advisory shareholder voteto approve the compensation of executives is required “not less frequently than once every 3 years.”
The bill would strike this language and instead make say-on-pay resolutions required “each year inwhich there has been a material change to the compensation of executives of an issuer from theprevious year.” The bill would also remove the current provision of Section 14A(a) that requires
issuers to present a separate resolution to shareholders at least once every six years to determine
whether say-on-pay votes should be held every one, two, or three years.

•

Restriction on Recovery of Erroneously Awarded Compensation. Section 10D of the
Exchange Act, added by Dodd-Frank, requires the national securities exchanges to establish listing
standards requiring each issuer to implement a policy that, in the event the issuer is “required toprepare an accounting restatement due to the material noncompliance of the issuer with any
financial reporting requirement under the securities laws, the issuer will recover from any current
or former executive officer of the issuer who received incentive-based compensation . . . during the
3-year period preceding the date on which the issuer is required to prepare an accounting
restatement, based on the erroneous data, in excess of what would have been paid to the executive
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officer under the accounting restatement.” The bill would amend this provision by restricting it tosituations “where such executive officer had control or authority over the financial reporting that
resulted in the accounting restatement.”•

Repeal of Various Dodd-Frank Provisions. The bill would repeal various provisions in Titles
IX and XV of Dodd-Frank. The most notable among these are provisions requiring:

pay ratio disclosure;

the disclosure of employee and director hedging policies;disclosures regarding chairman and CEO structures;

conflict minerals disclosure;

disclosures regarding coal or other mine safety; andthe disclosure of payments by resource extraction issuers.

The bill also would repeal the Dodd-Frank provision permitting the SEC to require proxy access.
•Prohibition on Requiring a Universal Ballot. The bill would modify Section 14 of the
Exchange Act by adding that the SEC may not require that a proxy or consent solicitation in anelection of directors be made using a single ballot that lists the names of both management anddissident nominees and permits shareholders voting by proxy to select from among individuals inboth groups.

•

Internal Control Evaluation. Under Section 404 of the Sarbanes-Oxley Act, each annual reportof a public company must contain an internal control report that, among other things, contains
management’s assessment of the effectiveness of the internal control structure and procedures of
the issuer for financial reporting. The registered public accounting firm that prepares or issues theaudit report for the issuer is required to attest to, and report on, this assessment.


Small Issuer Exemption. The bill would provide an exemption from the auditor attestation
requirement for any issuer with a total market capitalization of under $500 million or any
issuer that is a depository institution and has less than $1 billion in assets.



Temporary Exemption for Low-Revenue Issuers. Under current law, an issuer that is an
emerging growth company (“EGC”) no longer qualifies as an EGC on the last day of its fiscal
year following the fifth anniversary of the date of its first public sale of common equity
securities. At that time, it would be subject to the auditor attestation requirement. The billwould allow issuers with average annual gross revenues of less than $50 million to continue
to take advantage of the EGC exemption from the auditor attestation requirement until theearliest of (1) the tenth anniversary of the first sale of registered common equity securities,

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Memorandum – April 26, 201713(2) the end of a fiscal year during which the average annual gross revenues of the issuer
exceeds $50 million or (3) when the issuer becomes a large accelerated filer.
•

Exemption from XBRL Requirements for Emerging Growth Companies and Other
Smaller Companies. Under the bill, EGCs and issuers with total annual gross revenues of lessthan $250 million, would be exempt from the requirements to use eXtensible Business Reporting
Language (“XBRL”) for their financial statements and other periodic reports, though they would
still be permitted to voluntarily use XBRL for such reporting. The bill would also require the SEC
to:

conduct an analysis of the costs and benefits to issuers with total annual gross revenues ofless than $250 million of the requirements to use XBRL; andprovide a report to Congress on the results of this analysis, as well as the SEC’s progress in
implementing XBRL reporting and the use of XBRL data by SEC officials and investors.

Proxy Advisory Firms•

Registration Requirement. The bill would amend the Exchange Act to require proxy advisory
firms to register with the SEC. The bill would require each proxy advisor registrant to include in its
application for registration, among other things, “the procedures and methodologies that theapplicant uses in developing proxy voting recommendations.” The bill would also require all
information and documents submitted to the SEC by each proxy advisory firm in its completed
application to be made publicly available.

•

Censure of Proxy Advisory Firms. The bill would empower the SEC to censure, suspend or
revoke the registration of any registered proxy advisory firm in specified circumstances.

•

Prohibited Conduct by Proxy Advisory Firms. The bill would require the SEC to issue rules
addressing, among other things, potential conflicts of interest relating to the offering of proxyadvisory services, including with respect to offering consulting or other services.

•Management of Conflicts of Interest. The bill would require each proxy advisory firm toestablish, maintain, and enforce written policies to manage any conflicts of interest arising from its
business. The SEC would be required to issue rules addressing, among other things, potential
conflicts of interest relating to the offering of proxy advisory services, including with respect tooffering consulting or other services.

•

Reliability of Proxy Advisory Firm Services. The bill would require each proxy advisory firm
to have staff sufficient to produce proxy voting recommendations that are based on accurate andcurrent information. Proxy advisory firms would also need to have procedures permitting
companies receiving proxy advisory firm recommendations to access the draft recommendations
within a reasonable time, and would need to provide such companies an opportunity to comment on
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the proxy advisory firm’s recommendations. Each proxy advisory firm would also be required to
employ an ombudsman to receive complaints about the accuracy of voting information used in
making recommendations and to resolve such complaints in a timely fashion.
•

Information to be Reported to the SEC. The bill would require each proxy advisory firm to filewith the SEC:financial statements and any other information concerning its financial condition as
required by the SEC, at intervals set by the SEC;an annual report with regard to the prior fiscal year on the number of shareholder proposals
its staff reviewed, the number of recommendations made, the number of staff who reviewed
and made recommendations on such proposals, and the number of recommendations madewhere the proponent of such recommendation was a client of or received services from theproxy advisory firm; andthe firm’s methodology for the formulation of proxy voting policies and voting
recommendations, which the proxy advisory firm must also make publicly available.

Capital Markets Related Reforms–Registered Offerings•

Testing the Waters and Confidential Submissions. The Jumpstart Our Business Startups
Act (the “JOBS Act”) included provisions permitting EGCs to “test the waters” (i.e. engage in oral or
written communications with potential investors that are qualified institutional buyers or accredited
investors) prior to the filing of a registration statement (or at any time thereafter). This allowed
EGCs to determine investor interest early in the initial public offering process. The bill would
enable all issuers, not just EGCs, to engage in “testing-the-waters” communications.


The JOBS Act permitted EGCs to confidentially submit draft registration statements to the
SEC for review. The bill would allow all issuers contemplating an initial public offering totake advantage of this confidential nonpublic review process, subject to the requirementthat the initial confidential submission and all amendments thereto be publicly filed with
the SEC not later than 15 days before the date on which the issuer conducts a road show.

•

S-3 Eligibility. Consistent with the objective to accelerate access to capital, the bill contains
certain provisions to expand eligibility for use of Form S-3. The bill does not address F-3 eligibility
for foreign issuers.
The bill would expand the eligibility for registering primary offerings for cash on Form S-3
to registrants so that the transactional requirements for use of Form S-3 would be satisfied
not only where the aggregate market value of the voting and non-voting common equity
held by non-affiliates of the registrant is $75 million or more but also where the registrant
has at least one class of common equity securities listed and registered on a national
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Memorandum – April 26, 201715

securities exchange.
The bill would expand the eligibility for registering certain limited primary offerings on
Form S-3 to registrants that do not have at least one class of common equity securities listed
and registered on a national securities exchange. Currently, non-shell companies that wish
to conduct sales of no more than one-third of their aggregate market capitalization may notregister such offerings on Form S-3 unless they already have common equity securities
listed and registered on a national securities exchange.

•

Elimination of Automatic Disqualification as a WKSI. Under current rules certain “badacts” and judicial or administrative decrees or orders arising out of governmental action affecting an
issuer or its subsidiaries may result in that issuer becoming an “ineligible issuer” under Rule 405 of
the Securities Act. Ineligible issuers automatically lose well-known seasoned issuer (“WKSI”) status
for three years, and consequently become barred from conducting registered securities offerings
using an automatic shelf registration statement even if they would otherwise be eligible. Typically,issuers becoming subject to a government enforcement action of this type also negotiate with the
SEC for a waiver of the “ineligible issuer” designation. The bill would provide that SEC orgovernment enforcement actions or settlements would no longer result in individuals and entities,
including WKSIs, being subject to automatic disqualification as an ineligible issuer.

Capital Markets Related Reforms–Unregistered Offerings•

Accredited Investors. The bill would amend the definition of “accredited investor” under the
Securities Act to reflect, among other things, the net worth and income tests currently codified inRegulation D under the Securities Act, with a directive to the SEC to inflation-adjust the net worth
threshold every 5 years. The bill would conform the definition of “accredited investor” in Section
2(a)(15) of the Securities Act to components of the definition of “accredited investor” currently set
forth in Rule 215 and Rule 501 under the Securities Act.
In addition, the bill would expand the “accredited investor” definition to include (i) any
natural person who, by reason of their net worth or income, is an accredited investor under
Rule 215 under the Securities Act (as in effect on the day before the date of enactment of
this provision of the bill), (ii) any natural person who is currently licensed or registered as a
broker or investment adviser by the SEC, the Financial Industry Regulatory Authority(“FINRA”), or an equivalent self-regulatory organization, or the securities division of a Stateor the equivalent State division responsible for licensing or registration of individuals inconnection with securities activities and (iii) any natural person the SEC determines, byregulation, to have demonstrable education or job experience to qualify such person as
having professional knowledge of a subject related to a particular investment, and whose
education or job experience is verified by FINRA or an equivalent self-regulatory
Simpson Thacher & Bartlett LLP

Memorandum – April 26, 201716organization. In addition, pursuant to a proposed change to Rule 501(a), a “knowledgeable
employee” of a private fund or the fund’s investment adviser would also be an “accredited
investor” for purposes of a Regulation D offering of a private fund with respect to which theperson is a knowledgeable employee.
•

Regulation D Private Placement Improvements. The bill would allow companies greater
flexibility in conducting offerings in reliance on the safe harbor under Rule 506 of Regulation D forthe private offering exemption of Section 4(a)(2) of the Securities Act. For example, in offerings
solely to accredited investors, issuers would not have to submit written general solicitationmaterials to the SEC. In addition, issuers would not be required to file Form D notices except for asingle notice of sales containing the information required by Form D no earlier than 15 days after
the date of the first sale of securities.

•

Increase in Amounts Permitted under Rule 701. Rule 701 under the Securities Act exempts
companies from certain disclosure requirements (including financial statements) in securities
offerings to employees pursuant to compensatory benefit plans or compensation-related contracts
so long as the aggregate sales price or amount of securities sold during any consecutive 12-month
period does not exceed $5 million. The bill would revise Rule 701 to increase the threshold from $5
million to $20 million and index the amount for inflation every 5 years.

•

Regulation A+ Exemption. Section 3(b) of the Securities Act exempts certain small issues fromregistration. In particular, if the aggregate offering amount offered and sold within the prior 12month period does not exceed $50 million, then such securities are covered by the exemption fromregistration provided by Regulation A promulgated under this section of the Securities Act. Under
the JOBS Act, Regulation A was expanded into what has become known as Regulation A+ with a
two-tiered approach, but the $50 million threshold remained. The bill would increase the thresholdfrom $50 million to $75 million, adjusted for inflation every 2 years.

•

Crowdfunding, Venture Exchanges, Micro Offerings. The bill would exempt crowdfunding
securities from registration under Section 12(g) of the Exchange Act, among other measures to ease
crowdfunding restrictions. In addition, the bill provides for the establishment of venture exchanges
to facilitate the sale of the securities of EGCs or “early-stage, growth companies” and would exempt
such venture exchanges from compliance with certain national security exchange regulations. The
bill would also add a safe harbor under Section 4 of the Securities Act for certain micro offerings inwhich purchasers have substantive pre-existing relationships with the issuer, there are 35 or fewer
purchasers and the offering amount does not exceed $500,000.

•

Swaps Between Affiliates. The bill would generally exempt swaps between consolidated
affiliates from SEC and CFTC regulation, and impose only certain reporting and risk management
requirements if at least one counterparty is a swap dealer or major swap participant.
Simpson Thacher & Bartlett LLP

Memorandum – April 26, 201717

Regulatory Process Reform•

Congressional Review and Approval of Agency Rulemaking. Before any rule issued by afederal financial agency may take effect, the agency would need to publish a list of information onwhich the rule is based (including any studies or cost-benefit analyses), and submit to Congress andthe U.S. Comptroller General a complete cost-benefit analysis of the rule (including an analysis of
the rule’s impact on jobs and small businesses).


Any rule that would be likely to result in (1) an annual economic impact of at least $100
million, (2) a major increase in prices for consumers or costs for businesses, government
agencies, or geographic regions, or (3) significant adverse effects on competition,
employment, investment, productivity, innovation, or international competitiveness would
be classified as a “major rule.”

Any such “major rule” would not be permitted to take effect unless it is approved by a joint
resolution of Congress within 70 days of the agency’s cost-benefit report. If the rule does
not obtain Congressional approval within 70 days, it could not be reconsidered until thenext Congress.

A “major rule” would be permitted to take effect for one 90-day period, upon written
determination by the President, to enforce criminal laws, to implement an international
trade agreement, or for reasons of national security and other emergencies.

•

Tailoring Regulatory Actions to Relevant Institutions. The bill would require the federalbanking agencies to appropriately tailor regulatory actions to fit an institution or class ofinstitutions in a manner that limits compliance cost and impact, including by considering the risk
profile and business models of the institutions subject to the regulatory action and the necessity ofapplying the regulatory action to those institutions. The bill would also require the federal banking
agencies to report annually to the House Financial Services Committee and Senate Banking
Committee regarding the specific actions taken to appropriately tailor regulatory actions, and to
conduct a look-back review of all regulations adopted in the last five years to determine whether
such regulations are sufficiently tailored.
With respect to capital requirements for non-QBOs in particular, the CHOICE Act 2.0
would prohibit the federal banking agencies from establishing any risk capital requirements
unless such requirements are appropriately tailored to the risk posed by a bank’s current
activities and businesses, based on a forward-looking assessment of such risk, and permit
capital adjustments based on mitigants to such risk.

•

Agency Appropriations. The bill would subject funding for several financial agencies to theCongressional appropriations process, including the Federal Housing Finance Agency, the National
Credit Union Administration, the FDIC, the OCC, the CLEA (formerly the CFPB), and the functions
Simpson Thacher & Bartlett LLP

Memorandum – April 26, 201718of the Federal Reserve not related to monetary policy (including its bank regulatory and supervisionfunctions). These agencies would be directed to collect fees and assessments to offset Congressional
appropriations. As noted above, funding for FSOC would also be subject to the Congressional
appropriations process.
•Repeal of Chevron Deference. The Chevron doctrine, requiring judicial deference to agency
interpretations, would be statutorily repealed by requiring de novo judicial review of all relevant
legal interpretations and rules made by an agency.

•

Federal Reserve Oversight. The bill includes several provisions that would increase
Congressional and public oversight over the Federal Reserve. The Federal Reserve and each of theReserve Banks would be subject to an annual audit by the U.S. Comptroller General, and the
Chairman of the Federal Reserve would be required to testify before Congress quarterly (as opposedto the current semi-annual requirement). Meetings of the Federal Open Markets Committee would
be recorded and full transcripts would be available to the public as a matter of law, not custom.
Finally, Federal Reserve staff would be subject to financial disclosure requirements, as well asfederal prohibitions related to outside employment and activities to the same extent as suchprohibitions apply to employees of the SEC.

•

Oversight of International Accords. The federal financial agencies and the Treasury
Department would be required to provide public notice before participating in international
standard-setting processes, and to report on any such international standard-setting processes afterparticipating. The agencies would also need to consult with the House Financial Services and
Senate Banking Committees on any agreements that may result from international processes.

Insurance Related Reforms
The bill would establish a new Independent Insurance Advocate within the Treasury Department, which
would consolidate and replace FSOC’s independent member with insurance expertise and the Federal
Insurance Office (“FIO”).
•

The Insurance Advocate would have the authority to coordinate U.S. federal efforts on prudential
aspects of international insurance matters and to participate on the Financial Stability Board andwith the G20 on insurance matters.

•

The Insurance Advocate would have a duty to “observe” (rather than “monitor”) the insurance
industry, and would not have FIO’s current ability to collect data from insurance firms (instead, itwould need to rely on state insurance supervisors and other agencies for its data).

Simpson Thacher & Bartlett LLP

Memorandum – April 26, 201719

For further information about this memorandum, please contact one of the following.

FINANCIAL INSTITUTIONS PRACTICE

CAPITAL MARKETSLee A. Meyerson+1-212-455-3675
lmeyerson@stblaw.com

John D. Lobrano+1-212-455-2890
jlobrano@stblaw.com

Keith A. Noreika+1-202-636-5864
keith.noreika@stblaw.com

Joshua Ford Bonnie+1-212-455-3986
jbonnie@stblaw.com

Mark Chorazak+1-212-455-7613
mchorazak@stblaw.com

William R. Golden+1-202-636-5526
wgolden@stblaw.com

Spencer A. Sloan+1-212-455-7821
spencer.sloan@stblaw.com

Teresa Chen
+1-212-455-7217
teresa.chen@stblaw.com

PUBLIC COMPANY ADVISORY PRACTICE

Natalie Karam+1-202-636-5868
natalie.karam@stblaw.com

Yafit Cohn
+1-212-455-3815
yafit.cohn@stblaw.com

INVESTMENT MANAGEMENT
Rajib Chanda+1-202-636-5543
rajib.chanda@stblaw.com
Christopher P. Healey+1-202-636-5879

christopher.healey@stblaw.com

The contents of this publication are for informational purposes only. Neither this publication nor the lawyers who authoredit are rendering legal or other professional advice or opinions on specific facts or matters, nor does the distribution of thispublication to any person constitute the establishment of an attorney-client relationship. Simpson Thacher & Bartlett LLP
assumes no liability in connection with the use of this publication. Please contact your relationship partner if we can be ofassistance regarding these important developments. The names and office locations of all of our partners, as well as ourrecent memoranda, can be obtained from our website, www.simpsonthacher.com.

Simpson Thacher & Bartlett LLP

Memorandum – December 10, 2014

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