October 2008


FASB Statement No. 157

In recent months advocates of fair value accounting have been challenged by groups that blame fair value accounting for exacerbating the credit crises (by requiring banks to lower valuations of certain assets, including illiquid assets such as mortgage backed securities).  The following is a chronological summary of key developments in the ongoing controversy pertaining to fair value measurements as prescribed under FASB Statement No. 157.

  • September 30, 2008 – The SEC issued 2008-234, which acknowledges that the SEC is examining the difficulties of applying fair value accounting in the current market environment and jointly provides (with FASB) interim guidance pending further anticipated interpretive guidance from FASB on FASB Statement 157, Fair Value Measurements.
  • October 3, 2008 – The Emergency Economic Stabilization Act of 2008 (EESA) is signed into law.  EESA reaffirms the SEC’s authority to suspend application of fair-value measurement as set forth in FASB Statement 157 for any issuer or with respect to any class or category of transaction it determines is in the public interest and is consistent with the protection of investors. The Act also requires the SEC, in consultation with Treasury, to conduct a study on mark-to-market accounting standards as they apply to financial institutions, including depository institutions. The SEC is to submit to Congress a report of such study before the end of the 90-day period beginning on the date of the enactment of the Act.  The report will include findings and administrative and legislative recommendations.
  • October 10, 2008 – FASB Issues FSP FAS 157-3;  This FASB Staff Position (FSP) clarifies the application of FASB Statement No. 157, Fair Value Measurements, in a market that is not active and provides an example to illustrate key considerations in determining the fair value of a financial asset when the market for that financial asset is not active.
  • October 13, 2008 – The American Bankers Association (ABA) writes to the SEC sharply criticizing FASB, FSP FAS 157-3, and requesting, among other things, that the SEC exercise its statutory authority to override FSP FAS 157-3 and to provide guidance regarding “other than temporary impairments”.
  • October 15, 2008 – The Center for Audit Quality (CAQ), the CFA Institute, The Counsel of Institutional Investors and the Consumer Federation of America write to the SEC in opposition to the requests of the ABA.
  • October 20, 2008 – FASB and The International Accounting Standards Board (IASB) announce coordinated approach to enhance market confidence.
  • October 21, 2008 – ABA president Edward Yingling testified before a House Financial Services Committee, criticizing the SEC’s existing oversight of FASB and calling for a new accounting oversight board over FASB.
  • October 27, 2008 – The Financial Accounting Foundation (FAF) wrote to the SEC defending FASB, FSP FAS 157-3, rejecting calls to overturn FAS 157 and opposing any changes to the accounting standards process outside of FASB’s open due process (without political interference).



Fannie Mae / Freddie Mac Proposed Rule – Lower Risk Weights

On October 7, 2008, the federal bank and thrift regulatory agencies announced a proposed rule that would allow banks to assign a 10% risk weight to claims on, and portions of claims guaranteed by, Fannie Mae (FNMA) and Freddie Mac (FHLMC).  Claims include all credit exposures, such as senior and subordinated debt, and counterparty credit risk exposures, but do not include preferred or common stock.

The agencies believe reducing the risk weight (from 20%) is appropriate in light of the financial support the Treasury Department announced in September. Comments must be received by November 26, 2008.



H.R. 7242 – Proposed Updates to IRC Section 101(j)

Introduced in the House on October 2, 2008, H.R. 7242 would make technical corrections to the Pension Protection Act of 2006. However it does make a few changes to IRC Section 101(j), which was of course part of the PPA. One change is adding a new paragraph to the section regarding notice and consent. In essence consent and notice requirements will be found to be satisfied if met not later than 90 days after the later of the date of contract issuance or the date the applicable policyholder first becomes the owner of the contract. It also added 5-percent owners among exceptions based on insured’s status which currently include directors and highly compensated employees.

The bill, if enacted, will provide some needed clarifications.  For example, employers who may still be awaiting responses from selected employees to notification and consent communications, will no longer have to wait for all responses before closing (i.e., for fear that they might taint the entire transaction).  Policies applied for covering those employees who, within 90 days after the close, return proper affirmative documentation, may be retained.  Conversely, policies covering employees who fail to return a response or who reject being covered during the succeeding 90 day period, presumably may be rescinded within that period without invalidating the broader program.

By replacing the prior language defining highly compensated employees …” is, at the time the contract is issued” with …”during the current or preceding year”, the bill expands who may be insured without endangering compliance.

While these changes are welcome, it should be noted that the bill fails to address some areas still in need of clarification (e.g., how long after an employer receives conforming, written consent from an employee may it initiate a purchase or exchange?).

The bill was referred to the House Education and Labor committee on October 2, 2008.


H.R. 6049 – Energy Improvement and Extension Act of 2008

The Energy Improvement and Extension Act of 2008 is likely to be enacted. It is a voluminous piece of legislation that amends the Internal Revenue Code to extend and modify expiring provisions related to energy production and conservation and to provide for revenue enhancements. The costs of the bill would primarily be offset by eliminating the benefits of deferred taxation on compensation payable to certain offshore corporations, such as hedge funds managers. The bill would be effective with respect to fees for services rendered December 31, 2008 and also would apply to amounts deferred for services performed before 2009 to the extent the amounts are not otherwise included in taxable income prior to 2018.

The bill, if enacted, will have a negative impact on non-qualified deferred compensation plans covering certain offshore corporations, including hedge fund managers. The bill passed the House in May 2008 and then the Senate in September.


H.R. 7266 – Derivatives Market Reform Act

The Derivatives Market Reform Act was reintroduced by Representative Edward Markey (D-MA). The new measure is the fourth round for the bill (Markey initially introduced the legislation in 1994, and again in 1995 and 1999) with the latest version calling for the creation of a framework to improve supervision and regulation of the unregulated derivatives dealers and for certain reporting requirements for hedge funds. While hedge funds tend to play a limited role in COLI and BOLI policies, the bill, if enacted, would impact these investments. The bill was referred to the House Committee on Financial Services on October 3, 2008.


S.B. 2450 – Federal Rule of Evidence 502

New Federal Rule of Evidence 502 was signed into law on September 19, which limits attorney-client privilege and work product waivers. In addition to adding clarity to some grey areas in evidence rules, the law also attempts to reduce the exorbitant costs (both time and money spent) associated with reviewing documents for privilege. It also provides a new rule to provide relief for some unintentional productions (if the privilege-holder took reasonable steps to both prevent disclosures in the first place and rectify the error).

While it would be nice to scale back costs related to document reviews, it may be unwise to relax the review process in reliance of this rule alone. It applies to all proceedings commenced after its enactment date and to all proceedings pending that date if “just and practicable”. There may also be some constitutional problems with some of the provisions that make federal privilege rules binding on state courts.



State Regulators to Examine Insurer’s Securities Lending

The New York State Insurance Department has announced that their regulators will be looking into insurers’ lending practices. It is also likely that other states will be reviewing insurers’ lending focusing on the insurers’ ability to manage the risk of lending securities to third parties. In the case of AIG, the Federal Reserve Board has agreed to take the place of third party borrowers that do not have the liquidity to provide cash collateral.


Ad Hoc LRA – October 7, 2008

ILM 200840043 – Investor Control Doctrine Interpretation

On October 3rd, the Internal Revenue Service released Internal Legal Memorandum 200840043 (ILM) expressing a troubling interpretation regarding the “investor control” doctrine applicable to variable insurance products. While ILM’s are not official precedent, they may offer insight as to how the Service may seek to apply doctrine prospectively.