November 2015


Federal Reserve Approves Rule to Modify Capital Plan and Stress Testing Rules

On November 25, the Federal Reserve Board approved a final rule to modify its capital plan and stress testing rules. The final rule is largely similar to the proposed rule that we reported on in our July LRA update. Noteworthy elements include:

  • Delaying implementation of supplementary leverage ratio to the 2017 cycle;
  • Removing the requirement to calculate the tier 1 common ratio (because the common equity tier 1 ratio will be fully phased in and generally requires more capital); and
  • Delaying indefinitely the use of the Advanced Approaches RWA in the stress testing process.

All changes in the final rule apply as of January 1, 2016, which is the beginning of the next capital planning and stress test cycle.



Ongoing Litigation Update – JPMorgan’s Notice of Supplemental Authority in Further Support of Its Motion to Dismiss

On November 30, JPMorgan Chase Bank, N.A. (JPMC) submitted to the District Court (PA-W.D.) a notice of supplemental authority in further support of its motion to dismiss the Third-Party Complaint. According to the notice, on November 19, a district court in Arkansas dismissed JPMC from an unrelated matter for lack of personal jurisdiction based on an application of the same Supreme Court precedent and legal principles, to the same entity sued, and with regard to the same type of putative contacts.

This is an update to the ongoing litigation between First National Bank of Pennsylvania (FNB PA) and Transamerica Life Insurance Company and Clark Consulting, for which the defendants have sought to add JPMC as a Third-Party Defendant. The underlying controversy stems from the surrender proceeds that FNB PA received upon the surrender of a separate account BOLI program that it had inherited via an acquisition of a community bank. FNB PA asserts that it should have received the full, reported cash surrender value. Transamerica asserts that FNB PA was not entitled to a so-called enhancement amount by virtue of the policyholder being changed in connection with the M&A activity. Transamerica further asserts that the amount in controversy has arisen solely as a result of JPMC’s decision that it (as a stable value provider) was not obligated to pay the enhancement amount.

In August, the Court issued an order allowing each party to submit a supplemental brief by August 26. Both parties did so; the Court has yet to rule on the Motion to Dismiss.



NYDFS Considers Cybersecurity Regulations for Financial Institutions

On November 9, the NY Department of Financial Services (NYDFS) sent a letter to various federal and state regulators announcing that it is considering new cybersecurity regulations for financial institutions. The letter makes clear that the NYDFS welcomes collaboration and regulatory convergence on this subject matter.

Below are a few noteworthy elements of the letter:

  • Third-Party Service Provider Management – Each covered entity would be required to implement and maintain policies and procedures to ensure the security of sensitive data or systems that are accessible to, or held by, third-party service providers. Importantly, the letter identifies “minimum preferred terms to be included in contracts” with third-party service providers.
  • Multi-Factor Authentication – The NYDFS believes that cybersecurity regulations should address the use of multi-factor authentication for certain access credentials.
  • Audit Requirements – Each covered entity would be required to conduct annual penetration testing, quarterly vulnerability assessments, and maintain an audit trail system that logs privileged access to critical systems, protects log data from alteration, protects hardware from tampering and logs system events.

The letter invites feedback from the regulatory recipients; however, it doesn’t outline an anticipated course of action by the NYDFS.