Regulatory Recap - November 2016

Recent Key Developments

  • House of Representatives Standing Committee on Economics released its first report on its review of the major banks
  • President-elect Donald Trump foreshadowed that he may dismantle the Dodd-Frank Act
  • ASIC is working with other regulators to understand developments in their jurisdictions and help innovative entrepreneurs to expand their target markets into other jurisdictions

Australia

  • House of Representatives Standing Committee on Economics released its first report on its review of the major banks. Its recommendations include public reporting of significant regulatory breaches (including the names of relevant senior executives and the consequences that they faced), continual monitoring of competition in Australia's banking sector and the creation of a data sharing framework for consumers and small business data: > read more
  • ABA released an industry guideline on how banks can support their customers manage financial abuse and family and domestic violence: > read more
  • Federal Government agreed to new federal whistleblower laws, to apply to the public and corporate sectors, making it easier for whistleblowers to expose corporate wrongdoing without fear of ramifications like termination or financial penalties: > read more
  • Minister for Revenue and Financial Services introduced legislation to Parliament mandating professional standards for financial advisers. The new professional standards regime will commence on 1 January 2019 and will increase the training, education and ethical standards of financial advisers, including requiring new advisers entering the industry to hold a relevant degree: > read more
  • ASIC Commissioner John Price spoke about conduct risk, what ASIC is doing about it and what digital disruption means for risk and compliance: > read more
  • ASIC Chairman Greg Medcraft spoke about fintech opportunities and risks in cross-border innovation at two international risk conferences in Singapore: > read more and more
  • ASIC Chairman Greg Medcraft demonstrated ASIC's focus on increasing its data capabilities with a speech about how data and AI can be used to drive better customer outcomes: > read more
  • ASIC took steps to ensure consumers are not charged direct debit fees when taking out a small amount loan: > read more
  • ASIC's investigation led to Cash Converters agreeing to refund $10.8 million to consumers who received small amount loans, pursuant to the terms of an enforceable undertaking. Cash Converters also paid a $1.35 million penalty. ASIC's investigation found that Cash Converters failed to make reasonable inquiries into consumers' income and expenses: > read more
  • ASIC is working with other regulators to understand developments in their jurisdictions and help innovative entrepreneurs to expand their target markets into other jurisdictions. It recently announced agreements with regulatory bodies in Kenya, Ontario, the UK  and Singapore
  • ASIC accepted voluntary undertakings from two registered liquidators, requiring them to engage independent experts to improve their firm's compliance culture and review three of their external administrations to assess compliance with liquidators' duties and obligations: > read more
  • APRA released a guidance paper about risk culture, outlining their approach to risk culture and supervisory priorities. APRA's initiatives include providing more guidance to industry, holding bilateral discussions with institutions' senior executives and directors and conducting on-site reviews at individual institutions focussing on risk culture. It will also review industry remuneration practices: > read more

    International

    United Kingdom

    • FCA released its Mission Paper, vowing to focus on better and clearer regulation and pledging to intervene to protect particularly vulnerable customers, including pensioners: > read more
    • FCA issued a guidance consultation on the fair treatment of mortgage customers in payment shortfall. The guidance covers remediation for mortgage customers who may have been affected by firms including their payment shortfall balance within their contractual monthly instalments, effectively capitalising the shortfall: > read more

      United States

    • President-Elect Donald Trump foreshadowed that he may dismantle the Dodd-Frank Act and replace it with "new policies to encourage economic growth and job creation", as well as weakening the reach of the Consumer Financial Protection Bureau: > read more
    • SEC's charges against JPMorgan Chase & Co led to the firm paying more than US$264 million in sanctions. The charges related to JPMorgan's asian subsidiary's client referral hiring program, which engaged in bribery by hiring children of government officials and clients in return for business rewards, in breach of the Foreign Corrupt Practices Act: > read more
    • SEC announced an award of more than $20 million to a whistleblower who provided information that enabled the SEC to initiate enforcement action against a corporate wrongdoer. It was the third-largest award since the SEC's whistleblower program began issuing awards. Payments are made out of a whistleblower protection fund established by Congress that is financed through monetary sanctions paid to the SEC by securities law violators: > read more

Our Regulatory Risk + Strategy Team​

Scott Atkins

I'm unapologetically determined and fearless. I pursue excellence. Always.

Scott Atkins Partner

Scott is a trusted adviser to Australia's leading banks and insolvency and restructuring practitioners and has acted on some of the industry's most complex and sensitive banking and insolvency advisory and dispute resolution matters.

Prior to joining HDY, Scott practiced for 7 years as in-house counsel with Commonwealth Bank Group. He is now our Client Relationship Partner for the CBA Group. He is also the co-leader of our cross-border insolvency practice and our regulatory enforcement practice. Scott is recognised by his peers for his leading expertise in cross-border insolvency, acting on both inbound engagements in Australia and advising Australian clients on outbound engagements in the USA, UK, Cayman Islands, Hong Kong and The Netherlands, among other jurisdictions.

Scott was the Australian delegate on the Advisory Committee on Comparative Law established by the American Bankruptcy Institute as part of its Commission to Study the Reform of Chapter 11 of the US Bankruptcy Code. This resulted in a landmark report for the reform of Chapter 11.

He is a published author on insolvency and cross-border insolvency. Most recently, Scott was one of the Australian contributors to the 2015 publication 'International Contributions to the reform of Chapter 11 U.S. bankruptcy code' which is volume 2 of the European and International Insolvency Law Studies series. He also authored the Australian chapter of Avoidance of Antecedent Transactions and Cross-Border Insolvency (INSOL International). Among other publications, he is the co-author, together with Professor Rosalind Mason, of the Australian chapter of Look Chan Ho's leading text: Cross-Border Insolvency: Cases and Materials (Kluwer International).

Scott is a visiting lecturer on cross-border insolvency at the University of Sydney in its undergraduate and postgraduate law programs lead by Professor John Stumbles.

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Nikki Bentley

I understand the financial services industry and thrive on helping our clients in this industry succeed.

Nikki Bentley Partner

Nikki is a leading investment funds advisor specialising in financial services and corporate law.  She specialises in business establishment and structuring, fund establishment, funds merger and acquisition, product disclosure and distribution. Nikki leads HDY's corporate group which combines expertise from the Financial Services, M&A and Tax areas.

Nikki provides advice to leading Australian and global fund managers on a full range of corporate, commercial and regulatory issues facing their businesses. She has considerable experience in assisting clients with fund establishment (onshore and offshore), disclosure and distribution. Nikki regularly advises clients on establishing, buying, selling and restructuring their businesses. She also regularly assists clients responding to regulatory enquiries and investigations.

With more than 15 years funds management experience in private practice, government and as an in-house lawyer, Nikki's practice spans the range of funds management products, with particular expertise in hedge funds, property funds and equities.

Nikki is regularly involved in industry and government discussions on regulatory reforms impacting the Australian funds management industry. Nikki is a passionate advocate for the development of a new corporate collective investment vehicle because of the opportunities it could provide to grow the funds management industry. She is the Honorary Legal Counsel and Chair of the Regulatory Committee for the Australian branch of the Alternative Investment Management Association (AIMA) and is a regular participant on the Financial Services Council (FSC) working groups.

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John Martin Partner

Domestically, John advises on large and complex insolvencies and assists in finding solutions for financial institutions with regulatory and other complex issues. His clients include several of Australia's major banks, as well as insolvency practitioners appointed to insolvent entities.

Internationally, John has advised in connection with insolvencies in England, Fiji, Bermuda, Cambodia, Cayman Islands, Brunei, and Norfolk Island. His cross-border experience includes acting for the liquidators of an insolvent bank, and various liquidators of insurance and reinsurance companies.

John is a recognised authority on insolvency issues, with articles published in media outlets such as The Australian Financial Review and the Insolvency Law Journal. He has presented at numerous domestic conferences as well as internationally in the US, England, South Africa, Singapore, Canada, New Zealand, and the Netherlands.

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Kathy Merrick

Having the trust of my clients means we work together to achieve the best outcome.

Kathy Merrick Partner

Kathy has been called upon to advise on many of Australia's major corporate disputes, collapses and investigations. Her clients include major corporations and financial institutions, directors, officers, accounting and professional services firms, administrators, liquidators, other corporate entities and individuals.

Kathy has extensive experience in the areas of insolvency, directors and officers duties, professional negligence claims, and regulatory and other investigations, representing parties whether as plaintiffs, defendants, investigators or the subject of investigation.

Kathy is a strong advocate for pro bono work and has played a lead role in developing our community and pro bono program.

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Anna Simmons

I deeply understand my client's business so I can offer insight and innovative solutions to achieve outcomes that count.

Anna Simmons Senior Associate

Anna's clients include banks and insolvency practitioners. She advises these clients on dispute resolution, regulatory compliance, enforcement strategies, receiverships, and liquidations.

Anna has extensive experience in advising on various aspects of debt recovery, insolvency and bankruptcy, creditors' remedies, general banking litigation, fraud disputes, misleading and deceptive conduct claims (including valuer negligence) and other forms of dispute resolution. She has worked on a large-scale remediation program, with a focus on regulator engagement.

Anna also presents and writes on insolvency, litigation and recovery matters.

As part of HDY's Pro Bono program, Anna volunteers at Redfern Legal Centre and MOSAIC, a specialist legal service that provides free legal advice to asylum seekers, refugees and newly arrived migrants. Anna is a member of HDYPride, the firm's LGBTIQ support network.

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Claudine Salameh Partner

Claudine is a banking and insolvency litigation and regulatory expert. She acts for the major Australian financial institutions in relation to matters involving customer disputes, fraud, regulatory and compliance issues, security enforcement and debt recovery. She also acts for insolvency practitioners in formal receiverships, voluntary administrations and liquidations.

Claudine is well known for her ability to manage risks posed by litigation and regulatory inquiries and investigations. She is particularly attuned to reputational and business risks.

Claudine is highly strategic and creative and is recognised by her clients for being able to achieve the perfect balance between legal arguments and commercial and practical outcomes.

Claudine is currently assisting a financial institution in a review and remediation scheme and in a large scale recovery matter against a religious organisation. She is also involved in advising financial institutions in relation to their compliance with regulatory obligations.

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Victoria Taylor Senior Associate

Victoria acts for the major banks as well as insolvency practitioners, distressed companies, creditors and professional trustees in relation to all aspects of corporate insolvency, general banking litigation and financial regulation.

Since joining HDY, Victoria has advised on high profile banking litigation and complex cross border recoveries.

She previously worked in London, where she spent a number of years specialising in commercial and insolvency related litigation and restructuring.

Victoria was recently an Australian contributor for the published text: International Contributions to the Reform of Chapter 11 U.S. Bankruptcy Code (Eleven Publishing).

Victoria is currently working as Senior Counsel on a large-scale remediation program for one of Australia's leading banks.

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