Regulatory Recap - September 2016

Recent Key Developments

  • ASIC released Regulatory Guide 256, its guide to review and remediation of financial advice
  • ASIC released its Corporate Plan 2016-17 to 2019-20

  • CFPB fined Wells Fargo $100 million for secretly opening unauthorised accounts

Australia

  • ASIC's Corporate Plan outlined where it is investing its recent funding injection, unveiling a broad range of new surveillance activities, including projects relating to home loan fraud and breach reporting practices within the big four banks: > read more See also HDY's summary here

  • ASIC released Regulatory Guideline 256, its guide to review and remediation conducted by advice licensees seeking to remediate clients who have suffered loss or detriment as a result of misconduct or other compliance failure: > read more See HDY's summary here

  • Australian Small Business and Family Enterprise Ombudsman announced that it would undertake an inquiry into the adequacy of the law to address concerns raised by the Parliamentary Joint Committee on Corporations and Financial Services in its report, Impairment of Customer Loans, in relation to the banks' treatment of small business customers: > read more

  • ASIC announced that a number of large Australian banks would refund customers over $50 million in total, in relation to credit card fees, unclear fee disclosures and non-compliance with responsible lending obligations: > read more > read more > read more > read more

  • Parliamentary Joint Committee on Corporations and Financial Services will consider whether the life insurance industry needs further reform and better oversight by regulators, in a report due by 30 June 2017: > read more

  • RBA released its corporate plan for 2016-2017, with an overview of its key functions and purposes and the strategy it will implement to achieve them: > read more

  • Australian Council of Superannuation Investors released a report on CEO remuneration, opining that the decline in remuneration is a result of the two-strikes rule, which has seen boards engage with shareholders prior to the publication of remuneration reports and framework, in order to address investor and community concern about excessive pay: > read more

  • ASIC released the results of its review of interest-only home loans arranged via mortgage brokers, finding that over the past year, the proportion and value of interest-only home loans arranged by ADIs has decreased. ASIC also identified that mortgage brokers have higher rates of compliance with responsible lending obligations than lenders (based on a review of lenders in 2015): > read more

  • PF2 published a report about short-termism and its impact on corporate culture in the finance industry, noting how financial incentives drive a short-term vision that affects long-term financial performance. The report examines how this mindset contributed to the corporate collapses that caused the GFC and considers how organisations can take a more holistic approach to creating culture and long-term value: > read more

  • ASIC reported on its review of marketing of IPOs to retail investors, highlighting areas of concern (including the use of social media strategies) and providing ASIC's recommendations to improve marketing practices for IPOs in the future: > read more

International

United Kingdom

  • Financial Ombudsman is still receiving over 3,000 complaints per week in relation to payment protection insurance: > read more
  • FCA conducted a review of mortgage lenders' treatment of financially vulnerable customers, including how to identify them, mitigation strategies to assess the impact of interest rate rises and development of strategies for communicating with financially vulnerable customers: > read more 
  • FCA analysed transaction data and concluded that, contrary to popular belief, liquidity in the UK's corporate bond markets is not declining, perhaps due to banks reacting to costlier capital with less proprietary trading. However this has not, in turn, affected their market making activity in such a way as to impact liquidity: > read more

United States

  • Consumer Financial Protection Bureau fined Wells Fargo Bank USD100 million for its "widespread" illegal practice of secretly opening over 2 million unauthorised deposit and credit card accounts, charging customers USD5 million in fees and allowing bank officers to boost their performance. Wells Fargo has terminated 5,300 employees as a result of this practice and will refund customers and pay an additional USD85 million in other penalties: > read more
  • Wells Fargo announced that it would eliminate sale goals for all retail banking products as a result of the incident, with a view to reinforcing its service culture: > read more
  • SEC announced that its enforcement action from whistleblower tips had resulted in USD500 million in financial remedies, with the SEC's awards to whistleblowers surpassing USD100 million: > read more
Scott Atkins

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

Scott Atkins Partner

Scott is the Chair of our Board and an internationally renowned insolvency and restructuring lawyer. He is an inaugural Fellow and a member of the Board of INSOL International. Scott is also Vice President of the Australian Restructuring Insolvency and Turnaround Association (ARITA).

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 the Group Leader of Henry Davis York's Corporate Group, which includes the legal teams for Corporate / Mergers & Acquisitions; Investments & Financial Services and Tax.

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

John is a leading lawyer in both financial sector dispute resolution (complex and regulatory) and corporate insolvency and restructuring, with a particular specialty in cross-border insolvencies. He is recognised by his clients, peers and legal directories as a leader in his field.
 

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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Claudine Salameh Partner

Claudine has over 15 years' experience dealing with legal issues in the financial services sector.

She is a banking and insolvency litigator and regulatory expert. She acts for the major Australian financial institutions in matters involving customer disputes and litigation, fraud, regulatory and compliance issues, regulatory investigations, inquiries and enforcement matters, security enforcement and insolvency litigation. 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. She 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 has been instrumental in working with clients to provide insights into the field of behavioural economics, which over the past few years, has been of interest to policy makers and regulators as a tool to engage in 'choice architecture'. On a practical level, Claudine has worked closely with clients to design approaches to customer engagement that make use of behavioural insights.   

Claudine is an expert in the conduct of review and remediation programs and provided assistance to the regulator, by way of submissions and her involvement in an industry working group, on ASIC's regulatory guide on review and remediation programs.

Claudine is very familiar with ASIC's powers to obtain documents and information from financial institutions and is called upon by financial institutions to provide assistance in these matters. She has a style that is conducive to having a fruitful dialogue with both the regulator and the various stakeholders within a financial institution.

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