CFTC CHAIRMAN WETJEN MAKES STATEMENT ON BUDGET

FROM:  CFTC 

Acting Chairman Mark Wetjen Statement on CFTC Budget

January 14, 2014

Acting Chairman Mark Wetjen today made the following statement on the Commodity Futures Trading Commission’s (CFTC) budget in the omnibus appropriations bill:

“I am pleased that the House and Senate have agreed to an appropriations bill that includes $215 million for the CFTC,” Wetjen said. “This increase means the CFTC will be better equipped to fulfill our mission – ensuring the derivatives markets work for market participants and the public. This funding level is a step in the right direction, and we will continue working with Congress to secure resources that match our new responsibilities to provide oversight for the vast derivatives markets.”

SEC PRIORITIES FOR EXAMINATIONS IN 2014

FROM:  SECURITIES AND EXCHANGE COMMISSION 

The Securities and Exchange Commission today announced its examination priorities for 2014, which cover a wide range of issues at financial institutions, including investment advisers and investment companies, broker-dealers, clearing agencies, exchanges and other self-regulatory organizations, hedge funds, private equity funds, and transfer agents.

“We are publishing these priorities to highlight areas that we perceive to have heightened risk,” said Andrew J. Bowden, Director of the SEC’s Office of Compliance Inspections and Examinations.  “This document, along with our Risk Alerts and other public statements, help us to increase transparency, strengthen compliance, and inform the public and the financial services industry about key risks that we are monitoring and examining.”

The examination priorities address market-wide issues and those specific to particular business models and organizations.  The market-wide priorities include fraud detection and prevention, corporate governance and enterprise risk management, technology controls, issues posed by the convergence of broker-dealer and investment adviser businesses and by new rules and regulations, and retirement investments and rollovers.

Based on program area, the priorities include:

For investment advisers and investment companies -- advisers who have never been previously examined, including new private fund advisers, wrap fee programs, quantitative trading models, and payments by advisers and funds to entities that distribute mutual funds.

For broker-dealers -- sales practices and fraud, issues related to the fixed-income market, and trading issues, including compliance with the new market access rule
For market oversight -- risk-based examinations of securities exchanges and FINRA, perceived control weakness at exchanges, and pre-launch reviews of new exchange applicants.

For transfer agents -- timely turnaround of items and transfers, accurate recordkeeping and safeguarding of assets.

For clearing agencies designated as systemically important -- conduct annual examinations as required by the Dodd-Frank Act, and pre-launch reviews of new clearing agency applicants.

The priorities listed for 2014 are not exhaustive and may be adjusted throughout the year in light of ongoing risk assessment activities.  They were selected by senior exam staff and managers and other SEC divisions and offices in consultation with the chair and other commissioners, based on a variety of information and risk analytics, including:

Tips, complaints and referrals, including from whistleblowers and investors
Information reported by registrants in required filings with the SEC
Information gathered through examinations conducted by the SEC and other regulators
Communications with other U.S. and international regulators and agencies
Industry and media publications
Data maintained in third party databases
Interactions outside of examinations with registrants, industry groups, and service providers

FDIC AND FRB RELEASE PUBLIC SECTIONS OF RESOLUTION PLANS FOR LARGE BANK HOLDING COMPANIES

FROM:  FEDERAL DEPOSIT INSURANCE CORPORATION 

Agencies Release Public Sections of Resolution Plans

The Federal Reserve Board and the Federal Deposit Insurance Corporation (FDIC) on Friday made available the public portions of resolution plans for 116 institutions that submitted plans for the first time in December 2013, the latest group to file resolution plans with the agencies.

The Dodd-Frank Wall Street Reform and Consumer Protection Act requires that bank holding companies (and foreign companies treated as bank holding companies) with total consolidated assets of $50 billion or more and nonbank financial companies designated for enhanced prudential supervision by the Financial Stability Oversight Council periodically submit resolution plans to the Federal Reserve Board and the FDIC. Each plan must describe the company’s strategy for rapid and orderly resolution in the event of material financial distress or failure of the company, and include both a public and confidential section.

Companies subject to the resolution plan requirement filed their initial resolution plans on a staggered schedule. The 116 companies whose initial resolution plans were due by December 31, 2013, are those that generally have less than $100 billion in qualifying nonbank assets.

Two groups of institutions have already filed resolution plans. The first group, generally those bank holding companies with $250 billion or more in qualifying nonbank assets, submitted initial plans in July 2012 and their second annual plans in October 2013. The second group, generally those with $100 billion or more, but less than $250 billion, in qualifying nonbank assets, submitted their initial plans in July 2013. The group that was required to file their initial plans last month represents the third group of filers.

The public portions for the 116 companies’ resolution plans, as well as those of institutions that filed previously, are available on the Federal Reserve and FDIC websites.

In addition, the FDIC released the public sections of the recently filed resolution plans of 22 insured depository institutions. The majority of these insured depository institutions are subsidiaries of bank holding companies that concurrently submitted resolution plans. The insured depository institution plans are required by a separate regulation issued by the FDIC. The FDIC’s regulation requires a covered insured depository institution with assets greater than $50 billion to submit a plan under which the FDIC, as receiver, might resolve the institution under the Federal Deposit Insurance Act.

The public portions for the 22 covered insured depository institutions are available on the FDIC website.

Federal Reserve: http://www.federalreserve.gov/bankinforeg/resolution-plans.htm
FDIC: http://www.fdic.gov/regulations/reform/resplans/

SEC COMMUNICATIONS DIRECTOR LEAVING

FROM:  SECURITIES AND EXCHANGE COMMISSION 

The Securities and Exchange Commission today announced that Myron Marlin will be leaving the SEC after nearly five years as communications director, serving under chairs Mary Jo White, Elisse B. Walter, and Mary L. Schapiro.

Since joining the SEC in March 2009, Mr. Marlin coordinated communications strategy on a range of significant issues including the agency’s landmark policy of seeking admissions in certain enforcement settlements and major rulemakings stemming from the Dodd-Frank Act and the JOBS Act.

“Myron is an extraordinary professional and advisor,” said Chair White.  “His substantial knowledge of the agency, judgment, and keen sense of effective communications have been invaluable to me.  I will miss him and his counsel greatly.”

Mr. Marlin said, “It has been an incredible privilege for me to serve under three chairs and alongside so many talented and dedicated public servants who perform work that is so crucial to investors and our nation’s economic well-being.  I am honored to have been at the SEC during a period of such intense rulemaking, record enforcement activity, and regulatory reform.”

Prior to joining the SEC, Mr. Marlin worked for a communications consulting firm.  Previously as director of public affairs at the U.S. Department of Justice, he received the Edmund J. Randolph Award for outstanding service.  Prior to working at the Department of Justice, he was an associate at a law firm in New York.  Mr. Marlin received his undergraduate degree from the University of Michigan and his law degree from American University.

OFFICE OF MUNICIPAL SECURITIES ISSUES GUIDANCE FOR MARKET PARTICIPANTS

FROM:  SECURITIES AND EXCHANGE COMMISSION 

The Securities and Exchange Commission announced that its Office of Municipal Securities has issued interpretive guidance to address questions from market participants regarding the implementation of new final SEC rules requiring municipal advisors to register with the SEC.

The staff guidance, in the form of answers to frequently asked questions, or FAQs, covers topics including:

the advice standard, including the general information exclusion and the treatment of business promotional materials used by underwriters
the request for proposals-request for qualifications exemption
the exemption for independent municipal advisors
the exclusion for registered investment advisers
the underwriter exclusion, including engagements as underwriters
issuance of municipal securities and post-issuance advice
remarketing agent services
opinions by citizens in public discourse
the effective date of the final rules and the compliance period for using the final registration forms
State and local governments frequently use paid advisors to help them decide how and when to issue municipal securities and how to invest proceeds from the sales.  The 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act required these advisors to register with the SEC like other market intermediaries.  The SEC’s final rule was adopted in September 2013.  Presently, more than 1,100 municipal advisors are registered with the SEC under a temporary registration regime.  The SEC staff may provide periodic updates to the interpretive guidance issued today.

SEC FILES ACTIONS INVOLVING THE UNDERREPORTING OF THE COST FOR WALNUTS

FROM:  SECURITIES AND EXCHANGE COMMISSION 

The Securities and Exchange Commission ("Commission") filed separate actions against Diamond Foods, Inc. ("Diamond"), a San Francisco-based snack food company, and its former chief executive officer (CEO) Michael Mendes, and its former chief financial officer (CFO) Steven Neil for their roles in an accounting scheme to falsify walnut costs in order to boost earnings and meet estimates by stock analysts.

According to the Commission's complaints against former CFO Steven Neil and Diamond, which were filed in federal court in San Francisco, Neil directed the effort to fraudulently underreport money paid to walnut growers by delaying the recording of payments into later fiscal periods. In internal e-mails, Neil referred to these commodity costs as a "lever" to manage earnings in Diamond's financial statements. By manipulating walnut costs, Diamond correspondingly reported higher net income and inflated earnings to exceed analysts' estimates for fiscal quarters in 2010 and 2011. After Diamond restated its financial results in November 2012 to reflect the true costs of acquiring walnuts, the company's stock price slid to just $17 per share from a high of $90 per share in 2011.

Diamond Foods agreed to pay $5 million to settle the SEC's charges. Former CEO Michael Mendes, who allegedly should have known that Diamond's reported walnut cost was incorrect at the time he certified the company's financial statements, also agreed to settle charges against him. The SEC's litigation continues against Neil.

According to the Commission's complaints filed against Neil and Diamond, one of the company's significant lines of business involves buying walnuts from its growers and selling the walnuts to retailers. With sharp increases in walnut prices in 2010, Diamond encountered a situation where it needed to pay more to its growers in order to maintain longstanding relationships with them. Yet Diamond could not increase the amounts paid to growers for walnuts, which was its largest commodity cost, without also decreasing the net income that Diamond reports to the investing public. And Neil was facing pressure to meet or exceed the earnings estimates of Wall Street stock analysts.

The Commission alleges that while faced with competing demands, Neil orchestrated a scheme to have it both ways. He devised two special payments to please Diamond's walnut growers and bring the total yearly amounts paid to growers closer to market prices, but improperly excluded portions of those payments from year-end financial statements. Instead of correctly recording the costs on Diamond's books, Neil instructed his finance team to consider the payments as advances on crops that had not yet been delivered. By disguising the reality that the payments were related to prior crop deliveries, Diamond was able to manipulate walnut costs in its accounting to hit quarterly targets for earnings per share (EPS) and exceed estimates by analysts. For instance, after adjusting the walnut cost in order to meet an EPS target for the second quarter of 2010, Diamond went on to tout its record of "Twelve Consecutive Quarters of Outperformance" in its reported EPS results during investor presentations.

The Commission further alleges that Neil misled Diamond's independent auditors by giving false and incomplete information to justify the unusual accounting treatment for the payments. Neil personally benefited from the fraud by receiving cash bonuses and other compensation based on Diamond's reported EPS in fiscal years 2010 and 2011.

In a separate settled administrative proceeding filed today against former CEO Michael Mendes, the Commission found that Mendes should have known that Diamond's reported walnut cost was incorrect because of information he received at the time, and that he omitted facts in certain representations to Diamond's outside auditors about the special walnut payments. Mendes agreed to pay a $125,000 penalty to settle the charges without admitting or denying the allegations. Mendes already has returned or forfeited more than $4 million in bonuses and other benefits he received during the time of the company's fraudulent financial reporting.

The Commission's complaint against Diamond alleges that Diamond violated Section 17(a) of the Securities Act of 1933 ("Securities Act"), and Sections 10(b), 13(a), 13(b)(2)(A), and 13(b)(2)(B) of the Securities Exchange Act of 1934 ("Exchange Act") and Exchange Act Rules 10b-5, 12b-20, 13a-1, 13a-11, and 13a-13. Without admitting or denying the allegations, Diamond has consented to the entry of a permanent injunction against future violations of the relevant federal securities laws, and the imposition of a $5 million penalty.

The Commission's complaint against CFO Neil alleges that Neil violated Section 17(a) of the Securities Act, and Sections 10(b) and 13(b)(5) of the Exchange Act and Exchange Act Rules 10b-5, 13a-14, 13b2-1, and 13b2-2, and Section 304 of the Sarbanes-Oxley Act of 2002, and aided and abetted Diamond's violations of 13(a), 13(b)(2)(A), and 13(b)(2)(B) of the Exchange Act and Exchange Act Rules 12b-20, 13a-1, 13a-11, and 13a-13. The complaint against Neil seeks a permanent injunction, civil penalties, an officer and director bar, disgorgement plus prejudgment interest, and relief pursuant to the Sarbanes-Oxley Act of 2002.

The cease and desist order against CEO Mendes alleges that he directly violated Sections 17(a)(2) and (a)(3) of the Securities Act, Exchange Act Rules 13a-14, 13b2-1, and 13b2-2, and caused Diamond's violations of Sections 13(a), 13(b)(2)(A), 13(b)(2)(B), and Exchange Act Rules 12b-20, 13a-1, 13a-11, and 13a-13. Without admitting or denying the factual findings, Mendes has consented to the entry of a cease and desist order against committing violations of Sections 17(a)(2) and (a)(3) of the Securities Act, Exchange Act Rules 13a-14, 13b2-1, and 13b2-2, and causing Diamond's violations of Sections 13(a), 13(b)(2)(A), 13(b)(2)(B), and Exchange Act Rules 12b-20, 13a-1, 13a-11, and 13a-13, and the imposition of a $125,000 penalty. The Commission's order against Mendes noted that he already has returned to Diamond or has forfeited over $4 million in bonuses and other benefits he received during the time of the company's fraudulent financial reporting.

The Commission took into account Diamond's cooperation with the SEC's investigation and its remedial efforts once the fraud came to light. The penalties collected from Diamond and Mendes may be distributed to harmed investors if SEC staff determines that a distribution is feasible.