Friday, October 29, 2010

Banking and Financial Services/Criminal Process: FinCEN Issues Final Rule Transferring and Reorganizing Bank Secrecy Act Regs

On October 26, the Financial Crimes Enforcement Network (FinCEN) published in the Federal Register its final notice transferring and reorganizing the Bank Secrecy Act (BSA) regulations in 31 C.F.R. to a new chapter. The notice explains that the BSA regulations in the new chapter "are generally reorganized by financial industry. Moving the BSA regulations to a new chapter and organizing the chapter by financial industry creates a user-friendly way to find regulations applicable to a particular financial industry. This new organization within the new chapter also allows for the renumbering of the BSA regulations in a manner that makes it easier to find regulatory requirements than under the numbering system currently used in the existing regulations."

Thursday, October 28, 2010

Criminal Process: FinCEN Releases Identity Theft Study

On October 18, the Financial Crimes Enforcement Network (FinCEN) announced the release of a new study analyzing Suspicious Activity Reports (SARs) citing identity theft. According to FnCen, the study "shows while suspected cases of identity theft are on the rise, vigilant financial institution employees are reportedly rejecting over half of fraudulent vehicle or student loans facilitated by identity theft prior to funding." The report shows that the number of SARs characterized as identity theft increased 123 percent between 2004 and 2009 -- a substantially greater rate of increase than the rise of total SARs filed by depository institutions (89 percent during the same five years).

Antitrust Law/International Law: U.K. Announces Merger of Competition Regulators

On October 14, the United Kingdom Department for Business, Innovation and Skills announced proposals to strengthen competition regulation by merging the Competition Commission (CC) and the competition functions of the Office of Fair Trading (OFT) to form a single competition and markets authority. The OFT, the presumptive survivor of the proposed merger, issued a supportive statement by its Chief Executive, John Fingleton. A statement by Vince Cable, Secretary of State of the Department for Business, Innovation and Skills, explains the background and purpose of the proposed merger at greater length.

Intellectual Property/International Law: Canadian Federal Court Declares "One-Click" Order Method Patentable

On October 14, the Canadian Federal Court held, in, Inc. v. Canada (Attorney General), No. T-1476-09, that Amazon's "one-click" online ordering system was a "business method" that was patentable under section 2 of the Patent Act, R.S.C. 1985, c. P-4. In doing so, the Federal Court overruled a decision by the Canadian Patents Commissioner. Copies of the decision are available in English and French.

Tuesday, October 12, 2010

Criminal Process: U.S. Parole Commission Issues Proposed Rule Relating to Crack and Powder Cocaine Offenses

On October 8, the U.S. Parole Commission issued a proposed rule that would amend the Offense Behavior Severity Index in its paroling policy guidelines to equalize the ratings for crack cocaine and powder cocaine offenses. Comments may be submitted by the e-Rulemaking portal, or by mail or fax, but must be received by December 1, 2010.

Administrative Law (General): Cardozo Law Festschrift for Paul Verkuil

On October 18, Cardozo Law School in New York will conduct a day-long Festschrift for Paul Verkuil, who left the Cardozo faculty to serve as Chairman of the Administrative Conference of the United States. According to the Cardozo release, distinguished speakers will include Justice Stephen Breyer, Preeta Bansal of OMB, and 15 other distinguished legal scholars and practitioners (including former ABA Administrative Law Section Chairs Sally Katzen, Ron Levin, and Peter Strauss). The Cardozo Law Review reportedly will publish the Festschrift next year.

Friday, October 8, 2010

Securities, Commodities, and Exchanges: SEC Issues NPR on Asset-Backed Securities

On October 4, the Securities and Exchange Commission (SEC) issued a notice of proposed rulemaking to require issuers of asset-backed securities (ABS), and credit rating agencies that rate ABS, to provide investors with new disclosures about representations, warranties, and enforcement mechanisms. As the SEC release about the proposed rulemaking states, section 943 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank)requires the SEC to promulgate regulations on the use of representations and warranties in the ABS market by January 14, 2011, 180 days after enactment of Dodd-Frank.

The deadline for public comments, which may be submitted via the SEC website, is November 15, 2010.

Thursday, October 7, 2010

Antitrust and Trade Regulation/Environmental Law: FTC Proposes Revisions to "Green Guides"

On October 6, the Federal Trade Commission (FTC) issued proposed revisions to its so-called "Green Guides," the guidance that it gives marketers to help them avoid making misleading environmental claims. The proposed changes, according to the FTC's release, "include new guidance on marketers’ use of product certifications and seals of approval, 'renewable energy' claims, 'renewable materials' claims, and 'carbon offset' claims." The FTC is seeking public comments on the proposed changes until December 10, 2010.

The FTC's release on the proposed revisions include links to the 229-page text of the Federal Register notice, a summary of the proposal, and additional material.

International Trade/Intellectual Property: ACTA Parties Release Draft Text of ACTA

On October 6, U.S. Trade Representative Ron Kirk issued a statement in which he announced the public release of the draft text of the Anti-Counterfeiting Trade Agreement (ACTA) by the ACTA parties, after the conclusion of what the statement termed "the final round of negotiations" in Tokyo on October 2.

The statement also noted that "[t]he participants agreed in Tokyo to work expeditiously to resolve the small number of outstanding issues that require further examination in their own countries with a view to finalizing the text of the agreement as promptly as possible." While the ACTA parties included the European Union (represented by the European Commission and the EU Presidency (Belgium) and the EU Member States), members of the European Parliament previously had issued a written declaration criticizing the lack of transparency in the ACTA process as well as certain content in the text.

Monday, October 4, 2010

International Trade: USTR Releases Statement of ACTA Negotiating Partners on Recent ACTA Negotiations

On October 1, the Office of the U.S. Trade Representative (USTR) issued a statement of the Anti-Counterfeiting Trade Agreement (ACTA) negotiating partners about the recent round of ACTA negotiations in Tokyo. The statement noted, in part, that "[p]articipants in the negotiations constructively resolved nearly all substantive issues and produced a consolidated and largely finalized text of the proposed agreement, which will be submitted ad referendum to their respective authorities. The participants agreed to work expeditiously to resolve the small number of outstanding issues that require further examination in capitals, with a view to finalizing the text of the agreement as promptly as possible." The statement also reported that the participants would "publicly release the text of the agreement shortly."

Securities, Commodities, and Exchanges: CFTC Issues Proposed Rules on Derivatives

On October 1, at a public meeting, the Commodity Futures Trading Commission (CFTC) announced a first series of proposed regulations pertaining to derivatives, pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act. One proposed rule would establish financial resources requirements for derivatives clearing organizations (DCOs) and systemically important DCOs (SIDCOs). The CFTC also proposed to mitigate potential conflicts of interest in the operation of a DCO, designated contract market (DCM), or a swap execution facility (SEF) through (1) structural governance requirements and (2) limits on ownership of voting equity and exercise of voting power.

Administrative Conference of the United States: ACUS Appoints Senior Fellows, Senior Counsel

On October 4, the Administrative Conference of the United States (ACUS) announced the appointment of 18 Senior Fellows, including six former ACUS Chairmen and 12 other individuals with substantial prior service as ACUS government or public members. The appointments include Justice Antonin Scalia (a former ACUS Chairman) and five former Chairs of the ABA Administrative Law and Regulatory Practice Section (William H. Allen, Warren Belmar, Neil Eisner, Sally Katzen, and Justice Scalia), among other distinguished practitioners, scholars, and judges. ACUS also announced the selection of Jeffrey Lubbers as Special Counsel. Lubbers, currently Professor of Practice in Administrative Law at American University's Washington College of Law, served as ACUS's Research Director from 1982 to 1995.

Banking and Financial Services/Securities, Commodities, and Exchanges: Agency Heads Testify About Implementing Dodd-Frank

On September 30, the Senate Banking Committee held a hearing on implementing the Dodd-Frank Wall Street Reform and Consumer Protection Act. Senior officials of the Treasury Department, the Federal Reserve Board, the FDIC, the Securities and Exchange Commission, the Commodity Futures Trading Commission, and the Office of the Comptroller of the Currency testified about their respective agencies' efforts to implement Dodd-Frank.

Banking and Financial Services/Criminal Process: Treasury Department Issues Proposed Rule on Cross-Border Money Transfers

On September 30, the Financial Crimes Enforcement Network (FinCEN), a bureau of the U.S. Department of the Treasury, issued a proposed rule "that would require certain banks and money transmitters to report to FinCEN transmittal orders associated with certain cross-border electronic transmittals of funds (CBETFs)." The proposed rule also would require all banks to file annually with FinCEN a list of taxpayer identification numbers of accountholders who transmitted or received a CBETF. Comments are due by December 29, 2010. FinCEN will accept comments online or by mail, but encourages commenters to do so online.

Friday, October 1, 2010

Administrative Law (General): AJR Report on Lack of Watchdog Reporting on Federal Government

Recently, the American Journalism Review published an online article by Jodi Enda decrying the fact that "most parts of the federal government--the very offices that write the rules and execute the decisions of Congress and the president--remain uncovered or undercovered by the mainstream media." The article includes a highly informative interactive chart and spreadsheet detailing news organization coverage of federal agencies.