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  • Washington Privacy Act: A Short Timeline for a Robust Bill

    For the second year in a row, Washington State is considering the “Washington Privacy Act,” legislation that would regulate the collection and use of consumer data and have Washington join a chorus of states looking to legislate privacy. The bill (SB 6281) passed the Washington Senate with near-unanimous approval on February 14 and has until...

  • FTC requests feedback on Endorsement Guides

    The FTC recently requested public comments on questions related to its Endorsement Guides (the Guides). While the FTC has periodically updated the FAQs associated with the Guides, it has not directly updated the Guides since 2009.  Given the changes to influencer and social media marketing over the years, the FTC is seeking input on a...

  • Updated: Digital Asset SEC Timeline

    Perkins Coie LLP is pleased to bring you this Digital Asset SEC Timeline. This Timeline is an interactive compilation of select SEC guidance, enforcement actions, and speeches relating to the application of the federal securities laws to digital assets. Beginning with the release of the DAO Investigative Report in July 2017, the Timeline includes relevant...

  • Mutual Fund Corner: Practical Implications of the Recent Amendments to CFTC Regulation 4.5

    As we explained in an earlier post, the CFTC has recently amended its Regulation 4.5 to clarify that the commodity pool operator (“CPO”) of a registered investment company is the entity that serves as the registered investment adviser (“RIA”) to that company. In this post, we will explore practical implications of this recent rule amendment....

  • Coronavirus Coverage: Policy Language that May Cover (or Exclude) Your Business Interruption Losses Caused by the Outbreak

    As the coronavirus (COVID-19) outbreak continues to evolve, more businesses are feeling the impact.  Earlier this week, Apple announced that it does not expect to meet its quarterly revenue forecast due to interruption of its Chinese manufacturing operations and decreased demand from Chinese consumers.  In a previous post, we outlined how business interruption insurance coverage...

  • Mutual Fund Corner: A Reminder for Firms Updating CFTC Regulation 4.5 Exemptions – The Fund’s Adviser is Its CPO

    Mutual fund complexes relying on the exemption under Commodity Futures Trading Commission (“CFTC”) Regulation 4.5 from commodity pool operator (CPO) registration have to file: (1) An initial notice of eligibility to claim that exemption; and (2) An annual affirmation of continued reliance on the exemption within 60 days of each calendar year end. In our...

  • Food Litigation Year in Review 2019

    Perkins Coie is pleased to present its fourth annual Food Litigation Year in Review 2019, offering a summary of the past year’s key litigation outcomes, regulatory developments, and filing data. Using metrics from our proprietary database, developed by our food litigation team in order to track and understand trends in this area, 2019’s Year in...

  • NFA Announces Common Deficiencies Identified During Examinations of CPOs, CTAs, FCMs, FDMs, IBs and Swap Dealers

    On February 10th, the National Futures Association (NFA) published three Notices to Members identifying common deficiencies noted in examinations of commodity pool operators (CPOs), commodity trading advisors (CTAs), futures commission merchants (FCMs), forex dealer members (FDMs), introducing brokers (IBs), and swap dealers (SDs). This blog post summarizes these notices and the identified...

  • Re-Proposed Rule 18f-4—Fund Taxonomy

    The publication of the SEC’s re-proposed rules for regulating the use of derivatives by investment companies in the Federal Register provides an opportunity to continue our consideration of this proposal. The publication fixes the deadline for comments at March 24, 2020. The proposed classifications of how funds may use derivatives, the taxonomy of these funds...

  • Fintech Week in Review: Week of February 7, 2020

    Weekly Fintech Focus The CFPB issues a policy statement to clarify the “abusiveness” standard. CFPB proposes a settlement with payday lending company linked to tribal lender. Visa will modify interchange rates the most in a decade. ARRC releases checklist for transitioning from LIBOR to SOFR. The Fed continues to move forward on faster payments and...

  • Mutual Fund Corner: SEC and CFTC Charge Investment Adviser and Portfolio Manager for Derivatives-Related Failures

    The Securities and Exchange Commission (the “SEC”) and the Commodity Futures Trading Commission (the “CFTC”) announced parallel enforcement orders against an investment adviser (the “Adviser”) and its Chief Executive Officer for derivatives-related oversight failures.  The alleged failures related to the Adviser’s management of a registered investment company that invested primarily in options on

  • Statement of DSIO Director Joshua B. Sterling on Supporting Innovation in Digital Asset Products, including Pooled Investment Vehicles

    The CFTC DSIO Division Director issued a statement reminding the industry that pooled investment vehicles that trade futures, swaps, and other commodity interests that reference digital assets like Bitcoin and stablecoins are commodity pools under the Commodity Exchange Act and CFTC regulations, and the operators of such vehicles must register as commodity pool operator(s) (CPOs),...

  • LIBOR Transition Planning: ISDA Makes Important Annoucements About LIBOR Replacement Language for Swaps

    On February 5, the International Swaps and Derivatives Association (“ISDA“) announced that it will seek additional information from market participants about the development of contractual language that can be used to replace references to LIBOR and other interbank offered rates in swaps and other the over-the-counter (“OTC“) derivative contracts.  ISDA refers to this replacement contractual...

  • The ARRC Publishes a Buy-Side Checklist and Vendor Survey for LIBOR Transition / SOFR Adoption

    The Alternative Reference Rates Committee (“ARRC”) has published a Buy-Side/Asset Owner Checklist (the “Buy-Side Checklist”) that is intended to assist asset managers and asset owners transition from U.S. Dollar (USD) LIBOR to the Secured Overnight Financing Rate (“SOFR”). The Buy-Side Checklist establishes goals and concrete implementation steps for 10 “work categories”.  This blog post will...

  • New Regulations Narrow Reach of Clean Water Act

    The U.S. Environmental Protection Agency and the Army Corps of Engineers have jointly issued new regulations to redefine what types of water bodies are covered by the Clean Water Act. Dubbed the “Navigable Waters Protection Rule,” the new regulations are the culmination of the Trump administration’s efforts to undo the broad interpretation of federal jurisdiction...

  • OCIE Releases New Observations on Cybersecurity and Resiliency

    On January 27, 2020, the Office of Compliance Inspections and Examinations (“OCIE”) of the U.S. Securities and Exchange Commission (“SEC”) released observations on cybersecurity and resiliency (the “Observations”). In them, OCIE presented several key cybersecurity issues that industry participants should seek to address such as the construction and implementation of a comprehensive cybersecurity...

  • Digital Asset SEC Timeline

    Perkins Coie LLP is pleased to bring you this Digital Asset SEC Timeline. This Timeline is an interactive compilation of select SEC guidance, enforcement actions, and speeches relating to the application of the federal securities laws to digital assets. Beginning with the release of the DAO Investigative Report in July 2017, the Timeline includes relevant...

  • CFTC, Market Regulators Forecast Aggressive Enforcement Trends, High Bar for Cooperation

    The CFTC filed a record number of enforcement actions in 2019 against market participants, the majority of which involved commodities fraud, market manipulation, and spoofing.  As a result of these actions, the CFTC reports that it obtained over $1.3 billion in monetary sanctions and disgorgement in 2019—a 39% increase over the prior fiscal year.  And...

  • San Francisco Expands Just Cause Eviction Protections

    Effective January 20, 2020, eviction controls under the San Francisco Rent Stabilization and Arbitration Ordinance (Administrative Code Chapter 37) (the “Rent Ordinance”) apply to any residential units constructed after June 13, 1979, and any residential units that have undergone substantial rehabilitation. The rent limitations and the eviction controls enumerated in the Rent Ordinance previously

  • Blockchain Week in Review: Week of January 24, 2020

    U.S. Developments Federal and State Regulatory Developments Bill in Hawaii State Senate Addresses Digital Assets Including Authorization for Banks to Serve as Qualified Custodians SB 2594 before the Hawaii State Senate addresses a number of matters relating to digital assets.  In particular, it would classify digital assets under the Hawaii Uniform Commercial Code, specify the...

  • DSIO and NFA Share Views on Evolving Swap Dealer Oversight

    The U.S. Commodity Futures Trading Commission’s (CFTC) Director of the Division of Swap Dealer & Intermediary Oversight (DSIO), alongside fellow panelist and National Futures Association’s (NFA) General Counsel, fielded wide-ranging questions from co-panelists and audience members alike in a discussion focused on Intermediaries & Advisors at the ABA’s Derivatives & Futures Law...

  • Industry Insights: Proposition 65 Labeling Responsibilities Finalized for Intermediary Parties and Retail Sellers

    California’s Office of Environmental Health Hazard Assessment (OEHHA) issued finalized amendments on January 14, 2020, to its regulations that will become effective on April 1, 2020. Per OEHHA in its Final Statement of Reasons, the amendments “clarify how intermediate parties in the chain of distribution can satisfy their obligation to provide a warning” under Proposition...

  • Fintech Week in Review: Week of January 17, 2020

    Weekly Fintech Focus NYDFS creates a consumer protection task force to bolster its consumer protection activities. CFPB issues its second no-action letter under its revised no-action letter policy. Both no-action letters relate to HUD’s housing counseling program. CSBS releases Accountability Report on Fintech Developments. Visa to acquire Plaid for $5.3 billion. CFPB and the Utah...

  • Avoiding Traps for the Unwary in Excess Insurance Policies

    Companies that wish to have higher limits of insurance than their primary (or umbrella) insurance companies are willing to provide usually can purchase excess insurance policies. Excess policies respond to losses above the limits of the primary layer of coverage. A company may purchase multiple layers of excess coverage from different insurance companies, creating a...

  • Fintech Week in Review: Week of January 10, 2020

    Weekly Fintech Focus CA DBO cracks down on point-of-sale financing. Companies that offer deferred payment options at point-of-sale could be lenders in California. The White House issues the world’s first binding guidance on regulating AI. Agencies should take a light-touch approach and consider how regulations promote the growth of AI. State money transmission laws are...

  • Blockchain Week in Review: Week of January 10, 2020

    U.S. Developments Members of Congress Respond to IRS Tax Guidance for Digital Assets On December 20, eight members of the U.S. House of Representatives sent a letter to the Commissioner of the Internal Revenue Service (“IRS”) urging further clarity on positions expressed in the IRS’s October tax guidance for digital assets. The letter described various...

  • CEQA YEAR IN REVIEW 2019

    A SUMMARY OF PUBLISHED APPELLATE OPINIONS UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT The year 2019 saw several trailblazing opinions, indicating that courts continue to grapple with some of CEQA’s core policies.  The California Supreme Court weighed in on the threshold question of what constitutes a “project” subject to CEQA.  In Union of Medical Marijuana Patients...

  • Business Solutions for CCPA Compliance

    The California Consumer Privacy Act of 2018 (CCPA) is a sweeping new privacy statute that grants rights to consumers and imposes corresponding obligations on subject businesses. The CCPA defines consumers to mean California residents, and generally defines “business” as for-profit entities that meet certain threshold requirements. Cal. Civ. Code § 1798.140(g) (consumer), (c) (business). The...

  • Administration Announces Major Overhaul of NEPA Regulations

    On January 10, the White House Council on Environmental Quality published significant revisions to regulations implementing the National Environmental Policy Act, the first such overhaul since adoption of the regulations in 1978. The proposed rules are comprehensive and wide-ranging, and have significant ramifications for the extensive range of projects that are carried out by the...

  • Automobile Delay May Not Be Treated As a Significant Environmental Impact

    Automobile delay (as measured solely by roadway capacity or traffic congestion) cannot constitute a significant environmental impact, even for projects that were approved before the new CEQA guidelines on transportation impacts were certified in December 2018. Citizens for Positive Growth & Preservation v. City of Sacramento, 2019 WL 6888482. The case involved a challenge to...

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