WASHINGTON Just weeks away from the Dodd-Frank Act's five-year mark, the post-crisis policy environment is as thorny as ever.
Indeed, banks, lawmakers and regulators have little time to reflect on the law's anniversary considering how much work remains on the policy agenda. As regulators continue work implementing Dodd-Frank, lawmakers are debating how to change it and litigators are fighting over its merit.
Many of those fights could play out this summer. Following is a preview of some of the policy issues to watch out for:
An End to Compensation Rule Saga?
A still-looming rulemaking required by Dodd-Frank that could see a comeback deals with curbs on banks' ability to award incentive-based compensation that encourages undue risk.
Bank and market regulators issued a proposal in 2011, but its status since then has been somewhat of a mystery. The holdup is said to stem from disagreements over how to proceed between bank regulators on one side and the Securities and Exchange Commission on the other.
But regulators are trying to put the dormant rule back on the agenda, with key officials touting the measure, though how quickly it gets resolved is still unclear. In a January speech, Federal Reserve Board Gov. Jerome Powell gave signals the agencies may issue another proposal.
Under the 2011 proposal, banks with over $50 billion in assets would have to defer incentive-based compensation to senior executive officers for at least three years, meant in part to allow for adjustments for losses revealed during the deferral period. Boards would also have to balance risk to the institution versus an employee's reward in considering compensation packages for lower-level officers.
Drama Surrounding Reg Relief Bills
The remainder of this month and July will likely be a critical time for lawmakers trying to move a regulatory relief package.
Although Senate Banking Committee Chairman Richard Shelby's relief proposal passed the committee along party lines, he will likely need the support of at least some Democrats to pass a version of it in the full Senate. That appears to be a tall order considering rank-and-file Democrats' view that the GOP proposal would go too far in unwinding Dodd-Frank. A Democratic plan, supported by both House and Senate members, is much narrower.
Even if Shelby succeeds at striking a deal with Sen. Sherrod Brown, the panel's ranking member, or winning over enough moderate Democrats, the House and the White House would still need convincing. Any legislative maneuvering is also hampered by the congressional schedule. Lawmakers are expected to go on a recess for about a month starting in early August. If efforts to advance a legislative package fail, attention will then shift more to whether Shelby as early as the fall could insert regulatory relief provisions into a broader bill through the appropriations process.
Big-Bank Living Wills Due in July
The 11 most complex banks that are farthest along in the "living will" filing schedule face a crucial deadline July 1 for their fourth draft of the resolution plans required by Dodd-Frank.
Last August, the Federal Deposit Insurance Corp. and Federal Reserve Board issued sharp criticism of the 11 banks' 2013 plans, calling for substantial improvements in 2015 submissions, including less complex legal structures and more realistic assumptions about how stakeholders would act in a failure.
Under Dodd-Frank, living wills must show a credible path to an orderly bankruptcy should the institution fail. The plans include a brief public portion accompanied by the more detailed version only the regulators see.
The regulators warned that if the 2015 plans fail to address shortcomings, the agencies expect to issue formal findings under Dodd-Frank that the plans are not credible. Ultimately, the law allows the agencies to require higher capital requirements or divestitures at banks that repeatedly submit subpar plans. (The FDIC supported issuing formal findings in response to the 2013 plans, but the Fed preferred to give the banks more time to improve.)
If previous rounds are any guide, the regulators may not offer an assessment of the coming submissions until 2016. However, there is likely to be interest sooner in the level of detail provided in the public portions of the plans. The scant level of disclosure to date has been criticized for not telling the public much about a firm's resolvability. But the regulators have shown willingness to require more information in the public versions.
In the Fed and FDIC's joint statement from last August, they said they were "committed to finding an appropriate balance between transparency and confidentiality of proprietary and supervisory information in the resolution plans.
"As such, the agencies will be working with these firms to explore ways to enhance public transparency of future plan submissions," they said.
MetLife Legal Battle
Although arguments aren't likely to start until the fall at the earliest, the judge in MetLife's U.S. district court case against the Financial Stability Oversight Council has set filing deadlines through the summer. In May, the FSOC filed a motion to dismiss the case, but a decision on that motion is still pending.
The lawsuit, which is seeking to overturn the council's designation of MetLife as a "systemically important financial institution," is shaping up to be a key legal test for the powers given the government under Dodd-Frank. Yet some legal observers argue MetLife faces a difficult task of proving that FSOC's behavior was "arbitrary and capricious." (Nonbanks designated as SIFIs are subject to heightened Federal Reserve Board oversight.)
Other regulators, academics and public interest groups have filed briefs supporting the FSOC. The judge, Rosemary Collyer, has set a deadline for June 26 for filing amicus briefs in support of MetLife. The American Council of Life Insurers has indicated it plans to file a brief.
Developing Policy on Cybersecurity
With news about data breaches now a common occurrence, cybersecurity is likely to remain in the forefront as both lawmakers and regulators continue to focus on the issue.
Advocates for better communication between the public and private sectors on cyber threats are still waiting for Senate action on legislation requiring more information-sharing after the House already approved two bills in April. Meanwhile, the bank regulators are expected to unveil a new tool by the end of June designed to help institutions assess their own preparedness for a cyber-attack. Use of the tool will be voluntary at first, but many expect it to become mandatory eventually with assessment results becoming part of exams.