Justice Department Issues Favorable Business Review Letter To ISDA For Proposed Amendments To Address Interest Rate Benchmarks

The Department of Justice’s Antitrust Division announced today that it has completed its review of the proposal by the International Swaps and Derivatives Association Inc. (ISDA) to amend its standardized model documentation for derivatives to account for the potential discontinuation of certain interbank offered rates (collectively referred to as “IBORs”).  The department has concluded, based on the representations in ISDA’s letter request, including its description of certain safeguards, that ISDA’s proposed amendments to its standardized documentation are unlikely to harm competition.  Therefore, the department does not presently intend to challenge ISDA’s proposed amendments to its standardized documentation for derivatives.

“ISDA’s process, including its cooperation with government regulators and its consultation-driven process for obtaining feedback from industry participants, has had the effect of clarifying the practical issues involved in planning for when LIBOR and other IBORs are no longer available and preparing for a smooth transition away from IBORs to other reference rates,” said Assistant Attorney General Makan Delrahim.  “ISDA has put in place safeguards to avoid harm to competition, such as making the selection of the fallback rates voluntary, which allows contracting parties the flexibility to designate alternative competitive rates they may think are more appropriate.”

According to the department’s business review letter, ISDA’s model documents are widely used by financial institutions to engage in swaps, forwards, and other types of derivatives contracts such as interest rate and credit default swaps.  These derivatives contracts incorporate various interbank offered rates (IBORS), including the London Inter-Bank Offered Rate (LIBOR).  Derivatives allow financial institutions to hedge risks they incur when lending or borrowing money.

The department’s business review letter recognizes that ISDA’s proposed amendments to its standardized documents for derivatives contracts are part of a larger effort to use alternative reference rates in financial instruments in the place of IBORs.  This is in part because investigations by U.S. and regulators from other jurisdictions uncovered explicit manipulation of the submissions from certain banks to administrators of LIBOR and other interest rate benchmarks. In addition, the United Kingdom’s Financial Conduct Authority, LIBOR’s regulator, has publicly stated that firms cannot rely on LIBOR being published after 2021. To account for this eventuality, ISDA worked with regulators and industry participants to propose amendments to ISDA’s standardized documentation to incorporate fallback rates and calculation methods so that market participants can, if they so choose, refer to different rates in future derivatives contracts and efficiently amend existing contracts to incorporate the different rates. 

Under the department’s business review procedure, an organization may submit a proposed action to the Antitrust Division and receive a statement as to whether the department currently intends to challenge the action under the antitrust laws based on the information provided.  The department’s conclusions in this business review apply only to ISDA’s Proposed Supplement and Proposed Protocol modifying its standardized documentation.  This business review is not applicable to any other agreements, supplements, proposals, or initiatives relating to ISDA’s work.  The department reserves the right to challenge the proposed action under the antitrust laws if the actual operation of the proposed conduct proves to be anticompetitive in purpose or effect.

Copies of the business review request and the department’s response are available on the Antitrust Division’s website at https://www.justice.gov/atr/business-review-letters-and-request-letters, as well as in a file maintained by the Antitrust Documents Group of the Antitrust Division.  After a 30-day waiting period, any documents supporting the business review will be added to the file, unless a basis for their exclusion for reasons of confidentiality has been established under the business review procedure.  Supporting documents in the file will be maintained for a period of one year, and copies will be available upon request to the FOIA/Privacy Act Unit, Antitrust Documents Group at atrdocs.grp@usdoj.gov.

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    In the years before the economic shock from the COVID-19 pandemic, the Financial Stability Oversight Council (FSOC) and others assessed the potential risks to financial stability that leveraged loans and collateralized loan obligation (CLO) securities may pose. Generally, leveraged loans are those made to businesses with poor credit and high debt, and CLO securities are backed by these loans. FSOC and others found that riskier borrower profiles and looser underwriting standards left leveraged lending market participants vulnerable to losses in the event of a downturn. After the COVID-19 shock in March 2020, loans suffered record downgrades and increased defaults, but the highest-rated CLO securities remained resilient. Although regulators monitoring the effects of the pandemic remain cautious, as of September 2020, they had not found that leveraged lending presented significant threats to financial stability. Based on regulators' assessments, leveraged lending activities had not contributed significantly to the distress of any large financial entity whose failure could threaten financial stability. Large banks' strong capital positions have allowed them to manage their leveraged lending exposures, and the exposure of insurers and other investors also appeared manageable. Mutual funds experienced redemptions by investors but were able to meet them in part by selling leveraged loan holdings. While this may have put downward pressure on already-distressed loan prices, based on regulators' assessments, distressed leveraged loan prices did not pose a potential threat to financial stability. Present-day CLO securities appear to pose less of a risk to financial stability than did similar securities during the 2007–2009 financial crisis, according to regulators and market participants. For example, CLO securities have better investor protections, are more insulated from market swings, and are not widely tied to other risky, complex instruments. FSOC monitors leveraged-lending-related risks primarily through its monthly Systemic Risk Committee meetings, but opportunities exist to enhance FSOC's abilities to respond to financial stability threats. FSOC identified leveraged lending activities as a source of potential risk to financial stability before the COVID-19 shock and recommended continued monitoring and analysis. However, FSOC does not conduct tabletop or similar scenario-based exercises where participants discuss roles and responses to hypothetical emergency scenarios. As a result, FSOC is missing an opportunity to enhance preparedness and test members' coordinated response to financial stability risks. Further, as GAO reported in 2016, FSOC does not generally have clear authority to address broader risks that are not specific to a particular financial entity, such as risks from leveraged lending. GAO recommended that Congress consider better aligning FSOC's authorities with its mission to respond to systemic risks, but Congress had not done so as of September 2020. GAO maintains that changes such as broader designation authority would help FSOC respond to risks from activities that involve many regulators, such as leveraged lending. The market for institutional leveraged loans grew from an estimated $0.5 trillion in 2010 to $1.2 trillion in 2019, fueled largely by investor demand for CLO securities. Some observers and regulators have drawn comparisons to the pre-2008 subprime mortgage market, noting that loan origination and securitization may similarly spread risks to the financial system. These fears are being tested by the COVID-19 pandemic, which has significantly affected leveraged businesses. This report examines assessments by regulators, FSOC, and others—both before and after the COVID-19 shock to the economy—of the potential risks to financial stability stemming from leveraged lending activities, and the extent to which FSOC monitors and responds to risks from broad-based activities like leveraged lending, among other objectives. GAO examined agency and private data on market size and investor exposures; reviewed agency, industry, and international reports; and interviewed federal financial regulators and industry participants. GAO recommends that the Secretary of the Treasury, as Chairperson of FSOC, conduct scenario-based exercises intended to evaluate capabilities for responding to crises. GAO also reiterates its 2016 recommendation (GAO-16-175) that Congress consider legislative changes to align FSOC's authorities with its mission. FSOC neither agreed nor disagreed with the recommendation, but said that it would take further actions if it determined necessary. For more information, contact Michael E. Clements at (202) 512-8678 or ClementsM@gao.gov.
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  • Unaccompanied Children: Actions Needed to Improve Grant Application Reviews and Oversight of Care Facilities
    In U.S GAO News
    The Office of Refugee Resettlement's (ORR) grant announcements soliciting care providers for unaccompanied children—those without lawful immigration status and without a parent or guardian in the U.S. available to provide care and physical custody for them—lack clarity about what state licensing information is required. Further, ORR does not systematically confirm the information submitted by applicants or document a review of their past performance on ORR grants, when applicable, according to GAO's analysis of ORR documents and interviews with ORR officials. The grant announcements do not specify how applicants without a state license should show license eligibility—a criterion for receiving an ORR grant—or specify what past licensing allegations and concerns they must report. In addition, the extent to which ORR staff verify applicants' licensing information is unclear. In fiscal years 2018 and 2019, ORR awarded grants to approximately 14 facilities that were unable to serve children for 12 or more months because they remained unlicensed. In addition, ORR did not provide any documentation that staff conducted a review of past performance for the nearly 70 percent of applicants that previously held ORR grants. Without addressing these issues, ORR risks awarding grants to organizations that cannot obtain a state license or that have a history of poor performance. State licensing agencies regularly monitor ORR-funded facilities, but according to GAO's survey of these agencies, their information sharing with ORR is limited (see figure). State licensing agencies and ORR staff both said that improved information sharing would benefit their monitoring of facilities. Without such improvements, ORR may lack information about ongoing issues at its facilities. Key Survey Responses on Information-Sharing with the Office of Refugee Resettlement (ORR) by the 23 State Agencies That Licensed ORR-Funded Facilities in Fall 2019 ORR requires grantees to take corrective action to address noncompliance it identifies through monitoring, but ORR has not met some of its monitoring goals or notified grantees of the need for corrective actions in a timely manner. For example, under ORR regulations, each facility is to be audited for compliance with standards to prevent and respond to sexual abuse and harassment of children by February 22, 2019, but by April 2020, only 67 of 133 facilities had been audited. In fiscal years 2018 and 2019, ORR also did not meet its policy goals to visit each facility at least every 2 years, or to submit a report to facilities on any corrective actions identified within 30 days of a visit. Without further action, ORR will continue to not meet its own monitoring goals, which are designed to ensure the safety and well-being of children in its care. ORR is responsible for the care and placement of unaccompanied children in its custody, which it provides through grants to state-licensed care provider facilities. ORR was appropriated $1.3 billion for this program in fiscal year 2020. GAO was asked to review ORR's grant making process and oversight of its grantees. This report examines (1) how ORR considers state licensing issues and past performance in its review of grant applications; (2) state licensing agencies' oversight of ORR grantees, and how ORR and states share information; and (3) how ORR addresses grantee noncompliance. GAO reviewed ORR grant announcements and applications for fiscal years 2018 and 2019. GAO conducted a survey of 29 state licensing agencies in states with ORR facilities, and reviewed ORR monitoring documentation and corrective action reports. GAO also reviewed ORR guidance and policies, as well as relevant federal laws and regulations, and interviewed ORR officials. GAO is making eight recommendations to ORR on improving clarity in its grant announcements, communication with state licensing agencies, and monitoring of its grantees. ORR agreed with all eight recommendations. For more information, contact Kathryn A. Larin at (202) 512-7215 or larink@gao.gov.
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  • Assistant Attorney General Beth A. Williams Delivers Remarks to the National Association of Attorneys General on Responsible Encryption and Lawful Access
    In Crime News
    Good afternoon, everyone.  First, I would like to thank Amie Ely and the wonderful team at NAAG for all of their amazing work, and for hosting this event on such an important topic.  Thank you as well to everyone in the audience for taking the time to join virtually for what should be a truly interesting conversation.  Perhaps it’s fitting that we are having a discussion — via webcam — that highlights the importance of digital evidence.
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