Introduction

On December 18 2014 the Board of Governors of the Federal Reserve System issued an order that extends, until July 21 2016, the conformance period under the Volcker Rule for the purposes of giving banking entities additional time to conform investments in, and relationships with, 'covered funds' and certain foreign funds (legacy covered funds).(1) The board indicated in the extension order that it also intends, for this purpose, to grant an additional one-year extension of the conformance period until July 21 2017 (which would be the latest possible extension).(2) These actions supplement the board's more general extension of the conformance period last year, which the board granted when the final rule implementing the Volcker Rule was adopted;(3) that extension is set to end on July 21 2015.(4) The board had previously stated its intention to provide conformance period relief with respect to certain collateralised loan obligations (CLOs).

Time limit

The extension order applies to banking entities only with respect to investments in, and relationships with, legacy covered funds that were in place prior to December 31 2013.(5)

The extension order does not provide significant guidance regarding either the meaning of 'relationships' or the related activities after the December 2013 cut-off date that it covers. However, in the context of discussing relationships generally, the extension order cites not only the prohibition on banking entities sharing their names with sponsored covered funds, but also the Volcker Rule's so-called 'Super 23A' prohibitions. This suggests that the requisite relationship exists where Super 23A prohibitions would be triggered – that is, serving – directly or indirectly – as investment manager, investment adviser, commodity trading adviser or sponsor of a covered fund. Because the extension order focuses on the existence of relationships at year end, and not the completion of particular related transactions, it suggests that "covered transactions" subject to Super 23A that are executed post-2013 will benefit from the extension order's relief if they arise out of a qualifying pre-existing relationship.

For covered fund investments not in place prior to December 31 2013, conformance will be required by July 21 2015. Thus, for example, covered fund investments acquired as a result of ongoing secondary market trading will not benefit from the extension order. This may be of particular concern for banking entities holding debt securities of, or other interests in, CLOs or other securitisation vehicles that are covered funds if such securities or interests qualify as 'ownership interests' under the final rule.

Certain foreign funds

The extension order provides conformance period relief to banking entities with respect not only to covered funds in general (as defined under the final rule), but also to a second category of legacy covered funds, which the order describes as "foreign funds that may be subject to the provisions of" the Volcker Rule.

The extension order does not elaborate on the second category. The category would seem to be designed for foreign funds that are not covered funds (given the extension order's separate express inclusion of covered funds). In light of recent industry comments concerning foreign funds that are not covered funds, but may be considered banking entities themselves (and thus subject directly to the Volcker Rule), the extension order was likely intended to cover such foreign funds and to provide additional time for banking entities to address issues that may arise in relation to them.(6)

Employee investments in covered funds

The investment relief under the extension order extends to legacy covered fund investments made by banking entity employees, officers and directors, provided that the investments were in place prior to December 31 2013.

Relation to potential relief for CLOs and illiquid investments

The extension order is akin to the board's announced approach to CLOs that fall within the definition of 'covered funds' and are predominantly backed by commercial loans.(7) Both the board's approach to CLOs and its extension order demonstrate the board's concern with the potential adverse consequences of conforming or divesting ownership interests in legacy covered funds.

Although the extension order does not so state, its breadth – covering banking entity investments in, and relationships with, covered funds made prior to the cut-off date – indicates that separate CLO relief will not be forthcoming, at least not to the extent previously announced. It is not known whether further relief for CLOs is forthcoming.

The extension order states that the board will consider whether to take additional action regarding illiquid funds, for which the Volcker Rule provides the possibility of transition periods in addition to any general conformance period.(8)

Expected action

The extension order reiterates previous board statements that banking entities are expected, during the conformance period, to engage in "good-faith efforts" to conform activities and investments to the final rule no later than the end of the conformance period. The extension order emphasises that banking entities are expected to make plans "well in advance of the end of the extended conformance period" regarding how they will conform or divest legacy covered fund investments.

Benson Cohen, Robert Robinson, William Shirley or David Sylofski 

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.