Department of Labor Proposes Rule on Valuing Stock for ESOP Stock Purchase and Sale Transactions
On January 16, 2025, the Employee Benefits Security Administration (EBSA) at the Department of Labor (DOL) released drafts of long-awaited proposed regulations seeking to clarify the definition of “adequate consideration” as set forth in Section 3(18)(B) of ERISA and a proposed class exemption from certain prohibited transaction restrictions in connection with an employee stock ownership plan’s (ESOP) initial acquisition of privately held employer stock from a selling shareholder.
The ESOP community has sought clear guidance on what the term “adequate consideration” means ever since ERISA’s inception 50 years ago. Although EBSA first proposed “adequate consideration” regulations in 1988, the DOL never finalized these rules. Without such guidance, the ESOP community has expressed concerns that plan sponsors, selling shareholders and ERISA fiduciaries could be left exposed to allegations that the ESOP overpaid for shares at the time of the initial transaction through investigations and civil lawsuits brought later with the benefit of hindsight.
The proposed regulations are in response to the latest Congressional mandate in Section 346(c)(4) of the SECURE 2.0 Act of 2022 for the Secretary of Labor, in consultation with the Department of Treasury, to “issue formal guidance, for . . . acceptable standards and procedures to establish good faith fair market value for shares of a business to be acquired by an employee stock ownership plan.” The proposed regulations are scheduled to be published on January 22, 2025, and if so published would trigger a comment period ending April 7, 2025. However, with a new administration starting January 20th, it is possible that the publication of the proposed regulations may be delayed.
Jenny Cascone Mosh, David Pardys, Sean Power, David A. Surbeck, Rafael Ramos Aguirre, and Nichole M. Smith also contributed to this article.
DOJ Reports Nearly $3 Billion in FCA Settlements, Judgments for FY 2024
Headlines that Matter for Companies and Executives in Regulated Industries
DOJ Reports Nearly $3 Billion in FCA Settlements, Judgments for FY 2024
On January 15, the US Department of Justice (DOJ) reported that settlements and judgments under the False Claims Act (FCA) totaled more than $2.9 billion in fiscal year 2024. The government and whistleblowers were involved in 558 FCA settlements and judgments, marking the second-highest total after fiscal year 2023’s record of 566 recoveries. Whistleblowers also filed the highest number ever of qui tam lawsuits, totaling 979 this past fiscal year.
Health care fraud accounted for the majority of FCA settlements and judgments. Over $1.67 billion of the FCA settlements and judgments reported in fiscal year 2024 related to health care matters, including managed care providers, hospitals, pharmacies and pharmaceutical companies, and physicians. The cases related to the health care industry involved, among other things, the opioid epidemic, unnecessary services and substandard care, Medicare Advantage matters, and unlawful kickbacks.
The DOJ statistics sheet can be found here and the press release can be found here.
Pharmacy to Pay $625,000 to Resolve FCA Allegations
On January 13, a settlement was finalized between a pharmacy located in New Jersey, Medsinbox Pharmacy LTC LLC, and the federal and New Jersey state governments. Pursuant to the settlement agreement, Medsinbox agreed to pay $625,000 to settle allegations that it violated the FCA by billing Medicare and Medicaid for prescriptions that it never actually distributed.
The government alleged that between 2019 and 2022, Medsinbox knowingly submitted claims for reimbursement to the federal Medicare and Medicaid programs for medications that it never actually gave to beneficiaries. According to the government, Medsinbox inventory records indicate that the pharmacy never purchased the amount of prescriptions that it claims to have filled and billed to Medicare and Medicaid programs.
The settlement is available here and the DOJ press release can be found here.
Firm Founder Pleads Guilty for Role in $9 Million Cryptocurrency Investment Fraud
On January 9, Travis Ford, the founder of a cryptocurrency investment firm, pleaded guilty for his role in a $9 million fraud conspiracy. Ford pleaded guilty to one count of conspiracy to commit wire fraud, for which he faces up to five years in prison.
According to the government, Ford was the co-founder of cryptocurrency investment firm Wolf Capital Crypto Trading LLC. As alleged, Ford made false promises to solicit investments through social media and other internet platforms, including by purporting to be a sophisticated trader able to deliver returns of 1-2% daily despite admitting that those returns were not realistic. The government alleged that Wolf Capital raised $9.4 million through Ford’s conduct and Ford then misappropriated the investor funds for his own use.
The DOJ press release can be found here.
Private Market Talks: Bringing Private Credit to the Wealth Channel with Nomura Capital Management’s Robert Stark [Podcast]
In our first episode of 2025, we speak with Robert Stark, CEO of Nomura Capital Management, who has been building a private credit business and expanding Nomura’s investment management capabilities in the Americas. During our discussion, we learn how he successfully launched the platform in a highly competitive market and how Nomura has been able to activate its network of registered investment advisors to bring private credit to the private wealth channel.
CFPB Issues Order for Financial Data Exchange to Issue Standards under CFPB’s Personal Financial Data Rights Rule
On January 8, 2025, the Consumer Financial Protection Bureau (CFPB) issued an order recognizing Financial Data Exchange, Inc. (FDX) as a standard-setting body under the CFPB’s Personal Financial Data Rights rule. The order of recognition is the first to be issued under the rule. The Personal Financial Data Rights rule, released in October 2024, requires financial institutions, credit card issuers, and other financial providers to unlock an individual’s personal financial data and transfer it to another provider at the consumer’s request for free. The CFPB established a formal application process outlining the qualifications to become a recognized industry standard-setting body, which can issue standards that companies can use to help them comply with the CFPB’s rules. The CFPB also issued updated procedures for companies seeking special regulatory treatment, such as through “no-action letters.”
FDX is a standard-setting organization operating in the United States and Canada. It has over 200 member organizations, including depository and non-depository commercial entities, data providers and recipients, data aggregators, service providers to open banking participants, trade and industry organizations, and other non-commercial members, including consumer groups. FDX’s stated primary purpose is to develop, improve and maintain a common, interoperable standard for secure consumer and business access to financial records.
In September 2024, the CFPB received the application for recognition from FDX. CFPB published the application from FDX for public comment later that month. The application was then the first to be published for public comment.
The CFPB approved the application, subject to several conditions. In June 2024, the CFPB finalized a rule outlining the qualifications to become a recognized industry standard-setting body. The rule issued in June identifies the five key qualifications that standard-setting bodies must demonstrate to be recognized by the CFPB, including openness, transparency, balanced decision-making, consensus, and due process and appeals.
The order recognizes FDX as an industry standard-setting body for five years. The CFPB continues to evaluate other applications for recognition.
DORA Becomes Applicable in the EU
On January 17, 2025, Regulation (EU) 2022/2554 of the European Parliament and of the Council of 14 December 2022 on digital operational resilience for the financial sector (“DORA”) becomes applicable in the EU.
DORA intends to strengthen the IT security and operational resiliency of financial entities and to ensure that the financial sector in the EU is able to stay resilient in the event of severe operational disruption. DORA applies to financial entities engaging in activities in the EU. Traditional financial entities, such as banks, investment firms, insurers, and credit institutions, and non-traditional entities, like crypto-asset service providers and crowdfunding platforms, are all within scope.
Financial entities under DORA will be required to comply with new requirements in the areas of (1) risk management, (2) third-party risk management, (3) incident management and reporting, and (4) resilience testing. Key obligations include:
Create and maintain a register of ICT service providers and, on an annual basis, report relevant information from the register to financial authorities.
Comprehensive incident reporting obligations requiring initial notification in 4 hours after the incident is classified as major and a maximum of 24 hours after becoming aware. Follow-up notifications will be required, at least, in 72 hours and one month. Entities under scope will be required, without undue delay, to notify their clients where a major incident occurs and has a financial impact on their interests. For significant cyber threats, entities under scope should, where applicable, inform their clients that are potentially affected of any appropriate protection measures which the latter may consider taking.
Maintain a sound, comprehensive and well-documented ICT risk management framework. The financial entities’ management bodies should define, approve, oversee and take responsibility for the implementation of the ICT risk management framework. In addition, appropriate audits must be conducted with respect to the ICT risk management framework.
Implement post ICT-related incident reviews after a major ICT-related incident disrupts core activities.
Establish and maintain a sound and comprehensive digital operational resilience testing program.
Clearly allocate, in writing, the rights and obligations of the financial entity when engaging with ICT service providers, including mandatory DORA contractual provisions.
Adopt, and regularly review, a strategy on ICT third-party risk.
In addition to financial entities, ICT service providers providing services to financial entities will also have a level of exposure to DORA. This level of exposure will vary in accordance with how critical the ICT service provider is in the sector. All ICT service providers will be subject to indirect obligations resulting from the requirements that their customers (i.e., in-scope financial entities) will be subject to under DORA (e.g., mandatory contractual provisions). In addition, ICT service providers designated as “critical” will be subject to direct obligations and specific oversight mechanisms under DORA.
Read the full text of DORA.
The BR International Trade Report: January 2025
Recent Developments
President Biden blocks Nippon Steel’s acquisition of US Steel. On January 3, President Biden announced that he would block the $15 billion sale of U.S. Steel to Japan’s Nippon Steel, citing national security concerns. President Biden’s decision came after the Committee on Foreign Investment in the United States (“CFIUS”) reportedly deadlocked in its review of the transaction and referred the matter to the President. U.S. Steel and Nippon Steel condemned the President’s action in a joint statement, arguing it marked “a clear violation of due process and the law governing CFIUS,” and on January 6 filed suit challenging the measure.
Canadian Prime Minister Justin Trudeau announces his resignation as party leader and prime minister. On January 6, Prime Minister Trudeau, who has served as the Liberal Party leader since 2013 and prime minister since 2015, declared his intention to “resign as party leader, as prime minister, after the party selects its next leader through a robust, nationwide, competitive process.” Governor General Mary Simon suspended, or prorogued, the Canadian Parliament until March 24 to allow the Liberal Party time to select its new leader—who will replace Trudeau as prime minister leading up to the general elections, which must be held by October 20. Separately, details have begun to leak of the potential Canadian retaliation against President-elect Trump’s threatened tariffs on Canadian goods. This retaliation could include tariffs on certain steel, ceramics, plastics, and orange juice.
U.S. Department of Commerce announces new export controls for AI chips. On January 13, the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) issued a new interim final rule in an effort to keep advanced artificial intelligence (“AI”) chips from foreign adversaries. The interim final rule seeks to implement a three-tiered system of export restrictions. Under the new rule, (i) certain allied countries would face no new restrictions, (ii) non-allied countries would face certain restrictions, and (iii) U.S. adversaries would face almost absolute restrictions. BIS followed up with another rule on January 15 imposing heightened export controls for foundries and packaging companies exporting advanced chips, with exceptions for exports to an approved list of chip designers and for chips packaged by certain approved outsourced semiconductor assembly and test services (“OSAT”) companies.
Biden Administration imposes sanctions against Russia’s energy sector in parting blow. On January 10, the U.S. Department of the Treasury (“Treasury”) issued determinations authorizing the imposition of sanctions against any person operating in Russia’s energy sector and prohibiting U.S. persons from supplying petroleum services to Russia, and designated two oil majors—Gazprom Neft and Surgutneftegas—among others.
BIS issues final ICTS rule on connected vehicle imports and begins review of drone supply chain. On January 14, BIS issued a final rule under the Information and Communications Technology and Services (“ICTS”) supply chain regulations prohibiting the import of certain connected vehicles and connected vehicle hardware, capping a rulemaking process that started in March 2024. The rules, which will have a significant impact on the auto industry supply chain, will apply in certain cases to model year 2027 and in certain other cases to model year 2029. (See our alert on BIS’s proposed rule from September 2024.) Meanwhile, BIS launched an ICTS review on January 2 into the potential risk associated with Chinese and Russian involvement in the supply chains of unmanned aircraft systems, issuing an Advance Notice of Proposed Rulemaking.
China implicated in cyberattack on the U.S. Treasury. In December, a China state-sponsored Advanced Persistent Threat (“APT”) actor hacked Treasury, using a stolen key. Reports suggest that attack targeted Treasury’s Office of Foreign Assets Control (“OFAC”), which administers U.S. sanctions programs, among other elements of Treasury. Initial reporting indicated that only unclassified documents were accessed by hackers, although the extent of the attack is still largely unknown. The Chinese government has denied involvement.
United Kingdom joins the Comprehensive and Progressive Agreement for Trans-Pacific Partnership. On December 15, the United Kingdom officially joined the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (“CPTPP”)—a trade agreement between Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam—nearly four years after submitting its 2021 application. The United Kingdon is the first non-founding country to join the CPTPP.
Fallout of failed presidential martial law declaration continues in South Korea. South Korea continues to face unrest after last month’s short-lived declaration of martial law by President Yoon Suk Yeol, which led to his December 14 impeachment and January 15 arrest by anti-corruption investigators. On December 27, the National Assembly also impeached Prime Minister Han Duk-soo, who had been serving as acting president for the two weeks following Yoon’s impeachment. Finance Minister Choi Sang-mok now serves as acting president, and faces calls from South Korean investigators to order the presidential security service to comply with a warrant for President Yoon’s arrest.
Office of the U.S. Trade Representative initiates investigation into legacy chips from China. In late December, U.S. Trade Representative (“USTR”) Katherine Tai announced a new Section 301 investigation “regarding China’s acts, policies, and practices related to the targeting of the semiconductor industry for dominance.” The USTR will focus its initial investigation on “legacy chips,” which are integral to the U.S. manufacturing economy. The USTR began accepting written comments and requests to appear at the hearing on January 6. The public hearing is scheduled for March 11-12.
President-elect Donald Trump eyes the Panama Canal and Greenland. At the December 2024 annual conference for Turning Point USA, President-elect Donald Trumpcriticized Panama’s management of the Panama Canal, indicating that the United States should reclaim control due to “exorbitant prices” to American shipping and naval vessels and Chinese influence in the Canal Zone. Panamanian President José Raúl Mulino rejected Trump’s claims, stating “[t]he canal is Panamanian and belongs to Panamanians. There’s no possibility of opening any kind of conversation around this reality.” President-elect Trump also has sought to revive his 2019 proposal to purchase Greenland from Denmark, emphasizing its strategic position in the Arctic and untapped natural resources. In response, Greenland’s Prime Minister Mute Egede stated that Greenland is not for sale, but would “work with the U.S.—yesterday, today, and tomorrow.”
Nicolás Maduro sworn in for third presidential term, despite disputed election results. On January 10, Nicolás Maduro Moros was inaugurated for another six-year term as president of Venezuela, despite evidence he lost the election to opposition candidate Edmundo González Urrutia. Gonzalez, recognized by the Biden Administration as the president-elect of Venezuela, met with President Biden in the White House on January 6. In response to Maduro’s inauguration, the United States announced new sanctions programs against Maduro associates and extended the 2023 designation of Venezuela for Temporary Protected Status by 18 months.
U.S. Department of Defense designates more entities on Chinese Military Companies list. In its annual update of the Chinese Military Companies list (“CMC list”), the Department of Defense (“DoD”) added dozens of Chinese companies to the list, including well-known technology, AI, and battery companies, bringing the total number of CMC List entities to 134. Beginning in June 2026, DoD is prohibited from dealing with the newly designated companies.
European Union and China consider summit to mend ties. On January 14, European Council President António Costa and Chinese President Xi Jinping spoke via phone call, reportedly agreeing to host a summit on May 6, 2025—the 50th anniversary of EU-China diplomatic relations. The conversation comes just days before the inauguration of President-elect Donald Trump, who has threatened additional tariffs on Chinese goods and pushed the European Union to further decouple from China. Despite Beijing’s and Brussels’s willingness to meet, China-EU trade tensions remain high, highlighted by the European Commission’s October decision to impose duties of up to 35% on Chinese-made electric vehicles.
Final Regulations for New Clean Energy Production and Investment Tax Credits
Last week, the Internal Revenue Service (“IRS”) and Department of the Treasury issued the highly anticipated final regulations for the Clean Electricity Production Tax Credit set forth in Section 45Y of the Internal Revenue Code of 1986, as amended (the “Code”) and the Clean Electricity Investment Tax Credit set forth in Section 48E of the Code (the “Final Regulations”), which may be found here. The Final Regulations follow the issuance of proposed regulations (the “Proposed Regulations”) last June. The Final Regulations provide clarification regarding the definition of “qualified facility” and the mechanism for calculating the greenhouse gas (“GHG”) emissions rates for qualified facilities, although a full analysis of the GHG requirements is beyond the scope of this blog post. Further, we note that with the incoming administration, the executive branch could review and, potentially, rescind, these Final Regulations, although at this point the Trump administration has not publicly indicated support or a the lack thereof.
The Final Regulations generally apply to facilities placed in service after December 31, 2024, and during a taxable year ending on or after January 15, 2025. However, certain rules relating to the “One Megawatt Exception” under Section 1.45Y-3 of the Final Regulations and relating to qualified facilities with integrated operations have a delayed applicability date that is 60 days after publication of the Final Regulations.
When Sections 45Y and 48E of the Code were initially enacted, we posted a blog describing the new statutes, which is available here. The following is a brief, high-level, summary of the Section 45Y and Section 48E rules, but does not describe every requirement for credit qualification. The rules under Sections 45Y and 48E of the Code apply to qualified facilities that both begin construction and are placed in service, each for federal income tax purposes, on or after January 1, 2025. As such, qualified facilities that either begin construction or are placed in service before January 1, 2025, should still generally look towards the rules set forth in Section 45 of the Code for the production tax credit (the “PTC”) or in Section 48 of the Code for the investment tax credit (the “ITC”), as applicable.
The credits under Sections 45Y and 48E are available with respect to any qualified facility that is used for the generation of electricity, which is placed in service on or after January 1, 2025, and has an anticipated GHG emissions rate of not more than zero. In the case of Section 48E, a qualifying energy storage facility is also eligible for the credit. Qualified facilities also include any additions of capacity that are placed in service on or after January 1, 2025.
The credit under Section 45Y generally mirrors the PTC in that it is a credit that is based on electricity produced by a qualified facility, and the credit under Section 48E generally mirrors the ITC in that it is a credit that is based on a taxpayer’s tax basis in a qualified facility, with several differences in each case. The credit amount for each is generally calculated in the same manner as the ITC or PTC, as applicable. However, the credit amount is phased out (as set forth in the chart below) based on when construction of a qualifying facility begins after the “applicable year.” Under Sections 45Y and 48E of the Code, the applicable year means the later of (i) the calendar year in which the annual greenhouse gas emissions from the production of electricity in the United States are reduced by 75% from 2022 levels, or (ii) 2032.
Year After Applicable Year in Which Construction Begins
First
Second
Third
Thereafter
Percent of Credit Remaining
100%
75%
50%
0%
The Final Regulations apply many of the historical rules of Sections 45 and 48 of the Code, including rules surrounding the base credit amount—0.3 cents per kWh of electricity (subject to inflation adjustments) under Section 45Y and 6% under Section 48E. These credit rates may be increased in either case by satisfying either the 1 MW (AC) exception or the prevailing wage requirements—up to 1.5 cents per kWh of electricity (subject to inflation adjustments) under Section 45Y and 30% under Section 48E. Energy community and domestic content bonus credits may also increase these credit rates, although there are important differences in how these rules apply.
The below highlights several notable aspects of the Final Regulations.
Notable Rules Under Section 45Y
Under Section 45Y, a facility that initially operates with greater than zero GHG emissions (and, therefore, is not eligible for the credit under Section 45Y) may later be treated as a qualified facility—and, therefore, eligible for the credit under Section 45Y—if it meets the requirements in any taxable year during the 10-year period beginning on the date the facility was originally placed in service. For example, if an otherwise qualified facility has greater than zero GHG emissions for its first three years of operation (2025-2027, for example), but then is updated in such a way that it satisfies the zero GHG emissions requirement, then the Section 45Y credit may be claimed for years 4 through 10 of operations (2028-2034, in this example).
Similar to the PTC, electricity produced at a qualified facility must be sold by the taxpayer to an unrelated person. However, in a departure from the rules under Section 45, the statute and Final Regulations provide that, in the case of a qualified facility equipped with a metering device that is owned and operated by an unrelated person, the credit under Section 45Y of the Code is available for electricity produced at a qualified facility and sold, consumed, or stored by the taxpayer. Although this rule provides some flexibility to taxpayers, the IRS declined to adopt the Section 45 rule from IRS Notice 2008-60, which provides that electricity sales will be treated as made to an unrelated taxpayer if the producer of electricity sells electricity to a related person for resale to a person unrelated to the producer.
Notable Rules Under Section 48E
Under the Final Regulations, “qualified facilities” and “energy storage technology” (“EST”) are defined, and treated, separately. Accordingly, Section 48E does not permit combined solar and storage facilities—each facility must claim the credit under Section 48E separately as a “qualified facility” or an “EST,” as applicable. This rule could have implications for application of the prevailing wage and apprenticeship requirements, domestic content adder eligibility, and energy community adder eligibility.
Similarly, the Final Regulations define “unit of qualified facility” to include all components of functionally interdependent property, and the term “qualified facility” to mean a unit of qualified facility plus integral parts. This is significant because satisfaction of the prevailing wage and apprenticeship requirements, domestic content adder eligibility, and energy community adder eligibility are each determined on a “qualified facility” basis. To take an example, this means in many cases that prevailing wage and apprenticeship, domestic content, and energy community eligibility would be measured for a solar facility at the inverter level, rather than on a project-wide basis as is required for the ITC under Section 48 of the Code. Although this rule was in the Proposed Regulations, many commenters asked the IRS to permit some form of aggregation (similar to the energy project rules under Section 48) for purposes of Section 48E. The IRS declined this request, and the rules in the Final Regulations now will require very careful planning for prevailing wage and apprenticeship, domestic content adder, and energy community adder purposes.
In addition, under the Final Regulations, the cost of qualified interconnection property (which is similarly defined under the final regulations for Section 48) is only ITC-eligible for “qualified facilities.” For EST, the cost of interconnection property is not eligible for the credit under Section 48E. Again, this is different from the application of the ITC for qualified interconnection property for energy storage technology that is eligible for the ITC under Section 48 of the Code.
Notable Rules for both Section 45Y and 48E
The Final Regulations adopt the rule from the Proposed Regulations that the following types or categories of facilities may be treated as having an emissions rate of not greater than zero: wind, solar, hydropower, marine and hydrokinetic, geothermal, nuclear fission, fusion energy, and certain waste energy recovery property. For types or categories of facilities not listed above, taxpayers must rely on the annual table that sets forth the GHG emissions rates in effect as of the date the facility begins construction or, if not set forth on the annual table, the provisional emissions rate determined by the Secretary for the taxpayer’s particular facility.
In addition, for the types or categories of facilities not listed above, the Final Regulations confirm that certain emissions of GHGs are excluded from the requirement that the GHG rate be not greater than zero, including, for example, emissions that occur before commercial operation commences and emissions from routine operational and maintenance activities.
Both Section 45Y and 48E rely on the existing prevailing wage and apprenticeship rules contained in Sections 45(b)(7) and (8) of the Code and Sections 1.45-7, 1.45-8 and 1.45-12 and 1.48-13 of the Treasury Regulations except, as noted above with respect to Section 48E, prevailing wage and apprenticeship is measured as the qualified facility level rather than the energy project level (as it has been for the ITC).
For the 1 MW (AC) exception under both Sections 45Y and 48E, the Final Regulations incorporate similar rules for calculating nameplate capacity as provided in the final regulations under Section 48. However, the Final Regulations also provide that the nameplate capacity of a qualified facility with “integrated operations” with any other qualified facility must be calculated using the aggregate nameplate capacity of each qualified facility. A qualified facility will be treated as having “integrated operations” with any other qualified facility if the qualified facilities are of the same type of technology and (1) are owned by the same or related taxpayers, (2) placed in service in the same taxable year, and (3) transmit electricity generated by the qualified facilities through the same point of interconnection, if grid-connected, or are able to support the same end user, if not grid-connected or if delivering electricity directly to an end user behind the meter. These rules have a delayed applicability date of March 16, 2025.
Both Sections 45Y and 48E adopt the familiar 80/20 rule, which states that a facility may qualify as originally placed in service even if the unit of qualified facility contains some used components of property provided the fair market value of the used components of the unit of qualified facility is not more than 20% of the total value of the unit of qualified facility (which is determined by adding together the cost of the new components of property plus the value of the used components of property included in the qualified facility).
Serta, Mitel, and Incora’s Potential Impact on Uptiers
Go-To Guide:
Recent court decisions offer insights into how different courts interpret uptier transactions based on specific credit agreement terms.
Various credit agreement provisions, including buyback restrictions and sacred rights clauses, played key roles in these rulings.
Lender strategies, such as cooperation agreements, may emerge as potential responses to liability management transactions.
On Dec. 31, 2024, the U.S. Court of Appeals for the Fifth Circuit in Serta Simmons and the New York Appellate Division in Mitel each issued decisions concerning the validity of non-pro rata uptier transactions.1 The uptiers that the borrowers in Serta and Mitel undertook were prototypical; the borrowers negotiated with a subset of their existing lenders for new financing that would prime the existing debt, the participating lenders amended the existing credit documents to permit for such financing and/or lien stripping/subordination, and certain participating lenders exchanged their existing debt for some of the newly issued priming debt.
Despite the similarities, the two courts reached opposite conclusions on the uptiers’ validity, based on the terms of the underlying debt documents. In Serta, the Fifth Circuit held that the non-pro rata exchange did not constitute an “open market purchase” and, as a result, the exchange breached the existing credit agreement. Conversely, in Mitel, the New York court upheld the non-pro rata exchange, finding no similar restriction on affiliate buybacks existed in the underlying credit agreement.
These decisions round out a year that included another important decision, this one from the U.S. Bankruptcy Court for the Southern District of Texas in Incora, where in July 2024 the court ruled that the challenged uptier violated multiple indentures.2
Takeaways from these decisions, and considerations for lenders, include
1.
focusing on the credit agreement’s buyback and sacred rights provisions,
2.
negotiating liability management transaction (LMT) blockers, including more broad-sweeping restrictions on uptiers, and
3.
entering into cooperation agreements to thwart borrowers from pitting lenders against each other and the resulting race-to-the-bottom.
Serta, Mitel, and Incora Rulings
In Serta, the Fifth Circuit held that the debt exchange undertaken in a 2020 uptier did not qualify as an “open market purchase,” the exception to the pro rata sharing requirement that permitted borrowers to purchase loans from their lenders, and upon which Serta relied on for its exchange. In reaching its decision, the Fifth Circuit defined an open market purchase to mean one “that occurs on the specific market for the product that is being purchased”—e.g., a secondary market for syndicated loans—and not privately pursuant to a negotiated exchange.
Conversely, the New York Appellate Division in Mitel upheld the non pro rata exchange, finding that the underlying credit agreement expressly authorized the borrower to purchase loans from its lenders. The court rejected the non-participating lenders’ arguments that the exchange triggered the sacred rights provision concerning any change to loan terms that “directly adversely affected” lenders. The court found that the exchange did not waive, amend, or modify any loan term, and that the exchange’s effect on the non-participating lenders was indirect.
The Bankruptcy Court’s decision in Incora dealt with both sacred rights and buyback provisions. There, the court ruled that the uptier violated the existing indenture’s sacred rights provision because it released collateral without the required supermajority consent. In doing so, the court found the series of amendments that the debtors and the participating noteholders entered to obtain supermajority consent ineffective as they “had the effect of releasing all or substantially all of the collateral securing the debt.” As a result, the court held that the rights, liens, and interests that benefitted the noteholders under this indenture remained in full force and effect.
Additionally, the Incora court held that another indenture was breached when the issuer’s sponsor purchased notes from the participating noteholders in connection with the uptier. While that indenture permitted the issuer and its affiliates to purchase notes, it required any such purchase to be pro rata if the purchase was for less than all outstanding notes. The court therefore found that the sponsor’s purchase violated the pro rata treatment required under the indenture.
Considerations
In light of these rulings, lenders should consider:
Buyback/Loan Assignment Provisions. Uptiers – which often contain an exchange component – may be driven on the strength or weakness of the buyback/loan assignment provision. Incora and Serta show that buyback restrictions (in varying forms) may block non-pro rata exchanges; conversely, Mitel shows that an agreement with no restriction might be ripe for such an exchange.
Considering these rulings, borrowers and lenders may wish to expressly define “open market purchase” to align with the Fifth Circuit’s definition in Serta, and then negotiate whether to permit privately negotiated affiliated purchases (permitted in Mitel and Incora) specifying where pro rata treatment is required. Further, lenders may want to consider adding the definition of open market purchase and the buyback/loan assignment provisions to the enumerated list of sacred rights in credit agreements. It is worth noting that the Mitel transaction was not a broadly syndicated facility like Serta or Incora, meaning that there was less risk that the minority lenders would object to a debt exchange transaction.
Umbrella LMT Provisions. In addition to now commonplace blockers, debt agreements are starting to include umbrella LMT provisions that expressly prohibit “uptiers” undertaken to contractually or structurally subordinate existing debt and/or otherwise cap the amount to a de minimis amount.
Sacred Rights. Incora demonstrates the importance of drafting a broad sacred rights provision to capture creatively manufactured LMTs. For instance, the indenture in Incora (unlike some other indentures in the market) blocked amendments that “have the effect of releasing” collateral, not just those that released collateral. Thus, the first step in the Incora uptier—an indenture amendment to permit a new notes issuance to participating noteholders with supermajority consent—coupled with the amendments that then stripped the liens, triggered the sacred rights provision. Conversely, in Mitel, the non-participating lenders’ reliance on the sacred rights provision, which was limited to amendments that “directly” adversely affected loan terms, was unsuccessful.
Remedies. Due to the ineffectiveness of remedies against borrowers who frequently declare bankruptcy, the recent successful challenges to uptiers in Serta and Incora—and the potential use of these cases by non-participating lenders to threaten future lawsuits—may discourage lenders from engaging in the aggressive uptiers seen in the market the past few years.
Cooperation Agreements. In response to the LMTs witnessed in the last few years, lenders are shifting from organizing into groups to entering into formal cooperation agreements among themselves. Generally, cooperation agreements require lenders to negotiate with borrowers as a united front. To that end, these agreements restrict lenders from (1) selling their debt to parties outside of the lender group, (2) independently communicating or negotiating with the borrowers, and (3) otherwise taking actions inconsistent with the cooperation agreements. Further, if a lender supermajority supports a certain transaction with the borrower, these agreements would require all the lenders to support that deal. At a minimum, cooperation agreements are meant to lock up lenders and avoid defections to thwart borrowers from pitting the various lender factions against each other.
Understand the Market. Because LMTs are becoming more popular, even if loan documents contain protections for the lender group against a potential uptier transaction, it may still be challenging to entirely prevent the borrower from undertaking an LMT.
1 In re Serta Simmons, No. 23-201481 (5th Cir. Dec. 31, 2024); Ocean Trails CLO VII v. MLN Topco Ltd., No. 24-00169 (N.Y. App. Div. 1st Dep’t Dec. 31, 2024).
2 Hearing Transcript, Wesco Aircraft Holdings, Inc. v. SSD Inv. Ltd., (In re Wesco Aircraft Holdings, Inc.), Case No. 23-90611, Adv. No. 23-03091 (Bankr. S.D. Tex. July 10, 2024).
Private Market Talks: Bringing Private Credit to the Wealth Channel with Nomura Capital Management’s Robert Stark [Podcast]
In our first episode of 2025, we’re excited to speak with Robert Stark, CEO of Nomura Capital Management. During our discussion, we discuss the competitive DCA ranges and challenges of building a private credit platform within a large, global financial institution. Robert also talks about how Nomura has been able to tap into its vast network of registered investment advisors to unlock distribution through the private wealth channel. Finally, we look forward and get Robert’s outlook for 2025. It’s a great start to the New Year!
Potential Impact of FHA’s Revised Defect Taxonomy on Mortgage Originators and Servicers
On January 7, 2025, the Federal Housing Administration (FHA) officially revised its Defect Taxonomy (Final Defect Taxonomy) with the publication of Mortgagee Letter (ML) 2025-01 and the related attachment detailing those changes. The changes are effective as of January 15, 2025, and will be implemented in Appendix 8.0 of FHA Handbook 4000.1 at a later date.
FHA first proposed revising the Defect Taxonomy on October 28, 2021, with the publication of FHA INFO 2021-92. Since then, FHA announced a new proposed version of the Defect Taxonomy with the publication of FHA INFO 2024-25 on July 10, 2024 (Proposed Defect Taxonomy). As we reported at the time, the proposed revisions to the Defect Taxonomy were broad and, most notably, created a new section specific to loan servicing defects. The Proposed Defect Taxonomy did not suggest revisions to the Underwriting Loan Review section of the Defect Taxonomy, but it did propose revisions to the generally applicable introduction of the Defect Taxonomy, as well as the creation of an entirely new Servicing Loan Review section. The Final Defect Taxonomy generally aligns with the Proposed Defect Taxonomy from July 10, 2024. However, based on its own internal review and/or industry feedback, FHA has made some notable revisions to the Final Defect Taxonomy that will likely impact how the U.S. Department of Housing and Urban Development (HUD) applies it in practice.
Examples/Explanation of What Constitutes a Tier 2 or Tier 3 Finding
The Defect Taxonomy has general definitions of what constitutes either a Tier 1 or Tier 4 defect. Both relate to Findings of fraud or materially misrepresented information, but a Tier 1 defect is a Finding that the “Mortgagee knew or should have known” about and a Tier 4 defect is a Finding that the “Mortgagee did not know and could not have known” about. Unlike the clearly stated definition of a Tier 1 or Tier 4 defect, the Defect Taxonomy uses specific examples of Mortgagee conduct to define a Tier 2 or Tier 3 defect as something that falls between a Tier 1 or Tier 4 defect. These examples are included in multiple parts of the Defect Taxonomy, including the introduction, the Underwriting Loan Review section, and the Servicing Loan Review section. The recent revisions only impact the introduction and Servicing Loan Review sections.
The edits to the introduction section of the Final Defect Taxonomy are generally clarifying edits. However, FHA made a more substantive change to the examples given in defining a Tier 3 defect. Specifically, the Final Defect Taxonomy now states that a Tier 3 defect includes a Finding “of noncompliance remedied by the Mortgagee prior to review by the FHA.” This example is not included in the Proposed Defect Taxonomy. The addition is helpful in drawing a line between a Tier 3 and Tier 2 defect, because the Final Defect Taxonomy defines a Tier 2 servicing defect as a Finding that requires “mitigating documentation, corrective servicing action, and/or financial remediation.” As a result, it appears FHA recognizes that a self-mitigated defect merits a lower tier rating for purposes of the Defect Taxonomy.
For the Servicing Loan Review section, FHA made numerous revisions to the examples provided for what constitutes a Tier 2 or Tier 3 defect under each specific defect area. The revisions generally reflect a more specific or clear example of a Tier 2 or Tier 3 defect, so these revisions do not present a significant departure from the Proposed Default Taxonomy. However, it would be beneficial for all servicers or impacted parties to review the new examples of Tier 2 and Tier 3 defects under the Final Defect Taxonomy.
Remedies for Tier 2 Findings
Like the revisions to the examples of a Tier 2 or Tier 3 defect, the Final Defect Taxonomy outlines different potential remedies for a Tier 2 defect compared to the remedies outlined in the Proposed Defect Taxonomy. Some of these revisions may be impactful for Mortgagees. For example, in the context of a Loss Mitigation Processing defect, the Proposed Defect Taxonomy stated that FHA would accept a one-year or five-year indemnification if the borrower did not accept the terms of the appropriate loss mitigation option. But now, the Final Defect Taxonomy states that “FHA will accept indemnification (1-Year or 5-Year) only when the Servicer provides documentation of a good faith effort to complete” the loss mitigation option. Similar revisions were incorporated in the context of Home Disposition defects and Home Retention defects. It is unclear what constitutes “a good faith effort,” but at the very least, this revision will potentially impose a new reporting obligation on impacted servicers.
Rebuttal of a Finding or Severity Determination
The introduction section of both the Final and Proposed Defect Taxonomies state that a Mortgagee may provide supporting documentation through the Loan Review System (LRS) to rebut any Finding or severity determination under the Defect Taxonomy. However, the Final Defect Taxonomy also specifies that “Rebuttals are based on information available to FHA prior to the initial Finding.” This seemingly small addition appears to meaningfully limit the scope of the information a Mortgagee can use to rebut HUD’s determinations pursuant to the Defect Taxonomy. As a result, this limitation on the rebuttal process could be a future cause of Mortgagee concern.
Takeaways
Going forward, Mortgagees and other impacted parties likely should review the Final Defect Taxonomy to develop a better idea of what FHA and HUD view as a Tier 1, Tier 2, Tier 3, or Tier 4 defect. It would also likely be beneficial for Mortgagees to implement this information in their policies and procedures, such as internal audit and quality control, to try to preempt potential origination or servicing defects. Other factors to consider include: (1) identifying defects that could be self-mitigated and therefore characterized as a Tier 3 defect; (2) documenting good faith efforts to complete loss mitigation; and (3) reviewing the information submitted in the LRS to ensure that it is detailed enough to support a potential rebuttal to a Finding or severity determination pursuant to the Defect Taxonomy.
The impact of the Final Defect Taxonomy will become clearer as HUD interprets and implements it in the near future.
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Promising Results from Groundbreaking FinCrime Data Sharing Project Between Seven UK Banks and the National Crime Agency
In 2024, the National Crime Agency (the “NCA”), which is the UK’s lead agency against organized crime; human, weapon and drug trafficking; cybercrime; and economic crime, announced its “groundbreaking” data sharing partnership with seven UK banks, namely Barclays, Lloyds, Metro Bank, NatWest, Santander, Starling Bank, and TSB.[1]
This new public-private partnership (“PPP”) was the largest of its kind anywhere in the world and the initial results of the project suggest it is revolutionizing the fight against financial crime.
Joint Analysis of Transactional Data that is Indicative of Potential Criminality
The project involved the seven banks voluntarily sharing customer and transactional data with the NCA with the aim of tackling criminality and kleptocracy, and preventing the flow of “dirty money” through the UK’s financial system. AML subject matter experts from the seven banks were then seconded to the NCA to work directly alongside the NCA’s own analysts in the scrutiny of banking data that is suggestive of criminal behavior, with the dual goals of identifying bad actors that are exploiting and misusing the financial system while ensuring that legitimate customers are left alone.
Promising Results
PPPs can be vastly effective in tackling the complexities of financial crime. Principally, this is because they help to bridge gaps in intelligence and enable more holistic or collaborative analytics. In the UK’s case, the NCA has reported that since the project went live in 2024, eight new criminal networks already have been confirmed. In addition, a further three suspicious networks have been identified and referred to the NCA’s intelligence division for further examination, while new leads have been uncovered related to 10 of the agency’s largest ongoing investigations. In sum, data sharing of this sort appears to be materially augmenting the ability of law enforcement to detect and disrupt criminality. The likely result will be the reduction of the financial crime risks that all banks have to manage on a daily basis and a consequential decrease in their “compliance costs.”
Data Protection Considerations
The major concern about data sharing initiatives of this sort relates to privacy, and banks have long been wary of sharing customer data with third parties for fear of contravening applicable data protection laws. On this, Andrew Searle, the Director of the NCA’s National Economic Crime Centre, has said, “the NCA and its banking partners have designed the [project’s] data sharing principles to ensure that only account data with multiple clear indicators of economic crime is included.” [2] Additionally, the banks have included in their terms and conditions the ability to share information without notification where the purpose of doing so is the fulfillment of the legal obligation to detect and prevent financial crime. Finally, the Financial Conduct Authority (the “FCA”), which regulates the UK’s financial services industry, is observing the project and providing an additional layer of oversight that has helped appease concern regarding inadvertent violations of data protection law.
Additional Considerations
A similar initiative has now been launched in Singapore: a digital platform called “COSMIC” (the “Collaborative Sharing of Money Laundering/Terrorism Financing (ML/TF) Information and Cases”) that allows six Singaporean banks, namely Citibank, Development Bank of Singapore (DBS), HSBC, Oversea-Chinese Banking Corporation (OCBC), Standard Chartered, and United Overseas Bank, to share information on customers exhibiting multiple red flags indicators of financial crime concern.[3] The major difference between the UK project and the Singaporean project is that the former is being led by the NCA, or UK law enforcement, while the latter, COSMIC, is a purely private sector initiative.
Given the promising results of the UK project and Singapore’s launch of COSMIC, we expect that other countries will follow suit in terms of facilitating the sharing of intelligence related to suspected money laundering, terrorism financing, and proliferation financing, whether it be via the PPP model or among only private sector participants. Either way, fostering true collaboration between multiple interested parties likely is going to be crucial in the effort to stay ahead of sophisticated criminals and emergent threats.
For that reason, it is incumbent upon public sector actors, from the perspective of preventing financial crime, to actively facilitate information sharing initiatives, for example by updating laws or supervisory instruments as necessary; making use of regulatory sandboxes and pilot programs; highlighting typologies or data types that would benefit from sharing; deploying secure platforms for sharing and oversight; promoting regular dialogue between data protection and AML/CFT authorities; and more.
Finally, banks around the world should remember that, even if currently they are not able to pool data with other stakeholders, for example because of applicable data protection laws or other jurisdiction-specific fundamental rights, they still need to do everything possible to mine the volumes of customer and transactional data that they already possess and/or can obtain from their correspondents, as well as the huge quantity of open source intelligence that is readily available online, for compliance purposes. This means not just performing real-time, list-based screening, but investing in additional headcount, advanced analytical solutions and experienced external counsel to conduct proactive investigations of post-transactional data, looking for suspicious typologies, actors, networks or other activities. Ever-increasing amounts of customer and transactional data need not be overwhelming; on the contrary, if viewed as a resource rather than a burden and if leveraged appropriately, they represent a material opportunity to better detect and prevent criminal activity, and to protect legitimate consumers.
FOOTNOTES
[1]Ground breaking public private partnership launched to identify criminality using banking data
[2] Ibid.
[3] MAS Launches COSMIC Platform to Strengthen the Financial System’s Defence Against Money Laundering and Terrorism Financing
Court Holds That Contingent Remainder Beneficiary Has Standing To Sue Trustee For Breach Of Fiduciary Duty
In In re Est., the court of appeals dealt with whether a contingent beneficiary can file claims against a trustee. No. 02-23-00104-CV, 2024 Tex. App. LEXIS 1878 (Tex. App.—Fort Worth March 14, 2024, no pet.). The court held that contingent beneficiaries do have standing:
We conclude that James is within the class of persons authorized to sue the Trustees. First, we reject the assertion that a trustee can never be sued by a contingent beneficiary… Texas also allows a contingent or vested beneficiary to sue a trustee for breach of fiduciary duty. See Tex. Prop. Code Ann. §§ 111.004 (defining “beneficiary” and “interested person”), 115.011(a) (authorizing any “interested person” to bring suit relating to trust administration); Berry, 646 S.W.3d at 527-28 (applying Texas Property Code Sections 111.004, 115.001, and 115.011 in analysis of whether contingent trust beneficiary was authorized by statute to bring her breach-of-fiduciary-duty claims and concluding that she was). Even at the time that Mary Sue transferred the money, James had a contingent interest in the Trust subject only to Claude’s power of appointment. See Berry, 646 S.W.3d at 529. Second, and more importantly, in this case regardless of whether the applicable laws or the terms of the Trust would have restricted James’s ability to sue the Trustees while Claude was alive, by the time that he did sue, his interest was no longer contingent. James now unquestionably has a right to at least a share of the Trust’s assets, and he contends that Mary Sue’s improper action reduced those assets. Accordingly, James was within the class of persons authorized to bring his claims. See Ala. Code §§ 19-3B-101, 19-3B-1001-02; Tex. Prop. Code Ann. §§ 111.004, 115.011(a); Berry, 646 S.W.3d at 527.
…
In their reply brief, the Trustees argue that Section 115.011 does not authorize James to bring his suit because although that provision allows an “interested person” such as a beneficiary to bring claims under Section 115.001, a claim under Section 115.001 does not include tort claims, and thus Section 115.011 does not authorize James to sue for breach of fiduciary duty. The Trustees do not, however, discuss Berry, in which the Texas Supreme Court applied Sections 115.001 and 115.011 in its analysis of whether a contingent trust beneficiary was within the class of persons authorized to sue the trustee for breach of fiduciary duty. Berry, 646 S.W.3d at 527-30. We therefore disagree that those Property Code sections have no relevance to an analysis of who may sue a trustee for breach of fiduciary duty. Thus, even applying Texas law, we conclude that James was authorized to bring his breach-of-fiduciary-duty claims. We reject the Trustees’ challenge to James’s standing and capacity.
Id.