Mr. Johansen is an associate in Davis Polk’s Financial Institutions Group. [Full Bio]

Guidance is guidance, and rules are rules.  This straightforward statement was reiterated by Treasury Secretary Mnuchin, Federal Reserve Vice Chairman for Supervision Randal Quarles and Comptroller of the Currency Joseph Otting in separate Congressional hearings earlier this year.[1]  Nevertheless, for at least the past ten years, the failure to
Continue Reading Interagency Statement on Supervisory Guidance Could Result in Meaningful Changes to Supervisory Practices

Another circuit court has opined on the Federal Housing Finance Agency (FHFA) and the legality of its net worth sweep.  Late last week, the United States Court of Appeals for the Eighth Circuit held in Saxton v. FHFA that the FHFA did not exceed its statutory authority under
Continue Reading Eighth Circuit Decides a Net Worth Sweep Claim, but is the Real Action Elsewhere?

The decision by the United States Court of Appeals for the Fifth Circuit earlier this week in Collins v. Mnuchin holding that the structure of the Federal Housing Finance Agency (FHFA) is unconstitutional is an important development not only for the FHFA but also for the constitutionality of
Continue Reading Fifth Circuit Holds That FHFA is Unconstitutionally Structured

Arguments surrounding the constitutionality of the CFPB’s structure, never fully put to rest despite the D.C. Circuit’s en banc decision in PHH v. CFPB, are back in the headlines this week.  Yesterday, Senior United States District Judge Loretta A. Preska of the Southern District of New York issued a
Continue Reading SDNY Weighs In on the Constitutionality of the CFPB’s Structure

Davis Polk has submitted a comment letter on the Federal Reserve’s proposed amendments to its guidelines on internal appeals of material supervisory determinations (the Proposal).  While we understand, of course, that discretion is a necessary element of supervision, our concern is with discretion that is insufficiently accountable, involves legal
Continue Reading Legal Interpretations in Examination Appeals Should be More Transparent

Continuing the trend of Congressional attention to U.S. capital requirements for banking organizations, the United States House of Representatives has passed a bill that seeks to address the calculation of risk-weighted assets (RWAs) for operational risk under the U.S. Basel III capital rules (House Bill).  The
Continue Reading House of Representatives Passes Bill to Address Calculation of Operational Risk RWAs Under U.S. Basel III

The Mulvaney Memo on the CFPB and the rule of law is one of the most remarkable documents to be published by an agency head in many years.  It signals a deep commitment to the rule of law as a philosophical concept and as an important brake on agency discretion
Continue Reading The CFPB and the Rule of Law

Federal Reserve Vice Chair for Supervision Randal Quarles recently sought to answer the question that he has been asked most frequently since assuming his post three months ago: What’s next? He expressed his support for the reforms that have made the financial system stronger and more resilient since the Financial
Continue Reading As Regulatory Reform Push Continues, Federal Reserve Vice Chair for Supervision Randal Quarles Sets Out His Guiding Principles

The CFPB’s announcement of a call for evidence is a welcome sign that the new leadership of the agency is thinking seriously about how it implements its mission. In the coming weeks the CFPB will publish a series of Requests for Information (RFIs) seeking public comment on the CFPB’s enforcement,
Continue Reading The CFPB’s Call for Evidence: An Indication of Further Regulatory Rebalancing

The Federal Reserve’s proposed core principles on management of large financial institutions are another welcome addition to its efforts to clarify and better distinguish between the roles of boards of directors and the management of large financial institutions. The new guidance (Management Guidance) describes core principles of effective senior management,

Continue Reading Federal Reserve Proposes New Guidance on Management of Large Financial Institutions