ST0-200 exam Dumps Source : Symantec System Recovery 2013 Technical(R) Assessment
Test Code : ST0-200
Test name : Symantec System Recovery 2013 Technical(R) Assessment
Vendor name : Symantec
: 111 existent Questions
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PALO ALTO, CA--(Marketwired - Nov 19, 2014) - Symantec and HP (NYSE: HPQ) enterprise features today announced a joint partnership to enhance a unusual calamity healing as-a-service (DRaaS) solution based on HP Helion OpenStack. The HP Helion and Symantec Continuity providing will aid enterprise and SMB shoppers to reduce healing times, records loss, and associated downtime costs.
The expanded variance of traffic facts storage environments has created a necessity for a catastrophe recuperation reply that works across diverse computing environments, including on-premises, public cloud and managed cloud. The HP/Symantec DRaaS solution will leverage HP's commercial enterprise cloud as the calamity healing with a purpose to convey can permeate savings, automation and self-provider user experience. The provider will back customers achieve device and utility recovery SLAs and meets trade requisites for safety.
"Partnering Symantec's traffic main enterprise continuity software with HP's world class traffic services will create a distinct calamity recuperation reply as a pass to fill a conducive fill an consequence on when any disruptive events ensue," spoke of Doug Matthews, vice president, tips Availability, Symantec. "This collaboration will aid their consumers to present protection to their workloads no recollect in the event that they race on natural IT or are hosted within HP Helion OpenStack-based mostly cloud environments. This unusual DRaaS reply specializes in enterprise continuity, failover and failback and may video panoply essentially the most generic purposes and databases out there."
When the unusual DRaaS product is made commonly available in late 2015, co-beginning may breathe supplied from each companions with customer onboarding supported with the aid of joint teams. As allotment of the partnership, Symantec provides the DRaaS software solution, whereas HP provides the conclusion-to-conclusion carrier in response to the underlying calamity recuperation facilities, infrastructure, and operations team. the brand unusual DRaaS solution will race on an HP Helion OpenStack-primarily based cloud ambiance and should sheperd replication, recovery and automatic failover/failback of customer IT whether it's typical IT on-premises, managed cloud, private cloud or public cloud.
"HP consumers want to leverage cloud as a calamity healing target for can permeate discounts and operational efficiencies, whereas assisting valued clientele to obtain healing SLAs for methods and applications and offering a simplified journey," notable Jim Fanella, vice president, Workload and Cloud, HP enterprise services. "Bringing a DRaaS solution that's powered by Symantec and HP commercial enterprise functions, leveraging HP Helion, will supply each agencies a robust go-to-market competencies in this quick growing market category."
The DRaaS solution will assist and maneuver traffic selected customer requisites for calamity recuperation, akin to PCI within the retail business, HIPAA in the healthcare trade, or FedRAMP and FISMA within the US public sector.
Pricing and availability Pricing is according to a month-to-month subscription fee based on the measurement/type of server and quantity of storage to breathe blanketed. This as-a-service pricing mannequin is projected to obtain as much as 50 % can permeate discount over an equal in-condo answer.
The DRaaS reply might breathe managed in the HP Helion Managed Cloud features portfolio and Symantec's counsel Availability portfolio. Co-selling will breathe accomplished completely for three years following international general availability in 2015.
suggestions about HP Helion Continuity and other HP cloud solutions is accessible at www.hp.com/enterprise/continuity and Symantec's tips Availability portfolio is obtainable at www.symantec.com/businesscontinuity.
consult with us at HP learn Barcelona to gain learning of extra about the partnership and the supposed solution. specific classes consist of:https://h30550.www3.hp.com/join/sessionDetail.ww?SESSION_ID=6511https://h30550.www3.hp.com/connect/sessionDetail.ww?SESSION_ID=6018
About HP HP creates unusual percentages for know-how to fill a significant influence on americans, businesses, governments and society. With the broadest technology portfolio spanning printing, very own methods, utility, services and IT infrastructure, HP provides options for customers' most knotty challenges in each spot of the world. extra assistance about HP is accessible at http://www.hp.com.
About Symantec Symantec employer (NASDAQ: SYMC) is an counsel insurance policy skilled that helps americans, corporations and governments seeking the freedom to liberate the opportunities technology brings -- anytime, any place. founded in April 1982, Symantec, a Fortune 500 enterprise, working one of the vital biggest international information-intelligence networks, has provided main protection, backup and availability solutions for the spot essential tips is kept, accessed and shared. The business's greater than 20,000 personnel live in additional than 50 nations. Ninety-nine % of Fortune 500 groups are Symantec customers. In fiscal 2014, it recorded revenues of $6.7 billion. To breathe taught greater proceed to www.symantec.com or combine with Symantec at: http://www.symantec.com/social/
The OpenStack breathe sensible stamp and the square O Design, collectively or apart, are trademarks or registered logos of OpenStack foundation within the united states and different international locations, and are used with the OpenStack basis's permission.
forward-looking StatementThis press release incorporates forward-looking statements that involve risks, uncertainties and assumptions. If such risks or uncertainties materialize or such assumptions demonstrate improper, the consequences of HP and its consolidated subsidiaries could vary materially from these expressed or implied by using such ahead-looking statements and assumptions. totality statements apart from statements of ancient truth are statements that may well breathe deemed ahead-looking statements, together with however not constrained to statements of the plans, innovations and ambitions of HP for future operations, including the separation transaction; the future performance if Hewlett-Packard commercial enterprise and HP Inc. if the separation is achieved; any statements regarding expected development, performance, market participate or competitive efficiency relating to items and services; any statements related to expected operational and fiscal outcomes; any statements of expectation or belief; and any statements of assumptions underlying any of the foregoing. hazards, uncertainties and assumptions consist of the should tackle the various challenges facing HP's organizations; the aggressive pressures faced by means of HP's companies; hazards linked to executing HP's method, including the deliberate separation transaction, and plans for future operations and investments; the influence of macroeconomic and geopolitical tendencies and events; the deserve to control third-party suppliers and the distribution of HP's items and features quite simply; the coverage of HP's highbrow property property, together with highbrow property licensed from third events; risks linked to HP's overseas operations; the edifice and transition of recent items and services and the enhancement of current items and capabilities to fullfil customer wants and respond to rising technological traits; the execution and performance of contracts by HP and its suppliers, consumers, customers and companions; the hiring and retention of key employees; integration and other risks linked to enterprise amalgam and funding transactions; the execution, timing and results of restructuring plans, together with estimates and assumptions involving the can permeate and the predicted benefits of imposing these plans; the execution, timing and outcomes of the separation transaction or restructuring plans, together with estimates and assumptions involving the can permeate (together with any viable disruption of HP's enterprise) and the predicted merits of implementing the separation transaction and restructuring plans; the resolution of pending investigations, claims and disputes; and different hazards that are described in HP's Annual record on shape 10-ok for the fiscal year ended October 31, 2013, and HP's different filings with the Securities and change fee, together with HP's Quarterly report on shape 10-Q for the fiscal quarter ended July 31, 2014. HP assumes no responsibility and doesn't intend to replace these ahead-searching statements.
The utility vendor's undertaking oasis, code identify for a mammoth ERP overhaul, well-nigh crippled its ordering gadget. Refocusing on the person event and connecting with a hidden classification of consumers salvaged the enterprise's business.
Ordering Symantec utility is a walkaway for Stephen Nacci, director of seller family members at TLIC global, a application reseller in Rhode Island.
Processing product and licensing requests through the seller’s on-line portal has never been less difficult, and the volume of consideration the reseller receives from his regional consultant has certainly not been larger. Nacci’s enterprise has even gotten calls inquiring in regards to the fine of customer provider and advocate from Symantec CEO John Thompson.
“They’ve got it together a lot stronger,” says Nacci. “We’re getting a lot more well timed responses from them—faster provider, extra attention and stronger responses to their wants.”
Doing traffic with Symantec nowadays is a much roar superior than it was just one year in the past at the peak of a exigency that shook the safety and storage utility dealer to its core.
In November 2006, Symantec flicked the switch on a brand unusual commercial enterprise useful resource planning (ERP) gadget designed to let partners and clients order products and spark off licenses. Internally, it changed into called undertaking Oasis, a vast step within the merger of Symantec and Veritas. once carried out, the mixed enterprise’s vast network of resellers, integrators, distributors and valued clientele would spot orders via a sole system that covered totality of the tools and suggestions obligatory for knowing utility buying.
Technically, undertaking Oasis, an ameliorate to Oracle 11d, changed into flawless. The code, interface and device—apart from some conflicting information that made accounting complicated to interpret—went precisely as Symantec had conceived when it launched the assignment in might moreover 2005.
but users didn’t grasp into account the equipment. The voluminous suggestions it offered them and the myriad steps required to belt orders created confusion and negative usability. basically, the gadget was so cumbersome that resellers and valued clientele were on the verge of rebel. The issues were so acute that CEO Thompson blamed allotment of the company’s sluggish fiscal efficiency within the third quarter of fiscal 12 months 2007 on the ERP plague.
“It probably cost them business,” Nacci remembers. “The device made it so that you didn’t need to secure worried with them.”
despite totality its planning, Symantec made a lot of and close-deadly errors in making ready its clients for the change in its ordering equipment. For one factor, the project administration crew did not coordinate the rollout with different divisions that had been launching unusual items at the identical time. regardless of its top-quality efforts, the management crew could not accurately reclaim together its more than 60,000 resellers, companions and distributors—and scores extra purchasers—for the procedural changes required by the brand unusual device.
From the ashes of undertaking Oasis rose undertaking Nero, named for the Roman emperor who, the anachronistic legend has it, torched his capital city while cavalierly playing his fiddle. Symantec insiders shriek the name became chosen to deliver the urgency and seriousness of the condition. If the complications weren’t resolved immediately, it may spell fiscal raze for the vendor.
*Some businesses settle to retain away from ERP methods altogether. Take Fortune 500 Wesco international with $5.three billion in revenues.
mission Nero, an ongoing effort, did greater than simply unravel the issues linked to the ERP implementation. infatuation the failed mission it was designed to appropriate, undertaking Nero prompt its personal chain of events and initiatives that fill transformed the manner Symantec views its purchasers and runs its company. After a painful and hard recuperation procedure, Symantec has no longer simplest recovered, however now serves for example of a pass to engage with clients and companions in the web-enabled industry.
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In Principle 10 Things Authorised Firms need To Know For 2019 1. Brexit ............................................................................................3 2. The Extension of the Senior Managers and Certification Regime..............................................................5 3. Market mistreat ............................................................................9 4. The FCA’s Recent Enforcement Trends ......................10 5. Cybersecurity and Data Protection .............................. 12 6. EU Securities Financing Transaction Regulation .....14 7. Amendments to the European Market Infrastructure Regulation.................................................. 15 8. EU Benchmarks Regulation and LIBOR Cessation .. 17 9. EU Action device on Sustainability and Asset Management ...........................................................................19 10. Individuals on the Enforcement Agenda: 2018 Key Cases and Enforcement Round-Up .......... 20 1In Principle Introduction Executive Summary In the 2018 edition of this publication, they ended the introduction with the line, “We can only hope that they will enter 2019 with greater certainty than 2018 as to how the regulatory landscape will look.” Unfortunately, certainty soundless remains in rather short supply. With Brexit now (at least in theory) a matter of weeks away, it remains unclear what will happen: the government’s original proposed Withdrawal Agreement has been decisively rejected, but Parliament has indicated that it would advocate that agreement if the “Irish Backstop” provisions are renegotiated. The Prime Minister has therefore been mandated to return to negotiations on this point, in the physiognomy of statements by European Union leaders that there is no prospect of such negotiations going ahead. At the very time, Parliament has signalled that it “rejects” a no-deal Brexit, but not agreed to a proposal which would fill made this rejection binding. Further Parliamentary proceedings are now planned for the middle of February. Whether there is a hard, soft or no Brexit, there remain a number of issues beyond Brexit that authorised firms will fill to deem in the year ahead. Including Brexit, here are 10 things that authorised firms need to know for 2019. 1. Brexit In the absence of a decision of what will betide further the 29 March 2019 (or indeed, further some future date if “exit day” is postponed”), firms fill been left in a condition of uncertainty. Whilst this makes planning for what will betide even more difficult, it is practicable to plot out how inevitable more likely scenarios would play out. They deem what asset managers would physiognomy if the original Withdrawal Agreement is largely accepted (notwithstanding a change to the Irish backstop), what would betide in the event of the UK leaving the EU without an agreement, and what consequence the UK’s remaining in a customs union with the EU would fill on asset managers. They moreover deem what preparations the FCA has made for a no-deal scenario, in particular surrounding the “temporary permissions regime”. 2. The Extension of the Senior Managers and Certification Regime The Senior Managers and Certification Regime (SMCR), which is currently in constrain for totality banks, edifice societies, credit unions, and dual regulated investment and insurance firms, will breathe extended to cover totality FCA solo-authorised firms by 9 December 2019. While the fiscal Conduct Authority (FCA) will continue to approve people who grasp on Senior Manager roles, the responsibility to certify employees below Senior Manager even as lucky and proper will devolve on the firms themselves. Firms will moreover breathe required to train staff on the Conduct Rules and implement unusual or update existing systems and controls, including a variety of policies and procedures. Although the implementation is almost a year away, firms would breathe well advised to fill the unusual requirements at the forefront of their minds to ensure a smooth transition. 3. Market mistreat Market mistreat continues to breathe an belt of very significant interest for the FCA and growing interest across the repose of the EU. With the FCA’s insight that compliance with the Market mistreat Regulation (MAR) is “state of mind” rather than a matter of following procedures, firms will fill to breathe particularly vigilant to ensure that they remain compliant. 4. The FCA’s Recent Enforcement Trends Until the halt of 2018, the FCA had a comparatively hushed year, at least in terms of the number of investigations publicly brought to a conclusion and the consequent number of fines issued. The number of penalties was down, and the length of investigations was increasing substantially. They fill looked at the number and distribution of investigations and decision notices to reclaim together a picture of the FCA’s current enforcement trends. 5. Cybersecurity and Data Protection 2018 was an well-known year for data protection law with the entry into constrain of the general Data Protection Regulation (GDPR) in May. They hope to see a trickle of enforcement cases in 2019 under the unusual regime as the courts and tribunals interpret the unusual law’s provisions. Especially with the greatly increased size of the penalties available for breaches, firms should continue to carefully monitor compliance with data protection obligations. Further regulatory guidance on core provisions of the GDPR is expected during 2019. 2 © 2019 Akin Gump Strauss Hauer & Feld 6. EU Securities Financing Transaction Regulation The Securities Financing Transaction Regulation (SFTR) is one of the major pieces of post-financial exigency legislative reforms and introduces a reporting and transparency regime applicable to firms that parallels the over-the-counter (OTC) derivatives reporting requirements under the European Market Infrastructure Regulation (EMIR). totality counterparties are required to report details of any securities financing transactions that they fill concluded, modified or terminated to a registered or recognised trade repository. Whilst the reporting responsibility under the SFTR is not expected to grasp complete consequence until 2020 at the soonest, for firms that regularly deal with repos and buy-sellback transactions, this piece of legislation should breathe firmly on the radar, given the requirement to build operational infrastructure to advocate the unusual reporting requirement. 7. Amendments to the European Market Infrastructure Regulation EMIR is topic to a significant reform proposal, the EMIR “refit,” which includes a number of changes that are expected to become efficient in 2019. These are, in some pass or other, likely to impact totality firms currently topic to EMIR. EMIR is proposed to breathe extended in scope by clarifying that totality alternative investment funds (AIF) should breathe considered to breathe fiscal counterparties (FC), which has caused some confusion as to the proper classification of non- EU AIFs with non-EU managers. The refit seeks to alleviate some of the regulatory tribulation for smaller counterparties by introducing an FC+ and FC- concept to exclude the below-threshold FCs from the scope of the clearing responsibility and by making NFC- reporting the responsibility of counterparty FCs. A number of the amendments that are likely to grasp consequence in 2019 therefore search to address issues raised by industry since before EMIR was published in 2012. Clearing and margin requirements established under the current EMIR regime will moreover continue to breathe phased in during 2019, thereby completing the phase-in requirements for totality counterparty categories topic to clearing. 8. EU Benchmarks Regulation and LIBOR Cessation They are now in the “transitional period” of the Benchmarks Regulation (BMR), whereby EU-based existing “users” of benchmarks may continue to exercise non-EU-administered benchmarks in fiscal instruments until 1 January 2020, notwithstanding that such benchmarks are not listed on the European Securities and Market Authority’s (ESMA)s register of “approved benchmarks.” Post-1 January 2020 treatment of non-EU benchmarks is unclear, given the need of available “routes” into the EU for non-EU-administered benchmarks under the BMR: No jurisdiction has, for example, been declared “equivalent” to the EU such that benchmarks administered in that jurisdiction may continue to breathe used. An additional wrinkle to 2019 compliance is that LIBOR is expected to cease to exist from the halt of 2021. The FCA has stated that, from that time, it no longer expects panel banks to contribute to LIBOR; thus, it is expected to disappear. The impact of this is that, to the extent that users of benchmarks currently reference LIBOR in fiscal instruments and wish to continue to execute so, the fact of LIBOR’s practicable cessation will need to breathe addressed in “robust written plans,” which users of benchmarks are expected to prepare and, on request, build available to the FCA. As explained in the following, the FCA has moreover indicated that benchmark supervision is an well-known supervisory priority for this year. 9. EU Action device on Sustainability and Asset Management In November 2018, the EU Commission issued a consultation on whether, and how, asset managers should breathe required to grasp principles of sustainability into account when making decisions. This proposal signals a key shift in using fiscal regulation to address environmental and sociable concerns, whether or not it is the case in practice that such matters are currently addressed by asset managers. While there is currently no transparent indication of the shape of the rules affecting managers, the industry will breathe keeping a keen eye on these initiatives. 10. Individuals on the Enforcement Agenda: 2018 Key Cases and Enforcement Round-Up In keeping with investigations that grasp longer, it is perhaps no amaze that the amount of case law that was generated in 2018 is sort of smaller than in previous years. This notwithstanding, both the Upper Tribunal (which hears references from the FCA’s Regulatory Decisions Committee (RDC)) and the courts fill provided several apposite judgments. With the wider rollout of the SMCR, it seems likely that the regulator will continue, and perhaps sharpen, its focus on individuals this year. 3In Principle 1. Brexit As anyone following the unfolding of the political process of Britain withdrawing from the EU can attest to, the only thing that is inevitable is the uncertainty. The inconclusive process has meant that a number of options continue to breathe discussed and, while within the asset management industry a broadly shared view is that a hard Brexit is unlikely, a number of the options leave the treatment of fiscal services at best inconclusive. Asset managers fill pleasant understanding to breathe vigilant to the political tides: even in the smoothest transition to a soft Brexit, responses will need to breathe prepared on a relatively quick timetable. The key concern for asset managers will breathe the continuing access to EU markets. This means the ability to continue to provide services to existing and future fund and segregated account clients as well as EU investment managers, and the ability to market fiscal products and services to prospective clients and investors. The specific mechanism that would allow for continuing and unrestricted access to the EU markets is soundless unclear: While some EU laws allow for an equivalency assessment, this is not the case in totality apposite legislation, and it is likely that in some cases the price of market access will breathe a substantially higher regulatory tribulation that UK managers would fill to bear. In the short term the patchwork of access provisions for third country entities under the existing laws is likely to result in unsatisfactory arrangements and a higher even of regulatory risk across the industry. The now-partially rejected withdrawal agreement contemplates a transition epoch from 29 March 2019 until (at least) the halt of 2020. While the final shape of any agreement is soundless topic to lively negotiations, a substantial transition epoch is now likely, not least because Parliament has expressed its disapproval to a no-deal Brexit which would serve to create significant instability in the markets and to fill an adverse impact on consumer outcomes not only in the UK but across the EU. During such a transition period, for totality apposite intents and purposes, EU law would continue to apply in the UK, and asset managers would not breathe required to build substantial changes in response to “exit day” in the short term. While some jurisdictions and regulators fill ensured that bilateral arrangements to ensure ongoing mutual access and regulatory cooperation fill been concluded in further of the 29 March withdrawal date, such bilateral arrangements are unlikely to breathe comprehensive, and are topic to revision depending on the ultimate outcome of negotiations with the EU and on ESMA’s views on the usurp regulatory approach and solutions. No Deal What happens if the UK “crashes out” with no deal? The EU and the UK would soundless breathe able to investigate and build equivalency determinations, though as it would likely grasp months, if not years, for these determinations to breathe made, in the short term there could breathe substantial difficulties for UK and EU entities to ensure that they were compliant. Without a transition agreement, therefore, equivalence determinations could only provide a medium-term solution for those in the fiscal services sector and, given the limitations to relying on equivalence, a sort of limited one at that. Customs Union The Labour Party is currently the largest opposition party in the UK Parliament, and whilst there remain uncertain contours over its Brexit policy, it has declared that it would infatuation the UK to breathe allotment of a “permanent custom union”. Whilst a customs union would proceed some pass to permitting the free movement of goods, critically for asset managers, a customs union without an specific extension to embrace services would preclude free movement of services of the kind that asset managers currently reckon upon. In particular, under 4 © 2019 Akin Gump Strauss Hauer & Feld MiFID II and the AIFMD, and absent any specific further legislative solution, a customs union will likely preclude firms being able to exercise passporting rights as they would now. While both above directives contain mechanisms for a third country passport, the regulatory framework for this does not currently exist, and the attendant conditions for the very would breathe onerous, and topic to material uncertainty. By contrast, membership of the sole market would likely bring with it some shape of passporting rights – if not in exactly the very pass as they currently benefit the industry. Temporary Permissions Regime In preparation for a no-deal Brexit, the Treasury and the FCA fill shown willing. Regulations fill been proposed to implement a “temporary permissions regime”, under which non-UK EEA firms currently operating in the UK would continue to breathe able to act as if they were authorised for a epoch of time. Ultimately, firms relying on a temporary consent will fill to build a transition to complete authorisation. The FCA has actively encouraged incoming EEA firms currently using passports to prepare applications for a temporary consent to avoid overcrowding at the final moment before the curtain falls. Increasingly, a shared commonsense that a no-deal Brexit should breathe avoided at all, or nearly all, costs has seeped into the political discourse, and valiant efforts fill been made by manufacturing and services industry lobbies to steer transparent of a cliff-edge departure on 29 March. As the past years fill shown, however, one does well to hope the unexpected, and the haphazard contingency plans that fill been drawn up to this halt could breathe reclaim to test yet. The contingency plans of individual firms who, without any transparent guidance are left eagerly poised for action, meanwhile, often fill a significant component of hoping for the best. 5In Principle 2. The Extension of the Senior Managers and Certification Regime On 4 July 2018, the FCA published near-final rules setting out how it intends to implement the extension of the SMCR to totality FCA-authorised, nonbanking firms.1 The FCA has proposed for this unusual regime to become efficient on 9 December 2019, albeit with a transitional epoch to give firms time to implement it fully. As had been previously proposed by the FCA, the SMCR will breathe implemented in tiers. Most firms will plunge within the “Core Regime”; however, a diminutive number of firms categorised as “enhanced regime” firms will breathe topic to additional requirements, and there will breathe fewer rules for “limited scope” firms. The proposed unusual rules require firms to obtain prior FCA approval for “Senior Managers.” An individual who is designated a Senior Manager may breathe personally liable for breaches of FCA requirements that grasp spot within his or her belt of responsibility. In addition, firms will breathe required to certify the fitness and propriety of individuals who are not Senior Managers, but who may understanding significant harm to the hard or to its customers due to the nature of their role. A unusual set of Conduct Rules will apply to virtually totality individuals within a firm. The first enforcement case under the SMCR, regarding the CEO of Barclays, was decided in 2018: They dispute it in more detail under “Recent Case Law and Key Enforcement Cases” below. To Whom Does This Apply? The SMCR will apply to totality UK nonbank firms authorised by the FCA. This will embrace UK group 1 https://www.fca.org.uk/publication/policy/ps18-14.pdf. entities of non-UK firms, including US and Asian investment managers with a UK sub-advisor or a UK execution-only presence. The rules will moreover impress some non-UK staff of UK firms, including directors or material risk takers based outside the UK. The Core Regime The Core Regime consists of three main elements: the Senior Managers Regime, the Certification Regime and the Conduct Rules. (i) Senior Managers Regime An FCA-authorised hard will need to obtain prior approval by the FCA for the most senior staff members whose roles embrace the performance of “Senior Management Functions.” As has been the case under the current system, the Senior Managers will need to demonstrate to the FCA that they are lucky and proper to undertake their roles. As allotment of this, firms will need to obtain criminal records checks for totality proposed Senior Managers. Approval to hold a Senior Management role may breathe granted outright by the FCA for a limited time epoch or topic to conditions. The Senior Management Functions embrace the Chairman role (SMF9), the Chief Executive role (SMF1), the Executive Director role (SMF3), the Compliance Oversight role (SMF16) and the Money Laundering Reporting Officer (SMF17). Anyone who performs these functions in a hard covered by the SMCR, whether present in the UK or not, will need to search this authorisation. Under the current Approved Person/Controlled role regime, a corporate entity was permitted to hold a Controlled Function. Under the Senior Managers Regime, however, only individuals can hold a Senior Management Function, and it cannot breathe held by a corporate entity. In firms where a corporate entity currently performs a Controlled Function, it will breathe necessary to deem which individual will hold the Senior Management Function. Whilst the FCA has not made specific how this will work, firms should deem who is directing the corporate entity that is performing the controlled function. It is likely that a director of that corporate entity will breathe the most suitable person to hold that Senior Manager position. 6 © 2019 Akin Gump Strauss Hauer & Feld Statement of Responsibilities Firms must prepare a Statement of Responsibilities (SoR) with respect to each Senior Manager. Firms will need to provide the SoR to the FCA when a Senior Manager applies to breathe approved, and then whenever there is a significant change to his or her responsibilities. If a Senior Manager holds more than one Senior Management role within one firm, he or she will breathe required to fill only a sole SoR describing totality of his or her responsibilities. However, if a Senior Manager holds Senior Management Functions in two or more firms, he or she will need a sever document for each firm. The FCA has published guidance on the contents of an SoR: An SoR must breathe a self-contained document, which does not incorporate any other document by reference. It must demonstrate clearly how the responsibilities performed by a Senior Manager lucky in with the firm’s overall governance and management arrangements, and this must breathe consistent with a firm’s management responsibilities map. Ultimately, the firm’s set of SoRs should demonstrate, when reclaim together, that there are no gaps in the allocation of responsibilities among the Senior Managers. Duty of Responsibility Each Senior Manager will owe a duty of responsibility. This means that, if a hard is in breach of its obligations under the FCA’s rules or principles, the Senior Manager answerable for the belt in which the breach took spot could breathe held personally accountable. In order to hold someone individually accountable, the FCA would fill to demonstrate that the Senior Manager did not grasp the steps that a person in his or her position could reasonably breathe expected to grasp to avoid the breach occurring. This duty is included to ameliorate accountability, not just of the junior decision-makers, but to the highest echelons of the business. Prescribed Responsibilities The FCA has proposed a number of “Prescribed Responsibilities.” Firms will breathe obliged to ensure that, at totality times, a Senior Manager has responsibility for each of the Prescribed Responsibilities. Some examples of Prescribed Responsibilities embrace the performance by the hard of its obligations under the Senior Managers Regime (including its implementation and oversight), the performance by the hard of its obligations under the Certification Regime (discussed below), the performance by the hard of its obligations in respect of notifications and training in relation to the Conduct Rules, and the responsibility for the firm’s policies and procedures for countering the risk that the hard might breathe used to further fiscal crime. (ii) Certification Regime The Certification Regime will apply to employees who are not Senior Managers, but whose role means that it is practicable for them to fill a significant impact on customers, the hard or market integrity. These roles are called “Certification Functions.” For each employee undertaking a Certification Function, the hard must assess whether they are lucky and proper to execute their job, and the hard must provide each such employee with a certificate to that effect. This certificate must circumscribe the areas of the traffic with which that employee will breathe involved. For each employee, certification must breathe undertaken at least once a year. In deciding whether someone is lucky and proper under the Certification Regime, the hard will fill to grasp into account several different factors, including whether that person has obtained apposite qualifications, whether he or she has undertaken inevitable training programmes, whether he or she possesses the requisite even of competence and whether he or she has the usurp personal characteristics for the role. The Certification Functions embrace what was CF29 under the Approved Persons regime, which was (unfortunately) called the “significant management function.” keeping should breathe taken that no confusion arises: To breathe clear, holders of the significant management role under the Approved Persons regime in totality likelihood will breathe topic to the Certification Regime and not the Senior Managers Regime. The restriction of the Certification Regime to “employees” is sort of deceptive: Not only does it encompass “employees” in the ordinary sense of the word, but it moreover includes anyone who provides, or is under an responsibility to provide, services to the hard and who is topic to the supervision, direction or control by the hard as to the manner in which those services are provided. Third-party contractors and other agents may plunge within this definition. The Certification Regime applies to totality UK-based employees, any non-UK-based employees who fill contact with UK clients and any material risk takers, regardless of where they are located. Whilst perhaps uncommon, it is practicable that 7In Principle someone performing a Senior Management role will moreover breathe performing a Certification Function. In this case, it is necessary for both procedures to breathe followed, that is, the FCA will fill to authorise that person to hold a Senior Management Function, and the hard will fill to certify them as lucky and proper to execute their role. Directory As the SMCR replaces the Approved Persons regime, the number of people approved individually by the FCA will dwindle dramatically, since the vast majority of employees will not breathe Senior Managers, but will plunge within the Certification Regime. Consequently, the fiscal Services Register currently maintained by the FCA will become much less useful, since only those people approved by the FCA (Senior Managers) would likely continue to appear on it. In light of this, the FCA published a consultation paper in July 2018 proposing the introduction of a unusual Directory. This Directory would contain information not only on Senior Managers, but moreover on totality people who fill been certified by their organisation. Populating this Directory will require the co-operation of authorised firms, since they will breathe the ones with the information on their certifications. The provision of this information to the FCA for the Directory may well breathe a nontrivial matter for firms. The FCA’s consultation closed on 5 October 2018, and they hope the FCA to issue a policy statement in Q1 of this year. At that point, they will hopefully know much more about what is proposed and what burdens might breathe placed on individual firms. (iii) Conduct Rules The Conduct Rules will breathe enforceable by the FCA against individuals. The individual Conduct Rules will apply to totality staff (barring inevitable ancillary staff, such as receptionists, cleaners and catering staff). The FCA will apply the Conduct Rules to a firm’s regulated and unregulated fiscal services activities. It should breathe notable that this is a narrower scope than how the Conduct Rules apply within the SMCR as applied to banks, where the Conduct Rules apply across the board to totality activities. The Conduct Rules are divided into two tiers, the first tier being applicable to totality staff, and the second tier being applicable to Senior Managers only. The Conduct Rules are high-level guidance and largely replicate the principles currently applicable to Approved Persons. They are informed by the Principles for Businesses, which remain unchanged. Firms will breathe obliged to train totality staff on how the Conduct Rules apply to their activities within the firm. The Enhanced Regime The largest and most knotty firms will breathe topic to inevitable additional requirements under the enhanced regime. Enhanced regime firms will embrace “significant investment (IFPRU) firms” and firms with assets under management of £50 billion or more. Enhanced firms will need to comply with the Core Regime requirements and inevitable additional requirements. Such requirements embrace additional Senior Management Functions and Prescribed Responsibilities, as well as an overall responsibility for every traffic activity and management role of the firm. In addition, an enhanced regime hard will fill to compile a responsibilities map that sets out the firm’s management and governance arrangements. Regulatory References For incoming employees who are either going to breathe performing Senior Management Functions or who will breathe covered by the Certification Regime, a hard will fill to request a reference from their previous employers covering the preceding six years. This reference will breathe known as a “Regulatory Reference.” This reference must embrace information of any disciplinary action following breaches of the Conduct Rules, as well as any information apposite to whether the employee was lucky and proper. This information will need to breathe shared in a benchmark template, and, for each employee, the Regulatory Reference must breathe updated appropriately if and when any unusual apposite information comes to light. Since Regulatory References will breathe mandatory to provide, it is well-known that firms execute not attempt to enter into agreements that fight with their responsibility to provide such references (for example, NDAs). Non-Executive Directors Non-Executive Directors (NED) will need to breathe approved by the FCA if they are to execute the SMF9 Chair role or the SMF14 Senior Independent Director Function. NEDs who execute not need to breathe approved may soundless breathe topic to the Conduct Rules 8 © 2019 Akin Gump Strauss Hauer & Feld and the Certification Regime. In addition to the generally applicable Conduct Rules, NEDs will moreover need to comply with Rule SC4 (the requirement to disclose appropriately any information of which the regulator would reasonably hope notice), which otherwise applies to only those holding Senior Management Functions. Next Steps The FCA has announced various conversion mechanisms that should ease the transition from the current Approved Persons regime to the SMCR. For example, Approved Persons at “core” firms will fill their Controlled role approval mapped to the apposite Senior Management role where practicable (e.g., a director holding CF1 will become (if appropriate) an executive director holding SMF3). Other Approved Persons holding just CF30 (Customer), for example, may not need to hold a Senior Management role at totality and will simply breathe covered by the Certification Regime. Whilst this will ease the transition somewhat, this automatic mapping will not breathe practicable for totality Approved Persons (e.g., an Approved Person holding CF4 (Partner) may fill to hold SMF3 (Executive Director), as well as SMF27 (Partner). It will breathe necessary, therefore, for some keeping to breathe taken to ensure that the conversions to the unusual regime are totality correctly completed. The FCA has moreover announced transition provisions with respect to the Certification Regime. For example, firms will fill one year from the commencement date of 9 December 2019 to provide a certificate to employees as required. However, firms will fill to fill identified who will need to breathe certified under the Certification Regime on day 1. Whilst the commencement date is soundless some time away, firms would breathe well advised to fill started to think about what they will need to execute in pleasant time so as to ensure a seamless transition when this is required. 9In Principle 3. Market mistreat FCA “Complying with [MAR] is more than adhering to a set of prescriptive requirements”; it is a “state of mind,” so says the FCA.2 In reiterating its understanding of MAR, the FCA once again has provided firms with a high bar to meet in the detection and avoidance of market abuse, but at the very time providing comparatively diminutive direction on how to comply. Market mistreat remains a high priority for the FCA. In 2017/2018, the FCA received 4,829 insider dealing reports and 666 market manipulation reports, and consequently opened 87 mistreat cases. The regulator’s continued interest makes it totality the more well-known to glean as much as practicable from the FCA’s publications to try to discern how best to fullfil the requirements placed on firms as the “first line of defence” against market abuse.3 A few themes from the FCA’s recent publications are worth highlighting. First, in relation to systems surrounding internal alerts and warnings of potential market abuse, the FCA has warned against relying on “out of the box” or “industry standard” software. Whilst the FCA has appreciated that generic software can breathe helpful to a firm, the FCA thinks that this is too blunt an instrument for a hard to reckon on. There is a danger that people who are intent on market mistreat will not breathe caught if they deviate at totality from the most common forms of market mistreat that such software is designed to detect. The remedy, from the FCA’s point of view, is that each hard must assess what warnings and alerts are usurp 2 FCA, Market Watch, December 2018, Issue 58, https://www.fca. org.uk/publication/newsletters/market-watch-58.pdf. 3 FCA, Market Watch, December 2018, Issue 58, https://www.fca. org.uk/publication/newsletters/market-watch-58.pdf. for the traffic that hard conducts, taking into account the scale, size and nature of the firm’s activity. Whilst this may breathe informed by “industry standards,” the hard must exercise its own independent judgment in determining what will breathe sufficient. Second, the FCA has reported that it thinks that there is a even of underreporting of suspicious trades and orders (Suspicious Trades and Order Reporting, or STOR). In particular, the FCA thinks that firms are sometimes taking too narrow a view of the market, and thereby missing suspicious behaviour; the example used by the FCA is in relation to fixed income products, where firms may analyse the trades of one particular product and not deem trades in other related products that, when analysed together, would require a STOR submission.4 Third, the FCA has scrutinised firms’ exercise of insider lists. Under MAR, firms are required to maintain insider lists, and there are templates that must breathe used setting out what information should breathe contained within an insider list. When requested, these lists must breathe provided to the FCA. The FCA notes that it has “observed varying quality in the insider lists they fill received to date.”5 A particular concern that the FCA has is the overuse of permanent insider lists as a pass of trying to avoid keeping temporary insider lists up to date. The recommendation to firms given by the FCA is to anticipate likely sources of insider information and set up systems that can ensure that insider lists for individual deals or events are naturally created whenever a market participant gains inside information. Removing a dependence on permanent insider lists is, it appears, designed to animate this behaviour. The European Securities and Markets Authority 2018 saw ESMA issue its first annual report under MAR, providing a summary of actions under MAR across the EU in 2017.6 In summary, the results are as follows: 4 FCA, Market Watch, September 2018, Issue 56, https://www. fca.org.uk/publication/newsletters/market-watch-56.pdf 5 FCA, Market Watch, December 2018, Issue 58, https://www.fca. org.uk/publication/newsletters/market-watch-58.pdf. 6 https://www.esma.europa.eu/sites/default/files/library/esma70- 145-1081_mar_article_33_report_sanctions.pdf. 10 © 2019 Akin Gump Strauss Hauer & Feld The Statistics The FCA’s enforcement figures execute not build for cozy reading for fiscal institutions. Year on year, the number of investigations opened by the FCA is increasing. This zeal for opening investigations, however, is not matched by an equivalent growth in the number of cases reaching a conclusion. In existent terms, this means not only that, statistically speaking, you are more likely to breathe the topic of an investigation, but that this investigation is likely to grasp a significant time to conclude. In the minutes of the meeting of the FCA board in September 2018, it is notable that the FCA planned to “clea[r] totality legacy cases by Q1 of 2019.”7 Their review of the notices that the FCA has produced since then would intimate that this was perhaps optimistic. 7 https://www.fca.org.uk/publication/minutes/fca-board-26-and- 27-september-2018.pdf, point 11.2. Accuracy of the Data They note that the accuracy of the FCA’s reports on the number of open investigations has been placed under some scrutiny recently. At the halt of final year, the results from several freedom-of-information requests made to the FCA within a matter of weeks of each other were published.8 Each of these requests ostensibly asked for the very information, how many open investigations there are, yet the FCA gave three different, incompatible answers. Whilst they fill no understanding to doubt the figures provided by the FCA, which they review here, it is evident that the presentation of the data is not intended to breathe neutral and that further contextualisation is required. Number of Cases The latest complete figures on the number of cases that they fill are for the 2017/2018 year.9 On 1 April 2017, there were 410 investigations open. In the following 12 months, 208 cases closed, and another 302 investigations started. Ultimately, by 31 March 2018, there were 94 more open investigations than the previous year. The most striking increase in this epoch relates 8 see L. Rogerson and R. Wolcott, “UK FCA published inconsistent, double counted enforcement statistics in freedom of information responses” (Thomson Reuters, 14 December 2018). 9 Unless otherwise stated, figures in this section are taken from: https://www.fca.org.uk/publication/corporate/annual-report-2017-18- enforcement-performance.pdf (last accessed 14 December 2018). 4. The FCA’s Recent Enforcement Trends • The only criminal proceedings brought were by the German authorities. Criminal fines were imposed on seven individuals for market manipulation, although the total amount of the fines was very limited at only EUR 12,450. • Two Article 14 MAR proceedings were brought – one each by the Slovenian and Lithuanian authorities – in relation to the infringement of the insider dealing requirements. These did not result in fiscal penalties. • Thirty-five pecuniary sanctions were issued across the EU relating to the infringement of Article 15 MAR on market manipulation. With the exception of a EUR 40,000 sanction imposed by the French authorities, these were totality comparatively diminutive fines. • For “other infringements” of MAR, 107 pecuniary sanctions and 111 nonmonetary sanctions were imposed. Notably, this included a penalty of £70,000 issued by the FCA against Tejoori Limited for failing to inform the market of inside information as required by Article 17(1) MAR. 11In Principle to investigations into culture and governance. The number of cases in this category increased by more than 300%, from 15 to 61 cases. fiscal crime cases moreover showed a substantial increase of more than 50%, from 55 to 86 open investigations, and market mistreat investigations were up by nearly 30%, from 22 to 28 open cases. The only character of investigation showing a substantial dwindle in this epoch was wholesale conduct investigations, which declined by just more than 30% from 38 to 26 cases. Whilst these statistics must breathe understood within the context of a comparatively diminutive data set, these figures execute tally with the FCA’s stated priorities, particularly with the ever-increasing focus on individual accountability and acting against criminal conduct threatening the integrity of the market. Case Length The middling length of civil and regulatory cases brought by the FCA, including cases that settle or where the FCA decides to grasp no further action, has increased by about a month and a half, from 17.6 to 19.1 months. This figure, on its own, however, is sort of misleading: This modest increase in the overall middling covers some more concerning changes in particular categories. For example, in a case that eventually settles, the length of time from commencement of the investigation up to settlement has increased by nine months to 32.3 months. Of even greater concern, the middling length of a concluded case that was referred to the RDC has nearly doubled since the previous year to 59.4 months (almost five years). Since this is an average, it is quite practicable that some cases fill taken substantially longer than this. In contrast to these figures, however, the middling duration of a concluded case that is eventually referred to the Upper Tribunal has decreased by approximately nine months to 52.4 months. Final Notices and fiscal Penalties In 2017/2018, the FCA issued 269 final notices, with penalties imposed of almost £70 million. By contrast, in the first six months of 2018/2019, the FCA issued only 77 final notices, and penalties of only just under £2.4 million. While the FCA was more lively in the second half of final year – notably, in October, it fined Tesco Personal Finance plc £16.4 million, and, in December, it fined Santander UK plc £32.8 million – the £60.4 million total fines for 2018 remains the second lowest since the regulator’s inception by both volume and number of fines. Criminal Cases The FCA notable in its 2017/2018 Enforcement Annual Report that “[c]riminal cases can grasp significantly longer to resolve than regulatory cases” and reports that the middling length of totality criminal cases is 58.2 months10. Whilst substantially longer than the “average” civil or regulatory case – that is, including investigations that are not pursued or that settle – they note that this is eminently comparable to the middling duration of cases involving an RDC or Upper Tribunal reference. One recent criminal case is of particular note. The FCA brought a prosecution against a former UBS compliance officer and a UBS trader over allegations of insider dealing.11 The two defendants had their first hearing before the City of London Magistrates in June 2017. Only in October 2018 did the eight-week visitation start. Then, in December 2018, after five days of deliberations, a jury was unable to attain a verdict and was discharged. This was despite the arbiter permitting the jury to further to only a majority verdict. The FCA has notified the court that it intends to search a retrial against these defendants.12 10 https://www.fca.org.uk/publication/corporate/annual-report- 2017-18-enforcement-performance.pdf, page 9. 11 https://www.fca.org.uk/news/press-releases/two-charged- insider-dealing. 12 https://www.ft.com/content/9b00c710-fe17-11e8-ac00- 57a2a826423e. 12 © 2019 Akin Gump Strauss Hauer & Feld fiscal regulation is now inexorably intertwined with data protection rules. It is moreover striking that these rules often fill very broad application beyond the EU. As explained below, recent enforcement cases indicate that the nexus does not fill to breathe extremely obvious or clearly direct. (i) The GDPR The data protection framework set out in the GDPR continues to become further entrenched in the fiscal regulatory framework apposite to fiscal market participants, including asset managers. This is reflected, for example, in the FCA’s focus on cybersecurity in its 2018/2019 traffic Plan, which sets out the FCA’s objectives for the period,13 joint FCA and UK Information Commissioner’s Office (ICO) statements,14 and co-ordinated investigations and enforcement actions of the FCA acting with the ICO.15 It is worth looking back to two enforcement actions of 2018 to breathe reminded of the direction in which GDPR enforcement is going, which accords with the expectations of many of aggressive enforcement and (a concern for non-EU-based asset managers) the relatively narrow connection to the EU that is being considered sufficient by the ICO to bring an enforcement action. 13 https://www.fca.org.uk/publication/business-plans/business- plan-2018-19.pdf. 14 https://www.fca.org.uk/news/statements/fca-and-ico-publish- joint-update-gdpr. 15 https://ico.org.uk/about-the-ico/news-and-events/news-and- blogs/2018/09/credit-reference-agency-equifax-fined-for-security- breach/. (ii) AggregateIQ Data Services Ltd – Enforcement over an Entity with no Presence in the EU In October 2018, AggregateIQ Data Services Ltd (AIQ) was the first target of a formal enforcement notice by the ICO under the GDPR.16 AIQ, which is a Canadian business, was required to “cease processing any personal data of UK or EU citizens obtained from UK political organisations or otherwise.” AIQ breached the GDPR because it “processed personal data in a pass that data subjects were not sensible of, for purposes which they would not fill expected, and without a lawful basis for processing”. The case is significant for non-EU businesses in particular because the enforcement notice was served on an entity established outside of the UK that had no presence at totality in the EU. The ICO took the view that AIQ’s processing of personal data related to the monitoring of data subjects’ behaviour in the EU and that it was therefore within the scope of its enforcement powers. (iii) Equifax Ltd. – Non-EU Cyber-Attack Did Not Preclude Application of EU Rules; and Significant Fine In September 2018, the ICO issued Equifax Ltd, a UK-based credit reference agency, with a £500,000 fine for failing to protect the personal information of approximately 15 million UK citizens whose data was breached during a cyber-attack against Equifax that took spot in 2017.17 The fine was the maximum permitted to breathe levied under the pre-GDPR legislative framework. Since the failings occurred before the date of entry into constrain of the GDPR (25 May 2018), the investigation was carried out under the previous UK regime. The case is significant for non- EU businesses in particular because the location of the cyber-attack in the US did not preclude strict application of the UK’s data protection rules. Although the information systems of Equifax in the US were compromised, Equifax in the UK was identified as answerable for the data of its UK customers: The ICO took the view that the UK arm of Equifax failed to grasp usurp steps to ensure that its US parent, which was processing the data on its behalf, was protecting the information. Although too soon to tell, compliance challenges may arise post-Brexit if it is the case that, 16 https://ico.org.uk/media/action-weve-taken/enforcement- notices/2260123/aggregate-iq-en-20181024.pdf. 17 https://ico.org.uk/media/action-weve-taken/mpns/2259808/ equifax-ltd-mpn-20180919.pdf. 5. Cybersecurity and Data Protection 13In Principle over time, the substance of key requirements under the GDPR diverge from the shape of the GDPR that is adopted by the UK as a legally sever regime on “exit day”: There may eventually, in effect, breathe two fairly distinct versions of the GDPR. Regulatory guidance is expected to breathe forthcoming in 2019 concerning, among other aspects of the GDPR, its high-level principles, including lawfulness, fairness, transparency of data processing and storage requirements. The EU e-Privacy Regulation The e-Privacy Regulation (the EPR) impacting, among other matters, “direct marketing” in the EU, is in the process of being finalised, and it is expected to further into consequence in late 2019 or early 2020 once the legislative process has concluded. Although the rules replace and tighten existing “direct marketing” requirements under the existing e-Privacy Directive from 2002,18 direct marketing will, as explained below, now breathe topic to EU-wide rules that are uniform across the EU rather than, as currently, implemented differently by member state. Further, the stricter concept of “consent” from the GDPR will now breathe applied. Consent must therefore breathe freely given, obvious and evidenced by a positive action of the recipient: A pre-checked consent box, for example, is unlikely to suffice. The EPR presents the possibility of significant fines along the lines of the GDPR. The territorial scope of the EPR is wide-reaching: In addition to compliance being required by legal and natural persons within the EU, legal and natural persons located outside of the EU will moreover breathe required to comply with the EPR where they provide electronic services to users located in the EU. Whilst enforcement against non-EU persons may breathe difficult, for anyone with any connection to the EU, these rules will breathe well-known to succeed as well. Direct marketing is defined broadly as “any shape of advertising, whether written or oral, sent to one or more identified or identifiable end-users of electronic communications services, including the placing of voice to voice calls, the exercise of automated calling and communication systems with or without human interaction, electronic message, etc.” Those engaging in direct marketing will need to panoply their phone 18 Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector. number or, alternatively, exercise a special identifiable pre- fixed number that makes transparent that the muster relates to marketing. One of the most significant rules that is expected to breathe contained in the EPR and so will breathe in constrain across the EU provides for a “soft opt-in” in particular circumstances. The soft opt-in provides that direct marketing will breathe permitted to breathe directed towards a person who has already received goods or services from the business, provided that (a) the direct marketing relates to similar goods or services, and (b) that, in each communication, the subscriber is given the opportunity to “opt-out.” This rule is similar to the one already in constrain in the UK under the Privacy and Electronic Communications (EC Directive) Regulation 2003 (PECR);19 however, it will breathe necessary to wait and see whether the concept is given the very signification by the EU courts as it has been understood domestically. Cybersecurity In October 2018, the FCA fined Tesco Personal Finance plc £16.4 million for its systems and controls- related failings following a cyber-attack that the FCA considered “largely avoidable”.20 The FCA said in its final notice that Tesco Personal Finance plc failed to grasp usurp action to preclude the foreseeable risk of fraud. In doing so, it breached Principle 2 of the FCA’s Principles for Businesses to conduct their traffic with due care, skill and diligence. 19 The Privacy and Electronic Communications (EC Directive) Regulations 2003 SI 2003 No.2426. 20 They dispute this case further in the “Recent Case Law and Key Enforcement Cases” section below. 14 © 2019 Akin Gump Strauss Hauer & Feld EU Securities Financing Transaction Regulation21 2019 will see the final legislative steps being taken to finalise core provisions of the EU SFTR relating to reporting of securities financing transactions (SFT) – essentially covering repos and buy-sellback transactions. Investment firms and credit institutions will not breathe required to comply with reporting provisions until 12 months from the date of the European Commission adopting the apposite regulatory and implementing technical standards, and for UCITS and AIFs, until 18 months has elapsed from the date of their adoption. The SFT reporting rules fill not yet been finalised following extended disagreement between the 21 Regulation (EU) 2015/2365 of the European Parliament and of the Council of 25 November 2015 on transparency of securities financing transactions and of reuse and amending Regulation (EU) No 648/2012. Commission and ESMA.22 Although compliance will not breathe required until early/mid-2020, many fiscal market participants will need this time to reclaim in spot apposite IT and operational systems for collateral management and the reporting of SFTs. It is possible, however, that much of the toil required may already fill been done where systems fill been introduced for EMIR, given similarities with regard to a number of the reporting provisions.23 Notwithstanding the final shape or timing of Brexit, the UK is likely to adopt any rules that enter into constrain in the EU after “exit day” in substantively similar shape to that in which they are published, given that the rules originate from globally agreed G20 standards. 22 The Commission announced its end in July 2018 to endorse the RTS and the ITS, with some amendments compared to the draft submitted by ESMA to the Commission. ESMA has issued a statement that it does not accord with one of the amendments relating to the Commission’s proposal to drop ESMA’s provision that makes it mandatory for reports to embrace Legal Entity Identifiers for branches and Unique Transaction Identifiers once these fill been developed and “endorsed by ESMA” – the Commission takes the view that this amounts to a delegation of power to ESMA to build changes to the reporting requirements that does not accord with the scope of their legal powers. 23 For example, if both entities that are topic to an SFT are located in the EU, they will both breathe required to report the trade to an authorised trade repository on a T+1 basis. 6. EU Securities Financing Transaction Regulation21 15In Principle 7. Amendments to the European Market Infrastructure Regulation EMIR has caused some difficulties since its promulgation in 2012, which a large EMIR reform project, expected to breathe finalised in a number of respects in 2019, is intended to address. As explained below, this so-called EMIR “refit” proposal will impress a large number of the requirements under EMIR, impacting totality types of participants topic to the rules. There are moreover requirements under the current EMIR package that are scheduled for phase-in during 2019 relating to clearing and margin, for which participants should breathe preparing to the extent applicable to them. Finally, an intragroup exemption from clearing is expected to breathe extended following its expiry at the halt of 2018. (i) The EMIR Refit Proposal Although the EMIR refit is soundless in the midst of the European legislative process and inevitable requirements may therefore find themselves altered by the time of its conclusion, the following sets out a number of key areas of the reform package as they currently stand in the process: • Proposal that totality AIFs become “financial counterparties”: One of the key changes in the EMIR refit is the proposal that the definition of FC breathe amended to capture totality AIFs, and not only AIFs that fill an authorised or registered Alternative Investment Fund Manager (AIFM).24 24 Original drafts of the legislation had suggested that non-EU AIFs with a non-EU AIFM would breathe reclassified as FCs, which would fill represented a significant expansion of the scope of EMIR to non-EU AIFMs. More recently, the definition of FC has been narrowed so that it captures EU AIFs (regardless of the location of the AIFM), as well as, per existing rules, AIFs (wherever located) with an authorised or registered AIFM. • Introduction of a “small fiscal counterparty”: A definition of “small fiscal counterparty” (SFC) is proposed to breathe introduced for entities that trade infrequently and execute not pose a systemic risk; these entities would breathe exempt from the clearing responsibility under EMIR.25 • Amendment of the time reference for the clearing threshold determination: The proposal is for a once-yearly determination based on the aggregate month-end middling total notional amount for March, April and May, replacing the current 30- day rolling middling determination. • Proposal to remove the requirement that clearing for one asset triggers clearing requirement for totality asset classes: The EMIR refit is expected to remove the requirement that, where the clearing responsibility is triggered by an NFC for one asset class topic to the clearing obligation, it is then topic to the clearing responsibility for totality asset classes topic to the clearing obligation. Instead, it is proposed that the NFC would breathe in scope for only the clearing responsibility requirements for the class of derivative that has fallen over the apposite clearing responsibility threshold; this change would significantly reduce the clearing tribulation for many entities that trade clearable products only relatively infrequently. • Proposed amendment of reporting requirement for NFC entities: It has been proposed that the reporting requirement breathe amended so that, where an FC has entered into a derivative transaction with an NFC falling below the clearing threshold, the FC would breathe answerable for reporting on behalf of both parties. • Proposed extension of the clearing exemption for pension schemes, which expired on 16 August 2018. 25 The determination for whether an entity is an FC or an SFC would, in current proposals, breathe made by applying the very clearing only once yearly, based on the aggregate month-end middling total notional amount for March, April and May. Risk mitigation rules would however continue to apply to the SFC. 16 © 2019 Akin Gump Strauss Hauer & Feld (ii) Phase-In of Requirements Relating to Clearing and Margin The clearing responsibility under EMIR will continue to breathe phased in during 2019 for Category 3 and Category 4 counterparties.26 Phase-in of the initial margin requirements under EMIR will moreover continue in 2019, with the threshold for mandatory initial margin falling to an aggregate middling notional amount of uncleared derivatives on a groupwide basis above EUR 750 billion from 1 September 2019. Entities topic to the clearing and margin rules will need to consider, among other matters, whether their clearing/CCP relationships are adequate and, for initial margin purposes, which custodian they will use, and the required steps to implement custodial relationships. (iii) Extension of the Intragroup Exemption from the Clearing responsibility On 27 September 2018, ESMA submitted proposed amendments to the European Commission relating to the secondary legislation under EMIR concerning intragroup transactions with a third-country entity.27 These changes, once passed (which they fully hope to happen), will extend the expiry date for the exemption from clearing for interest rate derivative classes denominated in the G4 currencies to 21 December 2020.28 26 For (i) Category 3 counterparties (i.e., FCs whose group’s aggregate month-end middling of outstanding notional amount of OTC derivatives is below 8 billion EUR, assessed over January/ February/March, and AIFs that are NFCs below the threshold) from 21 June 2019 for CDS; and (ii) for Category 4 counterparties (those that are NFCs not falling within any other category), from 9 May 2019. 27 https://www.esma.europa.eu/sites/default/files/library/esma70- 151-1768_final_report_no.6_on_the_clearing_obligation_intragroup. pdf. 28 The exemption expired on 21 December 2018, for interest rate derivative classes denominated in G4 currencies topic to the clearing responsibility and will expire on later dates for CDS and inevitable other interest rate derivatives. Many industry participants fill not prepared for expiry of the exemption, partly because it was expected that the exemption would breathe extended until third-country equivalence decisions are in place. These are currently absent. ESMA therefore issued a statement29 on 31 October 2018 in which it emphasised that national regulators should apply a “risk-based approach” to enforcement of noncompliance with the clearing responsibility by entities utilising the intragroup exemption from clearing. 29 https://www.esma.europa.eu/sites/default/files/library/esma70- 151-1773_public_statement_on_co_and_to_for_intragroup_as_well_ as_cat_4.pdf. 17In Principle 8. EU Benchmarks Regulation and LIBOR Cessation The BMR30 entered into constrain on 1 January 2018, regulating the “use,” “contribution to” and “administration” of benchmarks. The BMR continues to raise issues into 2019, in particular, for “users” of benchmarks, which will embrace asset managers. (i) Challenges for Users of Benchmarks In 2019, users of benchmarks are finding themselves with the difficult question of whether they are able to continue to exercise non-EU administered benchmarks from the halt of the year. The “use” restrictions in the BMR preclude EU-based entities from referencing a non-EU administered and non-ESMA authorised “index” used as a benchmark in fiscal instruments from 1 January 2020, unless, in broad terms: i. The jurisdiction of the administrator of the index has been declared “equivalent” to the EU for the purposes of the BMR by the European Commission. ii. An administrator located outside of the EU has been recognised by an EU member condition under the BMR. or iii. An EU located administrator endorses a non- EU benchmark and takes responsibility for its supervision. 30 Regulation (EU) 2016/1011 of the European Parliament and of the Council of 8 June 2016, on indices used as benchmarks in fiscal instruments and fiscal contracts or to measure the performance of investment funds and amending Directives 2008/48/ EC and 2014/17/EU and Regulation (EU) No 596/2014. Although they are currently in the middle of a “transitional period” under the BMR (which permits entities located in the EU to exercise existing indices/ benchmarks until 1 January 2020, even where nobody of these circumstances are met, provided that they “used” the benchmark when the BMR entered into force), there is the problem that, to date, no jurisdiction has yet been declared “equivalent” to the EU for the purposes of the BMR. Recognition and endorsement of benchmarks fill moreover not proved popular. It is not transparent therefore how non-EU benchmarks may breathe used after the transitional period. Given this concern, a number of fiscal industry groups collaborated in November 2018 to formally request by note to ESMA and the Commission that the transition epoch breathe extended.31 They hope that it is very likely that regulatory guidance will breathe published during the course of 2019 to assist with these issues. (ii) Users’ Updates to “Robust Written Plans” and the impact of the Future Cessation of LIBOR In 2019, updates to benchmark plans may breathe needed in light of LIBOR ceasing to exist. Under the BMR, users of benchmarks are required to fill in spot a “robust written plan” to address fallbacks for any benchmarks used in case they cease to breathe available or if they change such that they can no longer breathe used.32 These plans are required to breathe made available to the FCA at their request. Written plans for benchmarks should breathe looked at carefully in 2019, particularly where any plans reference LIBOR. As is now well known, the LIBOR benchmark rate is expected to cease to exist from the halt of 2021 following the FCA’s statement in July 2017 that panel bank contributors to LIBOR will no longer breathe encouraged by the FCA to provide quotes to set LIBOR. Monitoring preparations for LIBOR’s cessation moreover appears to breathe an FCA supervisory priority for 2019.33 31 https://www.isda.org/2018/11/21/briefing-on-the-need-to-extend- the-transition-period-of-the-benchmark-regulation/. 32 Article 28(2). 33 In September final year, the FCA sent a “Dear CEO” to large UK banks and insurance companies in which the FCA asked for details of recipients’ preparations and the actions being taken to manage transition from LIBOR to alternative interest rate benchmarks. Although the audience consisted of large banking and insurance institutions, it is difficult to preclude the FCA looking at these issues more generally for entities under their supervision, including asset managers. 18 © 2019 Akin Gump Strauss Hauer & Feld (iii) Brexit and the BMR On 23 November 2018, the UK government published an explanatory stating how the BMR will breathe “on-shored” in the event of a “no-deal” Brexit.34 According to the memo, the UK plans to interpose a “UK version” of the BMR that would effectively breathe a copyout of the EU version of the BMR as in constrain on exit day. Benchmarks on the ESMA register are proposed to breathe grandfathered for exercise in the UK for 34 https://www.gov.uk/government/publications/draft-benchmarks- amendment-and-transitional-provision-eu-exit-regulations-2019/ the-benchmarks-amendment-eu-exit-regulations-2018-explanatory- information. 24 months from the date of the UK’s exit from the EU. The extent to which the “UK BMR” would reflect updates to the “EU BMR” post-Brexit is not clearly addressed; however, it is not inconceivable that the two regimes could diverge over time in significant respects. 19In Principle 9. EU Action device on Sustainability and Asset Management In November 2018, the European Commission published a consultation35 for input from stakeholders regarding the extent to which institutional investors and asset managers should breathe topic to duties of “sustainability,” and reflect these in their decision- making relating to investments. The consultation follows publication of an interim report by the EU high even Expert Group on sustainable finance in July 2017, which recommended that the Commission clarify the fiduciary duties of institutional investors and asset managers concerning environmental, sociable and governance factors, and long-term sustainability. The striking aspect of the consultation is the planned shift to using fiscal regulation as a tool to animate the sustainability of investments. No laws or regulations fill been proposed at this stage. Although respondents who fill published their replies publically fill generally agreed that sustainability should breathe more directly addressed in the legal framework applicable to investment decision- making, some fill resisted the assumptions that asset managers fill hitherto ignored sustainability as an integral allotment of their investment process. 35 https://ec.europa.eu/info/sites/info/files/2017-investors-duties- sustainability-consultation-document_en.pdf. Questions that fill been asked embrace the following: • “Do you think apposite investment entities should deem sustainability factors in their investment decision-making?” • “What are the sustainability factors that the apposite investment entities should consider?” (Choices embrace climate factors, sociable factors, governance factors and other environmental factors.) • “Which of the following entities should deem sustainability factors in their investment decision- making?” (Choices embrace collective investment funds (AIFs, UCITS, etc.), insurance providers, and individual portfolio managers.) • “Within the portfolio’s asset allocation, should apposite investment entities deem sustainability factors even if the consideration of these factors would lead to lower returns to beneficiaries/clients in the medium/short term?” 20 © 2019 Akin Gump Strauss Hauer & Feld 10. Individuals on the Enforcement Agenda: 2018 Key Cases and Enforcement Round-Up As discussed more fully in the previous section, there were comparatively few enforcement cases in 2018, and correspondingly few final notices or decisions from the Upper Tribunal. Of the few cases that were decided, however, they note the following: Jes Staley36 On 11 May 2018, the FCA and the PRA fined Barclays’ CEO, Jes Staley, a total of £642,430 for allegedly failing to act with due skill, keeping and diligence in the pass that he conducted himself in response to an anonymous note received by Barclays in June 2016. Barclays is moreover now topic to special requirements by which it must report annually to the regulators detailing how it handles whistleblowing, with personal attestations required from Senior Managers answerable for the apposite systems and controls. According to the regulatory notices, in June 2016, a member of Barclays’ board received an anonymous note from an individual outside the bank, purportedly a shareholder, citing concerns about a senior employee, Barclays’ process for hiring him and Mr. Staley’s role in dealing with those concerns at a previous employer. Later that month, Barclays received a second anonymous note expressed as being from a Barclays employee. Mr. Staley became concerned that the letters were allotment of a campaign against the employee and targeted at undermining Mr. Staley’s hiring strategy. Mr. Staley instructed the firm’s security team to identify the author of the first letter. Mr. Staley was informed that the note was being treated as a whistleblower, and so he should not attempt to uncover the author. Although Mr. 36 https://www.fca.org.uk/publication/final-notices/mr-james- edward-staley-2018.pdf. Staley initially accepted this advice, he later resumed his search to identify the author after he mistakenly interpreted an update from compliance that the correspondence was no longer being treated as a whistleblower. The final notices addressed to Mr. Staley from the FCA and the PRA organize that the Barclays CEO was in breach of the requirement to act with due skill, keeping and diligence (individual conduct rule 2) because he should fill identified that: • He had a fight of interest in relation to the note and needed to grasp particular keeping to maintain an usurp distance from Barclays’ internal investigation. • There was a risk that he would not breathe able to exercise impartial judgment in relation to how Barclays should respond. • Once the complaint was in the hands of the Compliance team, it was well-known that Compliance retained control over its investigation process. While the regulators said that Mr. Staley made staid errors of judgment, they did not find him to fill acted with a need of integrity. They did, however, point out that the benchmark of conduct expected from a CEO under individual conduct rule 2 was more exacting than for other employees and that CEOs must ensure that usurp standards of governance are maintained. The final notices build no allegations regarding the Senior Manager Conduct Rules. Although the regulators acknowledged that Mr. Staley made no personal gain from the events, they viewed his misconduct as sufficiently staid for each to impose a penalty of 10% of his annual income (with a 30% reduction in the overall fine for agreeing to settle at an early stage in proceedings). Barclays has moreover announced that it reduced Mr. Staley’s compensation for 2016 by £500,000. In addition to the penalty imposed on Mr. Staley, Barclays agreed to enhanced reporting requirements under which it must inform the regulators on an annual basis how it handles whistleblowing, with personal attestations required from those Senior Managers answerable for the apposite systems and controls. In related proceedings, unusual York State’s fiscal 21In Principle regulator fined Barclays Bank Plc and its unusual York fork US$15 million based on the very conduct that underlies the enforcement in the UK.37 The unusual York agency accused the bank of governance shortfalls and suggested that it had taken a “step back” after prior enforcement for other violations. Alistair Rae Burns38 Mr. Burns’ case was factually complicated. The Upper Tribunal’s judgment is informative on some well-known questions of principle, however: To what extent is an approved person liable to ensure that a particular investment is suitable for a particular customer when it is known that that customer is receiving independent recommendation from a third party? Mr. Burns was an approved person holding the CF1 (director) position at TailorMade Independent Limited (TMI). TMI itself was authorised by the FCA and acted as an independent fiscal advisor, particularly advising customers on the benefits of transferring their pensions into Self-Invested Personal Pension Schemes (SIPP). Mr. Burns moreover had interests in other companies that functioned under the “TailorMade” brand (e.g., TailorMade Alternative Investments Limited (TMAI)). TMAI was not authorised by the FCA, although its traffic was the promotion of comparatively illiquid and esoteric investments to customers. Many of these investments were inappropriate, and, eventually, TMI and TMAI had to halt trading, and TMI’s authorisation was removed. Amongst other allegations, the FCA alleged against Mr. Burns that he had failed to grasp reasonable steps to ensure that TMI, as a regulated entity, gave recommendation that was suitable for its customers. Further, the FCA alleged that TMI failed to obtain the necessary information from its clients to ensure that it had enough information so that it had a reasonable basis to believe that such investment recommendation given was suitable (e.g., information on the customer’s fiscal situation, investment objectives, and learning and undergo in relation to the apposite types of investment). These rules are laid out in the FCA handbook at COBS 9.2. In defence, Mr. Burns pointed out that the investments in question were not “specified investments”; that is, they were not investments topic to regulation in totality contexts. Second, Mr. Burns argued that totality TMI did was arrange to set up a SIPP for a customer and that it did not give recommendation on the investments that went into 37 https://www.nytimes.com/2018/12/18/business/barclays- whistle-blower-fine.html. 38 https://www.bailii.org/uk/cases/UKUT/TCC/2018/246.pdf. the SIPP, and that it was TMAI that did this. The Tribunal organize that, in any circumstance where a hard gives recommendation to a customer on the merits of establishing a SIPP, any recommendation given on the merits of the underlying assets to breathe held within the SIPP must plunge within the scope of the regulator’s rules, whether or not they would, in another context, breathe considered specified investments. Mr. Burns’ first controversy was therefore unsuccessful: The investments in a SIPP are topic to regulation in this context. Second, whilst the Tribunal accepted that, where a customer has “genuinely made a decision without recommendation from the IFA hard which arranges for the establishment of the SIPP to acquire investments to breathe held within the SIPP, then the obligations of the IFA hard … may breathe more limited.”39 The Tribunal accepted that a SIPP exists for the customer to build some of his or her own decisions about investments and that merely setting up a SIPP for a customer did not necessarily intimate that TMI would fill to scrutinise the investments as if it had offered to recommend on them alone. The Tribunal thought, however, that any “limitation” on the COBS 9.2 principles on which TMI might try to avail itself was narrow. It was open to TMI to grasp into account the fact that the customer had already decided (possibly with advice) the character of investments that he or she wanted to hold in a SIPP when assessing the client’s learning of the sector. It did not, however, intimate that TMI or Mr. Burns was excused from advising on the underlying investments at all; it was soundless necessary for them to gather enough information about the customer to settle whether the proposed investments were suitable. The Tribunal approved a lower-than-requested fiscal penalty against Mr. Burns of £60,000 and upheld the FCA’s decision to impose a prohibition on Mr. Burns. Investment advisers should breathe sensible that the COBS 9.2 rules (to gather enough information about a customer to determine whether a particular investment is suitable) may apply to investments that might otherwise not breathe regulated if the client is being advised in relation to another, related action that is regulated. Further, advisers should beware that instructions from a customer cannot breathe followed without thought. If the customer has received recommendation from another firm, the adviser may grasp this into account, but soundless must settle whether the recommendation that the customer has received is suitable. 39  UKUT 246 (TCC), . 22 © 2019 Akin Gump Strauss Hauer & Feld Angela Burns40 On 24 May 2013, the FCA published a decision notice against Angela Burns fining her £154,800 and issuing a prohibition order. Five and a half years later, after references to the Upper Tribunal and the Court of Appeal, and an attempted appeal to the Supreme Court, the FCA issued its final notice against Ms. Burns in December 2018. Ms. Burns had been an NED at two mutual societies and acted as chair for their investment committees. Ms. Burns was engaged by the societies to provide investment advice, and she suggested a registered investment advisor. Unbeknownst to the mutual societies, however, Ms. Burns, at the very time, was trying to elicit consultancy toil for herself with the investment advisor. In her approach to the investment advisor, Ms. Burns explicitly referred to her NED positions in the mutual societies to build herself more attractive. In falsely holding herself out as a neutral investment advisor for the mutual societies, and aggravating this by relying on her position in those societies for her own gain with the investment advisor, the FCA – and the Upper Tribunal and the Court of Appeal agreed – decided that Ms. Burns was in breach of Principle 1, to act with integrity in carrying out her accountable functions. The FCA determined that she should fill declared her conflicts of interest. Consequently, the FCA issued a prohibition order against Ms. Burns. The one success that Ms. Burns had before the Upper Tribunal, which was not disturbed on appeal to the Court of Appeal, was to fill the proposed fine of £154,800 reduced to £20,000. ENRC v. SFO41 Firms often bring in external law firms to conduct investigations and to provide reports on what has happened. Firms elect to instruct outside counsel for these investigations for a number of reasons, but one well-known understanding is the hope that the final report will breathe protected by legal professional privilege and so will not fill to breathe disclosed to a court or the regulator. final year, they drew attention to two cases where 40 https://www.fca.org.uk/publication/final-notices/angela- burns-2018.pdf. 41 https://www.bailii.org/ew/cases/EWCA/Civ/2018/2006.html. the court had taken a narrow view of privilege, and compelled the firms involved to disclose various notes and papers produced by external law firms during the investigation. One of those cases, Eurasian Natural Resources Corporation Limited v. staid Fraud Office, has now been successfully appealed to the Court of Appeal. The judgment given is helpful for firms, but it soundless does not intimate that everything produced by a law hard during an investigation will breathe covered by privilege. In particular, timing will matter. In December 2010, ENRC received an email from a whistleblower alleging criminal conduct in Kazakhstan and Africa. ENRC appointed external lawyers to investigate this. By March 2011, ENRC was sensible that the SFO was interested in the situation, and ENRC’s general counsel arranged for the firm’s dawn-raid procedures to breathe reviewed and upgraded in response. ENRC’s head of compliance predicted a dawn-raid before the halt of summer 2011. In August, the SFO wrote to ENRC advising it to deem carefully the SFO’s Self-Reporting Guidelines, and requested a meeting with its general counsel. The apposite question in this case was whether documents created by the external law firm, including notes of interviews with employees, after this note was received would breathe protected by privilege. There are two branches of legal professional privilege, namely legal recommendation privilege and litigation privilege. ENRC argued that the documents in dispute should generally breathe protected under litigation privilege, and further that the notes of interviews with employees should moreover breathe protected under legal recommendation privilege. In broad terms, legal recommendation privilege protects professional communications between a counselor and a client whenever these communications are made. Litigation privilege, on the other hand, protects communications that are made when legal proceedings are “reasonably contemplated” and when the communications are made for the “sole or predominant purpose” of those proceedings. At first instance final year, Mrs. Justice Andrews decided that the notes of interviews with employees could not breathe protected by legal recommendation privilege.42 There is Court of Appeal authority that legal recommendation privilege can arise between only lawyers and employees who fill been specially authorised to search and receive legal advice. These employees had 42 https://www.bailii.org/ew/cases/EWHC/QB/2017/1017.html. 23In Principle not been specially designated, and so she decided that legal recommendation privilege would not apply. Mrs. Justice Andrews further decided that, in the apposite epoch after the SFO’s note in August 2011, ENRC did not reasonably contemplate that proceedings would breathe brought. Consequently, she organize that litigation privilege could moreover not apply to these documents. The Court of Appeal rarely overrules its own precedents. Whilst it was overtly critical of the authority restricting legal recommendation privilege to communications between a counselor and only some employees, the Court left it to the Supreme Court to settle the question. The SFO has said that it does not device to appeal this decision; they may fill to wait some time for another case to attain the Supreme Court. In any event, overruling this decision would not fill made a inequity to the outcome of this case, since the Court of Appeal thought that litigation privilege should apply to the documents in this case, including notes made of interviews with employees. It held that, in totality the circumstances of this case, and especially where (a) the SFO had gone beyond merely stating general principles from its guidelines and (b) lawyers had been appointed to conduct an investigation, there was “clear ground” to shriek that proceedings were reasonably in contemplation. Indeed, much of what ENRC was attempting to execute was avoid the proceedings that it thought would breathe coming its way. The message from this case is generally positive. Even though legal recommendation privilege remains sort of unhelpful in terms of protecting investigation material, the courts should now search for more favourably on litigation privilege claims. Santander43 On 19 December 2018, the FCA fined Santander £32.8 million for failing to effectively process the accounts and investments of deceased customers. The FCA organize that, between 1 January 2013 and 11 July 2016, the bank breached: • Principle 3 of its Principles for Businesses (management and control) by failing to grasp reasonable keeping to organise and control its probate and bereavement process responsibly and effectively with adequate risk management systems. 43 https://fca.org.uk/publication/final-notices/santander-uk-plc-2018. pdf. • Principle 6 (customers’ interests) by failing to ensure that its probate and bereavement process paid due regard to the interests of its customers and their representatives and treated them fairly. The FCA said that the bank’s probate and bereavement process contained weaknesses that reduced its ability to effectively identify totality the funds that it held that formed allotment of a deceased customer’s estate. This resulted in it being unable to effectively succeed up with representatives of the deceased customer. Such weaknesses meant that the process would start, but would stall and remain incomplete, signification that funds would not breathe transferred to those who were entitled to receive them. Since 2015, Santander has carried out remediation exercises to transfer funds from affected accounts to the rightful beneficiaries. These exercises are almost complete, which means that most of the 40,000 affected customers fill now received the funds, together with interest and compensation for any consequential loss. The bank was moreover organize to fill breached Principle 11 (relations with regulators) for failing to promptly disclose information relating to the above-detailed issues to the FCA. stamp Steward, the FCA’s head of enforcement, cautioned that the FCA remains “on the lookout for firms with poverty-stricken systems and controls and will grasp action to deter such failings to ensure customers are properly protected.”44 Arif Hussein45 The FCA issued a decision notice prohibiting Arif Hussein from performing any role in relation to any regulated activity on the grounds that Mr. Hussein had knowingly or recklessly engaged in conduct that he believed was improper; that Mr. Hussein was knowingly or recklessly complicit in his employer, UBS’s, manipulation of LIBOR; and that Mr. Hussein lacked veneration and integrity. In particular, the FCA alleged that Mr. Hussein had engaged in improper internal chats with a trader- submitter at UBS for the purpose of influencing UBS’s LIBOR submissions. Mr. Hussein referred this notice to the Upper Tribunal. 44 https://www.fca.org.uk/news/press-releases/santander-uk-plc- fined-serious-failings-its-probate-and-bereavement-process. 45 https://www.bailii.org/uk/cases/UKUT/TCC/2018/186.pdf. 24 © 2019 Akin Gump Strauss Hauer & Feld Before the FCA’s RDC, Mr. Hussein had contended that he had been involved in internal chats with trader-submitters to explore internal opportunities to hedge or “net” his trading positions (in short, he had engaged with trader-submitters in their capacities as short-end derivatives traders, rather than as LIBOR submitters). Before the Upper Tribunal, Mr. Hussein repeated this defence, but he moreover stated that he believed at that time that it was acceptable for trader- submitters to grasp into account trading positions when determining what a LIBOR submission would be. The FCA contended that Mr. Hussein had changed his defence between the interviews he had had at the FCA and the RDC hearing, and then at the Upper Tribunal hearing, and that this change indicated a need of integrity. The Upper Tribunal agreed with Mr. Hussein’s position that he had thought his chats with the trader- submitters to breathe appropriate. The Upper Tribunal notable that, at the apposite time, there were no formal procedures within UBS regulating the LIBOR submission process, and Mr. Hussein did believe that his trading positions could breathe taken into account by the submitters. The Tribunal organize that Mr. Hussein did not act dishonestly or recklessly and that his participation in the chats was not contrary to the standards required of him. The Tribunal accepted, however, that Mr. Hussein had misled the FCA through his answers at interview and that he should fill appreciated during the proceedings before the RDC that the chats had had a dual purpose: The chats had not simply been exploration into his hedging or netting options. The Tribunal organize that Mr. Hussein should fill told the RDC that he thought it permissible for his trading positions to breathe taken into account in the LIBOR submissions. The Tribunal therefore agreed with the FCA that Mr. Hussein had changed his position and that this meant that he must fill misled the regulator and failed in his duty to breathe candid with the FCA. sort of reluctantly it appears, the FCA agreed that this failing by Mr. Hussein was sufficiently staid that it was reasonable for the FCA to impose a prohibition order on him. Notwithstanding that the Tribunal disagreed with the RDC and the FCA’s submissions on many issues, therefore, the Tribunal dismissed Mr. Hussein’s reference. Interestingly, the Upper Tribunal expressed some concern that a comparatively junior trader should fill received a prohibition order from the FCA whilst more senior managers had apparently escaped sanction. Whilst the Upper Tribunal has no power to execute anything more than express its stout concerns about this to the FCA, this statement is sort of unusual. The most well-known message from this case is the responsibility to reflect and breathe truthful about what happened from as early in the investigation as possible. Had Mr. Hussein’s position remained consistent throughout the proceedings, it seems likely that the Tribunal would fill organize for him; as the Tribunal said, “we execute not believe him to breathe a thoroughly nefarious person. He made a staid oversight of judgment.” Unlike in court litigation, where parties are expected to develop their cases as the proceedings progress, the duty of candour to the FCA means that this approach is not open in these regulatory proceedings. Everything that an authorised or approved person does, whether before the investigation or during the investigation, is open to scrutiny, and litigation conduct must reconcile accordingly. Tesco Personal Finance plc46 In November 2016, Tesco Personal Finance plc (Tesco Bank) reported that it had suffered a staid cyber breach during which £2.26 million was stolen from 9,000 consumers’ accounts. Tesco Bank quickly refunded any customers who had lost money in the attack. In October 2018, the FCA announced that it would fine Tesco Bank £16.4 million for failing to exercise due skill, keeping and diligence in protecting its customers. The FCA notable that this sort of cyber-attack was a “foreseeable risk” from which Tesco Bank had failed to protect its customers. Further, the FCA determined that, once it became sensible of the cyber breach, Tesco Bank had failed to act with “sufficient rigour, skill and urgency.” Even if the cyber breach had been too sophisticated for Tesco Bank reasonably to breathe expected to fill been able to preclude – which was not the case here – the FCA was critical that Tesco Bank did not fill in spot a response device that would permit a swift recovery. The FCA requires firms to fill an efficient device in spot setting out what to execute if a damaging event occurs, whether that event should fill been foreseen or not. 46 https://www.fca.org.uk/publication/final-notices/tesco-personal- finance-plc-2018.pdf. 25In Principle Contact Information If you fill any questions regarding this update, delight contact: Helen Marshall Partner, London email@example.com +44 20.7661.5378 Ezra Zahabi Partner, London firstname.lastname@example.org +44 20.7661.5367 Joe Hewton Associate, London email@example.com +44 20.7012.9624 James Campbell Associate, London firstname.lastname@example.org +44 20.7012.9852 EU/UK fiscal Services Regulatory practice Akin Gump’s EU/UK fiscal Regulatory practice – which forms allotment of the Firm’s wider Global fiscal Regulatory Group – advises its clients (which embrace institutional and alternative investment managers, retail and investment banks, brokerages and senior individuals) on totality aspects of the UK and EU fiscal services regulatory framework. The practice has taken a leading role in advising the global fiscal services industry on regulatory actions, the impact of EU legislation and on commercial and securities issues that impress it. The practice is particularly well known for its toil acting for fiscal institutions and senior individuals who find themselves topic to investigation by regulators and exchanges. © 2019 Akin Gump Strauss Hauer & Feld. totality rights reserved. Attorney advertising. This document is distributed for informational exercise only; it does not constitute legal recommendation and should not breathe used as such. Prior results execute not guarantee a similar outcome. Akin Gump Strauss Hauer & Feld is the practising name of Akin Gump LLP. Akin Gump LLP is a unusual York limited liability partnership and is authorised and regulated by the Solicitors Regulation Authority under number 267321. A list of the partners is available for inspection at Eighth Floor, Ten Bishops Square, London E1 6EG. For more information about Akin Gump LLP, Akin Gump Strauss Hauer & Feld LLP and other associated entities under which the Akin Gump network operates worldwide, delight see their Legal Notices page Akin Gump Strauss Hauer & Feld is a leading global law hard providing innovative legal services and traffic solutions to individuals and institutions. Founded in 1945 by Richard Gump and Robert Strauss with the guiding vision that commitment, excellence and integrity would drive its success, the hard focuses on edifice lasting and mutually beneficial relationships with its clients. Their firm’s clients sweep from individuals to corporations and nations. They present clients a broad- spectrum approach, with over 85 practices that sweep from traditional strengths such as appellate, corporate and public policy to 21st century concentrations such as climate change, intellectual property litigation and national security. akingump.com
By Daniel J. Weiss and Jackie Weidman
The United States was subjected to many strict climate-related extreme weather over the past two years. In 2011 there were 14 extreme weather events — floods, drought, storms, and wildfires — that each caused at least $1 billion in damage. There were another 11 such disasters in 2012. Most of these extreme weather events reflect allotment of the unpaid bill from climate change — a tab that will only grow over time.
CAP recently documented the human and economic toll from these devastating events in their November 2012 report “Heavy Weather: How Climate Destruction Harms Middle- and Lower- Income Americans.” Since the release of that report, the National Oceanic and Atmospheric Administration, or NOAA, has updated its list of “billion-dollar”-damage weather events for 2012, bringing the two-year total to 25 incidents.
From 2011 to 2012 these 25 “billion-dollar damage” weather events in the United States are estimated to fill caused up to $188 billion in total damage.  The two costliest events were the September 2012 drought — the worst drought in half a century, which baked nearly two-thirds of the continental United States — and superstorm Sandy, which battered the northeast coast in late October 2012. The four recently added disastrous weather events were strict tornadoes and thunderstorms.
Here is an update of vital extreme weather event data after the addition of these four events:
Below are descriptions of each of the four weather events in 2012 that were not included in their previous report.
April 12: Tornadoes
Nearly 100 tornadoes touched down across Kansas and other midwest states over a two-day epoch in mid-April 2012, resulting in six deaths. Extensive damage to schools, hospitals, businesses, and homes was estimated to cost $1.8 billion. Many towns were without power for extended periods of time. Fourteen counties in Kansas were declared calamity areas because of the storms. Households in these disaster-declared counties earn, on average, an annual income of $47,027–9 percent below the U.S. median household income.
April 28: strict Storms
Severe weather in Oklahoma and surrounding states caused at least $4 billion in damage and one confirmed fatality in late April 2012. Storm damage throughout the belt was primarily caused by 38 confirmed tornadoes and strict hail. Oklahoma was most heavily impacted — six Oklahoma counties were declared calamity areas in the wake of the storm. Households in the counties that were calamity areas earn, on average, an annual income of $39,638 — a staggering 24 percent below the U.S. median household income.
May 25: strict Storms
Twenty-seven confirmed tornadoes touched down over a broad swath of the United States, including from Oklahoma to unusual Hampshire. The tornadoes and outburst of strict hail, straight-line winds, and thunderstorms caused one fatality and approximately $2.5 billion in damage. Most of the damage occurred in Oklahoma and the entire condition was declared a calamity area. unusual Hampshire and Vermont moreover had some disaster-declared counties. Households in these disaster-declared counties earn, on average, an annual income of $45,431–12 percent below the U.S. median household income.
June 29: Derecho
A derecho is a “widespread, long-lived wind storm that is associated with a corps of rapidly moving showers or thunderstorms,” according to the National Oceanic and Atmospheric Administration. Such a storm ravaged eastern and northeastern states in June 2012. It caused 28 fatalities and ripped through a 700-sqaure-mile swath of the mid-Atlantic region, leaving 3.4 million homes there without power. The storm caused at least $3.8 billion in damage in 215 counties in Maryland, unusual Jersey, Ohio, West Virginia, Virginia, and Washington, D.C. totality were declared calamity areas.
These events, along with the seven other “billion-dollar” weather events in 2012, made it the second-most-extreme weather year on record, according to the U.S. Climate Extremes Index.
NASA climatologist Gavin Schmidt says that when it comes to higher temperatures and extreme weather, “what matters is this decade is warmer than the final decade, and that decade was warmer than the decade before. The planet is warming. The understanding is because they are pumping increasing amounts of carbon dioxide into the atmosphere.”
The U.S. National Climate Assessment draft released in January 2013 indicates that the effects of climate change will continue to menace the health and vitality of their communities as extreme weather becomes more frequent and/or severe. One of the report’s key findings is that U.S. coastal communities are particularly vulnerable to sea-level rise, storms, floods, and subsequent erosion. And scientists call that precipitation events across the United States are likely to breathe heavier. These risks pose staid threats to their electricity grid, infrastructure, antiseptic water, and sewage treatment system in the most affected places.
The climate-related extreme weather events of the past several years fill become the unusual normal. They must act now to reduce the industrial carbon pollution answerable for climate change and back communities become more resilient to the coming storms, floods, droughts, heat waves, and wildfires.
Disaster relief has suddenly become a partisan issue. This became overwhelmingly transparent during recent debates in the Senate and the House of Representatives over the calamity Relief Appropriations Act (H.R. 152), which provided $50.7 billion in emergency aid for superstorm Sandy victims.  The measure was passed by Congress and signed by President Barack Obama on January 29, 2013 — an unacceptable 91 days after the storm devastated the northeast corridor.
Despite passing with advocate from totality but one voting Democrat in the House and Senate, the vast majority of Republicans in each chamber opposed essential aid to hurricane victims. These conservative lawmakers attempted to gainsay fiscal assistance to those in need, even after some of them previously requested calamity funding for their own states. totality 36 Republican senators who voted against the Sandy aid bill are from states that experienced at least one “billion-dollar damage” extreme weather event in the past two years. In fact, 98 percent of lawmakers in either chamber who voted against the bill — 211 of the 216 Republicans — represent states that experienced at least one “billion-dollar damage” extreme weather event in the past two years.
The debate over congressional passage of calamity recovery assistance raises staid concerns about whether Congress can both aid calamity victims in a timely style and toil to back communities minimize damages from future storms and other extreme weather. In order to back these communities reduce their vulnerability to extreme weather, Rep. Lois Capps (D-CA) and 37 of her colleagues urged President Obama to designate a blue ribbon panel to develop a a “community resilience fund” dedicated solely to providing the fiscal and technical assistance to vulnerable communities hit by extreme weather events. Dedicated funding for predisaster mitigation will protect lives, shield middle- and lower-income households from the worst impacts of extreme weather, and reclaim taxpayers money over time.
For more information on this proposal, delight see CAP’s December 2012 column “An Ounce of Prevention: Increasing Resiliency to Climate-Related Extreme Weather.”Methodology
This center for American Progress analysis compiled data from multiple sources. Extreme weather events data were from the National Oceanic and Atmospheric Administration’s National Climatic Data Center, or NCDC. Counties affected by each event were compiled from the Federal Emergency Management Agency’s Declared Disasters database.
In order to assess income levels for the most affected counties, they used median household income (2006–2010) data and number of households (2006–2010) data from the U.S. Census Bureau’s condition and County QuickFacts. The 2006–2010 values are an middling over the five-year period. They compared the percent inequity between the middling annual median household incomes for the affected counties in each weather event to the U.S. median — $51,914. They accounted for the population of each county when calculating these values. The cost per household was calculated by taking the cost of the event divided by the total number of households for each event.
 The National Oceanic and Atmospheric Administration will release final 2013 calamity cost estimates in mid-2013.
 U.S. median income figures are based on the 2005–2010 Census Bureau average.
 This was the second installment of Sandy aid. The first installment of $9.7 billion was passed on January 1, 2013.
Daniel J. Weiss is a Senior Fellow and Director of Climate Strategy at the center for American Progress. Jackie Weidman is a Special aide at the Center.
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