Exclusive: SEC official dissented on BNP Paribas waiver

WASHINGTON Wed Jul 2, 2014 7:07pm EDT

A BNP Paribas sign is pictured on a building of the bank in Geneva July 1, 2014. REUTERS/Pierre Albouy

A BNP Paribas sign is pictured on a building of the bank in Geneva July 1, 2014.

Credit: Reuters/Pierre Albouy

WASHINGTON (Reuters) - An official at the U.S. Securities and Exchange Commission broke ranks with other commissioners and voted against granting BNP Paribas a waiver to continue operating several investment advisory units in the United States.

Kara Stein, a Democratic SEC commissioner who has recently demanded more accountability for big banks who break the law, was the sole dissenting vote on Monday on the temporary waiver, according to a document made public this week.

BNP's application was granted the same day that BNP, France's largest bank, pleaded guilty to criminal charges it violated U.S. sanctions and agreed to pay a $9 billion penalty.

The temporary waiver will become permanent, unless an "interested person" in the matter is granted a hearing. The deadline for requesting a hearing is July 25.

The New York state banking regulator, Benjamin Lawsky, on Monday separately decided not to pull BNP's banking license in the state, in spite of its criminal guilty plea, partly because of the risk it could put BNP out of business.

Stein's dissenting vote is part of a larger pushback among some enforcement authorities and lawmakers who have increasingly questioned whether big financial firms are getting off too easily for their misdeeds, especially those who are repeat offenders.

In recent months, financial penalties against banks have soared into the multi-billions of dollars, and authorities are experimenting with unprecedented penalties, such as a temporary ban that was placed on BNP's dollar-clearing operations. A spokeswoman for BNP Paribas declined to comment on the dissenting vote by Stein because the application for a permanent waiver is still pending.

BNP argued in an SEC filling why the waiver should be granted. Regarding its Hawaii-based advisory firm, BNP said it is a "relatively small state" where its 12 employees would experience "great difficulty" finding new jobs. Denying the waiver would force the advisers to end relationships with third-party funds and hurt the expansion of its business, disrupting "highly valued long-term client relationships," the bank said.

Federal securities laws contain so-called "bad actor" provisions which automatically disqualify companies and individuals from participating in certain activities, such as raising private capital or acting as an investment adviser.

Companies who trigger the bad actor provisions, however, are generally allowed to apply to the SEC for a variety of waivers to avoid disrupting their business.

The type of waiver that BNP is seeking -- to keep operating three investment advisers it owns or has a stake in -- is rarely denied by the SEC, because such a move could risk destabilizing financial firms.

Robert Plaze, a former deputy director with the SEC's investment management division who is now a partner with Stroock & Stroock & Lavan LLP in Washington, said failing to grant these kinds of waivers would be like a "nuclear weapon" because it would send mutual funds scrambling to find new investment advisers.

It is a "death sentence to a fund manager with implications for the fund investors," Plaze said.

VOCAL CRITIC

Stein did not offer any explanation for her vote and declined to comment to Reuters. However, she has become a vocal critic in recent months about how the SEC has in general doled out a variety of regulatory waivers to big banks that have broken the law. In April, Stein dissented over a different kind of waiver granted to the Royal Bank of Scotland Group Plc, after one of its units pleaded guilty to manipulating the Libor benchmark interest rate.

That waiver allowed the bank to keep its status as a "well-known seasoned issuer" or WKSI -- a tag that lets companies more easily raise additional capital without seeking SEC approval first.

Stein has said the SEC has made it a habit to grant waivers, a pattern that may be enshrining a new policy "that some firms are just too big to bar." Her criticism has since touched a nerve among some Democratic lawmakers who have called on the SEC to stop being so quick to grant waivers.

It's highly unlikely that the SEC will do an about-face and deny BNP a permanent waiver, Plaze said.

Although there is the opportunity for a hearing, Plaze said such hearings are rarely even granted, either because the entity pursuing the hearing doesn’t have standing, or because the issues raised are not germane.

The SEC defines "interested person" as someone who has an ownership interest in the company applying for the waiver and who can show it is likely to be harmed if the waiver is granted.

Trade associations could potentially meet the definition, though interest groups face a steep hurdle.

In a late ‘90s case involving the Chase Manhattan Bank and Chemical Bank, for instance, a group called the Inner City Press/Community on the Move requested a hearing on a waiver application.

The group alleged that the bank had made misleading public statements about its merger, but the SEC denied the request because it "failed to demonstrate" it was an interested person.

The three investment advisers that BNP owns or has a financial stake in are Fischer Francis Trees & Watts, Bishop Street Capital Management Corp and Impax Asset Management Ltd.

According to data from Lipper, a unit of Thomson Reuters, Bishop Street advises about half a dozen mutual funds including the Bishop Street Hawaii Municipal Bond Fund and the Bishop Street Dividend Value Fund.

Some of the other entities, such as Impax, serve as sub-advisers to mutual funds, which are typically hired to oversee day-to-day portfolio management. Impax is a sub-adviser for PAX World Global Environmental Markets Fund, which has about $186 million under management, according to Lipper.

(Reporting by Sarah N. Lynch; Editing by Karey Van Hall and John Pickering)