Education
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University of Virginia School of Law, J.D., 1990
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Colorado College, B.A., 1985
Bar Admissions
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Eric Foster focuses his practice primarily on counseling banks, broker/dealers, non-bank financial institutions, swap dealers, issuers, major swap participants, hedge funds, trading platforms, clearing corporations and other firms active in the over-the-counter (OTC) fixed income, currencies, commodities and related derivatives markets. He regularly represents clients before the Federal Reserve Board, the Securities & Exchange Commission (SEC), the Commodity Futures Trading Commission (CFTC) and the various federal and state banking regulators. His practice has focused recently on providing banks, financial firms and energy related companies with advice and analysis regarding compliance with the Dodd-Frank Act of 2010 and the potential impact on their businesses of forthcoming regulations impacting the OTC derivatives and related markets.
Mr. Foster is also experienced in drafting and negotiating agreements related to the activities of banks, beneficial owners, agent lenders, prime brokers and other firms active in the U.S. and global securities lending, foreign exchange, repo and OTC swaps and commodities markets. He regularly assists clients on various types of corporate finance, municipal finance and tax driven project finance transactions especially in the alternative energy and oil and gas sector. He also advises issuers in connection with the restructuring of certain financial transactions involving debt securities, interest rate swaps, credit default swaps and other derivatives.
For his clients, Mr. Foster brings his international experience assisting industry groups and financial institutions to respond creatively and proactively to proposed changes in applicable banking, securities, commodities and bankruptcy laws and regulations, including the Basel II and proposed Basel III regulatory capital rules. Previously, he represented and advised the U.S. primary dealer community regarding regulations applicable to the U.S. Treasury and federal agency (GSE) securities markets and the Federal Reserve Bank of New York in connection with passage of the Graham-Leach-Bliley Act. He has also worked with leading members of the fixed income and derivatives dealer community in New York, London, Tokyo and Hong Kong on international debt capital markets related regulatory and tax issues arising in cross-border cash, repo and securities finance transactions in various currencies. He brings a unique understanding of the complex issues facing financial firms, intermediaries, investors and commercial end-users of financial instruments as they seeks to operate profitably and efficiently in the world’s leading financial centers.
Before joining Patton Boggs, Mr. Foster was a resident of Hong Kong, where he served as executive director of the Asia Securities Industry and Financial Markets Association (ASIFMA), an industry forum committed to promoting the development of Asia’s debt capital markets and their orderly integration into the global financial system.
While at ASIFMA, Mr. Foster worked closely in Beijing with the government-owned China Government Securities Depository Trust & Clearing Corporation, Ltd. (Chinabond) on legal, regulatory and market practice issues arising in connection with China’s domestic renminbi (RMB) denominated corporate bond market. He also provided international legal expertise and ASIFMA- sponsored research papers to the China Securities Regulatory Commission (CSRC) and the China Banking Regulatory Commission (CBRC) on international debt capital markets related regulatory issues.
Mr. Foster was seconded to ASIFMA by the Securities Industry and Financial Markets Association (SIFMA), where he served as an associate general counsel for the organization and its predecessor, The Bond Market Association (TBMA). At TBMA, he was chief advisor to both its Government & Federal Agency Securities Division and its Funding Division. While later serving as managing staff advisor for Global Rates & Funding at TBMA, he was also involved in the industry’s formation in London of the European Primary Dealers Association.
Previously, Mr. Foster was a counsel in the Legal Group at the Federal Reserve Bank of New York (FRBNY), where he served as secretary to the Financial Markets Lawyers Group and focused on supervisory issues relating to foreign exchange trading, exchange traded financial futures and the regulation of banks and their OTC derivatives activities. While at FRBNY, Mr. Foster also served as the bank’s chief legislative advisor in Washington D.C. from 1995-2000.
Mr. Foster is a frequent public speaker at conferences and has contributed to various publications devoted to the regulatory treatment of banks and other participants in the securities, futures and OTC derivatives markets. He has previously served as an adjunct professor and on-site director of the University at Buffalo New York City Program in International Finance and Law.
Representative Matters
Regulatory: OTC Derivatives, Securities & Futures
- Advised Quadriserv, a leading electronic trading platform for centrally cleared securities lending transactions, in connection with its formation, regulation by the SEC as an alternative trading system (ATS) and the general treatment of securities lending transaction under the Dodd-Frank Act of 2010.
- Represented the leading inter-dealer brokers and related trading platforms in connection with its formation and its advocacy efforts before the U.S. Congress and federal regulators in connection with the Dodd-Frank Act of 2010, including the drafting and filing of various testimony and comments letters.
- Represented the Depository Trust & Clearing Corporation (DTCC) and its affiliates in connection with advocacy efforts related to the Dodd-Frank Act of 2010, including the drafting and filing of various congressional testimony and comment letters.
- Drafted and filed a comment letter on behalf of the leading brokers in carbon emissions credits and related OTC derivatives addressing the Environmental Protection Agency’s (EPA) proposed restrictions on emissions of sulfur dioxide (SO2) and nitrogen oxides (NOx) under new Clean Air Transportation Rules (CATR).
- Advised several large non-bank financial firms on the implication under U.S. banking law of being designated as a “Systemically Significant Non-Bank Financial Institution” pursuant to Section 113 of the Dodd Frank Act of 2010.
- Drafted and filed a comment letter with the Financial Stability Oversight Council on behalf of the Organization for International Investment (OFII) addressing the appropriate designation criteria to be used under Section 113 of the Dodd Frank Act of 2010 in connection with foreign non-bank financial firms.
- Assisted a foreign bank in connection with its status as a U.S. primary dealer.
- Advised a bond insurer in connection with the status of certain portfolio insurance products under the Dodd-Frank Act of 2010.
Transactional: OTC Derivatives, Securities & Futures
- Represented Loretto Nursing Homes Inc. in connection with the restructuring of a $23,000,000 municipal bond financing and transactions involving the negotiated unwind of certain interest rate, credit and total return swaps.
- Advised the largest deep water port in the U.S. for foreign crude oil deliveries in connection with its role as a designated delivery point for the settlement of certain crude oil futures contracts listed on the New York Mercantile Exchange.
- Advised a foreign financial firm on the legal, regulatory capital and credit implication of becoming a member of a central counterparty in the U.S. and the UK to facilitate the clearing of certain OTC swap transactions.
Other: OTC Derivatives, Securities & Futures
- Served as an industry representative in the private-sector Working Group on Government Securities Clearance and Settlement formed by the Federal Reserve Board following the September 11, 2001 terrorist attacks to identify and mitigate operational and systemic risk in U.S. government securities market.
- Represented U.S. repo market participants and the U.S. securities lending community in its efforts to rationalize the treatment of OTC derivatives, repo and other securities finance transactions (SFTs) under the Basel II capital rules.
- Represented the industry in its successful efforts to amend the U.S. Bankruptcy Code and related banking laws to ensure the legal enforceability of certain financial contracts related cross-product netting arrangements, including the TBMA Cross Product Master Netting Agreement (CPMA) and the Cross Product Master Netting Agreement, Cross Affiliate Version 2 (CPMA 2.1).
- Represented the U.S. primary dealer community in its efforts to adopt uniform trading practices in the GSE European callable securities and in the securities lending industry’s agent/principle lender disclosure initiative designed to address regulatory concern over credit risk arising from certain securities lending transactions.
- Assisted in drafting the 1998 President’s Working Group Report on Long Term Capital Management (LTCM) as it pertained to netting and close-out of OTC financial contracts and the likely treatment of financial contracts in cross-border and ancillary proceedings under the U.S. Bankruptcy Code.
- Represented the U.S. primary dealer community in its response to regulatory, tax and other reforms proposed by the U.S. Treasury, the Federal Reserve and the Department of Labor.
Presentations
- Panelist, “Dodd-Frank Act Compliance,” Thomson Reuters Governance, Risk & Compliance Forum (June 15, 2011, New York, NY)
- Panelist, “Impact of Dodd-Frank: Lessons Learned and the Road Ahead,” Reuter’s 4th Annual New York Customer Summit (November 11, 2010, New York, NY)
- Panelist, “How Should Financial Trades in Commodities be Regulated?” Platts’ Oil Trading and Risk Management Forum (September 13, 2010, Houston, TX)
- Speaker, “The Growing Market for Exchange Traded Commodity ETFs: Implications for the Related Futures & Underlying Markets” Platts’ Oil Trading and Risk Management Forum (September 14, 2010, Houston TX)
Professional Affiliations:
American Bar Association
Association of the Bar of the City of New York
Asia Society
China Institute of New York
Global Association of Risk Professionals
National Association of Bond Lawyers
The Reinventing Bretton Woods Committee
The Bond Club of New York
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