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Langbein
Im not familiar with precisely what I said, but I stand by what I said,
whatever it was.
W. Mitt Romney (2012)
Banking Law and Regulation, Fall 2012: Handout IV
I.
f.
j.
Four sections (16, 20, 21, 32) are the Glass-Steagall Act, separating
investment banking from commercial banking.
Established Federal deposit insurance for the first time, originally as
Section 12A of the Federal Reserve Act, moved to become the Federal
Deposit Insurance Act in 1950.
Imposed ceilings on interest banks could pay on deposits.
Expanded McFadden Act about bank branching.
Limited two things who could own a bank, and nonbanking activities
with which banks could be affiliated.
Originally limited to holding companies owning more than 1 bank
subsidiary.
Administered by Board of Governors, ultimately resulting in the Board
becoming the central agency regulating banks.
Savings and Loan Holding Company Act, with comparable provisions
governing thrifts, passed in 1959 or 1967.
f.
Originally FDIC could only terminate the insurance or throw bank into
receivershiop.
Inflexible remedies gave FDIC no intermediate powers to prevent
bank trouble.
FISA created authority for cease-and-desist orders, civil money
penalties, and prohibition or removal of officers and directors.
xxxi.
xxxii.
xxxiii.
Abolished Federal Home Loan Bank Board (FHLBB) and FSLIC, and
integrated deposit insurance law governing banks and thrifts.
Provided backup bailout funds for thrifts.
Created RTC to resolve thrifts in 5-year period.
Adopted comprehensive new bankruptcy law for depository institutions
(banks and thrifts).
b. Securitizations
i
xlii.
xliii.
xliv.
f.
iv
v
No Fed rescue
Triggered near collapse of system by Thursday, Sept. 19, 2008
Interbank lending froze, because banks were not sure who was or was
not insolvent
Web of credit default swaps and other counterparty arrangements
transmitted bankruptcy throughout the system.
Thus, securitizations lay at the root of the crisis, and derivatives
(swaps) were the primary means of spreading contagion.
10
11
b. Thrifts
i
ii
iii
12
13
e. Service corporations
i
ii
iii
iv
d. Exclusions
i
ii
14
f.
Given that the term is nonbank financial company, one wouldnt think
so.
However, there is no express exclusion of them in the statutory
language.
Since section 4(k)(4)(A) includes on laundry list lending and
exchanging money and securities, presumably most depository
institutions would meet either of the 85% tests.
Issue arises principally in connection with section 165(i)(2) of DoddFrank, concerning requirement of company-conducted stress tests, as
discussed below.
Includes all BHCs (no $50 billion limitation), and all supervised NBFCs
iv
II.
This creates risks of a panic, as one day the loans go bad, and then the
bank cant pay its depositors.
17
The Federal Reserve Banks can in fact do just this (no RRR binds them),
and they are doing it right now.
d. The RRR limits banks deposit creation and thus their lending:
they may create deposit liabilities only in an amount 10 times
the increase in their reserves.
e. Thus, if a bank makes a loan of 100x, it must find 10x of
reserves, either cash or deposits through the Federal Reserve, to
support the deposit created.
4. Federal funds market
a. It is virtually impossible for banks to monitor their reserve
position exactly, but they must meet the RRR on a nightly basis.
b. Predictably, at the end of a day some banks end up in excess
reserve positions, and some in deficit position.
c. These are adjusted by loans of Federal funds from banks in
excess positions to banks in deficit positions.
d. The loans are ordinarily effected through repurchase, or
repo transactions, in which the bank borrowing Fed funds
sells Treasury or other securities to the funds-lender, subject
to the sellers obligation to repurchase the securities at a
fixed later date.
e. The repo is later unwound by the retransfer of the securities to
the borrower, in exchange for Federal funds, which the borrower
now has.
f.
18
At the time, the Dow Jones industrial average was about 13,600.
g. The Dow Jones industrial average has to this date never reached
14,500
4. Because both the discount rate and reserve requirement are disfavored
as tools of ongoing monetary policy, monetary policy is effected largely
by changes in the Federal funds rate.
19
III.
20
Similarly, if the bank forms a new BHC at same time, the process
of approving the BHC is simultaneous with the approval of the
bank, and, under the regulations of both the Board and the OCC,
is done by the OCC, in consultation with the Board.
2. Judicial Review
a. NBA sets forth no provision for judicial review of determinations
by the Comptroller.
b. Comptrollers action is thus informal action, i.e., it is neither
rulemaking, nor adjudication.
c. In the Overton Park decision (1970), the Supreme Court held
such informal actions are subject to judicial review; it also
approved a limit form of de novo review, including questioning
administrators in court.
d. In Camp v. Pitts (1973), the Supreme Court (with changed
membership in the interim) limited Overton Park in a case
involving an effort to review the Comptrollers disapproval of an
application for a new bank charter.
21
g. Despite this activity and interest, there are only one or two
decisions actually reversing the Comptrollers action.
h. In practical effect, then, though under Pitts judicial review is
available, it is unlikely to be availing; counsel needs to seek its
desired result at the administrative level.
3. Thrift Institutions
a. HOLA is different from NBA in its approach to corporate
organization; it gives administrators (now OCC) authority to
prescribe regulations for the organization, incorporation,
examination, operation, and regulation of Federal savings
associations (12 U.S.C. 1464(a)(2)).
b. Accordingly, under HOLA, provisions for organization, merger,
governance, etc. of thrifts is done by regulation (and subject to
administrative discretion), not by statute.
c. De la Cuesta decision confirms this view of HOLA, noting statute
gives administrators authority over thrifts from their corporate
cradle to their corporate grave.
d. Deposit insurance standards (12 U.S.C. 1816) apply to thrifts
as well as banks.
e. Accordingly, applicable standards governing approval of newly
formed thrifts are similar to those governing banks.
f.
B. HOLDING COMPANIES
1. Bank Holding Companies
a. Section 3(a) of the BHCA (12 U.S.C. 1842(a)) lists five events
that require prior approval of the Board.
i
ii
iii
iv
22
iii
If the acquiring party is a BHC which purchases the stock of the target
bank, or the stock of the target BHC, transaction, transaction falls
within the second and third category.
If the acquiring party is a company that is not already a BHC,
transaction then falls within all of the first 3 categories.
If the transaction involves the merger of two BHCs, it is within the fifth
category (also may be within the second and third, depending on how
one looks at things).
If the transaction involves acquisition of the assets of a bank by the
BHC, transaction is within the fourth category.
Major exception is if the assets of a bank are acquired by another bank,
whether or not the latter is a bank subsidiary of a BHC, or where two
banks are merged.
Those transactions fall under section 18(c) of the FDIA, and require the
approval of the AFBA of the resulting bank (in the case of a merger) or
the acquiring bank (in the case of an asset acquisition).
Also, in certain circumstances, an acquiring party will not constitute a
company within the meaning of the BHCA; such transactions are not
subject to the approval requirement of section 3(a).
Transactions of that kind are, however, subject to section 7(j) of the
FDIA, the Change in Bank Control Act, which requires the approval of
the AFBA when a bank is acquired by individuals or parties acting in
concert.
iv
All depository institution subsidiaries of the BHC (and the BHC itself)
must be well capitalized.
All depository institution subsidiaries of the BHC (and the BHC itself)
must be well managed.
Well capitalized means the company meets capital thresholds of 5% for
the leverage requirement; 6% for the Tier 1 risk-weighted assets; and
10% for the total capital risk-weighted assets standard (as opposed to
4%, 4%, and 8% to be adequately capitalized.
Well managed means the institution has a composite rating of 1 or 2 in
the report of the institutions most recent examination.
f.
Under section 4(m), Board may find that an FHC does not meet the
statutory criteria.
If the Board so finds, FHC is required to execute an agreement with
Board to correct the conditions, and if the FHC fails to execute such an
agreement, the Board can limit further activities by the FHC or, after a
180-day period, order divestiture of nonbank activities or of the
depository institution subsidiary.
iii
iv
v
ii
iii
24
Definition does not include activities on the section 4(k) laundry list, so
SLHCs may not engage de novo in those activities,
However, companies engaged in those activities are permitted to
acquire savings associations under HOLA 10(c)(9)(A)(ii), so affiliations
are permitted by reverse acquisitions.
At any time, bank may file a certification with Comptroller that it meets
statutory requirements to have a FinSub (12 C.F.R. 5.39(i)(1)).
Bank must provide notice of actually acquiring or forming FinSub at the
time it acquires or forms the subsidiary (12 C.F.R. 5.39(i)(1)).
When new activity is undertaken, FinSub is required only to provide
notice to the Comptroller, under the rules applicable to operating
subsidiaries.
2. Operating Subsidiaries
a. Comptrollers regulations set forth a laundry list of activities
permissible for OpSubs (12 C.F.R. 5.34(e)(5)(v)).
b. Regulations required only 10 days subsequent notice of forming
OpSub or engaging in new activity, if activities are on the
laundry list of activities permissible for OpSubs (12 C.F.R.
5.34(e)(5)(i)).
c. If OpSub is to engage in activity that is permissible but not on
laundry list of activities permissible for OpSubs, parent bank
must file application for prior approval (12 C.F.R. 5.34(e)(5)
(ii)).
d. If bank forms a new OpSub or engages newly in an activity in
one OpSub, and the activity has been approved previously for a
separate OpSub, neither notice nor application for approval need
be filed (12 C.F.R. 5.34(e)(5)(v)).
3. Subsidiary Organizations of Savings Associations
D. FINANCIAL COMPANIES UNDER DODD-FRANK
1. Financial companies come under Dodd-Frank when designated by the
FSOC
2. FSOC makes one of two determinations (113(a)(1))
a. Material financial distress at the US NBFC could pose a threat
to the financial stability of the Untied States
b. Nature, scope, size, scale, concentration, interconnectedness,
or mix of the activities . . . could pose a threat to the financial
stability of the Untied States
c. Section 113(a)(2) lists considerations FSOC is to take into
account
3. FSOC composition and procedure
a. 10 members from 8 agencies, plus insurance appointment,
plus Treasury Secretary
b. Treasury Secretary is Chair of FSOC
c. Acts by 2/3 vote (so 7-3 if all present and voting)
d. Majority must include Chair (Treasury Secy), so in effect
Treasury has a veto over anything FSOC does
26
27
5 enumerated powers
Necessary and incidental language
Question whether incidental means to business of banking, or more
narrowly to one of enumerated powers
Long simmering question under state banking laws, but never frontally
addressed by any Federal court
Dispute led to arguments for a broad reading of national bank
powers
Some articles took very crabbed view of Supreme Court precedent
suggesting a narrow view
iii
iv
v
28
29
31
32
V.
35
36
37
3. Affiliate
39
40
vi
vii
6. Financial subsidiaries
a. Financial subsidiaries are treated as affiliates ( 23A(e)(2))
b. Prior to Dodd-Frank, finsubs were exempted from the 10% rule,
but subject to the 20% rule
c. Dodd-Frank amended section 23A(e) to make Finsubs subject to
both rules
d. Investment in securities of Finsub by a bank affiliate are treated
as invested in the parent bank, and reinvested in the Finsub (
23A(e)(4)(A))
e. Loans to Finsub by a bank affiliate are treated as lent to the
parent bank, and relent in the Finsub ( 23A(e)(4)(B))
7. Low-quality asset rule
a. Low-quality asset defined by 23A(b)(10)
b. Asset classified as substandard, doubtful, or loss, or treated
as other loans especially mentioned in most recent report of
examination of affiliate
c. Asset in nonaccrual status
d. Asset on which principal or interest payments are more than 30
days past due
e. Asset renegotiated or compromised because of deteriorating
financial condition of the obligor
41
42
iii
VI.
43
45
Made insurance for both funded under the FDIC, but created two
separate funds the Bank Insurance Fund (BIF) and the Savings
Association Insurance Fund (SAIF)
Insurance funds were to be capitalized to the extent of 1.25% of
insurable deposits.
Because of difficulties in the thrift industry, SAIF premiums were much
higher than BIF premiums, leading to incentives for thrifts to convert
to bank charters during the early and mid-1990s.
Stabilization in the banking industry in the early 1990s led to
overfunding of the BIF, so that most bank insurance premiums were
reduced to zero by the late 1990s, and remained there for some time.
d. 2006 legislation abolished the separate SAIF and BIF funds and
combined them under the unified Deposit Insurance Fund (DIF).
i
ii
46
Generally favors small banks, which rely less heavily than large banks
on nondeposit funding.
Large banks complain about this.
Limit was temporarily raised to $500 billion (to end of 2010) during
financial crisis.
Loans are to be repaid from assessments on the banks.
b. DIF may also borrow from Federal Financing Bank and from
Federal Home Loan Banks.
c. DIF may borrow from insured depository institutions, but only to
an extent repayable from future assessments.
C. RISK-BASED ASSESSMENTS
1. Instituted in 1991, under FDICIA, directed by 7(b)(1)(A)
2. Under regulations, institutions risk profile is determined by two
principal factors
a. Institutions composite CAMELS rating on the last exam
b. Institutions capital adequacy ratio
3. Doolin Savings decision suggests limited power of institution to secure
review of its assessment rating
a. Doolin contested its assessment by refusing to pay its insurance
premium
b. FDIC responded by terminating Doolins insured status under
8(a).
c. Fourth Circuit upheld termination
i
ii
iii
PART III.
VII.
CAPITAL STANDARDS
47
Leverage limits
Risk-based capital requirements
Tangible capital requirement
Swaps (derivatives)
Securitization
Proprietary trading
Operational riskj
Interest rate risk
Market risk
Concentration risk
Liquidity risk
Compliance risk
Strategic risk
Reputational risk
5. Basel II (1998-2006)
a. BCBS developed Basel II rules, incorporating Basel I and the
three major innovations, over eight-year period.
b. Semi-final document issued in 2004, final document in 2006.
c. Vastly more ramified and complex than Basel I.
d. Heavy reliance on internal ratings and NSRO ratings in final
rules.
i
ii
iii
Deregulatory in nature
Controversial when both proved decidedly unreliable
Discredit of Basel II after the financial crisis some blamed Basel II
rules for the fiasco.
50
ii
52
53
ii
iii
54
iv
E. BASEL II
1. Developed over period 1998-2004; adopted in final form, revised, 2006
(Basel Committee on Banking Supervision, International Convergence of Capital Measurement
and Capital Standards A Revised Framework Comprehensive Version (June 2006),
(i.e., 80% or more owned subsidiaries are looked through, and the parent is treated as
owning the assets, subject to the liabilities, and holding capital of the subsidiary)
Exception, under 24a(c) is for financial subsidiaries of national banks, whose stock and
assets are excluded from the computation of banks ratios, and deducted from CET1
AA institutions have consolidated assets of $500 billion or more; there are only
8 such institutions based in U.S., although many more foreign institutions of
that size are operating here
U.S regulations governing AA institutions have been in force since 2006,
although they were phased in and amended significantly in July 2013
Rules for standardized institutions were not adopted under Basel II; rules under
both Basel II and III were first proposed in August 2012 and finalized in July
2013
Materials herein relate solely to standardized rules; rules for advanced
approaches organizations are not covered, except with respect to question of
countercyclical capital buffer
ii.
iii.
iv.
f.
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
ix.
x.
iii.
Off balance sheet items (other than derivatives) are multiplied by one
of five percentages (0, 10, 20, 50, and 100), multiplied by carrying
value of item to arrive at a credit equivalent amount.
.CEA is then multiplied by appropriate risk weight factor to arrive at
amount included in RWA
Derivatives (over-the-counter swaps) are subject to special rules,
requiring reflecting the sum of the current market value of the
position (if positive), plus, in any case, an potential exposure
amount reflect inherent risk in the transactions
Derivatives and repo-style transactions that are traded on
clearinghouses under new Dodd-Frank rules are defined as cleared
transactions and have a distinct set of rules applied to them
f.
xv.
xvi.
60
xxvi.
f.
h. Defaulted obligations
i
Assets 90 days or more past due have 150 risk weight if unsecured and
unguaranteed
61
If secured or guaranteed, may have the risk weight assigned under the
guarantee or collateral rules.
DPC property (acquired by foreclosure) has risk weight in hands of a DI
it would have in the hands of a HC if the DI is otherwise without power
to acquire or hold the poroperty
62
f.
Then you computed two things: the gross amount of the PFEs; and the
ratio of the net CCE to the gross amount of the CCEs
The \net PFEs is then determined as a weighted average, using 40%
of the gross amount of the PFE, and 60% the gross PFE multiplied by
the ratio of net CCE to gross CCE
9.
xli.
xlii.
xliii.
11.Unsettled transactions
64
ii
65
xlvi.
xlvii.
xlviii.
xlix.
l.
li.
liv.
lv.
lvi.
First, multiply the weighted average risk weight for the exposures
times the amount of the exposures (actually this number is adjusted
slightly to account for default on underlying exposures)
Assume a weighted average of 50%, and total exposures of $10
million: this number is $5 million.
If the attachment point (amounts subordinated to bank) exceeds the
weighted average, then generally the risk weight is the SSFA
coefficient, which, in the absence of substantial defaults in underlying
assets, will be a very small number (see h-v below)
If the detachment point is less than the weighted average, the risk
weight is 1250 per cent (amount taken account in risk-weighting
exceeds banks responsibility, hence bank expected to bear the
losses)
SSFA formula thus applies only where the attachment point is less than
the weighted average risk weight, which in turn is less than the
detachment point.
In our example, the attachment point is 40%; the weight average is
50%; the detachment point is 70%, so the SSFA formula would apply.
66
lviii.
lix.
lx.
lxi.
lxii.
lxiii.
i.
j.
k. Tier 1 capital
13.Equity exposures
a. Equity exposures are accounted for under various methods.
i
lxviii.
Straight equity exposures account for under Simple Risk Weight Asset
(SRWA) method.
Exposures to investment funds accounted for under one of 3
lookthrough approaches: the full lookthrough approach; simple
modified lookthrough approach; or alternative modified lookthrough
approach
69
ii
70
f.
g. Positions that were not rated or traded but senior and preferred
in all respect to a traded position may use the risk weight
assigned to the traded position.
h. Positions not rated or rated below the lowest investment grade
could be accounted for under any of 3 defined methods, subject
to conditions imposed on each method.
i
lxxxiv.
lxxxv.
i.
i
lxxxvi.
lxxxvii.
lxxxviii.
H. CONSEQUENCES OF ABROGATION
71
VIII.
72
B. CAPITAL STANDARDS
1. Statute requires risk-based and leverage limits ( 165(b)(1)(A)(i)).
2. Most requirements are to be based on requirements discussed above.
3. Section 165(j) authorizes Board to impose a 15-1 leverage limit
(6.25%, greater than the 3-4% limit imposed by current law) on $50b
BHC or supervised NBFC, upon a determination by the Council (FSOC)
that institutions poses a grave threat to the financial stability of US.
4. Section 165(k)(1) expressly requires that computation of capital for
purposes of meeting capital requirements . . . take into account any
off-balance-sheet activities of the company.
a. Appears to apply to leverage limits as well as risk-based capital
requirements, although no regulatory action on this point
appears to have been taken.
b. Statute authorizes Board to exempt a company or transaction
from the requirement.
74
75
76
78
4. Required content
a. Information about corporate structures within company,
subsidiaries, etc.
b. Information about management information systems
c. Information about interconnections and interdependencies
among different corporations in the structure, including any
cross-guarantees or cross-collateral and cross-default provisions
d. Information about supervisory and regulatory authorities
responsible for safety and soundness of institutions
e. Strategic analysis
f.
Executive summary
79
Some believe plans are used to whitewash problems within the banks
Others question whether the information collected by the agencies is
worth what is a high cost to institutions of complying with the plan
For BHCs, first reporting date is first September 30 to occur more than
90 days after company becomes a $50 billion BHC.
For supervised NBFCs, first reporting date is first September 30 to
occur more than 18990 days after company is designated.
BHC that is covered on effective date of proposed regulations must
immediately comply.
81
6. What is clear is that $10b FCs are subject to the requirement without
FSOC designation of them as systemically significant.
a. However, if all of insurance companies, swap-related firms, and
non-swap-related commodities firms are not subject to the
requirement, then the requirement is a narrow one applicable to
securities firms and maybe some leasing, or capital firms,
which tend not to be that large.
b. No indication whether medium-size banks in any way intend to
resist the requirement.
c. Requirement is relatively burdensome for a bank with assets
between $10 billion and $50 billion.
d. The remedy for deficiencies in the stress tests includes
requirement of revisions to living wills: but banks in the $10b$50b range are not subject to the living will requirement, so
the stress test rule is potentially a basis for regulatory expansion
of the living will requirement (or the prudential standards
generally).
H. CAPITAL PLANS
1. Requirement of annual capital plans is not a prudential standard
under DFA; but it was included in January 2012 proposed regulations of
Board, and is applicable only to $50b BHCs.
a. Requirement does not apply to NBFCs, even if supervised
b. Apparently, in view of Board, constitutes exercise of Boards
general power to supervise BHCs
c. Proposed regulations are proposed as amendments to
Regulation Y (12 C.F.R. Part 225), not prudential standards
regulation (12 C.F.R. Part 252)
2. Plan to be submitted by January 5 each year
83
PART IV.
IX.
84
2. Control definition
a. Primarily derived from BHCA
b. De facto control Oberstar decision
i
ii
iii
iv
v
Controlling shareholder of bank was in jail for bank fraud, and was
under prohibition order not to participate in affairs of an IDI.
Oberstar sought to buy the bank, but FDIC refused approval.
Banks chairman decided they needed a shareholders meeting;
controlling SH gave Oberstar proxy to vote shares of SH.
FDIC decided proxy violated 7(j), as control . . . through a purchase,
assignhment, transfer, pledge, or other disposition of voting stock,
and entered a prohibition order.
Eighth Circuit found both that the transaction did not involve change in
control, and that required culpability was missing.
B. ANTITRUST REVIEW
1. Complicated law that is of limited importance today.
85
2. Statutory basis
a. Sherman Act 1-2: (1890) prohibit restraints of trade, and
efforts to monopolize
b. Clayton Act 7 (1914) prohibits any combination that tends to
create a monopoly in any line of commerce in any section of
the country
c. Bank Merger Act (1960) clarified application of statute to banks
i
ii
f.
3. Judicial background
a. Philadelphia National Bank decision landmark decision
applying Clayton Act to banks
i
ii
iii
iv
v
4. Guideline law
a. Reaffirms 3-step approach
b. Third step is Hirschmann-Herfindahl Index (HHI)
i
ii
iii
iv
v
vi
87
C. INTERSTATE ASPECTS
1. Like antitrust, complicated law that is of limited importance today
a. As in the case of antitrust, little consolidation activity in current
environment
b. Most restrictions on interstate activity have been eliminated
c. DFA provisions permitting de novo interstate branching without
regard to state law eliminated significance of restrictions on
acquisitions
d. So, mostly of historical significance
2. McFadden Act
a. Prior to 1907, Comptroller held NBA did not permit national
banks to branch.
b. Beginning 1907, Comptroller allowed intrastate branching to the
extent allowed by state law.
c. Supreme Court struck down NBA branching rights in First
National Bank in St. Louis v. Missouri (1924).
i
ii
iii
X.
90
XII.
FAILED INSTITUTIONS
A. APPOINTMENT AND JUDICIAL REVIEW
B. CLAIMS PROCESS
C. REPUDIATION
D. ACTIONS AGAINST OFFICERS AND DIRECTORS
E. SIDE AGREEMENTS
F.
91