During the meeting of the Board of Directors (Board) of the
Federal Deposit Insurance Corporation (FDIC) in June, the Board
unanimously adopted a resolution that requires FDIC staff
to provide full Board briefings for merger and deposit insurance
applications (each, a Covered Application) that have been
outstanding for more than 270 days.
Under the resolution, a staff briefing on the Covered Application
that has been outstanding for more than 270 days would be
automatically placed on the agenda at the next regular Board
meeting. In addition, the resolution requires quarterly follow-up
briefings as long as the Covered Application remains pending.
Vice Chairman Travis Hill, who proposed the resolution, stated
that the purpose of the resolution is to give the Board more
regular and rigorous insight into the review process and, more
fundamentally, motivate faster processing of Covered Applications.
The resolution is a follow-up to the FDIC's Processing Timeframe Guidelines for Applications,
Notices, and Other Requests published in December 2018, in
which the FDIC suggests that most merger and deposit insurance
applications will be acted on within 120 days and 60 days,
respectively, of such applications being accepted as substantially
complete. However, according to Vice Chairman Hill, notwithstanding
these stated expectations, the FDIC has regularly exceeded its
target timeframes, and the number of Covered Applications still
under review after 270 days has steadily grown in recent years,
with the number of such applications reaching double digits every
year since 2022.
Overview of the Resolution
The resolution requires staff to:
- Brief the full Board in closed session at the next regular Board meeting on the status of each Covered Application that becomes pending for more than 270 days
- Provide quarterly follow-up briefings as long as the Covered Application remains pending
The resolution bases the briefing timeline from the date an application is received rather than when an application is accepted as substantially complete. The resolution requires each briefing of the Board to include the following:
- A description and analysis of the contents of the Covered Application and the resulting institution
- A detailed timeline describing the steps the FDIC has taken to process and consider the Covered Application
- A detailed description of the remaining steps that need to be taken to reach a final decision, accompanied by expected timeframes
The initial set of briefings would occur at the first regular Board meeting 90 days after adoption of the resolution (on or around September 18, 2024) to allow time to process pending applications before the briefing requirement is triggered.
Takeaways
The Board's vote on the resolution was unanimous, but
Consumer Financial Protection Bureau Director Rohit Chopra had a
different view from Vice Chairman Hill with respect to the intended
effects of the resolution. Director Chopra stated during the public
Board hearing that "[t]his is a way we can
get applications processed and have those denials be public.... I
do think hopefully this will get us to a place of a policy where we
can swiftly deny applications that are facially deficient or not
substantially complete." Director Chopra's statements
suggest that the resolution may result in not only timely
consideration of Covered Applications, but also more transparency
on why Covered Applications are denied or withdrawn.
One day after the adoption of the resolution, the FDIC approved
the deposit insurance and merger applications for Thrivent Bank,
which is the agency's first approval of an industrial loan
company (ILC) since 2020. The applications had been pending since
2021.1 The adoption of the resolution and the approval
for Thrivent Bank appear to demonstrate the FDIC's intention to
process Covered Applications. On the other hand, the FDIC and the
Office of the Comptroller of the Currency (OCC) each proposed a
policy statement, on January 29, 2024 and March 21, 2024,
respectively, focused on greater scrutiny of bank merger
transactions.
The FDIC's proposed policy statement outlines the FDIC's
expectations with respect to each statutory factor under the Bank
Merger Act. Among other things, the policy statement suggests that
merger transactions involving larger banks would face increased
scrutiny on merger diligence and require more detailed merger
applications, particularly with respect to the anticompetitive
effects and the convenience and needs of the community they would
serve. Similarly, the OCC's proposed policy statement outlines
the principles used by the OCC in its review of merger
applications, including indicators that raise supervisory or
regulatory concerns and indicators that are consistent with
approval. Notably, the OCC's proposed policy statement includes
two procedural changes to the bank merger review: (1) elimination
of the expedited bank merger review procedures and (2) elimination
of the streamlined application. Two proposed policy statements from
the FDIC and the OCC are part of a series of recent regulatory
efforts to revise bank merger standards, including President
Biden's Executive Order on Promoting Competition in the
American Economy and Assistant Attorney General Jonathan
Kantor's statement that the Department of Justice will
expand its scrutiny of bank mergers. For more information about the
recent policy statements on merger transactions, please see our March 2024 Advisory.
For more information about the FDIC's resolution on processing
Covered Applications, or merger and deposit insurance applications
more generally, please contact any of the authors of this Advisory
or your usual Arnold & Porter contact. The firm's Financial Services team would be pleased to
assist with any questions about this Advisory or merger and deposit
insurance applications in general.
Footnote
1. On the other hand, a day after the Thrivent Bank applications were approved, another ILC applicant withdrew its charter application.
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