Federal Agencies Issue Statement On Subjecting TruPS CDOs To Volcker Rule

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On December 27, in response to substantial criticism and legal action by banking trade groups, the Federal Reserve Board, the OCC, the FDIC, and the SEC stated that they are reviewing whether it is appropriate and consistent with the provisions of the Dodd-Frank Act (DFA) not to subject pooled investment vehicles for Trust Preferred Securities (TruPS), such as collateralized debt obligations backed by TruPS, to the prohibitions on ownership of covered funds in section 619 of the DFA, as implemented by the recently finalized Volcker Rule. Community banks and their trade group representatives state that the Volcker rule treatment of TruPS conflicts with a separate section of the DFA that requires TruPS issued by depository institution holding companies to be phased out of such companies’ calculation of Tier 1 capital, but provides for the permanent grandfathering of TruPS issued before May 19, 2010, by certain holding companies with total consolidated assets of less than $15 billion. The banks assert that banking entities investing in pooled TruPS are facing “unexpected and precipitous write-downs” that are not justified by any safety and soundness concern, and that the resulting write-downs are actually causing safety and soundness concerns. The agencies promised to address the matter by January 15, 2014.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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