FDIC opens comment period on proposed Statement of Policy regarding bank merger transactions, highlights “added scrutiny” for $100+ billion mergers

Orrick, Herrington & Sutcliffe LLP

Orrick, Herrington & Sutcliffe LLP

On March 21, the FDIC issued a request for comment on its proposed Statement of Policy (SOP) on bank merger transactions, which will aim to update, strengthen, and clarify the FDIC’s approach to bank merger evaluation. The proposed SOP does note that transactions in excess of $100 billion are more likely to present financial stability concerns and will be “subject to added scrutiny.” The new SOP will replace the FDIC’s current SOP on its responsibilities under the Bank Merger Act (BMA) or Section 18(c) of the FDI Act. Both the heads of the CFPB and OCC issued statements on this review, with the Acting Comptroller of the Currency offering his explicit support.

Broadly speaking, the proposed SOP aims to make the process more principles based, communicate the FDIC’s expectations in its evaluation of merger applications, and describe which merger transactions are under the FDIC’s domain. The proposed SOP will include separate discussions for each statutory factor as set forth in the BMA, including the effects on competition, financial resources, future prospects, CRA, financial and banking stability risk, and AML considerations. Further, this will not be an exhaustive list, as the FDIC will claim jurisdiction over any other elements that could present a risk to financial stability. Of note, the proposed SOP will not include any “bright lines or specific metrics” on what transaction would be considered anti-competitive, as the FDIC wishes to maintain its flexibility to appropriately evaluate the circumstances of each merger application.

This new comment period will begin after the FDIC reviewed 33 comment letters received during the previous comment period, about three-fourths of which were in favor of at least some changes to the FDIC’s merger review process. Six commenters were against such changes and two commenters were neither in favor of nor against the changes. The comments against argued that the current framework was “sound,” and any revisions could harm the sector by making the bank merger process more difficult and disproportionally impacting community, mid-size, and regional banks. Comments must be received by 60 days from the date of the SOP’s publication in the Federal Register.

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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