F.D.I.C. Approves ‘Too Big to Fail’ Plan, Looks for Public Comments
F.D.I.C. Approves ‘Too Big to Fail’ Plan
A top banking regulator approved a plan to seize and unwind big banks — a proposal that will help address those “too big to fail” firms whose collapse could imperil the financial system.
The board of Federal Deposit Insurance Corporation voted unanimously on Tuesday to approve a set of proposed rules intended to create an orderly process to unwind large financial institutions. The rules outline how creditors can file a claim and how those claims will be addressed, hopefully bringing some clarity to a previously murky situation.
The vote moves the proposal into a 60-day public comment period, after which the agency will have to settle on final rules. The rule would apply to big banks, financial firms and large nonfinancial companies that pose a systemic risk to the broader economy.
You can check out the rest of this report from the NY Times here…
From the FDIC
FDIC Board Approves Proposed Rule to Set Claims Process Under the Dodd-Frank Act’s Orderly Liquidation Authority Provisions
FOR IMMEDIATE RELEASE
The Board of Directors of the Federal Deposit Insurance Corporation (FDIC) today approved a Notice of Proposed Rulemaking (NPR) to further clarify application of the orderly liquidation authority contained in Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act, “Orderly Liquidation Authority” (OLA). The NPR builds on the interim rule approved by the FDIC on January 18, 2011, which clarified certain discrete issues under the OLA. The NPR approved today establishes a comprehensive framework for the priority payment of creditors and for the procedures for filing a claim with the receiver and, if dissatisfied, pursuing the claim in court. The NPR also clarifies additional issues important to the implementation of the OLA, including how compensation will be recouped from senior executives and directors who are substantially responsible for the failure of the firm. The NPR, along with the interim final rule, is intended to provide clarity and certainty about how key components of OLA will be implemented and to ensure that the liquidation process under Title II reflects the Dodd-Frank Act’s mandate of transparency in the liquidation of covered financial companies.
“Today’s action is another significant step toward leveling the competitive playing field and enforcing market discipline on all financial institutions, no matter their size. Under Dodd-Frank, the shareholders and creditors will bear the cost of any failure, not taxpayers,” said FDIC Chairman Sheila C. Bair. “This NPR provides clarity to the process by letting creditors know clearly how they can file a claim and how they will be paid for their claims. This is an important step in providing certainty for the market in this new process.”
In addition to the priority of claims and the procedures for filing and pursuing claims, the NPR defines the ability of the receiver to recoup compensation from persons who are substantially responsible for the financial condition of the company under Section 210(s) of the Dodd-Frank Act. Before seeking to recoup compensation, the receiver will consider whether the senior executive performed his or her responsibilities with the requisite degree of skill and care, and whether the individual caused a loss that materially contributed to the failure of the financial company. However, for the most senior executives, including those performing the duties of CEO, COO, CFO, as well as the Chairman of the Board, there will be a presumption that they are substantially responsible and thus subject to recoupment of up to two years of compensation. An exception is created for executives recently hired by the financial company specifically for improving its condition.
The NPR also ensures that the preferential and fraudulent transfer provisions of the Dodd-Frank Act are implemented consistently with the corresponding provisions of the Bankruptcy Code. The proposed rule conforms to the interpretation provided by the FDIC General Counsel in December 2010.
Finally, the NPR clarifies the meaning of “financial company” under OLA. Under the proposal, a financial company will be defined as “predominantly engaged” in financial activities if their organization derived at least 85 percent of its total consolidated revenue from financial activities over the two most recent fiscal years. This rule will enhance certainty about which financial companies could be subject to resolution under OLA.
The proposed rule will be out for comment 60 days after publication in the Federal Register.
ADDRESSES: You may submit comments by any of the following methods:
- Agency Web Site: http://www.fdic.gov/regulations/laws/federal/. Follow instructions for submitting comments on the Agency Web Site.
- E-mail: Comments@FDIC.gov. Include “Priorities and Claims” in the subject line of the message.
- Mail: Robert E. Feldman, Executive Secretary, Attention: Comments, Federal Deposit Insurance Corporation, 550 17th Street, NW, Washington, D.C. 20429.
- Hand Delivery/Courier: Guard station at the rear of the 550 17th Street Building (located on F Street) on business days between 7 a.m. and 5 p.m. (EDT).
- Federal eRulemaking Portal: http://www.regulations.gov/. Follow the instructions for submitting comments.
- Public Inspection: All comments received will be posted without change to http://www.fdic.gov/regulations/laws/federal including any personal information provided. Paper copies of public comments may be ordered from the Public Information Center by telephone at (877) 275-3342 or (703) 562-2200.