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Financial Services Law Insights and Observations


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  • Senators call for stronger Fed oversight over bank mergers

    Federal Issues

    On August 9, Senators Sherrod Brown (D-OH), Elizabeth Warren (D-MA), Jack Reed (D-RI), and John Fetterman (D-PA) wrote a letter to the Chair and Vice Chair of Supervision for the Board of Governors of the Federal Reserve System urging the Fed to “review and reconsider” its procedures for approving bank mergers.  The letter cites the Dodd-Frank Act’s amendment to the Bank Merger Act, which mandates that federal banking regulators consider whether a proposed merger “would result in greater or more concentrated risks” to the stability of the banking or financial system.  The senators also voiced concern that the Fed has “not issued any rules or guidance indicating the types of bank mergers that would implicate financial stability concerns” and criticized the process around the Fed’s approval of recent acquisitions. 

    Federal Issues Bank Regulatory Senate Banking Committee Bank Supervision Federal Reserve Dodd-Frank Bank Merger Act

  • Fed suggests enhancing supervision of “novel activities” by banks

    Federal Issues

    On August 8, the Federal Reserve Board announced the issuance of two supervision letters that elaborate on the its program to supervise “novel activities” such as fintech partnerships, crypto-related activities, and activities using distributed ledger or “blockchain” technology. The first letter, SR 23-7, announces the establishment of the “Novel Activities Supervision Program,” a program designed to “ensure that the risks associated with innovation” supported by new technologies are managed appropriately by the bank. The program will focus on (i) technology-driven partnerships with non-banks; (ii) crypto-asset related activities such as asset custody, crypto-collateralized lending, asset trading, and crypto issuance and distribution; (iii) exploration or use of distributed ledger technology; and (iv) concentration of banking services to crypto-asset related entities and fintech companies. Supervisory teams will be tasked with monitoring and examining these novel activities within the existing supervisory portfolios and will take a risk-based approach on the level and intensity of supervision. The letter concludes that “the Program will also operate in keeping with the principle that banking organizations are neither prohibited nor discouraged from providing banking services to customers or any specific class or type” as permitted by law.

    In the second supervisory letter, SR 23-8, the Fed announced a “nonobjection process” for banks seeking to engage in certain dollar token activities. Previously, the OCC issued an interpretive letter permitting national banks to use distributed ledger technology (or similar) to conduct payments using dollar tokens, as long as the bank could demonstrate adequate controls. (Covered by InfoBytes here). The letter clarifies that any bank supervised by the Fed that wishes to engage in those same activities must first obtain a written notice of supervisory nonobjection from the Fed. In order to do so, the bank must be able to demonstrate it has implemented adequate risk management practices, taking into account operational, cybersecurity, liquidity, illicit finance, and consumer compliance risks, among others. The bank must also demonstrate that it is aware of and can comply with laws applicable to the activities.

    Federal Issues Federal Reserve OCC Bank Compliance Cryptocurrency Bank Supervision

  • Agencies release hypothetical scenarios for 2023 bank stress tests

    On February 9, the Federal Reserve Board and the OCC released hypothetical economic scenarios for use in the upcoming stress tests for covered institutions. The Fed released supervisory scenarios, which include baseline and severely adverse scenarios. According to the Fed, the stress test evaluates large banks’ resiliency by estimating losses, net revenue, and capital levels under hypothetical recession scenarios that extend two years into the future. The Fed’s stress test also features for the first time “an additional exploratory market shock to the trading books of the largest and most complex banks” to help the agency better assess the potential of multiple scenarios in order to capture a wider array of risks in future stress test exercises. The OCC also released the agency’s scenarios for covered banks and savings associations, which will be used during supervision and will assist in the assessment of a covered institution’s risk profile and capital adequacy.

    Bank Regulatory Federal Issues Federal Reserve OCC Stress Test Bank Supervision

  • Hsu discusses management of large banks

    On January 17, acting Comptroller of the Currency Michael J. Hsu delivered remarks at the Brookings Institute regarding large bank manageability. Hsu started by expressing his belief that developing a robust approach to detecting, preventing, and addressing too-big-to-manage (TBTM) risks will increasingly become an imperative for both banks and bank regulators. He stated that the best “way to successfully fix issues at a TBTM bank is to simplify it — by divesting businesses, curtailing operations and reducing complexity,” and that more typical actions, such as changing management, budgets, plans, and personnel will have limited impact at a bank that is too big to manage. Hsu added that “the size and complexity” of a bank “is the core problem that needs to be solved, not the weaknesses of its systems and processes or the unwillingness or incompetence of its senior leaders.”

    Hsu discussed the OCC’s four-step “escalation framework.” He noted that “the design logic of an escalation framework is to use the credible threat of restrictions and divestitures, guided by and consistent with due process, to force banks to prove that they are manageable and to then let the effectiveness or ineffectiveness of their actions speak for themselves.” He noted that the first step is to put a bank on notice and make clear the nature of the weakness requiring remediation. Significant deficiencies and/or weaknesses that go unaddressed can escalate into public enforcement actions, such as a consent order, where material safety and soundness risks or violations of laws and regulations are at play. If the problem continues, then the OCC will pursue a restriction and divestitures of a bank’s business activities or capital actions. The final step includes breaking up the bank by compelling divestment.

    Hsu concluded with his thoughts on the need for bank regulators to provide greater transparency on the supervisory process. He also emphasized the importance of due process and described supervisory remedies, including but not limited to, business restrictions, divestitures, and simplification of large banks when necessary.

    Bank Regulatory Federal Issues OCC Bank Supervision Bank Compliance

  • CSBS reminds Senate that FDIC Board must include a member with state bank supervisory experience

    Federal Issues

    On January 31, the Conference of State Bank Supervisors (CSBS) sent a letter to Senators Charles Schumer (D-NY) and Mitch McConnell (R-KY), asking Congress to “uphold its commitment to the dual banking system” and confirm a member of the FDIC Board with state bank supervisory experience as required by Congress’ 1996 amendment to the Federal Deposit Insurance Act (FDI Act). CSBS explained that “the spirit of the law” and legislative history “indicate that this requirement is only met by a person who has worked in state government as a supervisor of state-chartered banks.” This requirement, CSBS pointed out, has not been met since former Massachusetts State Bank Commissioner Thomas Curry finished his term in 2012, thus leading to a nine-year period in which no one on the Board has had the legally mandated state regulatory experience. CSBS published a blog post the same day outlining three points for consideration: (i) the FDI Act’s legislative history shows Congress’s clear intent to include on the Board an individual (not including the Comptroller of the Currency or the CFPB director) with state government experience supervising state banks; (ii) an individual with “[e]xperience working for the FDIC or the Federal Reserve System does not meet the FDI Act’s requirement of an independent director with ‘state bank supervisory experience’”; and (iii) additional FDI Act provisions concerning state bank supervision reinforce that “‘state bank supervisory experience’ clearly refers only to service as a state government official with bank supervisory responsibilities.’” The letter added that “[a]s regulators of both banks and fintechs, state regulators have unique insight into emerging technologies and their impact on the financial services ecosystem. The FDIC Board would benefit tremendously from state regulators’ practical, real-life experience with innovation.”

    Federal Issues Bank Regulatory FDIC CSBS State Issues FDI Act Bank Supervision

  • Fed reiterates supervisory guidance on risk management

    Federal Issues

    On December 10, the Federal Reserve Board announced SR Letter 21-19, which reiterates the Fed’s supervisory expectations for large banks’ risk management practices related to investment funds. The letter applies to institutions supervised by the Fed that have large derivatives portfolios and relationships with investment funds, and follows a review by the Fed of the high-profile default and failure of one investment firm, which resulted in losses of more than $10 billion for several large banks. Among other things, the Fed warned firms that poor communication frameworks and inadequate risk management functions hinder their potential to identify and address risk, and that “[r]isk management and control functions should have the experience and stature to effectively control risks associated with investment funds.”

    The Fed also reminded firms that, consistent with the guidance in Interagency Supervisory Guidance on Counterparty Credit Risk Management, they should: (i) “[r]eceive adequate information with appropriate frequency to understand the risks of the investment fund, including position and counterparty concentrations, and either reconsider the relationship or set sufficiently conservative terms for the relationship if the client does not meet appropriate levels of transparency; (ii) “[e]nsure the risk-management and governance approach applied to the investment fund is capable of identifying the fund's risk initially and monitoring it throughout the relationship, and ensure applicable areas of the firm – including the business line and the oversight function – are aware of the risk their investment fund clients pose to the firm and have tools to manage that risk”; and (iii) “[e]nsure that margin practices remain appropriate to the fund's risk profile as it evolves, avoiding inflexible and risk-insensitive margin terms or extended close-out periods with their investment fund clients.”

    Federal Issues Federal Reserve Bank Regulatory Bank Supervision Risk Management Derivatives

  • Fed revises bank holding company supervision manual

    Agency Rule-Making & Guidance

    Recently, the Federal Reserve Board’s Division of Supervision and Regulation released Supplement 55 of the Bank Holding Company Supervision Manual. Among other things, the updates reflect new regulatory provisions, guidance, and instructions since the last update in February 2020. The revisions include additional sections, removal of several sections, and revised sections. The revised sections include, among others: (i) Internal Credit-Risk Ratings at Large Firms; (ii) Risk-Focused Supervision Framework for Large Complex Banking Organizations; and (iii) Supervision Standards for De Novo State Member Banks of Bank Holding Companies.

    Agency Rule-Making & Guidance Federal Reserve Bank Regulatory Bank Supervision

  • OCC calls for modernization of financial regulatory perimeter as fintechs/crypto firms increase

    Federal Issues

    On November 16, acting Comptroller of the Currency Michael J. Hsu told attendees at the Federal Reserve Bank of Philadelphia’s Fifth Annual Fintech Conference that the federal banking agencies are “approaching crypto activities very carefully and with a high degree of caution” and “expect banks to do the same.” Hsu pointed out what while changes to the financial regulatory perimeter generally occur as a response to crises and failures, regulatory agencies need to take proactive modernization measures given the astounding growth and expansion of fintechs and cryptocurrencies. Hsu highlighted several important questions that agencies must consider, including whether fintech and crypto firms will start to function like banks and whether bringing them into the bank regulatory perimeter would be the proper solution. He also stated that regulatory agencies must consider whether the risks faced by banks and fintech/crypto firms are the same and, subsequently, whether agencies need to modernize or maintain their status quo. Hsu focused on two specific areas of concern: (i) synthetic banking, or fintechs, operating outside the bank regulatory perimeter but that offer a range of services, including extending various forms of credit and offering interest on cash held in accounts (emphasizing the importance of fintech-bank partnerships); and (ii) the fragmented supervision of universal crypto firms, where Hsu asserted that gaps in supervision are driven by the fact that crypto firms are not subject to comprehensive consolidated supervision.

    Hsu announced that the agencies will soon issue a statement conveying results from a recent interagency “crypto sprint,” and that the OCC will also provide clarity on its recently concluded review of crypto-related interpretive letters. Hsu explained that “safety and soundness is paramount” when banks engage in crypto activities and that the agencies’ clarifications “should not be interpreted as a green light or a solid red light, but rather as reflective of a disciplined, deliberative, and diligent approach to a novel and risky area.”

    Federal Issues Digital Assets OCC Fintech Cryptocurrency Bank Regulatory Bank Supervision

  • OCC urges bank boards to promote climate risk management

    Federal Issues

    On November 8, acting Comptroller of the Currency Michael J. Hsu discussed climate change risk at the OCC headquarters, highlighting areas for large bank boards of directors to consider when promoting and accelerating improvements in climate risk management practices. According to Hsu, bank boards play a “pivotal role” in actions against climate change, which poses significant risks to the financial system. Hsu compared credit risk management and climate risk management, stating that “strong credit risk management capabilities can provide the assurance and confidence needed for a bank to make risky credit decisions prudently, strong climate risk management capabilities can enable the same prudent risk taking with regards to climate-related business opportunities.” Additionally, Hsu noted that, by the end of this year, the OCC will issue a high-level framework guidance for large banks regarding climate risk management. Hsu also outlined several areas for board members to consider, including evaluating an institution’s overall exposure to climate change, estimating the exposure to a carbon tax, and assessing an institution’s most acute vulnerabilities to climate change events. Hsu stated that “now is the time” to identify and understand vulnerabilities impacting continuity and disaster recovery planning.

    Federal Issues OCC Climate-Related Financial Risks Bank Regulatory Bank Supervision

  • Fed governor discusses community-bank supervision

    Federal Issues

    On September 29, Federal Reserve Governor Michelle W. Bowman spoke at the Community Banking in the 21st Century Research and Policy Conference held in St. Louis, Missouri on creating a new model for the future of supervision in banking. Bowman stated that the Fed has “actively explored ways to reduce regulatory burden and provide greater transparency into the work of bank supervisors,” including a reassessment of disproportionate regulatory burdens on small institutions. Bowman noted there was a systematic movement to FDIC-insured deposits in state or nationally chartered banks during the Covid-19 pandemic. For example, total deposits at all FDIC-insured institutions increased by 22 percent in comparison to deposit data from 2019 to 2020, and small business lending increased significantly. Bowman pointed out that community banks played a large role in allocating credit through the Paycheck Protection Program during the pandemic. She also discussed ways the Fed has evolved since the start of the pandemic, such as utilizing technology that enabled the opportunity to remotely supervise the safety and soundness of institutions and adjusting supervisory practices, among other things.

    For the future of supervision, Bowman announced an initiative to investigate the implications of banking evolutions for the Fed’s supervision function, which will ensure the Fed’s supervisory approaches “accommodate a much broader range of activities” while also ensuring it does not “create an unlevel playing field with unfair advantages, or unfair disadvantages, for some types of firms versus others.” Bowman said that when there is significant uncertainty around a new regulation, supervisory expectation, or practice, the Fed “will look beyond [its] traditional communications tools to find innovative ways to reduce that uncertainty.” She also shared some underlying principles, among other things, that she believes will guide future supervisory approaches, such as (i) committing to preserving the stability, integrity, functionality, and diversity of the banking system; (ii) maintaining consumer protection and ensuring banks can safely offer financial products and services; (iii) avoiding adding new burdens on banks; (iv) enhancing transparency around supervisory expectations for safety and soundness and consumer compliance matters; (v) providing timelier feedback to banks; and (vi) having the ability to adjust supervisory expectations effectively and efficiently to enable banks to be more flexible in serving different communities.

    Federal Issues Federal Reserve Community Banks Bank Supervision Bank Regulatory FDIC


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