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Financial Services Law Insights and Observations

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  • Senators express support for ILC in letter to FDIC

    On September 15, five Republican Senators and four Democrats sent a letter to FDIC acting Chairman Martin Gruenberg expressing their support for the industrial loan company (ILC) charter. The Senators also expressed their opposition to regulatory actions that could “target the ILC charter in a manner not consistent with the laws Congress has passed.” The Senators noted that “the safety and soundness of the ILC charter has been broadly successful when historically compared to the rest of the banking industry,” and further explained that the ILC charter will allow “new and expanded opportunities in the regulated banking sector.” The Senators stated that they support more competition in financial services and encourage regulators “to ensure that new competition is kept under the confines of the regulated banking system, which ultimately protects consumers and our constituents.”

    Bank Regulatory Federal Issues FDIC ILC U.S. Senate Competition

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  • FDIC finalizes industrial bank rules

    Agency Rule-Making & Guidance

    On December 15, the FDIC approved a final rule (with accompanying fact sheet) that requires certain conditions and commitments for approval or non-objection to certain filings involving industrial banks and industrial loan companies (collectively, “industrial banks”), such as deposit insurance, change in bank control, and merger filings. The final rule is substantially similar to the proposed rule issued by the FDIC in March (covered by InfoBytes here) and applies to industrial banks whose parent company is not subject to consolidated supervision by the Federal Reserve Board. Specifically, the FDIC is now requiring a covered parent company to enter into written agreements with the FDIC and the industrial bank to: (i) address the company’s relationship with the industrial bank; (ii) require capital and liquidity support from the parent company to the industrial bank; and (iii) establish appropriate recordkeeping and reporting requirements. Additionally, the final rule requires prospective covered companies to agree to a minimum of eight commitments, which, for the most part, the FDIC has previously required as a condition of granting deposit insurance to industrial banks. 

    The final rule makes four substantive changes to the proposal: (i) requiring compliance from covered entities on or after the effective date of the rule rather than only after; (ii) requiring additional reporting regarding systems for protecting the security, confidentiality, and integrity of consumer and nonpublic personal information; (iii) increasing the threshold limiting the parent company’s representation on the board of the subsidiary industrial bank from 25 percent to less than 50 percent; and (iv) modifying the restrictions on appointments of directors and executives to apply only during the first three years of becoming a subsidiary of a covered parent company.

    The final rule is effective April 1, 2021.

    Agency Rule-Making & Guidance FDIC ILC Commercial Lending Consumer Lending

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  • FDIC approves creation of de novo banks; proposes new industrial bank rules

    Agency Rule-Making & Guidance

    On March 18, the FDIC announced (see here and here) the approval of two deposit insurance applications, which will allow for the creation of two de novo industrial banks. The first approval order will permit a California-based company to originate commercial loans to merchants that process card transactions through the company’s payments system and will operate from a main office located in Utah. The second approval order will permit a Nebraska-based corporation to originate and service private student loans and other consumer loans. The new bank will operate as an internet-only bank from a main office located in Utah. Both companies now await approval from the Utah Department of Financial Institutions.

    Separately, on March 17, the FDIC announced that it is seeking comments on a proposed rule that would require certain conditions and commitments for approval or non-objection to certain filings involving industrial banks and industrial loan companies (collectively, “industrial banks”), such as deposit insurance, change in bank control, and merger filings. The proposed rule applies to industrial banks whose parent company is not subject to consolidated supervision by the FRB. The proposed rule would require a covered parent company to enter into written agreements with the FDIC and the industrial bank to: (i) address the company's relationship with the industrial bank; (ii) require capital and liquidity support from the parent company to the industrial bank; and (iii) establish appropriate recordkeeping and reporting requirements.

    The proposed rule would require prospective covered companies to agree to a minimum of eight commitments, which, for the most part, the FDIC has previously required as a condition of granting deposit insurance to industrial banks. These include: (i) providing a list of all parent company subsidiaries annually; (ii) consenting to examinations of the parent company and its subsidiaries; (iii) submitting to annual independent audits; (iv) maintaining necessary records; (v) limiting the parent company’s representation on the industrial bank’s board to 25 percent; (vi) maintaining the industrial bank’s capital and liquidity requirements “at such levels deemed appropriate” for safety and soundness; (vii) entering into tax allocation agreements; and (viii) implementing contingency plans “for recovery actions and the orderly disposition of the industrial bank without the need for a receiver or conservator.” Comments on the proposed rule will be due 60 days after publication in the Federal Register.

    Agency Rule-Making & Guidance FDIC ILC De Novo Bank Consumer Lending Commercial Lending

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