Understanding the Orderly Liquidation Authority Provisions of Dodd-Frank
The Dodd-Frank Wall Street Reform and Consumer Protection Act was signed into law in July 21, 2010. Title II of the Reform Act creates a new “orderly liquidation authority” and provides a mechanism for appointing the Federal Insurance Corporation. This will give the FDIC have the full authority to seize and break up non-bank financial companies if they are in danger of bankruptcy and would threaten the financial stability of the economy. Furthermore, financial companies that at risk are given the chance to avoid imminent failure.
Financial companies executives and professions should have a complete understanding of this new law, and its impact on the industry.
In this Knowledge Group Section webcast, a panel of distinguished professionals will help you understand the most critical issues which will include:
- Overview: Why orderly liquidation authority will help companies deal more effectively with bankruptcy
- The impact of orderly liquidation authority to companies
- Restrictions of the law
- Types of companies/entities to which these provisions will apply
- Factors that will determine when the authority will be applied
- Updates on the interim final rule of FDIC
- New powers granted to the FDIC to liquidate financial companies
- Up to the minute regulatory updates
John L. Douglas, Partner, Head of Bank Regulatory Practice,
Former General Counsel of the Federal Deposit Insurance Corporation,
Davis Polk & Wardwell LLP
- Understanding the background of Title II.
- How an institution is brought within the Title II resolution powers
- The FDIC's powers as Title II receiver
- Comparison with FDIC receivership powers for failed and failing banks
- The treatment of equity holders, creditors and other claimants
- Relationship to other Dodd-Frank provisions such as restoration and resolution plans
- The international context of OLA
- Does OLA work? Does it end too big to fail?
James I. Kaplan, Partner, Chair, Midwest Banking Practice,
- Why does DFA do this?
- Because of the financial crisis of 2008, and the government take-overs of numerous financial institutions and the "bail-out" of many others through actions like capital injections. The political unpopularity of the bail-outs and take-overs led Congress to try to find a better (and fairer) way to deal with the problem of Too Big To Fail.
- Does giving the FDIC Orderly Liquidation Authority over systemically important financial institutions ("SIFI's") solve the Too Big To Fail problem?
- Not all by itself. But putting SIFI's under the FDIC receivership process as opposed to the bankruptcy system is meant to enhance predictability for creditors and to prevent the lengthy free-for-all by competing creditors that bankruptcy normally entails. Combined with more transparency regarding exposures like derivatives, the ruling out of risky principal exposures (Volcker Rule), and better risk management practices as (encouraged by better compensation systems that punish excessive risk-taking), subjecting SIFI's to the FDIC's more orderly processes should make a repeat of the Too Big To Fail dilemma less likely.
- What are the best things about the OLA?
- No bail-out by the U.S. taxpayers.
- Explicit requirement that management responsible for the situation is dismissed.
- Claimants pay for losses, and if that is insufficient, the financial industry pays, not the taxpayers.
- Quicker and better organized than bankruptcy, because you have one unilateral decision-maker (the FDIC, as receiver).
- Organizes and minimizes creditor competition for assets. Promotes creditor certainty, possibly making a "seizing up" of the credit markets, as we saw after Lehman, less likely.
- What are some potential problems with the OLA?
- Might increase consolidation and concentration-creating even bigger SIFI's over time.
- Potential favoritism toward winning bidders and systemically important claimants over others.
- Is it practical, especially in the midst of a crisis like 2008, when many SIFI's are at the brink of potential, interconnected failure?
- Can we be certain that bail-outs and government guarantees that flowed from the Too Big To Fail dilemma are all in the past and are solved by OLA and the other safeguards of DFA?
- No, we can't be certain. All the measures taken by DFA—and better risk management undertaken by SIFI's and required by regulators—will help, but if the credit markets ever again, for whatever reason, lose confidence in the solvency of most other major players, and require government backing and government guarantees in order to function properly, the Too Big To Fail dilemma will return in full force
Daniel Meade, Partner,
Hogan Lovells US LLP
- Background on OLA’s inclusion in Dodd-Frank Act, and Legislative Debate leading to final version
- Ex-ante vs. ex post funding
- Applicable to all nonbank financial institutions or just systemically important
- Role of bankruptcy
- Review if FDIC Whitepaper on how Lehman could have been resolved
- Designation for OLA is separate and apart from designation as a Systemically Important Financial Institution
Jon Greenlee, Managing Director,
- The US regulatory authorities have issued a proposed rule to require large banks and other financial companies to prepare and submit resolution plans – also known as ‘living wills.’ This piece of rule making may look like just another regulatory burden, another hoop for banks to jump through, but the implications are much more profound, particularly for large banks and systemically important non-banks who need to start considering implications of the potential rules now. Preparation of a resolution plan will require among other things a fundamental assessment of a bank's legal entity structure, re-thinking of how products and services are delivered to customers and, perhaps an over-haul of the organization’s strategic objectives.
- The FDIC and Fed proposed rule on March 29 and April 12, respectively, that will implement Section 165(d) of Title 1 of the Dodd-Frank Act regarding resolution plans and credit exposure reports. The goals of Title 1 of the act are to reduce systemic risks to the overall financial system and to eliminate the burden on taxpayers from of institutions perceived to be “too-big-to-fail”. The comment period for both the FED and FDIC ended on June 10, and a number of comment letters were received from industry groups, institutions and individuals. It is worthwhile noting that the level of collaboration by industry groups and their constituents was amazingly significant.
- So who will be covered by this regulation? According to the NPR, resolution plans will need to be submitted by bank holding companies with consolidated assets of $50 billion or more, and non-bank financial companies supervised by the Fed. The 30 to 40 U.S. banks with more than $50 billion in assets are straight-forward to identify, but the Fed and FDIC have yet to clarify who the rest of the 124 estimated covered companies will be.
- So, we are focused on resolution planning today, but many of our clients ask us to explain how that relates to recovery planning. Recovery planning refers to planning for a very severe stress situation – and answer the questions about what steps a company could take to de-risk and prevent failure. In a recovery plan, a company might sell assets, or put in place liquidity provisions or contingency capital based on identified triggers such as the level of capital, amount of liquidity, or investor sentiment, for example. Resolution planning, on the other hand, suggests that if all recovery planning measures are unsuccessful, the organization has failed and the regulator has stepped in and taken control. Company management would be ousted, and the regulator would begin an orderly resolution process that could involve selling certain businesses, allowing parts of a business to go through the traditional bankruptcy process, while others—the business lines and functions whose failure could have systemic impacts—are ring-fenced in a bridge bank to preserve value in an orderly wind-down.
- We think both recovery and resolution planning are essential for financial institutions. For some companies, adequate recovery planning will require applying more extreme scenarios in current stress tests and contemplating additional contingency measures. Smaller banks may need to do more work to build out recovery plans. And resolution planning is new for everyone. We believe that resolution plans should leverage recovery planning efforts, as the same data and understanding of the organization are needed to produce both, and given that we know the Fed has proposed other rules relating specifically to stress testing and capital planning that will incorporate recovery-like analysis. But for companies thinking about how to address the proposed resolution planning rule, we do believe that resolution plans will be able to stand alone given the very different set of actions and actors that will be relevant if a company goes into receivership.
- The NPR essentially provides an outline for the components of a resolution plan, including an executive summary, a description of overall organizational structure, core businesses, critical support functions, systems, and a mapping of these items to the company’s core and material legal entities. The plan will then need to include an evaluation of the interdependencies among entities that could present potential impediments to resolution, along with any planned ex ante actions to address these impediments. The proposed rule requires that covered companies document a strategic analysis of how their organization could be resolved by a receiver, and companies must explain how the information underlying the resolution plan can be updated over time, and how resolution planning fits into the company’s overall corporate governance structure. Beyond outline-level guidance about what resolution plans should include, the regulators stop short of suggesting how detailed a “credible” plan should be. We think this is because the regulators themselves don’t yet know what a credible plan should look like.
- So what are some of the complexities that we think could become impediments to resolution? Slide 16 depicts a number of interdependencies that we believe will be common among many of the banks and financial institutions covered by the resolution planning rule. In order to preserve only critical economic functions resolution plans may involve quickly separating legal entities which have sufficient capital and liquidity resources and ensuring that key operational support continues. Regulators may also want the flexibility to reach into legal entities and ‘unplug’ critical economic functions if necessary, to primarily facilitate the normal functioning of the larger financial markets.
- Based on our experience working with clients on their recovery and resolution plans, and on similarly broad and challenging regulatory, capital planning and risk management engagements, we encourage covered companies to:
- Think about resolution planning strategically. Covered companies will have related initiatives going on simultaneously that should be leveraged, if not just consistent with resolution planning. The conclusions of a plan could lead the regulators to insist on changes to a covered company’s business that would not maximize shareholder value.
- Being proactive and thinking creatively about how to manage conflicts between what the regulator would want and what is best for your business will help you stay in control.
- Be focused in your information gathering and agree to a resolution plan outline and level of detail in the outset of the resolution planning exercise. Involve key stakeholders early and often. You will need the buy-in and the help of a cross-functional set of people to efficiently draft and update a resolution plan, so plan communication and accordingly.
Who Should Attend:
- Key regulators
- Company Board of Directors
- Financial Lawyers
- Investment bankers
- Mortgage brokers
- Finance Executives
James I. Kaplan is the chair of DLA Piper’s Midwest Banking practice. He has extensive experience in financial services regulatory matters, as well as banking, compliance, securities and shareholder disputes and other shareholder matters.
Mr. Kaplan’s regulatory experience covers all major statutes and applicable regulations in the United States as well as other major foreign jurisdictions. His transactional experience includes banking, trust, securities, asset management, brokerage and public and private offerings. He is also well acquainted with both the Advisors Act and the Investment Company Act, having counseled both registered investment advisors and mutual funds in his career. Mr. Kaplan is nationally recognized and well respected for his knowledge of legal matters touching modern financial institutions, basic and complex, large and small.
Mr. Kaplan has counseled numerous boards of directors and other governing bodies of companies on various matters, involving banking and financial services issues, including securities disclosure and regulatory matters.
Most recently, Mr. Kaplan was the first General Counsel in the long and legendary history of Brown Brothers Harriman & Co., the New York-based private bank. Mr. Kaplan has been a banking and bank regulatory lawyer for more than 20 years and also specializes in merger and acquisition and private equity transactions involving financial services companies.
Following his first General Counsel stint at Cole Taylor Bank in Chicago, Mr. Kaplan became Associate General Counsel at The Northern Trust Company in Chicago, where his duties included serving as senior in-house regulatory, acquisitions and divestiture lawyer from 1998 to 2004. During his four years at Brown Brothers, ending in 2008, he continued his senior M&A role and also expanded into M&A advisory activity and private equity and mezzanine fund matters, as well as managing all other legal matters and counseling senior management for a large, complex and global financial institution.
James I. Kaplan is the chair of DLA Piper’s Midwest Banking practice. He has extensive experience in financial services regulatory …
Jon is a Managing Director in KPMG’s Financial Services Regulatory Practice. He brings over 24 years of senior bank regulatory experience dealing with financial services risk management issues, developing regulatory policies, and representing the Federal Reserve in Congressional and public forums. His experience as a member of the Division of Banking Supervision and Regulation of the Board of Governors of the Federal Reserve System allows him to help clients identify and address key regulatory and risk management issues facing the financial services industry and develop effective responses to the challenging regulatory environment. Jon also held other leadership positions within the Federal Reserve regarding large bank supervision, supervisory assessments of capital allocation and adequacy (SR 99-18), and Basel II qualification reviews.
Professional and Industry Experience
- Responsible for overseeing the Federal Reserve System’s risk focused supervision of credit, market and liquidity, operational, and compliance risks.
- Identified and analyzed current and emerging risks as Chair of the Division’s Risk Committee of the Federal Reserve.
- Ensured that the Federal Reserve had appropriate supervisory guidance and policies in place, and actively led and participated in the development of new regulatory standards on credit, market and liquidity risks.
- Coordinated supervisory activities related to key risks and risk management issues across the organizations supervised by the Federal Reserve, including macro-prudential supervisory issues.
- Participated in Supervisory Capital Assessment Program (SCAP).
- Provided regular updates to the Board of Governors and senior staff on emerging issues and supervisory activities.
- Former member of the Senior Supervisors Group, which focuses on risk management issues, governance, and risk appetite issues at large, internationally active firms.
- Former member of the large financial institutions supervisory committee and the large, regional and community bank organizations management groups.
- Frequently represented the Federal Reserve at industry conferences and more recently at Congressional hearings on credit-related matters.
- Developed supervisory program and expectations for the risk-focused supervision of 20 large domestic and international firms supervised by the Federal Reserve.
- Coordinated supervisory activities across the large bank portfolio to ensure key supervisory issues, which ranged from mortgage lending to BSA/AML compliance matters, were addressed.
- Provided updates to the Board of Governors and senior staff on supervisory issues within the large bank portfolio.
Jon is a Managing Director in KPMG’s Financial Services Regulatory Practice. He brings over 24 years of senior bank regulatory …
Daniel Meade is a partner at Hogan Lovells US LLP, advising clients in the financial institutions sector on corporate and regulatory matters with a particular focus on financial services reform. Dan represents U.S. and foreign banks, thrifts, and other financial institutions in connection with a broad range of regulatory and transactional matters, including mergers and acquisitions, anti-money laundering, capital adequacy, affiliate transactions, financial privacy, and consumer compliance matters. He has represented clients before state and federal banking agencies, including the Board of Governors of the Federal Reserve System, Federal Deposit Insurance Corporation (FDIC), Office of the Comptroller of the Currency, Office of Thrift Supervision, New York State Banking Department, and Massachusetts Division of Banks. Dan also advises clients on various legislative and regulatory proposals involving financial services issues. Prior to joining Hogan Lovells, Dan served as senior counsel to the U.S. House of Representatives, Committee on Financial Services (2009-2011). In this role, Dan drafted, negotiated and served as a senior technical advisor on substantial portions of the landmark Dodd-Frank Wall Street Reform and Consumer Protection Act, including provisions on systemic regulation, orderly liquidation, proprietary trading activities of banking entities, and the Bureau of Consumer Financial Protection. Dan also drafted or analyzed legislation, and coordinated oversight functions within the Committee’s jurisdiction, particularly with regard to bank, thrift and holding company safety and soundness, capital requirements, transactions with affiliates, industrial loan companies, deposit insurance, consumer protection, and the Community Reinvestment Act.
Daniel Meade is a partner at Hogan Lovells US LLP, advising clients in the financial institutions sector on corporate and …
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