As detailed in our recent Debevoise in Depth articles,[1] both the Office for the Comptroller of the Currency (“OCC”) and the Federal Deposit Insurance Cooperation (“FDIC”) have proposed changes to their Bank Merger Act (“BMA”) review policies, with the FDIC also proposing updates to its supplemental BMA application form.[2] As to the Federal Reserve Board (“FRB”), at an April 10, 2024 speech, Vice Chair for Supervision and Regulation Michael Barr stated the FRB is “not currently planning” to propose new guidelines.[3]
However, on May 3, 2024, the FRB published its proposed changes to its Bank Holding Company Applications and Notifications required for the its review of certain mergers under the Bank Holding Company Act (the “BHCA”). While the FRB is proposing changes to its application forms rather than a new policy statement on bank merger review, the impact of these proposed changes (described below) nevertheless will be significant. In fact, in a statement published the same day, FRB Governor Michelle W. Bowman noted that depending on how some of the new requirements are implemented, these changes “could result in significantly increased upfront costs and burdens for banks in preparing for and submitting applications for mergers and acquisitions,” and encouraged the industry to submit comments on the proposal.[4]
The majority of the material changes proposed by the FRB affect Form FR Y-3,[5] which is used both by: (1) any company seeking approval to become a bank holding company through the direct or indirect acquisition of one or more banks; and (2) existing bank holding companies seeking approval to acquire, merge or consolidate with another bank holding company or to “otherwise acquire all or substantially all of the assets of a bank.”[6] The changes were previewed earlier in a brief FRB publication on April 30, 2024.[7] Comments on the proposed changes are due on July 1, 2024. Although not making an agency statement similar to that of Governor Bowman, even the FRB estimates that its proposed changes to FR Y-3 will result in an increase of nearly 200 annual burden hours.[8]
Proposed Changes to FR Y-3
Mostly notably, the proposed changes to FR Y-3 would require acquirers to provide an “integration plan to merge the operations of the combined organization.”[9] The integration plans would need to: (1) “specify how risk management systems, operational processes, products and services, and other functions/processes” of the applicant and target companies would be combined to “achieve the strategic, financial, and operational goals of the proposed transaction;” (2) “delineate the expected timeline to complete the integration process, focusing on core system conversions;” and (3) “identify the integration plan leadership and/or key personnel responsible for monitoring and completing the principal elements of the plan.”[10]
The proposed integration plan requirement comports with the emphasis on integration planning found in the OCC’s and FDIC’s proposed changes to their BMA review policies which note that the respective agencies will consider whether the acquirer has developed “effective plans and strategies” for integration.[11] Moreover, in some respects, the proposal appears to be a codification and institutionalization of a practice the FRB uses in in evaluating at least certain bank mergers. For example, in additional questions with respect to Capital One’s proposed acquisition of Discover, the Federal Reserve asked several questions regarding integration planning. Nonetheless, if the FRB’s proposed changes become part of the final form, it will apply to all mergers subject to FR Y-3 and force banks to “front load” and detail business plans often historically crystallized between signing and closing. This also will make it more likely that plans become more available for review during the merger comment period and, as is particularly likely in the case of a large bank merger, the public hearing.[12]
In addition to the information requested with respect to the implementation plan, the FRB proposed further changes to FR Y-3, summarized below:
- Provide a breakdown of pro forma equity
- Applicants would need to “provide a breakdown of the pro forma equity of the applicant by dollar amount, number of shares and class of stock, as appropriate, including voting and non-voting shares.”[13]
- The FRB notes in their supporting statement that this change will allow it to “determine the quality of the capital of the applicant and to determine which type of stock is the dominant form of capital.”[14]
- Provide additional shareholder information[15]
- In addition to providing a list of current and pro forma shareholders as is currently required, under the FRB’s proposed changes, applicants would need to provide “a list of shareholders of the applicant who would own 10 percent or more or the shares of the applicant and any company that would own 5 percent of more of the shares of the applicant on a pro forma basis.”
- The FRB explains that this information would allow it “to determine who is exercising control of the applicant as a principal shareholder and whether an investing company may be required to file an FR Y-3 application separately” to become a bank holding company.
- “Individual shareholders who are a group acting in concert” would also need to be identified so that the FRB can “identify groups of individuals who would have the ability to exercise control over the applicant.”
- Disclose management interlocks[16]
- Applicants would need to identify “any management official of the applicant who is also a management official at another depository institution, bank holding company, or savings and loan holding company.”
- The FRB states that this would allow it to “determine if any individual is subject to the management interlock requirements” under Regulation L, the Depository Institutions Management Interlocks Act.
- Expansion of financial projections information
- Form FR Y-3 currently asks for certain pro forma financial projections, the methods and assumptions utilized in the projections and for the applicant to “support all assumptions that deviate from historical performance.” The proposed changes to FR Y-3 revises this requirement to necessitate the applicant’s disclosure of all the assumptions underlying the financial projections, whether consistent with historical performance or otherwise.[17]
- The FRB contends that this change is meant to allow it “to better assess the validity of financial projections under any circumstances and not just in the case of deviations from historical performance.”[18]
With its proposed form changes, the FRB joins the other two prudential bank regulators in enhancing the scrutiny of the bank merger process. It remains to be seen whether the Department of Justice will propose revisions to its bank merger guidelines, although increasingly there is speculation that it will just apply its existing guidelines more stringently.[19] Nonetheless, while process challenges are increasing, recent merger announcements and the pre-announcement banking agency discussions they always involve suggest that financially and regulatorily “healthy” acquirers still can pursue opportunities in the market.
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[1] See our Debevoise In Depth on the OCC’s proposal here; see our Debevoise In Depth on the FDIC’s Proposed Statement of Policy here.
[2] See our Debevoise blog on the FDIC’s Proposed Supplement to the BMA Application Form here.
[3] National Community Reinvestment Coalition, Video: Vice Chair Of The Federal Reserve Michael Barr Sits Down With Politico Reporter Victoria Guida At The 2024 Just Economy Conference (April 10, 2024), available here.
[4] FRB, Statement of Governor Michelle W. Bowman on the proposed changes to the FR Y-3 and FR Y-3F (May 3, 2024), available here.
[5] FRB, Draft Instructions for the Preparation of Application to Become a Bank Holding Company and/or Acquire an Additional Bank or Bank Holding Company (“FR Y-3”), available here.
[6] Supporting Statement for Bank Holding Company Applications and Notifications at 3. The FRB also proposed relatively minor revisions to form FR Y-3N, which is the notification instructions for FR Y-3 applicants, and form FR Y-4 used by certain bank holding companies to provide notification to acquire a nonbank company, including nonbank insured depository institutions under Section 4 of the BHCA, and/or to engage in nonbanking activities. Note that while the proposed changes to FR Y-4 are very limited, because FR Y-4 states that applicants acquiring insured depository institutions should use FR Y-3 as a guide for the type of information to include in the notification, the changes to FR Y-3 directly affect many acquirers using FR Y-4.
[7] 89 Fed. Reg. 34246, available here.
[8] Office of Management and Budget, Supporting Statement for Bank Holding Company Applications and Notifications at 8 (May 3, 2024) available here.
[9] FR Y-3 at 5.
[10] Id.
[11] Request for Comment on Proposed Statement of Policy on Bank Merger Transactions, 89 Fed. Reg. 29222, 29320 (June 18, 2024); see also Business Combinations under the Bank Merger Act, 89 Fed. Reg. 10010, 10013–14 (Feb. 13, 2024).
[12] See, e.g., OCC, Agencies Announce Public Meeting on Proposed Acquisition by Capital One of Discover; Public Comment Period Extended (May 14, 2024), available here.
[13] FR Y-3 at 7.
[14] Supporting Statement for Bank Holding Company Applications and Notifications at 6-7.
[15] Id. at 6.
[16] Id. at 7.
[17] FR Y-3 at 9.
[18] Supporting Statement for Bank Holding Company Applications and Notifications at 7.
[19] See Capitol Account, DOJ’s Bank Merger Policy Coming Into Focus (April 15, 2024), available here.
