All Things FinReg

The US Office of the Comptroller of the Currency (OCC) on January 29 proposed meaningful revisions to its rules and processes for reviewing proposed transactions involving national banks under the Bank Merger Act. The proposed amendments would notably remove the expedited application review process and associated OCC streamlined business combination application, replacing them with a policy statement that outlines the principles the OCC plans to use when evaluating merger applications, including a number of proposed indicia that support approval and, potentially, denial.

Financial services is perhaps the most regulated industry in the world, and the intersection between financial services, technology, and law remains a complicated and evolving space. A team of Morgan Lewis lawyers recently attended the 2023 Money 20/20 conference and previewed some major themes and trends that the industry can expect in 2024.

The Board of Governors of the Federal Reserve System (Federal Reserve) took another tepid step into the digital asset space on August 8, announcing that it has established a program to “enhance the supervision of novel activities conducted by banking organizations supervised” by the Federal Reserve. In addition, the Federal Reserve issued guidance explaining the supervisory nonobjection process for state member banks “seeking to engage in certain activities involving tokens denominated in national currencies and issued using distributed ledger technology or similar technologies to facilitate payments.”

The Federal Deposit Insurance Corporation (FDIC) continued the focus shown over the last several months, and especially since the March 2023 failure of Silicon Valley Bank (SVB) and associated events, by the federal banking agencies on uninsured deposits when it issued a Financial Institution Letter (FIL), Estimated Uninsured Deposits Reporting Expectations, on July 24, 2023.

The Consumer Financial Protection Bureau (CFPB, the Bureau) promulgated on March 30 its final rule implementing Section 1071 of the Dodd-Frank Act. The rule requires that covered financial institutions collect and report to the Bureau data on applications for credit by small businesses (those having gross revenue of under $5 million in their latest fiscal year).

The New York Department of Financial Services (NYDFS) promulgated its long-awaited final rule regarding commercial financing disclosures, which applies to transactions of $2.5 million or less, on February 1, 2023. The state’s Commercial Finance Disclosure Law (CFDL) took effect January 1, 2022 and requires a TILA-like cost-of-credit disclosure to small businesses when they shop for commercial financing.

The SEC’s Division of Corporation Finance recently posted new compliance and disclosure interpretations concluding that any registered broker-dealer acting as an authorized participant (AP) for any ActiveShares exchange-traded fund (ETF) may rely on the Commission’s disaggregation guidance to separately report ownership of securities acquired in a confidential brokerage account (Confidential Account) with a nonaffiliated brokerage firm (AP Representative), for the benefit of the AP.

Kwasi Kwarteng, the Chancellor of the Exchequer of the new UK government led by Prime Minister Liz Truss, presented his “Growth Plan 2022” to Parliament on 23 September 2022. The Growth Plan 2022 outlines the UK government’s plans to tackle inflation, the cost of living, and energy crises and expand the supply side of the economy. In particular, the chancellor announced new measures to unlock investment by UK pensions schemes in private assets.

More than six years after it was decided, the practical consequences of the US Court of Appeals for the Second Circuit’s Madden v. Midland Funding, LLC decision continue to diminish. The decision—which held that, under some circumstances, a loan originated by a bank became subject to state usury laws once transferred to a non-bank—implicitly rejected the long-standing doctrine of “valid when made” and once threatened to upend the lending industry. It has been repeatedly narrowed and rarely expanded.

Congress has enacted and President Joseph Biden has signed a joint resolution of disapproval under the Congressional Review Act (CRA) of the Office of the Comptroller of the Currency’s (OCC’s) “true lender” rule, which, as we previously discussed, had provided that a national bank is as a matter of law the lender on any loan for which it is the named lender or for which it provides the loan funding.