July 7, 2009
Gibson, Dunn & Crutcher LLP is closely monitoring risks and opportunities arising from the recent and dramatic reshaping of our capital and credit markets. We are providing updates on key transactions as well as regulatory and other legal developments that we believe could prove useful as financial institutions, investors, financial sponsors and other entities navigate these transformative times.
On July 2, 2009, the FDIC Board approved the issuance of a proposed policy statement on qualifications for failed bank acquisitions. The proposed statement is intended to provide guidance to private capital investors interested in acquiring or investing in the assets and liabilities of failed banks or thrifts. The FDIC set out nine specific questions for comment, including whether capital requirements should be raised as dramatically as proposed. Comments will be accepted for 30 days and posted on the FDIC website.
The FDIC’s proposals were immediately met with a sharply negative response from representatives of the private equity community who complained that the proposals both (i) put private capital bidders for failed institutions at a competitive disadvantage (as compared to bidders that are already insured depositary institutions) due to higher capital ratio requirements (and thus lower potential returns on equity) and (ii) significantly increased the risk profile of the transaction for private capital buyers due to a mandatory minimum holding period for the investment in the acquired institution and a required cross guarantee. The three proposed requirements on which their attacks were focused (discussed in greater detail below) were:
The private equity sector was not alone in these criticisms. Senior federal financial regulatory officials were quick to complain that the proposal would go too far and would have the effect of cutting off access to private capital.
On July 6, 2009 the FDIC held a roundtable discussion with interested parties to discuss the proposed policy statement. The private equity participants were critical of certain aspects of the proposal, including the three provisions listed above, but were supportive of other aspects of the plan, including the ban on private equity firms bidding on their own failed banks. While the July 6 meeting was a closed session, reports indicate that private equity participants came away mollified by their perception that the FDIC proposals remained discussion points open to public debate.
The reactions to these proposals, especially the 15% Tier 1 leverage ration requirement, were not unexpected by the FDIC. FDIC Chairman Sheila Bair said in a statement accompanying the FDIC’s release that in making the 15% proposal "we are opening high."
The main driving force behind the proposals appears to be mitigation of risk to the DIF posed by the possibility of these banks failing a second time. Chairman Bair commented in her statement accompanying the release that "we don’t want to see these institutions coming back." She also noted that the FDIC had specific concerns about private capital investor bids and had already imposed special restrictions on private capital bidders, including higher capital requirements. She noted that bids from private capital investors had been observed to include certain troubling provisions — though she noted that the bids containing these troubling provisions had failed — including:
The FDIC release sets forth the following broad areas of concern that the proposed rules are intended to address:
To that end, the release proposes standards for bidder eligibility, including:
While the FDIC invited comments on all aspects of the policy statement, it set out nine specific questions that it wants addressed during the 30-day public comment period, as follows:
Comments must be submitted within 30 days of the statement’s publication in the Federal Register. Since this date would fall on the first weekend in August, we suggest comments be submitted by Friday, July 31.
We expect the comments to continue to be highly critical of certain aspects of the FDIC’s proposal. While private equity investors have recently acquired only a small number of the many banks passing through FDIC receivership, those transactions — including for Indymac and BankUnited — have been among the larger and more capital hungry deals. Syndicates of private equity firms structuring investments in a manner that avoids triggering bank holding company requirements promise to serve as an important source of capital for rejuvenating failed depository institutions. While some of the FDIC’s concerns are well taken, and the language used by regulators in the release and accompanying statements appears balanced and open to public input, it seems counterproductive to treat private equity investors so differently from other — presumably depository institution — bidders or to treat private equity acquisitions of "failed" banks so differently from acquisitions of banks that have not been seized, particularly those that might be financially troubled but not yet seized.
 Dan Primack, Wilbur Ross: FDIC Meeting Was "Highly Productive" peHUB, July 6, 2009, http://www.pehub.com/43866/wilbur-ross-fdic-meeting-was-highlyproductive/.
 Consider also the failure of J.C. Flowers’s bid for BankUnited, which we now understand failed at least in part because the private equity syndicate requested an alteration of the standard loss sharing agreement to add certain rights to transfer assets without FDIC consent. See Gibson, Dunn & Crutcher client alert of July 1 [Release of BankUnited Bid Forms Shows Complexity of FDIC Decision Process] discussing this failed bid.
 Some of the FDIC proposals may be open to alternative interpretations. The proposed cross guarantee provision, for example, suggests the owners of a majority of the investments in more than one insured depository institution will be expected to pledge their proportionate interests in each institution in the case any of the institutions they own fails. However, an alternative might be to have the guarantee apply only where it is the newly acquired depository institution that fails.
 The tier 1 leverage ratio, considered an institution’s core capital ratio, is the ratio of total equity capital (with adjustments for unrealized gains and losses on securities, deferred tax benefits, non-qualifying preferred stock and other items) divided by average total assets.
 The firms acquiring BankUnited, for example, agreed to inject $900 million of capital into the troubled thrift.
Gibson, Dunn & Crutcher lawyers are available to assist in addressing any questions you may have regarding these issues. Please contact the Gibson Dunn attorney with whom you work or any of the following:
Dhiya El-Saden – Los Angeles (213-229-7196, firstname.lastname@example.org)
Kimble C. Cannon – Los Angeles (213-229-7084, email@example.com)
Stewart L. McDowell – San Francisco (415-393-8322, firstname.lastname@example.org)
Douglas D. Smith – San Francisco (415-393-8390, email@example.com)
Howard B. Adler – Washington, D.C. (202- 955-8589, firstname.lastname@example.org)
Christopher J. Bellini – Washington, D.C. (202-887-3693, email@example.com)
Michael D. Bopp – Washington, D.C. (202-955-8256, firstname.lastname@example.org)
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