Defining “Financial Institution” Under Title VIII of the Dodd-Frank Wall Street Reform and Consumer Protection Act

by Robert J. Pile, Jennifer D. Lambert, and Heather J. Howdeshell

Third-party service providers to financial institutions have often taken the position that they are not "financial institutions" for purposes of federal law and thus are typically not subject to regulation in the same manner as traditional financial institutions. Indeed, Congress and the regulating agencies have taken a functional approach to defining financial institutions: narrowly in the context of examination and supervision, and more broadly when effecting, for example, consumer protection. Under Title XII of the United States Code in connection with the Federal Financial Institutions Examination Council, Congress defined a financial institution as a "commercial bank, a savings bank, a trust company, a savings association, a building and loan association, a homestead association, a cooperative bank, or a credit union[.]" Likewise, under the Federal Reserve's Regulation S, financial institution is defined as "any office of a bank, savings bank, card issuer as defined in section 103 of the Consumers Credit Protection Act (15 U.S.C. 1602(n)), industrial loan company, trust company, savings association, building and loan, or homestead association (including cooperative banks), credit union, or consumer finance institution . . . ."

In a potential divergence from Congress's traditional approach to regulating financial institutions, Title VIII of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 ("Dodd-Frank") defines "financial institution" broadly in the context of supervising payment and settlement activities of financial institutions. A liberal interpretation of "financial institution" by regulating agencies could ensnare service providers of banks and traditional financial institutions, thus subjecting entities not previously regulated as financial institutions to some of the same regulations applicable to banks and other traditional financial institutions under Dodd-Frank.

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