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Banking and Finance

Morrison & Foerster Client Alert-Living Wills: FDIC Approves Final Rules

Living Wills: FDIC Approves Final Rules

By Dwight C. Smith, Alexandra Steinberg Barrage, and Jeremy Mandell

On Tuesday morning, the Federal Deposit Insurance Corporation ("FDIC") Board unanimously approved two rules regarding resolution planning: one rule for large bank holding companies and nonbank financial companies supervised by the Federal Reserve Board of Governors ("FRB"), and the other rule for large banks.

The first rule (the "165(d) Rule") is a final rule required by section 165(d) of the Dodd-Frank Act. The plan required under section 165(d) is a detailed contingency plan that describes how large bank holding companies and nonbank financial companies supervised by the FRB (collectively, "Covered Companies") that are at risk of default can be sold, broken up, or wound down quickly and effectively in a way that mitigates serious adverse effects to U.S. financial stability. Covered Companies include (i) all bank holding companies (including foreign banking organizations that are or are treated as bank holding companies) with consolidated assets of $50 billion or more and (ii) all nonbank financial companies that the Financial Stability Oversight Council designates for supervision by the FRB. A total of 124 Covered Companies are currently subject to the 165(d) Rule, the same number noted in the proposed rule. As with the proposed 165(d) Rule, the vast majority of Covered Companies appear to be foreign banking organizations.

The 165(d) Rule will ultimately be issued jointly by the FDIC and the FRB (collectively, the "Agencies") and published in the Federal Register. The timing for FRB approval is uncertain.

The second rule (the "IDI Rule") is an interim final rule that covers banks and other insured depository institutions with $50 billion or more in assets (collectively, the "CIDIs").5 The FDIC has identified 37 CIDIs. Unlike the 165(d) Rule, the FDIC is the sole agency responsible for the IDI Rule.

Comments on the IDI Rule are due within 60 days of publication in the Federal Register.6 The IDI Rule has an effective date of January 1, 2012. [footnotes omitted]

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© Copyright 2011 Morrison & Foerster LLP. Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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