The latest words from FDIC Chairman Bair on the implementation of the Dodd-Frank Act…
With the enactment of the Dodd-Frank Act on July 21st of this year, the FDIC was given the tools to resolve a failing financial company that poses a significant risk to the financial stability of the United States. We now have the framework in place to resolve any financial institution, no matter how large or complex. Implementation of Dodd-Frank is designed to end "too big to fail," and the new resolution authority is a major reason why it will do so. The orderly liquidation process established under Title II of the Dodd-Frank Act imposes the losses on shareholders and creditors, while also protecting the economy and taxpayer interests.
If appointed as receiver for a failing systemic financial company, the FDIC has broad authority under the Dodd-Frank Act to operate or liquidate the business, sell the assets, and resolve the liabilities of the company immediately after its appointment as receiver or as soon as conditions make this appropriate. This authority will enable the FDIC to act immediately to sell assets of the company to another entity or, if that is not possible, to create a bridge financial company to maintain critical functions as the entity is wound down. In receiverships of insured depository institutions, the ability to act quickly and decisively has been found to reduce losses to creditors while maintaining key banking services for depositors and businesses. The FDIC will similarly be able to act quickly in resolving non-bank financial companies under the Dodd-Frank Act.
This is a major new responsibility for the FDIC. As you know, on August 10th we created the new Office of Complex Financial Institutions to help ensure that we are always ready to meet this responsibility.
The Notice of Proposed Rulemaking is one step forward in this process. The proposed rule is intended to provide greater clarity and certainty about how certain key components of the resolution authority will be implemented and to ensure that the liquidation process under Title II reflects the Dodd Frank Act’s mandate of transparency. With the US financial system now stable and healing, it is important to move ahead with rules to make clear how the orderly liquidation process would be implemented to restore greater market discipline and promote clear understanding among shareholders and unsecured creditors that they, not taxpayers, are at risk.
The FDIC is consulting with the Financial Stability Oversight Council members in accordance with the Dodd-Frank Act. In order to provide some additional time for Council members to offer their views and allow further consultation, today's meeting will provide a briefing for the Board members. We plan to ask for a notational vote next week after the FSOC has had its first meeting.
A special issue of concern during consideration of Dodd-Frank was how the FDIC might use its authority in a liquidation to pay certain creditors of a receivership more than similarly situated creditors if certain criteria are met. This proposal re-affirms that all equity share holders and unsecured creditors are at risk for loss and that the general rule will be that their claims will be processed in accordance with the priorities established under the bankruptcy code which are the same priorities that we use in our bank receiverships. The authority to differentiate among creditors will be used rarely and only where such additional payments are "essential to the implementation of the receivership or any bridge financial company." This cannot be a bail-out – that is clear from the statute. The NPR proposes to confirm that long-term bondholders, subordinated debt holders, and shareholders of a financial company will in no circumstances receive payments above their share to which they are entitled under the priority of payments in the statute. They can never be "essential" to the receivership or the bridge. This is consistent with the clear intent of the statute and we believe it is important that creditors have clarity in their treatment in a future liquidation. This is also consistent with the approach we have taken in our receivership process for banks. We have authority now to differentiate among creditors where it will maximize recoveries and have never found the need to use it except to compensate employees and other general creditors necessary to maintain essential operations.
The other issues addressed by the NPR will, likewise, clarify how we will apply the liquidation authority in key, discrete areas – and provide important clarity to the markets.
Equally important parts of the publication of the proposed rule are the background description of the orderly liquidation authority and the series of questions on which we are seeking comment for 90 days.
The background information provided in the NPR gives an overview of the powers and different options that the FDIC may use in liquidating a large, complex non-bank financial company. We think this will be helpful to market participants who are less experienced with the bank closing process on which the liquidation authority is modeled.
We look forward to comments on the broader questions posed in the NPR. Given the importance of the new liquidation authority – and the need for clarity in how it could be applied – the responses to the questions posed will inform a future, broader regulation to be proposed early next year to define key issues in the liquidation of large, complex financial institutions.As part of our public rulemaking, this NPR will facilitate communication between the FDIC and the financial services industry, as well as the general public, on implementing the new resolution authority. I look forward to the comments.