Ten years ago, on October 13, 2008, the U.S. Treasury Secretary Henry Paulson effectively locked the CEO’s of the nine largest banks in the United States in a conference room and demanded that they accept an investment from the U.S. Government. Although we had front row seats for much of the activity over the ensuing years, reading the New York Times summary of that meeting from the following day still provides a sense of just how shocking all of this was.
While the U.S. Treasury simultaneously announced its intention to also provide the possibility of investments in other banks, it was a long wait for details, particularly for privately held and Subchapter S Banks. Ultimately, over the course of the next 15 months, the U.S. Treasury invested $199 billion in 707 financial institutions across 48 states. As of October 1, 2018, the Treasury has received over $226 billion back in dividends, repayments, auction proceeds, and warrant repurchases.
Of the $199 billion in investments in 707 institutions, as of October 1, 2018, only three investments, reflecting $24 million in original investments, remain in Treasury’s portfolio. 264 institutions repaid in full and another 165 refinanced into other government programs. (The SBLF and CDFI funds were similar to the TARP CPP program, but were ultimately done under different congressional mandates. While not necessarily representative of an ultimate cash return on the Treasury’s investment, each of these funds has also provided a strong return to the Treasury.)
10 Years ago today, on October 3, 2008, President George W. Bush signed the Emergency Economic Stabilization Act of 2008, creating the Troubled Asset Relief Program (TARP) and authorizing the expenditure of up to $700 billion. Pursuant to its obligations under TARP, the Treasury still publishes regular reports on its investments and activities thereunder. The Treasury has also published a TARP Tracker that provides an interactive and chronological history of TARP.
The various components of TARP were not developed (and then further streamlined) over the next year or so, but the 10-year anniversary of the overall program seems like an appropriate time to look at the overall results of the program. (In fact, the very thought that TARP would become primarily a program of investments in banks 10 years ago would probably have been laughed at… everyone felt it was going to focus on purchasing toxic assets.) Over the next several months, we’ll periodically look back on the developments (with the benefit of hindsight), including looking at the launch of this blog.
While $700 billion was initially authorized, the authorization was subsequently reduced to $450 billion. Based on the latest Monthly Update published by Treasury, just over $440 billion was disbursed and only $70 million remains outstanding today. Overall, the U.S. Treasury has received just over $443 billion in cash back as a result of its expenditures under TARP.
While overall TARP was actually profitable for the U.S. Treasury, when you break down TARP into categories of programs, one can see that the bank investment component (which is generally thought to be the most controversial aspect) was actually the most profitable.
Looking specifically at the various bank investment programs, the government invested a total of $245.1 billion. Of that investment, it did recognize write-offs and realized losses of over $5.2 billion. However, it also recognized over $35.7 billion in income (primarily dividends and profits on sold investments), resulting in a total cash return of $275.5 billion on its $245.1 billion investment.
On substantive issues, we primarily focused on reforms enacted under The Economic Growth, Regulatory Relief, and Consumer Protection Act, or EGRRCPA, but also touched on the modernization of the Georgia banking code. Specific topics discussed include:
the expansion of the Small Bank Holding Company Policy Statement;
the relaxation of the reciprocal brokered deposit rules;
Volcker Rule relief;
the upcoming regulatory off-ramp (or at least rest stop, if not fully an off-ramp); and
the increased threshold for the 18-month examination cycle and short-form call reports.
As of the end of August 2018, two key provisions of The Economic Growth, Regulatory Relief, and Consumer Protection Act (aka the Crapo bill, S.2155, or increasingly, EGRRCPA) have become effective: the increase in the small bank holding company policy statement threshold and the increase in the expanded examination cycle threshold. Before looking at those provisions, I have to acknowledge the fabulous Wall Street Journal story by Ryan Tracy, “Can You Say EGRRCPA? Tongue-Twister Banking Law Confuses Washington.” Personally, I’m now leaning towards “egg-rah-sip-uh.”
On July 6, 2018, the federal banking agencies released an Interagency statement regarding the impact of the Economic Growth, Regulatory Relief, and Consumer Protection Act that provided guidance as to which provisions were immediately effective versus which provisions would require further regulatory action. Included in this guidance was confirmation that the banking regulators would immediately implement EGRRCPA’s changes to the Volcker Rule, freeing most institutions with total assets of less than $10 billion from the constraints of the Volcker Rule. The regulators noted that they “will not enforce the final rule implementing section 13 of the BHC Act in a manner inconsistent with the amendments made by EGRRCPA to section 13 of the BHC Act.”
Unfortunately, two of the more significant areas of regulatory relief for community banks, the respective increases in thresholds for the small bank holding company policy statement and the expanded examination cycle were not granted such immediate effectiveness. While EGRRCPA required the Federal Reserve to act on the expansion of the policy statement within 180 days, anyone familiar with the deadlines set forth in the Dodd-Frank Act for regulatory action would not be holding their breath.
Small Bank Holding Company Policy Statement Expansion. On August 30, 2018, the Federal Reserve published an interim final rule implementing the revisions to the small bank holding company policy statement. The Federal Reserve’s small bank holding company policy statement generally exempts such institutions from the requirement to maintain consolidated regulatory capital ratios; instead, regulatory capital ratios only apply at the subsidiary bank level. The small bank holding company policy statement was first implemented in 1980, with a $150 million asset threshold. In 2006, it was increased to $500 million, and in 2015, it was increased to $1 billion. Section 207 of EGRRCPA called for the Federal Reserve to increase the threshold to $3 billion, and the interim final rule implements this change.
Our unannounced and unplanned summer hiatus is over, and Jonathan and I are back in the studio to provide the latest episode of The Bank Account. Between travel for various banking conferences, a full work plate, and a few summer vacations, we stepped away from the podcasting studios for a few months (or three months exactly), but now we’re bank and re-energized!
Before turning to the intersection of banking and fintech, we spend a little time on another industry focus for PKM that personally interests Jonathan and me, craft beverages. We also each select our “rest of life” beer: Terry selected Automatic by Creature Comforts Brewing Company, Jonathan selected a Sierra Nevada Pale Ale, and I went with a 420 Extra Pale Ale by Sweetwater Brewery.
Terry, Jonathan and I then turned to looking at some of the interesting interactions we’ve each seen between depository institutions and fintech companies. We looked at the strengths of each and how partnerships can help each thrive in the 21st century. We also examined some of the diligence items that are necessary in any such partnership.
The U.S. depository industry has continued its path of consolidation, but as of the end of 2017, there are still over 5,600 banks chartered in the United States. This represents a decline of just under 3,000 charters from 10-years earlier, as mergers, receiverships and a near complete dearth of de novo activity have continued to shrink the number of banks.
As of December 31, 2017, we had 5,679 depository institutions with $17.5 trillion in total assets. That represents a decline of 243 institutions an increase of $600 million in assets since the end of 2016, and a decline of 2,865 institutions and an increase of $4.4 trillion since the end of 2007.
The four largest depository institutions by asset size (JPMorgan, Wells Fargo, Bank of America and Citi) hold $7.03 trillion (up slightly from $6.84 trillion at the end of 2016). Those four now represent 40.1% of the industry’s assets, down slightly from 40.5% at the end of 2016; but up from 34.8% ten years earlier.
There are 120 additional banks that have assets greater than $10 billion, holding $7.45 trillion. Both of those numbers are materially higher than one year earlier; at the end of 2016, there were 111 banks in this category with $6.98 trillion in assets. The 124 largest banks now hold 82.7% of the industry’s assets. Ten years ago, there were 119 institutions with more than $10 billion in assets, and they collectively held 77.6% of the industry’s assets.
Since the beginning of 2018, there has been steady stream of significant deals affecting the Atlanta MSA.
January – Ameris Bancorp’s acquisition of Hamilton State Bancshares for $405 million, priced at 2.05x tangible book;
March – Renasant Corporation’s acquisition of Brand Group Holdings for $453 million, priced at 2.35x tangible book;
April – CenterState Bank Corporation’s purchase of Charter Financial Corporation for $362 million, priced at 1.95x tangible book;
April – National Commerce Corporation’s purchase of Landmark Bancshares for $115 million, priced at 2.22x tangible book; and
May – Cadence Bancorporation’s purchase of State Bank Financial Corporation for $1.4 billion, priced at 2.48x tangible book.
The landscape looking forward is significantly changed. Below is a pro forma list of the community banks (for these purposes, banks with total deposits of less than $15 billion) with the largest remaining presence in the Atlanta MSA.
On April 13 and 14, 2018, the Financial Services Corporate and Regulatory Team of Bryan Cave Leighton Paisner sponsored two teams at the Atlanta Ragnar Trail race. On this episode of The Bank Account, Jonathan and I discuss the Ragnar race, our thoughts about the Ragnar race, the ambiance of the Ragnar race, the decline of multi-bank charter bank holding companies, and a few final thoughts about the Ragnar race. We also give thanks to so many colleagues that helped us with the Atlanta Ragnar Trail race. In other words, if you’re interested about the Atlanta Ragnar Trail race, this is a great episode.
The BCLP Ragnar Teams
We divided into two teams, Team BSA (Bankers Speed Ahead) and Team AML (Awkwardly Moving Lawyers). On paper, it looked like it would be a tight race. However, the trails proved to be significantly different than running on paper. In addition, the Awkwardly Moving Lawyers became significantly more awkwardly moving (and slower) when our fastest colleague, Dan Wheeler, badly twisted his ankle on his first leg of the race. (As one banker commented, the lawyers were quite effective in ensuring that their clients would prevail.)
Team BSA finished in 21 hours, 51 minutes and 50 seconds; 23rd overall and 1st in the corporate team division.
The bankers that sped ahead were as follows:
Charlie Crawford, Hyperion Bank
Heath Fountain, Planters First Bank
Bo Brannen, Georgia Bankers Association
Nick Clark, Charter Bank
Jim Walker, PrimeSouth Bank
JW Dukes, Ameris Bank
Jackson McConnell, Pinnacle Bank
Dennis Zember, Ameris Bank
Several hours later, Team AML finished in 23 hours, 38 minutes and 19 seconds; 63rd overall and 6th in the corporate team division.
The awkwardly moving lawyers were as follows:
Ryan Barrow, Porter Keadle Moore (but an honorary lawyer for the weekend)
Charlie Crawford, Jackson McConnell, and Dennis Zember were the three fastest runners for the weekend from Teams BSA and AML, but I believe all had a good time.
Jonathan and I discuss two major deals for our us: the formation of Bryan Cave Leighton Paisner (BCLP) and the return or Barry Hester in this latest episode of The Bank Account.
Bryan Cave Leighton Paisner LLP is the result of the mergers of historically U.S.-based Bryan Cave LLP and historically U.K.-based Berwin Leighton Paisner LLP. As a truly global firm with over 1,600 lawyers operating literally around the clock, we believe Bryan Cave Leighton Paisner is well positioned to serve clients around the globe. Our blog is still available at BankBryanCave.com, but is also now available at BankBCLP.com. We’ll figure out over time what our branding looks like.
Barry Hester re-joins our financial institutions practice after serving for many years as an assistant general counsel for EverBank and TIAA FSB. In this episode of The Bank Account, we talk with Barry about his experience with the “good guy” and “bad guy” banking compliance laws. The “good guy” laws include the Servicemembers Civil Relief Act and the Military Lending Act, while the “bad guy” laws include the Bank Secrecy Act and Anti-Money Laundering laws. As noted in the podcast, Barry has already been busy contributing good content for our blog, with a post last week about FinCEN’s new FAQ on the Customer Due Diligence rules.
As discussed previously, we are sponsoring two teams, one of lawyers and one of bankers, for the Atlanta Ragnar Trail Run on April 13th and 14th. Sixteen of us will be taking turns running five mile legs at the Georgia International Horse Park over a 24-hour (or so) period. Team BSA (or Bankers Speed Ahead) will generally consist of our friendly bankers, while Team AML (or Awkwardly Moving Lawyers) will consist of our compatriots from the firm. I expect our next podcast will relay some interesting stories from the trails.
On March 14, 2018, the Senate passed, 67-31, the Economic Growth, Regulatory Relief and Consumer Protection Act, or S. 2155. While it may lack a catchy name, its substance is of potentially great importance to community banks.
The following summary focuses on the impact of the bill for depository institutions with less than $10 billion in consolidated assets. The bill would also have some significant impacts on larger institutions, which could, in turn, affect smaller banks… either as a result of competition or, perhaps more likely, through a re-ignition of larger bank merger and acquisition activity. However, we thought it was useful to focus on the over 5,000 banks in the United States that have less than $10 billion in assets.
Community Bank Leverage Ratio
Section 201 of the bill requires the federal banking regulators to promulgate new regulations which would provide a “community bank leverage ratio” for depository institutions with consolidated assets of less than $10 billion.
The bill calls for the regulators to adopt a threshold for the community bank leverage ratio of between 8% and 10%. Institutions under $10 billion in assets that meet such community bank leverage ratio will automatically be deemed to be well-capitalized. However, the bill does provide that the regulators will retain the flexibility to determine that a depository institution (or class of depository institutions) may not qualify for the “community bank leverage ratio” test based on the institution’s risk profile.
The bill provides that the community bank leverage ratio will be calculated based on the ratio of the institution’s tangible equity capital divided by the average total consolidated assets. For institutions meeting this community bank leverage ratio, risk-weighting analysis and compliance would become irrelevant from a capital compliance perspective.
Volcker Rule Relief
Section 203 of the bill provides an exemption from the Volcker Rule for institutions that are less than $10 billion and whose total trading assets and liabilities are not more than 5% of total consolidated assets. The exemption provides complete relief from the Volcker Rule by exempting such depository institutions from the definition of “banking entity” for purposes of the Volcker Rule.
Accordingly, depository institutions with less than $10 billion in assets (unless they have significant trading assets and liabilities) will not be subject to either the proprietary trading or covered fund prohibitions of the Volcker Rule.
While few such institutions historically undertook proprietary trading, the relief from the compliance burdens is still a welcome one. It will also re-open the ability depository institutions (and their holding companies) to invest in private equity funds, including fintech funds. While such investments would still need to be confirmed to be permissible investments under the chartering authority of the institution (or done at a holding company level), these types of investments can be financially and strategically attractive.
Expansion of Small Bank Holding Company Policy Statement
Section 207 of the bill calls upon the federal banking regulators to, within 180 days of passage, raise the asset threshold under the Small Bank Holding Company Policy Statement from $1 billion to $3 billion.
Institutions qualifying for treatment under the Policy Statement are not subject to consolidated capital requirements at the holding company level; instead, regulatory capital ratios only apply at the subsidiary bank level. This rule allows small bank holding companies to use non-equity funding, such as holding company loans or subordinated debt, to finance growth.
Small bank holding companies can also consider the use of leverage to fund share repurchases and otherwise provide liquidity to shareholders to satisfy shareholder needs and remain independent. One of the biggest drivers of sales of our clients is a lack of liquidity to offer shareholders who may want to make a different investment choice. Through an increased ability to add leverage, affected companies can consider passing this increased liquidity to shareholders through share repurchases or increased dividends.
Of course, each board should consider its practical ability to deploy the additional funding generated from taking on leverage, as interest costs can drain profitability if the proceeds from the debt are not deployed in a profitable manner. However, the ability to generate the same income at the bank level with a lower capital base at the holding company level should prove favorable even without additional growth. This expansion of the small bank holding company policy statement would significantly increase the ability of community banks to obtain significant efficiencies of scale while still providing enhanced returns to its equity holders.
Institutions engaged in significant nonbanking activities, that conduct significant off-balance sheet activities, or have a material amount of debt or equity securities outstanding that are registered with the SEC would remain ineligible for treatment under the Policy Statement, and the regulators would be able to exclude any institution for supervisory purposes.
Section 214 of the bill would specify that federal banking regulators may not impose higher capital standards on High Volatility Commercial Real Estate (HVCRE) exposures unless they are for acquisition, development or construction (ADC), and it clarifies what constitutes ADC status. The HVCRE ADC treatment would not apply to one-to-four-family residences, agricultural land, community development investments or existing income-producing real estate secured by a mortgage, or to any loans made prior to Jan. 1, 2015.
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