Ballard Spahr has one of the best initial analyses of last week’s Financial Institution Letter in which the FDIC “encourages institutions to take a risk-based approach in assessing individual customer relationships rather than declining to provide banking services to entire categories of customers, without regard to the risks presented by an individual customer or the financial institution’s ability to manage the risk.” In other words, the FDIC took another step back down from its participation in the Department of Justice’s Operation Choke Point. The first step was taken last summer when the FDIC obliterated its list of “risky businesses” by category. The FDIC claims that banks under its supervision should evaluate the risk of a business on a customer-by-customer, not industry-by-industry, basis.
The firm also discusses an internal FDIC memorandum to its examiners. Apparently, the FDIC is attempting to head off any rogue examiners who, like the former head of supervision in Atlanta, tried to put all payday lenders out of the banking system because he didn’t favor that line of business as a matter of personal moral preferences.
The internal memorandum states that FDIC examiners:
- Should not use “informal suggestions” to make recommendations or requirements for terminating deposit accounts or for criticizing a bank’s management or risk mitigation associated with deposit accounts that does not rise to the level of a recommendation or requirement to terminate accounts
- Must put in writing in the report of examination (ROE) their criticisms of a bank’s management or risk mitigation associated with deposit accounts
- Cannot base recommendations for terminating deposit account relationships solely on reputational risk to the bank
The memorandum further mandates that before recommendations or requirements for terminating deposit accounts are provided to and discussed with a bank’s management and directors, they must be made in writing and an FDIC Regional Director must approve them in writing. It also requires such findings to be “thoroughly vetted with regional office and legal staff” before they are included in the ROE or supervisory actions are pursued.
I suppose that this means that from now on when a payday lender is blackballed by an FDIC-regulated institution, you’ll know it’s either the result of the institution’s own analysis of the risk posed by that specific lender, or, at least, that the persecution has been authorized at high levels of the FDIC, not merely by a lone-wolf, piss-ant field examiner. That ought to give everyone comfort.
As the firm concludes, this latest guidance, while welcome, is not a “Get-Out-Of-Jail-Free” card for payday lenders, porno kings and queens, gun dealers, online dating services, and other “undesirables.” As a practical matter, banks that want to do business with them will still be subject to heightened due diligence requirements. Although Ballard Spahr does not put it this way, I will: such businesses will still, for practical purposes, be considered “guilty until proven innocent.” The customer will have to be able to demonstrate that it is one of the “good payday lenders” before the risk will likely be judged to be acceptable to the bank.
We’ll have to see how this shakes out. While these signs are favorable, until there is a change in the White House, I’m from Missouri on whether we’ve actually turned a corner.