OCC Announces New Bank Merger Policies

By: Grant F. Butler, Robert M. Tammero, Jr, Yuki Sako, and Aiden D. O’Leary

On 29 January 2024, Acting Comptroller Hsu gave a speech articulating his vision that the US banking system should support the diversity, dynamism and the size of the US economy, and unveiling proposed updates to the OCC merger application review processes. Shortly thereafter, the OCC issued a notice of proposed rulemaking (NPR) proposing to (i) eliminate automatic expedited approval based on passage of time and inaction by the OCC, which would result in every bank merger or consolidation application requiring a deliberate approval by the agency; and (ii) adopt a policy statement containing factors and indicators considered by the agency in reviewing such applications, and principles that will guide the OCC decision making process, including factors such as financial stability, financial and managerial resources and future prospects, and convenience and needs. OCC is accepting comments on the NPR which are due 60 days after publication in the federal register.

The Acting Comptroller acknowledged that efforts to update the bank merger guidelines along with the Department of Justice and federal banking agencies are still ongoing while banking agencies agree with the merger guidelines put forth jointly by the DOJ and the FTC in December 2023. When asked whether applications would still be approved automatically absent red flags, the Acting Comptroller stressed that “there is no built-in default presumption” and that each application would be reviewed in light of the merging entities and the proposed merger’s effects on the communities involved, the economy, and the banking system. He emphasized the importance of coordinating with other agencies to level playing fields for banks and non-banks. He also recognized that non-bank operations are often supported by banks, so ensuring banks adequately manage their third-party relationships will help raise the compliance standards for non-banks.

We will be publishing a client alert relating to the proposed policy statement.