Legislative Developments

The Restoring American Financial Stability Act passed by the Senate on May 20 (discussed in an earlier post ) includes an amendment authored by Sen. Susan Collins (R-Maine), which would toughen the risk-and size-based capital standards facing financial institutions. Sen. Collins has stated that smaller financial institutions should no longer be subject to more lenient standards than large institutions because the “failure of larger institutions is much more likely to have a broad economic impact” and having different standards creates the incentive for banks to become “too big to fail.” The amendment would hold banks with assets above $250 billion to capital requirements at least as stringent as those applicable to smaller institutions.

Under U.S. rules, bank regulators look to the ratio of a financial institution’s Tier 1 capital to total risk-adjusted assets as a key indicator of financial health. Tier 1 capital, which includes common stock and some preferred stock, serves to cushion banks in the event of potential loss. The language in Senator Collins’ amendment apparently orders federal bank regulators to set minimum leverage and risk-based capital requirements for all banks, implies that trust-preferred securities will no longer be included within the definition of Tier 1 capital, and implies that all banks would need to comply with this new rule immediately. In an interview with the American Banker, however, Senator Collins said that what’s intended is that the new measure would apply only to “systemically important firms,” would be phased in over time, and that the language of the amendment will be changed before the bill is passed to reflect these intentions. 

Continue Reading Senate Bill May Make It More Difficult for Large Banks to Satisfy Capital Reserve Requirements

The Senate last night passed its long-awaited version of financial system regulatory reform legislation, the Restoring American Financial Stability Act. In the coming weeks, each congressional chamber will select a group of lawmakers to negotiate a final bill. That bill will then need to be voted on again in both chambers before going to the

On April 29, 2010, Colorado Governor Bill Ritter signed a consumer protection bill which requires gift card issuers to redeem the card, upon request, if the remaining value is $5 or less. In addition, it bans retailers, restaurants and others from selling gift cards that have any type of fee, including a service fee, a

Recently, the Federal Reserve Board announced the final rules that amend Regulation E to implement the gift card provisions of the Credit Card Accountability Responsibility and Disclosure Act of 2009 (“CARD Act”). The rules restrict fees and expiration dates on various types of gift certificates and cards, and require sellers and issuers to make specific disclosures. These

The Senate is expected to soon consider placing a fifty-cent per transaction cap on ATM fees, as an amendment to the financial reform bill. The proposed amendment, introduced last week by Senator Tom Harkin (D-Iowa) and co-sponsored by Senators Charles Schumer (D-New York) and Bernie Sanders (I-Vermont), is an effort to regulate ATM fees by

The Senate, after spending last week engaged in procedural battles, will enter full scale debate this week on that chamber’s version of a financial reform package. This morning Congress Daily provided a brief preview of the debate. Several amendments affecting consumer protection are expected, including relating to the proposed new bureau to oversee consumer

Today, Senate Banking Committee Chairman Chris Dodd (D-CT) released a revised financial regulatory reform bill, which would create the Bureau of Consumer Financial Protection. The Bureau would be housed in the Federal Reserve, however, it would have a separate budget and an autonomous governance structure.

Consumer protection has been a major sticking point since the reform debate kicked off last year. While the House passed a bill that would achieve the Obama administration’s original goal of setting up a stand alone Consumer Financial Protection Agency, the prospects for such an agency in the Senate bill were never quite as good. From the start Republican members of the Banking Committee strongly opposed creating a new agency. Despite agreement on several other key principles, some of which are included in the bill released today, the two sides could not settle on an agreement regarding the structure and scope of the consumer protection agency.

For weeks different stories were reported about how and where the consumer protection organization would be housed. However, the authorities and responsibilities granted to the Bureau received much less attention. With the bill now out, financial service providers can begin to understand how the Senate bill could impact them. For example, with regard to consumer protection, the bill grants the Bureau broad rulemaking and enforcement authority and transfers to it most of the existing consumer protection functions of existing regulators. It also preserves state rights to enact more stringent consumer protection laws.  Finally, the bill proposes a rulemaking process to establish the definition of nondepository institutions covered by the Bureau’s authority.

Continue Reading New Senate Financial Reform Bill Released

Major provisions of a new law related to credit and gift cards take effect today. The Credit CARD Act, which was signed by President Obama in May 2009, marked the culmination of several legislative efforts to reform certain practices of card issuers. The law provisions related to credit cards, discussed in this Kelley Drye

Recently, the United States Supreme Court, in its decision styled Andrew M. Cuomo v. The Clearing House Association, L.L.C., No. 08-453, reaffirmed that federal banking regulations do not pre-empt states from enforcing their own fair-lending laws against national banks.

This dispute arose following the New York State Attorney General’s attempt to investigate several banks’ residential real-estate lending practices in 2005. The Attorney General’s office had suspected discriminatory lending practices after reviewing reports that showed minority borrowers received a larger percentage of high-interest home loans than white borrowers. As part of that probe, the Attorney General sent letters to several national banks, in lieu of a subpoena, requesting that they provide certain non-public information regarding their mortgage lending practices. In response, the federal Office of the Comptroller of the Currency (“OCC,” the chartering authority and federal regulator of national banks) and the Clearing House Association (a banking trade group) sued to block the Attorney General’s investigation, claiming that an OCC regulation promulgated under the National Bank Act pre-empted any state regulation or enforcement against national banks.

Continue Reading State Regulators’ Powers Over National Banks Reaffirmed by U.S. Supreme Court

In order to avoid the substantial risks of class action litigation, many financial service providers – both traditional and non traditional – require that customer agreements contain an arbitration clause and a waiver of the customer’s right to bring a class action. However, recent court decisions and pending legislation suggest that certain types of these