Changes Coming to “Change in Control”

By Jenny McCain

In late April, the Board of Governors of the Federal Reserve System approved a notice of proposed rulemaking that would revise the Federal Reserve’s “control” rules under the Bank Holding Company Act of 1956 (Regulation Y). These rules that establish the “Change in Control” notice and prior approval requirement for shareholders that own or control “10%” or more of the voting shares of a bank holding company. In the past, the Federal Reserve has published very few of its control rules, with most control determinations made on a “case by case” basis. This proposed rulemaking is “intended to provide substantial additional transparency on the types of relationship that the [Federal Reserve] Board would view as supporting a determination that one company controls another company” by codifying in a formal regulation (and in some cases modifying) the Federal Reserve’s presumptions of control.

The Federal Reserve’s long standing practice has been to consider the question of whether control exists for purposes of Regulation Y to be a factual question. Over time, a set of standards and facts have emerged that the Federal Reserves says are generally indicative of control. This new proposed rule would amend the existing regulation to implement a tiered framework based on shared ownership of any class of voting securities and could “significantly expand” the situations where “control” will be presumed. In the proposed rule, the Federal Reserve has sought input on nearly 60 questions. The rule is open for comment for 60 days. It goes without saying that this new rule will impact banks and banking organizations of all sizes.

Jenny McCain is co-chair of Maynard Cooper’s Banking Group. With more than 17 years of experience, Jenny is recognized by The Best Lawyers in America for Banking Law and by Chambers USA: America’s Leading Lawyers for Business for Bank Regulatory expertise.