They suggest that the final procedures and criteria that were unveiled in two steps -- one on Monday by the Federal Reserve and the other the next day by the Financial Stability Oversight Council -- offered a few refinements to the selection criteria and the process to be used. No major changes were made. The result, however, mainly put the FSOC on course to make the first designations.
The lawyers said they expected the FSOC's path would be to select nonbank SIFIs in two waves -- the first this year for the biggest and most obvious candidates and possibly a second next year for others.
Ed Yingling, a partner at Covington & Burling LLP and a former president of the American Bankers Association, said he expected the FSOC would initially select at most three or four financial companies. They would face the heightened prudential scrutiny of a SIFI whose failure could pose economic woes to the stability of the U.S. financial system.
He also said that the lack of big changes in the final criteria seems to suggest the FSOC is already well on its way to determining who will be designated. "I think they have a pretty good indication of who is likely to be designated," he said. "I suspect a lot of the work has already been done."
The nonbank SIFI designation process is part of the Dodd-Frank Act and was intended to give regulators much better oversight of financial players who aren't banks but who play crucial roles in the U.S. financial system. Designation means considerable extra scrutiny for a financial company. Designated SIFIs become directly regulated by the Federal Reserve and could face increased capital requirements. Designated firms also have to rationalize their organizational structure and create a "living will" to make their winding down easier in the event of their failure.
In the final action, regulators made several changes, but banking lawyers said most merely clarify criteria or procedures for the selection.
Yingling cited as an example a revision making clear that foreign financial firms will be evaluated based on the size of their U.S. presence -- not their worldwide presence. Another clarification, he said, makes clear that any hearings to contest designations won't be open to the public.
The FSOC can name any predominantly financial company that could "pose a significant threat to U.S. financial stability" but said it would narrow the list in the first stage of evaluation to companies with more than $50 billion in assets and either $30 billion in credit default swaps, $3.5 billion in derivatives liability, $20 billion in total debt outstanding, 15-to-1 leverage ratio or a 10% ratio of short-term debt to assets.
The FSOC estimated there are 50 such companies.
Yingling said one immediate question is the potential for repercussions for companies swept in during the first stage and subject to further evaluation, even if they are highly unlikely to be designated. Such a distinction could force firms to spend time to counter designation and could raise some public disclosure issues.
"There are going to be consequences to being caught in Stage 1," he said, adding that financial firms' responsibility to disclose the potential for designation publicly aren't very clear. Hugh C. Conroy Jr., counsel at Cleary Gottlieb Steen & Hamilton LLP, said the final rule may offer some insight but leaves considerable leeway to the FSOC. "They have retained a significant amount of discretion," he said. "As a behind-the-scenes analysis, they are still moving forward in the way they have been."
Conroy added: "What FSOC has done is give a window into its procedures, but not into what industries or companies are likely to be so designated."
Thomas P. Vartanian, a partner at Dechert LLP, said the FSOC's final decision to make the detailed criteria for selection of an "interpretive guidance" -- not the rule itself -- could potentially ease the way for firms to challenge a designation as arbitrary and capricious under federal administrative procedures.
"It makes it significantly easier to challenge. It opens up opportunities for companies to challenge a designation because FSOC can't rely on an internal guidance as justification" as it could if the same standards were part of the rule," he said.
Business and consumer groups disagree on the impact of the changes.
The U.S. Chamber of Commerce warned the possibility of designation could force companies to change their businesses
"This rule may force companies to start changing their business model or cease offering certain products and services," said David Hirschmann, president of the Chamber's Center for Capital Markets Competitiveness.
Meanwhile, Dennis Kelleher, president and CEO of Better Markets, called the $50 billion asset threshold "arbitrary" and noted it wasn't part of the Dodd-Frank law.
"Everyone says they are for ending too-big-to-fail institutions, but that will only happen if they are regulated as required by the Dodd-Frank financial reform law," he said. "FSOC failed to do that."
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