House of Representatives Approves Financial Institution Bankruptcy Act of 2014 | Practical Law

House of Representatives Approves Financial Institution Bankruptcy Act of 2014 | Practical Law

On December 1, 2014, the House of Representatives passed the Financial Institution Bankruptcy Act of 2014, which would provide an alternative to the Orderly Liquidation Authority for resolving bank holding companies and certain large financial institutions using the Bankruptcy Code.

House of Representatives Approves Financial Institution Bankruptcy Act of 2014

Practical Law Legal Update 1-591-2465 (Approx. 3 pages)

House of Representatives Approves Financial Institution Bankruptcy Act of 2014

by Practical Law Bankruptcy & Restructuring and Practical Law Finance
Published on 04 Dec 2014USA (National/Federal)
On December 1, 2014, the House of Representatives passed the Financial Institution Bankruptcy Act of 2014, which would provide an alternative to the Orderly Liquidation Authority for resolving bank holding companies and certain large financial institutions using the Bankruptcy Code.
On December 1, 2014, the US House of Representatives voted to approve bill H.R. 5421, the Financial Institution Bankruptcy Act of 2014 (FIBA). The bipartisan bill received input from the FDIC and the OCC and would enable bank holding companies and certain large financial institutions (those having consolidated assets of at least $50 billion) to employ the traditional bankruptcy process in a way that limits systematic damage to the global financial markets.
Currently, the Dodd-Frank Act places failed large financial institutions into receivership through the Orderly Liquidation Authority (OLA). Critics of the OLA claim that the process is opaque and allows regulators and politicians too much discretion. FIBA would add Subchapter V to Chapter 11 of the Bankruptcy Code to provide an alternative option for resolving large failing banks and bank holding companies using an expedited bankruptcy process that would maintain creditor priority and transparency. The proposed legislation seeks to avoid further financial crisis (such as the one that was caused by Lehman Brothers' six-plus year bankruptcy proceedings).
FIBA provides bankruptcy courts with the authority to transfer certain property, contracts and leases of the failed financial institution to a new bridge company. A qualified and independent trustee would hold the equity securities of the bridge company in trust for the sole benefit of the estate. Some other characteristics of FIBA include:
  • The creation of a special category of expert bankruptcy judges from different circuits who would handle big bank failure cases.
  • A "single point of entry" approach under which a bank holding company can enter bankruptcy while its operating subsidiaries stay out of the process and continue as subsidiaries of the new bridge company.
  • A provision which will prohibit derivatives counterparties from netting out their swaps contracts for 48 hours after the commencement of a bankruptcy. This provision matches a stay resolution passed by 18 global banks in October (see Legal Update, ISDA: Major Banks Agree to Stay on Swap Agreement Termination Rights in Event of Failure).
Before the bill becomes law, it must be approved by the US Senate and then by the President.