Blayne V. Scofield | Bloomberg Law Letter from Stephen A. Lyberger, Deputy Comptroller for Licensing, Office of the Comptroller of the Currency, to Richard Kim (March 9, 2012) (regarding applications 2011-NE-02-0028 and 2011-NE-02-0029) The Office of the Comptroller of the Currency (OCC) approved Capital One Financial Corporations's (Capital One) acquisition of approximately $30 billion in credit card assets from HSBC Bank Nevada (HSBC). The transaction will be carried out though two of Capital One's bank subsidiaries, Capital One, National Association (CONA) and Capital One Bank (USA), National Association (COBNA). The approval came in a 21-page letter to CONA's and COBNA's outside counsel, Richard Kim, a partner at Wachtell, Lipton, Rosen & Katz.
Bank Merger Act FactorsThe transaction was structured as an asset purchase and was subject to the OCC's prior approval under the Bank Merger Act, 12 U.S.C. § 1828(c)(2). The Bank Merger Act required OCC to consider six factors:
OCC's Findings and ConclusionsOCC quickly disposed of the first six factors by providing summary conclusions for each. In some instances, such as the banks' compliance with anti-money laundering requirements, OCC's analysis was limited to a simple statement that there were "no material weaknesses . . . that would preclude approval of this transaction." Its systemic risk analysis was an abbreviated version of the analysis used by the Board of Governors of the Federal Reserve System (FRB) in its recent approval of Capital One Financial's acquisition of ING Bank, fsb. OCC devoted most of its approval to discussing the more controversial issue—the banks' CRA performance and compliance with consumer protection laws. It spent only about two and a half pages addressing the first six factors, while CRA and compliance issues consumed nearly 14 pages. In response to the proposed transaction, OCC received approximately 300 comment letters from the public regarding the banks' record of meeting the credit needs of their communities under the CRA. According to the OCC, commenters questioned the banks' performance in five areas: (i) mortgage lending to low- and moderate-income (LMI) borrowers and in LMI communities, (ii) small business lending, (iii) community development activities, (iv) branch office locations, and (v) compliance with fair lending and consumer protection laws. OCC largely dismissed these concerns. For the first four categories, OCC relied on the results of the banks' recent CRA examinations in which COBNAreceived a Satisfactory rating (the second highest) and CONA received an Outstanding rating (the highest). For the fifth category, OCC acknowledged that CONA's predecessor bank had been cited for fair lending violations and that COBNA had violated disclosure requirements from 2004 to 2010 in connection with a "specific add-on product" (no further details were provided in either the approval letter or COBNA's CRA performance evaluation). OCC also recognized that Capital One recently settled consumer protection claims with the State of West Virginia related to their credit protection products and that the U.S. Department of Housing and Urban Development was investigating claims that CONA violated fair lending laws by using an illegal credit score cutoff for government guaranteed mortgages. Despite these issues, OCC found that the banks' compliance systems were sufficient and allowed the transaction to proceed.
Second Recent Acquisition for Capital OneOCC's approval of the Capital One-HSBC transaction follows FRB's blessing given last month to Capital One's acquisition of ING Bank, fsb. In that transaction, which closed on February 17, 2012, Capital One acquired more than $90 billion in assets and more than $80 billion in deposits to become the U.S.'s fifth largest bank by deposits and 20th largest bank by assets. DisclaimerThis document and any discussions set forth herein are for informational purposes only, and should not be construed as legal advice, which has to be addressed to particular facts and circumstances involved in any given situation. Review or use of the document and any discussions does not create an attorney-client relationship with the author or publisher. To the extent that this document may contain suggested provisions, they will require modification to suit a particular transaction, jurisdiction or situation. Please consult with an attorney with the appropriate level of experience if you have any questions. Any tax information contained in the document or discussions is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code. Any opinions expressed are those of the author. The Bureau of National Affairs, Inc. and its affiliated entities do not take responsibility for the content in this document or discussions and do not make any representation or warranty as to their completeness or accuracy.©2014 The Bureau of National Affairs, Inc. All rights reserved. Bloomberg Law Reports ® is a registered trademark and service mark of The Bureau of National Affairs, Inc.
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