All Banking Law, All in One Place. Bloomberg Law: Banking is the comprehensive research solution that powers your practice with access to integrated banking-related legal news, analysis,...
Nov. 7 — The Office of the Comptroller of the Currency could soon decide whether to offer national charters to financial technology companies, and as a Magic 8 Ball might say, “Signs point to yes.”
Comptroller Thomas Curry mentions the possibility frequently in public appearances, though he is careful not to go beyond what he said Nov. 3 in a speech in London. The charter question “is one we are still working through,” Curry said in his speech. “We are still deliberating about whether it makes sense to grant a national bank charter to fintechs, and under what conditions.”
More concrete signals come from a couple of arcane regulatory moves by the agency in September: A Sept. 13 proposed rule that deals with receiverships for insured national banks, and a Sept. 28 revision of its charters booklet for the Comptroller’s Licensing Manual that addresses possible trust and special-purpose charters for charter-holders lacking deposit insurance.
Both represent a clearing of the underbrush to open the way for a fintech charter, an issue explicitly addressed by the OCC in the Sept. 13 notice. As Promontory, the global consulting firm, said in a report on the rulemaking, “The OCC did not issue its proposal because it suddenly discovered it needed a resolution regime for uninsured national banks.” There are just 52 institutions that fit that description, and the OCC has not placed such a bank in receivership since the Great Depression.
A decision by Curry’s office on fintech charters has been anticipated by the end of the year, but Curry indicated it will not be a final one. “We plan to issue a paper soon to describe our thoughts on this important question and seek comment on our approach,” he said in London.
If and when the OCC unveils its proposal for a fintech charter, here are five things to look for:
The OCC exercises charter-granting authority for ventures that engage in at least one of the typical banking functions of taking deposits, lending money or paying checks. The lending criterion would take in online platform lenders, for example, but how wide is the “paying checks” qualification? Would it cover fintech companies engaged in all kinds of payment processing? And what about fintechs focused on distributed ledger technology, aka blockchain, for money transfers and trade settlements?
It remains to be seen how the OCC will set capital and liquidity requirements for companies to receive a fintech charter. The national trust banks are not held to the same funding standards as banks that accept deposits from the public and make loans, so there’s precedent for flexibility, but where the OCC sets the bar is significant.
Banks are worried that fintech companies may gain an advantage if they’re not held to the same standards as the banks. Some regulations, such as those under the Community Reinvestment Act, are limited by law to depository institutions, but the OCC already has said it believes it can qualify the granting of a non-bank charter to fintechs on the basis of compliance with CRA-like regulations.
In his London speech, Curry said, “Let me be clear: If the OCC decides to grant a national charter in this area, the institution will be held to the same high standards of safety, soundness and fairness that other federally chartered institutions must meet.”
How long will it take to apply for and receive a charter? In an innovative industry, that question “is obviously important to a bunch of companies that are used to moving very quickly,” David Luigs, a partner at Debevoise & Plimpton LLP in Washington, told Bloomberg BNA.
The OCC will be looking to strike a balance between its primary duty to preserve the safety and soundness of the national banks it supervises and its stated intention to promote what it calls responsible innovation.
“The OCC is always going to be concerned about the risk that a fintech company is going to pose to a regulated bank and the financial system at large,” Michael Krimminger, of Cleary Gottlieb Steen & Hamilton LLP in Washington, told Bloomberg BNA.
Many banks have formed partnerships or third-party vendor arrangements with fintech firms — relationships already monitored by regulators from the banks’ end — and the non-bank charters could intrude further on that space by setting terms for the fintech companies’ engagement.
Some fintech companies look to national charters as a way to simplify their operations by, for example, pre-empting the patchwork of state laws that govern lending. But others are skeptical, viewing the concept as just another layer of government regulation.
If the OCC does decide to go ahead with a charter proposal, the ball will cross to the court of the fintech companies, Peter Dugas, a former deputy assistant secretary at the U.S. Department of the Treasury, told Bloomberg BNA; Dugas now leads the Center of Regulatory Intelligence in Washington for FIS, a technology and consulting firm.
“They’ll be wanting to do an assessment of whether the current regulatory structure under which they work is a better structure than going under a fintech charter, where their options may be limited and there may be more compliance cost,” Dugas said.
To contact the reporter on this story: Gregory Roberts in Washington at gRoberts@bna.com
To contact the editor responsible for this story: Michael Ferullo at MFerullo@bna.com
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)