FDIC Issues Final Statement on Private Equity Investments in Failed Banks or Thrifts

The Federal Deposit Insurance Corporation (FDIC) has recently faced the daunting task of salvaging an ever-increasing number of failed depository institutions.  Indeed, 45 insured institution closings occurred in the first two quarters of 2009, nearly double the total for all of 2008.  Concomitantly, the FDIC recognized the increased interest from private equity capital in acquiring or investing in the assets and assuming the deposit liabilities of failed depository-insured banks or thrift institutions.  In response, on August 26, 2009, the FDIC released a Final Statement of Policy on Qualifications for Failed Bank Acquisitions (the Final Statement) to provide guidance to these interested private capital investors.  The Final Statement offers guidance to private investors, including hedge funds, on the terms and conditions the FDIC will require to obtain bidding eligibility of a failed bank.  It does not establish civil or criminal penalties, but rather offers guidance to investors that agree to its terms.  The FDIC issued the statement to attract private investment capital for the purpose of purchasing deposit liabilities, or both the liabilities and assets of a failed insured depository institution.  The Final Statement reflects changes made in response to public comments on the Proposed Statement of Policy on Qualifications for Failed Bank Acquisitions released by the FDIC on July 2, 2009 (the Proposed Statement).  This article summarizes both the most salient terms of the Final Statement and the key differences between the Final Statement and the Proposed Statement.

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