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Are Bank Regulators Creating More Systemic Risk?

posted by Adam Levitin

Systemic risk seems to be the byword for financial institutions regulators now, but a trio of developments indicates that it is only deepening:

1. Professor Anna Gelpern at Rutgers-Newark notes a scary change in Federal Reserve policy: the Fed just adopted an interim final rule (was there a notice and comment period?) that allows "all insured depository institutions to provide liquidity to their affiliates for assets typically funded in the tri-party repo market."

To put it in less abstruse language, the Fed is allowing insured banks to take equities (supposedly investment grade, as if that had meaning now) as collateral. So insured banks now take on their affiliates junk equity holdings as collateral and if things go badly...the FDIC insurance fund (and ultimately the taxpayers) are on the hook. I'm guessing that this means all of the bum MBS floating around insured banks' affiliates are going to go into the collateral pile. Not every bailout has to make the front page of the Times, but that's what this temporary Fed rule is...a contingent bailout.

2. As Professor Patricia McCoy of University of Connecticut School of Law observes that BoA is asking for its capital requirements to be temporarily lowered. In other words, BoA wants to become even more leveraged. This, at a time when banks are scrambling to delever.

3. Professor McCoy also notes that BoA is aksing to be and to be excused from the Riegle-Neal 10% concentration limit, which prohibits banks from obtaining more than 10% of all insured deposits via merger. BoA is already right around 10%, so to the extent it picks up anything from Merrill or a Merrill subsidiary (or any other bank), it might have problems (not that the 10% cap deterred BoA when acquiring Fleet a few years ago).

Whether the OCC and Fed will acquiese to BoA's requests remains to be seen. But these two developments put together indicate that the lessons of Fannie and Freddie have not been internalized: (1) larger institutions generate more systemic risk, especially when they are (2) highly leveraged and (3) holding junk collateral. Let's hope that in the scramble to stave off one crisis we aren't setting the stage for another much worse one.


Whoa. BAC still hasn't finished digesting Countrywide and its unrealized billions in losses. Now, MER is on the plate. Methinks that the 10% concentration exemption is gonna be for another depository institution. Let's see, WB has too much geographic overlap; a shotgun wedding between WB and JPM would make more sense. How's WM doing these days?

Pretty clearly, its BofA that's asking for the exemption. So its for taking on Merrill. And the Fed will grant it, because otherwise, Merrill files for ch 11. Can't have that, can we.

BTW, remember those special provisions for counterparty liability in the Code? How will those play out in Lehman's banrkuptcy? Recall that the special provisions apply to both sides of the various contracts covered. How may CDS's are on Lehman's books? Repos?


As a french student in law I have some questions concerning the future of the US Banking Regulation in regard of the latest developpements of the Banking Crisis.

Regarding regulatory matters, as the Riegle-Neal Act of 1994 is banning a bank to control , by merger, more than 10% of all US Deposits, is the planned merger right on regulatory grounds ? If my calculus are correct, BoA + Countrywide + Merrill-Lynch will be above the regulatory limit.

I am not a specialist in US banking and consumer legal framework. However, I see the above-said regulatory matters as potential clouds over recent announced-acquisitions by BoA. Perhaps, the Riegle-Neal Act is due to be reformed ? I do not know. However, is somebody having some views on these matters ?

I hope you will be able to help me, thank you in advance for your cooperation
With kind regards.

Yours sincerely,


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