Alert July 24, 2012

FRB Announces Optional Pre-Filing Review Process

On July 11, 2012, the FRB issued supervisory guidance, SR Letter 12-12, (the “Guidance”) describing a new, optional process for submitting requests for pre-filing review (“Pre-filings”) of specific aspects of proposed acquisitions and other proposals prior to the formal submission of an application or notice to the FRB.  The FRB believes that the review of Pre-filings will be particularly beneficial for individuals and entities that are not frequent filers with the FRB, such as private equity firms, and for filers with novel proposals that are seeking feedback on specific areas regarding a proposal.  The Guidance indicates that “brief phone conversations or limited e-mail correspondence” will not generally be considered Pre-filings, although any request for review of substantive written materials related to a proposal would be considered Pre-filings.

While Pre-filings may be submitted for topics that are related to “specific aspects” of a proposal, Pre-filings are not intended to be a forum for negotiating the final structure of a potential proposal or for resolving significant issues of policy or law.  Examples of appropriate subjects for Pre-filings include business plans or pro forma financial information related to a potential filing or presentations outlining specific potential proposals.  Pre-filings may also include draft transactional documents as well as questions regarding the type of filing required, the individuals or entities that would need to join a filing, and whether an entity would be considered to be a “company” or have “control” under the Bank Holding Company Act or the Home Owners’ Loan Act.

The Guidance indicates that Pre-filings should be submitted to the appropriate Federal Reserve Bank, rather than directly to the FRB staff.  The Guidance states that “most pre-filings can be addressed swiftly,” although the FRB may take up to 60 days to respond.  Parties who submit Pre-filings are not required to wait until the expiration of the 60-day pre-filing period to submit a formal application or notice.  Of importance, written Pre-filing inquiries and any related materials submitted will be formally deemed to be public records of the FRB and therefore subject to the Freedom of Information Act, although the FRB will consider requests for confidential treatment.