- Fed Outlines New Pre-Filing Process
- July 21, 2012
- Law Firm: Jones, Walker, Waechter, Poitevent, Carrère & Denègre L.L.P. - Birmingham Office
On July 11, 2012, the Federal Reserve Board ("Fed") implemented a new process for requesting Fed feedback on proposals requiring submissions of applications or notices prior to formal submission of such applications or notices. This "pre-filing" process is optional, and intended to provide feedback on potential issues related to acquisitions and other such transactions. While the pre-filing process is available to all institutions supervised by Fed, it is intended primarily to benefit community banks and other infrequent filers.
Pre-filings—similar to the "draft applications" formally discontinued by Fed following the Riegle-Neal amendments to the Bank Holding Company Act—are inquiries related to potential applications and notices (to be submitted to Fed), including, among other things, information about a specific aspect of a proposal, business plans or pro forma financial information related to a potential filing, or presentations outlining a specific proposal. Fed emphasizes that pre-filings will be limited to only "specific" proposals; general proposals or concepts will not receive feedback. In addition to comment on proposed transactions, Fed will provide feedback on proposed transaction structures or documents, including shareholder, purchase or voting agreements, side letters, and offering documents. Further, Fed will provide guidance regarding types of filings required, necessary parties to such filings, whether an entity would be considered a "company" or have "control" under the Bank Holding Company Act or the Home Owners’ Loan Act.
Review of pre-filings will be targeted to the question presented; Fed will not review pre-filings generally to spot additional issues. Further, feedback on pre-filings is not intended to be predictive of the final outcome of any application or notice, and will not function as a forum for negotiating with Fed structural or policy issues raised by a proposed transaction. Generally, a single pre-filing is available per proposed application or notice, and feedback will be given within 60 days of submitting the pre-filing to the appropriate Reserve Bank (or through the Electronic Application System, E-Apps). Fed will prioritize pre-filings made in connection with pending applications or notices above those made in connection with anticipated filings.
Lastly, while the Fed anticipates that final filings for which pre-filings were made will be reviewed more quickly, because pre-filings are not a formal part of the final application or notice, they will not "start the clock" for purposes of Fed review of final filings and each final filing must stand on its own and include all pertinent documents and information, regardless of whether they were submitted with a pre-filing.