DOJ Antitrust Division Seeks Additional Comment on Bank Merger Guidelines
On December 17, 2021, the U.S. Department of Justice (DOJ) announced[1] that it was seeking additional public comments on potential revisions to the Bank Merger Competitive Review Guidelines (Banking Guidelines) that were enacted in 1995.
The DOJ requests comment on “whether the division should revise the Banking Guidelines or change the way it analyzes bank mergers to reflect modern trends in financial services and banking competition.” Specifically, the DOJ requests input on the following issues:
Scope of Division Review
Broadening the factors considered by the DOJ when evaluating bank mergers:
To what extent should the Division’s competitive scrutiny of bank mergers apply standards, and incorporate factors, beyond those applicable to other industries solely under Section 7 of the Clayton Act?
In so doing,
(1) what factors should the Division consider,
(2) how should those factors be incorporated into the Division’s competitive review process, and
(3) what additional remedies should the Division consider obtaining?
Data Submissions
What additional information and data should banks submit with their bank merger application to facilitate the competitive review?
The Division often considers the FDIC’s Summary of Deposits, and the Federal Financial Institutions Examination Council’s (“FFIEC”) Community Reinvestment Act data during the review of a bank merger application.
Should the data submission requirements for these sources be updated—and in what way—to assist the competitive review of bank mergers?
What additional information and data should the banking agencies collect on a routine basis to better analyze the competitive effects of bank mergers?
Updates
When seeking comments in September 2020, the Division asked interested parties to address whether and how it should include non-traditional banks in its competitive effects analysis. Commentary in response focused on the use of online banking services. We are also interested in whether and how internet-only banks (i.e., banks with no, or an extremely limited, physical branch network) factor into bank merger competitive review
If you submitted a comment when the Division sought public comments in 2020, we would welcome additional submissions if updates to your prior comment are warranted
Comments can be emailed to ATR.BankMergers@usdoj.gov and must be received by February 15, 2022. The announcement by the DOJ makes clear that “[w]ritten submissions and the identity of the submitter may be disclosed, reproduced, and distributed by publication and/or posting on the Department of Justice website, at the discretion of the Department of Justice.” Kennedy Sutherland can assist in drafting a public comment to ensure clarity and effectiveness is portrayed by your organization.
If you have any comments or concerns about this announcement, please contact Kennedy Sutherland.
[1] https://www.justice.gov/opa/pr/antitrust-division-seeks-additional-public-comments-bank-merger-competitive-analysis