Authors: ABA
ISBN-13: 9781590317174, ISBN-10: 1590317173
Format: Paperback
Publisher: American Bar Association
Date Published: February 2007
Edition: (Non-applicable)
Author Biography: ABA
Book Synopsis
The Bank Merger and Acquisitions Handbook is a how-to manual for lawyers who must analyze a potential transaction or who are faced with an agency review of the competitive effects of a proposed transaction that would combine banking institutions. Its focus is practical; complementing the Antitrust Section's other publications on merger review including Mergers and Acquisitions, and the Premerger Notification Practice Manual. This book addresses those aspects of bank merger review that are unique to banking institutions - such as the statutory framework, banking agency review, and Justice Department standards - and draws on learning from recent transactions in which one or more of the reviewing agencies raised concerns. It should be helpful to both antitrust lawyers and banking lawyers faced with a bank merger and to banking lawyers faced with a transaction that presents substantive competition issues.
Table of Contents
Foreword vii
Preface ix
Introduction 1
General Antitrust Principles in Financial Institution Mergers and Acquisitions 5
Antitrust Laws Affecting Financial Institution Mergers and Acquisitions 5
The Sherman Antitrust Act and the Clayton Act 5
Financial Institution-Specific Statutes 6
Hart-Scott-Rodino Act 8
Competitive Review$dFederal Bank Regulatory Agencies 9
The Merger Guidelines 12
State Attorneys General 13
Timing Considerations and Notification Procedures 15
Statutory and Regulatory Processing Periods 15
BHC Act Applications and Notices 15
Standard Procedures Relating to Banking Operations 15
Streamlined Procedures Relating to Banking Operations 17
Post-Approval Waiting Period under the BHC Act 19
Control Act Notices 19
BMA Notices 20
Non-Bank Operations and the HSR Act 21
Standard 4(c)(8) Procedures 23
Streamlined 4(c)(8) Procedures 24
HSR Act Waiting Periods 25
Choosing between 4(c)(8) and HSR 26
Practical Considerations withRespect to Timing 27
Pre-filing Communications and Drafts 27
Anticipating the DOJ's Information and Document Requests 29
Early Triage of Overlap Markets 30
Assembling a Divestiture Package that Meets the Agencies' Criteria 31
Choose a Strong Divestiture Buyer Early in the Process 31
State Attorneys General 32
Definition Of Relevant Markets 35
Relevant Product Market 35
The DOJ's Approach to Product Market Definition 35
The Banking Agencies' Approach to Product Market Definition 38
Relevant Geographic Market 41
The DOJ's Approach to Geographic Market Definition 42
The Banking Agencies' Approach to Geographic Market Definition 47
Evaluation Of The Likely Competitive Effects Of Bank Mergers 57
The Horizontal Merger Guidelines 57
Market Concentration 57
Theories of Competitive Harm 58
Rebutting a Presumption of Competitive Harm 59
The Screening Guidelines 60
Assembling the Data 61
Weighting the Data 61
Market Shares and Concentration 62
Interpreting Screen A and Screen B 62
Modified Screens 63
Small Business and Middle Market Commercial Loan Markets 63
Assessment of Potential Mitigating Factors 65
Lack of Competition Between the Merging Parties 65
Updated Geographic Market Definitions 66
Likelihood of Expanded Commercial Lending 67
Evidence That Market Shares Do Not Reflect Competitive Significance 68
Likelihood of New Entry 69
Non-Bank and Out-of-Market Competitors 70
Bank Merger Remedies 73
Forms of Divestiture Commitments 74
Federal Reserve Board and DOJ requirements 74
Additional DOJ requirements 74
Additional Federal Reserve Board Requirements 75
Qualitative Branch Selection Criteria 75
Exiting Party's Branches 76
Branches Serving Entire Market and Small Businesses 76
Commercially Oriented Branches 77
No Supermarket Branches 77
No Declining Branches 77
Adequate Facilities 77
The DOJ's Branch Information Request 78
Facilities Information 78
Transaction Activity Information 78
Volume Information 79
Middle-Market Divestitures 79
Minimizing Burden 80
Selecting the Divestiture Buyer 80
One Buyer per Market 80
In-Market vs. Out-of-Market Buyers 81
Commercial Banks vs. Thrifts 81
No Seller Financing 82
Buyer's Plans for the Divestiture Branches 82
DOJ Involvement in the Auction Process 82
Final Approval Process 83
Post-Approval Process 84
Not Transfer Divested Customers or Solicit Their Defection 84
Document Customer Departures from Divestiture Branches and Coordinate With the Buyer 84
Facilitate the Buyer's Communications with Divested Customers and Employees 85
Notify the Seller's Employees of the Seller's Obligations 85
Conclusion 85
Clavton Act 87
Bank Merger Act 97
Bank Holding Company Act 103
Change in Bank Control Act 105
Home Owners' Loan Act 107
1992 Department of Justice and Federal Trade Commission Horizontal Merger Guidelines 109
Bank Merger Competitive Review - Introduction and Overview (1995) 143
Antitrust Division Policy Guide to Merger Remedies 155
FDIC Statement of Policy on Bank Merger Transactions 197
Interagency Bank Merger Act Application Form 207
Report of the Department of Justice on the Likely Competitive Effects of the Proposed Acquisition by First Hawaiian, Inc. of First Interstate of Hawaii, Inc. 223
Department of Justice Letters to the Federal Reserve Board 257
Select Department of Justice speeches and Statements 281
Table of Cases 333
Subjects