FDIC Final Rule for “Safe Harbor” Protection

On September 27, the Board of Directors of the FDIC approved a Final Rule (the “Final Rule”) that governs the rights of the FDIC, as conservator or receiver of a failed insured depository institution (a “Bank”), over financial assets previously transferred by such Bank in connection with a securitization or participation transaction. The Final Rule sets forth the circumstances under which the FDIC will provide a “safe harbor” to investors by not repudiating contracts or reclaiming property and the circumstances under which the FDIC will provide investors with other, more limited, protections. The Final Rule should be considered in light of the provisions of the recently enacted Dodd-Frank Wall Street Reform and Consumer Protection Act and the SEC’s proposed “Regulation AB II”, both of which cover certain of the matters that are also covered by the Final Rule. While the provisions of the Dodd-Frank Act and of Regulation AB II will be applicable to securitizations whether or not a Bank is involved, the requirements of the Final Rule should be applicable only to Bank transactions. Read More.