Legal Developments: First Quarter, 2007
Order Issued under Bank Holding Company Act
The Industrial Bank of Taiwan Co., Ltd.
Taipei, Taiwan
IBT Holdings Corp.
Cerritos, California
Order Approving the Formation of a Bank Holding Company
The Industrial Bank of Taiwan Co., Ltd. ("IBT") and its wholly owned subsidiary, IBT Holdings Corp., have requested the Board's approval under section 3 of the Bank Holding Company Act ("BHC Act")1 to become bank holding companies and to acquire EverTrust Bank ("EverTrust"), City of Industry, California.
Notice of the proposal, affording interested persons an opportunity to submit comments, has been published in the Federal Register (71 Federal Register 46,230 (2006)). The time for filing comments has expired, and the Board has considered the proposal and all comments received in light of the factors set forth in section 3 of the BHC Act.
IBT, with total consolidated assets of approximately $4 billion, is the 37th largest bank in Taiwan.2 IBT currently has no banking operations in the United States. EverTrust, with total consolidated assets of approximately $308 million, is the 122nd largest depository institution in California, controlling deposits of approximately $293.6 million, which represent less than 1 percent of the total amount of deposits of insured depository institutions in the state.3
Competitive Considerations
Section 3 of the BHC Act prohibits the Board from approving a proposal that would result in a monopoly or would be in furtherance of an attempt to monopolize the business of banking in any relevant banking market. The BHC Act also prohibits the Board from approving a bank acquisition that would substantially lessen competition in any relevant banking market, unless the anticompetitive effects of the proposal are clearly outweighed in the public interest by the probable effect of the proposal in meeting the convenience and needs of the community to be served.4
As noted, IBT does not control a U.S. depository institution, and the proposal would not result in an expansion of EverTrust. Based on all the facts of record, the Board concludes that consummation of the proposal would not have a significantly adverse effect on competition or on the concentration of resources in any relevant banking market. Accordingly, based on all the facts of record, the Board has determined that competitive considerations are consistent with approval.
Financial, Managerial, and Supervisory Considerations
Section 3 of the BHC Act requires the Board to consider the financial and managerial resources and future prospects of the companies and depository institutions involved in the proposal and certain other supervisory factors. The Board has considered these factors in light of all the facts of record, including confidential reports of examination and other supervisory information received from the federal and state supervisors of EverTrust, publicly reported and other financial information, information provided by IBT, and public comments received on the proposal. The Board has also consulted with the Financial Supervisory Commission ("FSC"), the primary home-country supervisor of IBT.5
In evaluating the financial factors in proposals involving the formation of new bank holding companies, the Board reviews the financial condition of the applicant and the target depository institutions. The Board also evaluates the financial position of the pro forma organization, including its capital position, asset quality, and earnings prospects, and the impact of the proposed funding of the transaction.
The Board has carefully considered the financial factors of the proposal. Taiwan's risk-based capital standards are consistent with those established by the Basel Capital Accord (the "Accord"). On consummation, the capital ratios of IBT would continue to exceed the minimum levels that would be required under the Accord and are considered equivalent to the capital levels that would be required of a U.S. banking organization. Furthermore, EverTrust is well capitalized and would remain so on consummation of the proposal. Based on its review of these factors, the Board finds that IBT has sufficient financial resources to effect the proposal. The proposed transaction is structured as a cash purchase.
The Board also has considered the managerial resources of the organizations involved and the proposed combined organization. The Board has reviewed supervisory information provided by the FSC and information provided by IBT, including information about compliance with anti-money-laundering laws.6 In addition, the Board has reviewed the examination records of EverTrust, including assessments of its management, risk-management systems, and operations. The Board has also considered the supervisory experiences of relevant federal and state banking supervisory agencies with EverTrust and the bank's record of compliance with applicable banking law and anti-money-laundering laws. Moreover, the Board has considered IBT's plans for implementing the proposal, including the proposed management after consummation.
Based on all the facts of record, the Board has concluded that the financial and managerial resources and future prospects of the organizations involved in the proposal are consistent with approval.
Section 3 of the BHC Act also provides that the Board may not approve an application involving a foreign bank unless the bank is subject to comprehensive supervision or regulation on a consolidated basis by its home-country supervisor.7 As noted, the FSC is the primary supervisor of commercial and industrial banks in Taiwan, including IBT. The Board has previously determined, in connection with applications involving other banks in Taiwan, that those banks were subject to home-country supervision on a consolidated basis.8 In this case, the Board has determined that IBT is supervised by the FSC on substantially the same terms and conditions as those other banks. Based on all the facts of record, the Board has concluded that IBT is subject to comprehensive supervision and regulation on a consolidated basis by its home-country supervisor.
The BHC Act also requires the Board to determine that an applicant has provided adequate assurances that it will make available to the Board such information on its operations and activities and those of its affiliates that the Board deems appropriate to determine and enforce compliance with the BHC Act.9 The Board has reviewed the restrictions on disclosures in jurisdictions where IBT would have material operations and has communicated with the relevant government authorities concerning access to information. IBT has committed that it will make available to the Board such information on its operations and the operations of any of its affiliates that the Board deems necessary to determine and enforce compliance with the BHC Act, the International Banking Act, and other applicable federal law. IBT also has committed to cooperate with the Board to obtain any waivers or exemptions that may be necessary to enable it to make such information available to the Board. In light of the commitments provided by IBT and other facts of record, the Board has concluded that IBT has provided adequate assurances of access to any necessary information the Board may request. For these reasons, and based on all the facts of record, the Board has concluded that the supervisory factors it is required to consider under section 3(c)(3) of the BHC Act are consistent with approval.
Convenience and Needs Considerations
In acting on a proposal under section 3 of the BHC Act, the Board also must consider the effects of the proposal on the convenience and needs of the communities to be served and take into account the records of the relevant insured depository institutions under the Community Reinvestment Act ("CRA").10 EverTrust received a "satisfactory" rating at its most recent CRA performance evaluation by the Federal Deposit Insurance Corporation, as of November 1, 2003. IBT has represented that it does not plan to make any reductions in products or services offered by EverTrust and may expand them. IBT's financial resources will serve as a source of strength for EverTrust and enhance the bank's ability to meet the banking needs of the communities it serves. Based on all the facts of record, the Board concludes that considerations relating to the convenience and needs factor and the CRA performance records of the relevant depository institutions are consistent with approval.
Conclusion
Based on the foregoing and all facts of record, the Board has determined that the application should be, and hereby is, approved. In reaching its conclusion, the Board has considered all the facts of record in light of the factors that it is required to consider under the BHC Act. The Board's approval is specifically conditioned on compliance by IBT with the conditions imposed in this order, the commitments made to the Board in connection with the application, and receipt of all other regulatory approvals.11 For purposes of this action, the conditions and commitments are deemed to be conditions imposed in writing by the Board in connection with its findings and decision herein and, as such, may be enforced in proceedings under applicable law.
The proposed transaction may not be consummated before the 15th calendar day after the effective date of this order, or later than three months after the effective date of this order, unless such period is extended for good cause by the Board or the Federal Reserve Bank of San Francisco, acting pursuant to delegated authority.
By order of the Board of Governors, effective March 9, 2007.
Voting for this action: Chairman Bernanke, Vice Chairman Kohn, and Governors Bies, Warsh, Kroszner, and Mishkin.
Robert deV. Frierson
Deputy Secretary of the Board
1. 12 U.S.C. § 1842.
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2. Taiwanese asset and ranking data are as of September
30, 2006, and are based on the exchange rate then in effect. IBT is
organized and chartered as an industrial bank in Taiwan. Taiwanese
industrial banks may conduct various banking and financial activities,
such as lending, securities trading, underwriting, and trust
activities. With respect to deposit-taking and foreign-exchange
activities, however, they may only serve certain types of customers. Return to text
3. Domestic asset and ranking data are as of September 30,
2006. Deposit data are as of June 30, 2006. In this context,
depository institutions include commercial banks, savings banks, and
savings associations. Return to text
4. 12 U.S.C. § 1842(c)(1).
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5. The FSC has confirmed that IBT is in good standing and has
not objected to the proposal. Return to text
6. A commenter expressed concern about alleged money laundering
and governmental corruption in Taiwan and the possible impact of these
allegations could have on banking in the Asian-American community. The
Board has taken into consideration Taiwan's laws and regulations, as
well as IBT's and EverTrust's policies and procedures, on
anti-money-laundering. Taiwan has enacted laws and regulations to deter
money laundering that are consistent with Financial Action Task Force
recommendations. Money laundering is a criminal offense in Taiwan, and
financial institutions are required to establish internal policies,
procedures, and systems for the detection and prevention of money
laundering throughout their worldwide operations. IBT, a private sector
bank, has policies and procedures that are monitored by its audit
division and by governmental entities responsible for
anti-money-laundering compliance. IBT has confirmed that it will
maintain EverTrust's compliance policies and procedures, which are
considered satisfactory by its regulators, and that it will conform
them to IBT's policies and procedures if those policies are the more
stringent. Return to text
7. See 12 U.S.C. § 1842(c)(3)(B). As
provided in Regulation Y, the Board determines whether a foreign
bank is subject to consolidated home-country supervision under the
standards set forth in Regulation K. See 12
CFR 225.13(a)(4). Regulation K provides that a foreign bank will
be considered subject to comprehensive supervision or regulation on a
consolidated basis if the Board determines that the bank is supervised
or regulated in such a manner that its home-country supervisor receives
sufficient information on the worldwide operations of the bank,
including its relationships to any affiliate, to assess the bank's
overall financial condition and its compliance with laws and
regulations. See 12 CFR 211.24(c)(1).
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8. See
International Commercial Bank of China Co
.,
Ltd., 92 Federal Reserve Bulletin C199
(2006);
Taiwan Cooperative Bank
, 92 Federal
Reserve Bulletin C201 (2006); SinoPac Holdings,
88 Federal Reserve Bulletin 307 (2002);
Chinatrust Financial Holding Company, Ltd., 88
Federal Reserve Bulletin 303 (2002); E. Sun
Commercial Bank Limited, 86 Federal Reserve
Bulletin 238 (2000); Chinatrust Commercial Bank,
Ltd., 84 Federal Reserve Bulletin 1121
(1998); Land Bank of Taiwan, 83 Federal
Reserve Bulletin 336 (1997); Taiwan Business Bank,
81 Federal Reserve Bulletin 746 (1995);
Farmers Bank of China, 81 Federal Reserve
Bulletin 620 (1995). The supervision of industrial banks and
commercial banks in Taiwan is substantially the same.
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9. See 12 U.S.C. § 1842(c)(3)(A).
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10. 12 U.S.C. § 2901 et seq.; 12 U.S.C.
§ 1842(c)(2).
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11. IBT also has committed that its subsidiaries will conform
their existing direct and indirect nonbanking activities and
investments, including by divestiture if necessary, to the requirements
of the BHC Act within two years of its acquisition of EverTrust. This
conformance period may, in the discretion of the Board, be extended by
up to three one-year extensions, taking into consideration the factors
set forth in section 4(a)(2) of the BHC Act (12 U.S.C.
§ 1843(a)(2)). IBT also has committed to ensure that, after
consummating its acquisition of EverTrust, neither IBT nor its
subsidiaries, directly or indirectly, will engage in new activities or
new lines of business or make additional investments in or acquire
entities that are inconsistent with the requirements of the BHC Act.
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