Tips for Effectively Discussing Mergers with Regulators

A bank’s positive, cooperative relationship with its banking regulators is particularly important when seeking regulatory approval for significant transactions, including mergers. An effective communications strategy that promotes an open, consistent and prompt flow of information, specific regulatory issues and areas of risk under review is key to maintaining a good relationship before, during and after the application review process.

Communicate Before Announcing
A successful merger communications strategy should begin after a letter of intent is executed ¾ that is, before a merger agreement is signed. The acquiring and target banks’ senior management should separately contact their respective regulators ¾ confidentially ¾ to discuss the transaction. This initial outreach is the first opportunity to establish the legal, financial and transactional narratives needed to support a merger’s goals, so receiving input from the investment bankers and legal counsel is essential.

Pre-announcement discussions often occur with the banks’ supervisory staffs, rather than specialized merger review staff. These discussions are designed to solicit initial responses to the potential merger and get a sense about whether the merger will be viewed favorably by the regulators. This is not intended to discuss application issues.

During these discussions, the banks should focus on:

1. Communicating a coordinated plan for safe and sound integration, consistent with financial metrics, legal requirements and regulatory expectations.

2. Exploring how the banks will manage potential supervisory issues or risks that may result from combined operations.

Coordinating Pre-Filing Meetings
Following execution and announcement of the merger agreement, legal counsel for the acquiror should coordinate pre-filing meetings with the federal regulatory staffs responsible for approving an application. We recommend separate pre-filing meetings with each banking regulator that will review the application, including the acquiring bank’s primary federal regulator, chartering authority and Federal Reserve Bank staff (if a holding company is involved). Legal counsel and bank management should ensure appropriate regulatory staff attend the pre-filing meeting, which may include the application/activities, risk management, compliance, legal and supervision teams.

In the pre-filing meeting, legal counsel should be prepared to discuss the following points, which should be consistent with and expand upon the merger communications strategy established during the pre-announcement discussions:

• The banks’ backgrounds and supervisory postures.
• Merger transaction structures.
• Post-merger corporate governance plans.
• High-level overviews of integration plans, including products and services, community investment, data conversion and any plans for branch consolidation or closure.
• Expectations for the regulatory approval timeline and target closing date.

Legal counsel should pay close attention to the statutory framework for merger approval and the specific considerations that each regulator discusses in its application guidance. Knowing these considerations can help the banks anticipate pointed questions from regulatory staff and establish a solid working rapport.

Drafting Regulatory Applications
Legal counsel should integrate the merger communications strategy into application disclosures, revising to account for feedback from the pre-filing meetings. After submitting the applications, legal counsel and bank senior management should continue to emphasize and refine the communications strategy through regular outreach to the assigned application review teams.

In the current regulatory environment, the application review process generally entails more information requests. These requests should be responded to as soon as possible, reinforcing the cooperative nature of the regulatory relationship and emphasizing the main points of the merger communications strategy.

An important part of a successful merger communications strategy involves avoiding inconsistent responses that could significantly delay the application review. If an inconsistency arises, legal counsel and the banks should promptly formulate an approach to get communications back on track and resolve the issue with the applications review team.

Handling Adverse Public Comments
Banks should plan for adverse public comments during the application review process and avoid letting such comments derail the merger communications strategy.

Regulators must proceed with the prescribed review process and examine the claims, even if weak or unsubstantiated. Legal counsel should use this as an advocacy opportunity by reinforcing the main points of the merger communications strategy while refuting the procedural grounds and substantive claims of the adverse comment.

Nearing the Finish Line
As closing nears, legal counsel should maintain an open and regular line of communication with the application review teams ¾ consistent with the merger communications strategy ¾ to ensure that all parties are operating based on the same information and understand corporate legal requirements and systems integration timeframes.

Once all prerequisite approvals have been obtained, legal counsel should continue to keep regulators informed, providing updates on a deal’s progress leading up to the closing date, resolution of any approval conditions and operational integration status.