Two Distinct Duties: Holding Company vs. Bank Boards

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It wasn’t too long ago that banks were restricted from conducting business outside their home state.  But some institutions found a workaround: Bank holding companies offered a way to operate in multiple states, leading Congress to pass the Bank Holding Company Act of 1956. Regulators also wanted to limit banks’ ability to own nonbank firms like a manufacturing company or retailer, which could have allowed them to influence borrowers to patronize those subsidiaries or use deposits to make loans to those businesses, according to Joe Mahon of the Federal Reserve Bank of Minneapolis. 

Interstate banking has been the norm since the 1980s, and the Bank Holding Company Act has been modified several times since its 1956 passage. But generally, the law clarifies the purpose of a bank holding company and gives the Federal Reserve broad powers to supervise these companies. 

Recently, with the failure of Silicon Valley Bank, questions have been raised about a holding company’s role as a source of financial strength. The Santa Clara, California-based bank’s holding company, SVB Financial Group, remained in operation as of Sept. 7, 2023. 

But even in normal circumstances, a holding company presents distinct governance considerations for boards. 

Why Have a Bank Holding Company?
A bank holding company’s primary purpose is to hold stock, or ownership, in a bank. 

Banks don’t have to be held by a holding company — notable examples of banks without holding companies include Little Rock, Arkansas-based Bank OZK, with $31 billion in assets, and $87 billion Zions Bancorp., in Salt Lake City, which merged its holding company into its bank in 2018. Zions said at the time that the consolidation would improve efficiency and cut down on duplicative regulatory examinations. 

A holding company structure eases an organization’s ability to borrow or raise money, and “inject it down into the bank,” says Andrew Gibbs, a senior vice president at Mercer Capital who leads the advisory firm’s deposit institutions group. Equity plans, including employee stock ownership programs, could be easier to manage via a holding company. For smaller banks below $15 billion in assets, it also changes what counts as regulatory capital.

“One of the benefits of bank holding company status is the ability to count securities like trust preferred securities as regulatory capital,” says Gibbs. Zions and Bank OZK didn’t receive those capital advantages due to their size.

A holding company structure also allows a bank to engage in a broader array of activities. “A bank holding company can invest in any kind of company, so long as it holds less than 5% of voting stock of that company,” says Samantha Kirby, partner and co-chair of the banking and consumer financial services practice at Goodwin Procter. Those investments can include fintechs. In Bank Director’s 2023 Bank M&A Survey, conducted last fall, 9% of bank executives and board members reported that their organization had directly invested in fintech companies in 2021-22. 

If a bank holding company wants to offer a broader selection of financial services, such as investment banking or insurance, the board can elect to become a financial holding company, a separate designation created in 1999 via the Gramm–Leach–Bliley Act. 

A bank holding company can also serve as a financial source of strength for the bank, referencing a doctrine that was reinforced in Section 616 of the Dodd-Frank Act, which amended the Bank Holding Company Act. Put simply, the holding company should provide financial support to its insured bank subsidiary “in the event of the financial distress” of that institution. 

James Stevens, a Georgia-based partner at Troutman Pepper, witnessed a number of bank failures in that state during the 2008 financial crisis. Bank holding companies were expected to ensure their subsidiary bank had enough capital to survive. “If a subsidiary bank needs capital, and the bank holding company has additional capital that could be injected into the bank, it is supposed to push that capital into the bank under the source of strength doctrine,” he says. “If a bank holding company doesn’t do that, its board could be subject to criticism from regulators.”

Investors often prefer that capital be held at the holding company rather than at the bank. Gibbs explains that pulling capital out of the bank generally requires regulatory approval, so large capital activities — like dividends — are best handled at the holding company level. “It’s generally easier to keep [capital] at the holding company, and then you don’t need to deal with [the] regulatory process to extract it from the bank, if the bank has too much capital.”

Know Your Role
Both holding company and bank boards have the same fiduciary duties to shareholders, says Kirby, meaning the directors of both boards have a legal and ethical responsibility to act in the best interests of the company’s owners. That said, bank and holding company boards have distinct responsibilities, and directors should have a “clear understanding of whether they are serving on the bank board or on the holding company board, or both,” she says. It sounds basic, but sometimes that line isn’t clear.

Often, the boards mirror one another, but it’s not uncommon for a member or two to serve on just one of the boards. For example, it’s fairly routine for a private equity investor to only serve on the holding company board where they can focus on the overall direction of the company. And sometimes, the holding company and bank boards could be two entirely different groups. 

According to Bank Director’s 2023 Compensation Survey, holding companies and banks tend to have the same number of members, at a median of 10. Bank boards meet a little more frequently, at a median 12 times a year versus 10 meetings for the holding company board.

The bank board should focus on the bank’s activities — put simply, strategies, policies and risks related to the bank’s business of making loans and taking deposits. “Bank regulators will not find it acceptable if the bank holding company is the one that’s managing the risk,” says Stevens. “Same thing with audit and compliance management, and the scope of internal audit. … They want the bank board to be focused on those things.”  

Stevens describes the structure as one that’s “bottom up,” as the bank board makes important decisions about the business, and the holding company makes higher level decisions about strategy — capital allocation and deployment, or prospective M&A activity. “What’s the risk management framework? What’s our internal audit going to look like? Who has lending authority?” says Stevens. “That stuff has got to be at the bank.” 

The holding company typically can add or remove directors from the bank board. “The process and authority depend on the articles and bylaws of the bank,” says Stevens, “but generally the bank holding company, as the sole shareholder of the bank, has the power to change the composition of the bank board.”

Separate Agendas, Minutes
No matter the makeup of the holding company and bank boards, both Kirby and Stevens say it’s important that deliberations — which board is taking action on what — are clearly documented. 

Ideally, the bank board and the holding company board would have two distinct agendas, and two sets of minutes. 

Stevens sometimes sees mirrored boards make joint resolutions. But he says it can get complicated when the two boards aren’t composed of the same directors. “You have to be thoughtful, if you have separate groups, that you’ve got the right people in the room to make the decisions that impact those fundamental banking decisions.”

That isn’t to say that members of the holding company board won’t sit in on the bank board meeting, or vice versa, says Kirby. But, when it comes time for formal action, that should be taken by the appropriate board.

Revisit Your Structure
Choosing to adopt a bank or financial holding company structure — or not — should be a decision informed by the bank’s strategy. Kirby recommends that this be part of the board’s annual strategic discussions. Consider whether the bank has the right structure to pursue its strategic goals and facilitate its growth. 

While the difference between the two boards, holding company and bank, may appear trivial, getting governance right makes a difference on regulatory examinations. The board’s effectiveness factors into a bank’s CAMELS rating, short for capital adequacy, asset quality, management, earnings, liquidity and sensitivity to market risk. The board falls under the management pillar. 

“You want to have this buttoned up, and [you] don’t want to get criticized for it,” says Stevens. “If you’re being examined, and you’re on the cusp of being a three or a four, you don’t want the corporate governance issue to move you from a three to a four CAMELS rating. … It’s not a place for boards to be creative and make mistakes.”  

Additional Resources
Bank Director’s 2023 Compensation Survey, sponsored by Chartwell Partners, surveyed 289 independent directors, CEOs, human resources officers and other executives of U.S. banks below $100 billion in assets to understand how they’re addressing talent challenges, succession planning and CEO performance. Compensation data for directors, non-executive chairs and CEOs for fiscal year 2022 was also collected from the proxy statements of 102 public banks. Members of the Bank Services Program have exclusive access to the complete results of the survey, which was conducted in March and April 2023.

Bank Director’s 2023 Bank M&A Survey, sponsored by Crowe LLP, surveyed 250 independent directors, CEOs, chief financial officers and other senior executives of U.S. banks below $100 billion in assets to examine current growth strategies, particularly M&A. Members of the Bank Services Program can access the complete results of the survey, which was conducted in September 2022.

A Former Regulator Confronts Bears and More

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Jo Ann Barefoot’s personal story is almost as interesting as her professional one. She’s fly fished on five continents, searched for wolves in the Arctic and been charged by a bear. She joined the Office of the Comptroller of the Currency in 1978 and became the first woman to serve as a deputy comptroller. She also took on a specialty in consumer regulation before it was as large a focus in financial regulation as it is now.

Her career was going well enough, but she decided to take a break to write two novels and spend more time with her three children. That decision was critical to her success — she says it supercharged her right brain when she needed it most.

The creation of the Consumer Financial Protection Bureau in 2011 propelled her back into the workforce. Suddenly, consumer regulation was a hot topic, and she went to work as a consultant for the financial industry. She’s since started several businesses, served on the boards of financial technology companies and now works as CEO of a nonprofit she co-founded, the Alliance for Innovative Regulation, which aims to make the financial system inclusive, fair and resilient through the responsible use of new technology. The group organizes events to help solve mutual problems for regulators and the financial industry.

She talks about the challenges for regulators, the group’s work, and a recent gathering where participants stumbled on a child pornography case that the group referred to law enforcement. Since then, regulators have credited the event with changing the way they track down this type of crime. “There’s a place for boldness if we’re going to change the world today,” she says.

Hear more from this unique former regulator in this edition of The Slant Podcast.

This episode, and all past episodes of The Slant Podcast, are available on BankDirector.com, Spotify and Apple Music.

The Rustle About the Russell

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The upcoming annual Russell reconstitution is undoubtedly a frequent topic of conversation and concern for smaller public banks. For these institutions and potentially many others, recent regulatory updates provide a viable alternative.

On an annual basis, a team at FTSE Russell evaluates the composition of their indices and rebalances the portfolio of the top 3,000 companies. This “annual reconstitution” can produce an unfortunate side effect: smaller companies on the lower end of an index’s minimum market capitalization threshold may find that they no longer qualify for inclusion when the threshold increases. These firms can experience a semi-annual whipsaw — sometimes they make the cut, other times they don’t.

When a company is removed from “The Russell,” index fund managers no longer hold shares in that company. In fact, a Russell Index mutual fund manager would be in violation of several rules from the Securities and Exchange Commission if they trade in a ticker that no longer included in an index that they market themselves as tracking.

In simplest terms, when a company is bounced from the Russell, it’s bounced from the $11 trillion pool of index-fund portfolios. For smaller companies that tend to be otherwise thinly traded, this can be a major problem. Many banks that were removed from the Russell at the last re-balance saw a decrease of 30% in their stock, virtually overnight.

The One-Two Punch
Russell indices have a long list of securities they exclude. It is probably easier for most people to think of the composition of Russell’s US-based indices as including only public securities that are “listed” on an exchange, like the New York Stock Exchange and Nasdaq.

Maintaining an exchange listing can be a major ongoing commitment of a firm’s time and money. U.S. exchange listing fees are based on a bank’s market capitalization and total shares outstanding; listing additional shares and corporate actions incur added costs for banks.

So what happens when a listed company gets bounced from the Russell? Share prices drop because index funds begin selling positions en masse, and liquidity dries up as index funds buyers disappear. But the firm remains listed on the exchange, footing the bill for the related ongoing compliance overhead or face a de-listing. In turn, the firm ends up incurring all of the costs and reaps none of the benefits. 

Where to go from here?
Some estimates suggest that the minimum qualification criteria for some of Russell’s most popular indices will increase the minimum market cap from $250 million to about $299 million. For banks, this generally means over $2 billion in assets. This is an unfortunate fate for listed banks that may find themselves in the crosshairs; for dozens of others, it may mean further postponing plans for an IPO.

But an alternative does exist that smaller banks can uniquely benefit from. Recent overhauling of SEC Rule 15c2-11 positions the OTCQX Market as a regulated public market solution for U.S. regional and community banks. The market provides a cost-effective alternative that leverages bank regulatory reporting standards and can save banks around $500,000 a year compared to listing on an exchange.

Many of the banks that trade on OTCQX are under $350 million in market cap and can choose to provide liquidity for their shareholders through a network of recognized broker-dealers and market makers.

One key takeaway for management teams is that unless an institution can qualify for inclusion in the Russell and grow rapidly enough to keep up with annual reconstitutions, it may be time for them to re-evaluate the value of trading on listed exchanges.

The Topic That’s Missing From Strategic Discussions

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As of Oct. 8, 2021, the U.S. experienced 18 weather-related disasters with damages exceeding the $1 billion mark, according to the National Oceanic and Atmospheric Administration (NOAA). These included four hurricanes and tropical storms on the Gulf Coast — the costliest disaster, Hurricane Ida, totaled $64.5 billion, destroying homes and knocking out power in Louisiana before traveling north to cause further damage via flash flooding in New Jersey and New York. Out West, the financial damage caused by wildfires, heat waves and droughts has yet to be tallied but promises to be significant. More than 6.4 million acres burned, homes, vegetation and lives were destroyed, and a hydroelectric power plant outside Sacramento even shut down due to low water levels.

These incidents weren’t unique to 2021. In fact, the frequency of costly natural disasters — exceeding $1 billion, adjusted for inflation — have been ticking up since at least the 1980s.

 

Scientists at the NOAA and elsewhere point to climate change and increased development in vulnerable areas such as coastlines as the cause of these more frequent, costlier disasters, but bank boards aren’t talking about the true risks they pose to their institutions. Bank Director’s 2021 Risk Survey, conducted in January, found just 14% of directors and senior executives reporting that their board discusses the risks associated with climate change at least annually. An informal audience poll at Bank Director’s Bank Audit & Risk Committees Conference in late October confirmed little movement on these discussions, despite attention from industry stakeholders, including regulators and investors that recognize the risks and opportunities presented by climate change.

These include acting Comptroller of the Currency Michael Hsu, who on Nov. 3 announced his agency’s intent to “develop high-level climate risk management supervisory expectations for large banks” above $50 billion in assets along with guidance by the end of the year. He followed that announcement with a speech a few days later that detailed five questions every bank board should ask about climate change. While his comments — and the upcoming guidance — focus on larger institutions, smaller bank boards would benefit from these discussions.

Hsu’s first two questions for boards center on the bank’s loan portfolio: “What is our overall exposure to climate change?” and “Which counterparties, sectors or locales warrant our heightened attention and focus?” Hsu prompts banks to dig into physical risks: the impacts of more frequent severe weather events on the bank’s markets and, by extension, the institution itself. He also asks banks to look at transition risks: reduced demand and changing preferences for products and services in response to climate change. For example, auto manufacturers including General Motors Co. and Ford Motor Co. announced in November that they plan to achieve zero emissions by 2040; those shifts promise broad impacts to the supply chain as well as gas stations across the country due to reduced demand for fuel.

Consider your bank’s geographic footprint and client base: What areas are more susceptible to frequent extreme weather events, including hurricanes, floods, wildfires and droughts? How many of your customers depend on carbon intensive industries, and will their business models be harmed with the shift to clean energy? These are the broad strategic areas where Hsu hopes boards focus their attention.

But the changes required in transitioning to a clean economy will also result in new business models, new products and services, and the founding and growth of companies across the country. It’s the other side to the climate change coin that prompts another question from Hsu: “What can we do to position ourselves to seize opportunities from climate change?”

Some large investors agree. In Larry Fink’s 2021 letter to CEOs, the head of BlackRock reaffirmed the value the investment firm places on climate change, noting the opportunities along with the risks. “[W]e believe the climate transition presents a historic investment opportunity,” he wrote in January. “There is no company whose business model won’t be profoundly affected by the transition to a net zero economy – one that emits no more carbon dioxide than it removes from the atmosphere by 2050. … As the transition accelerates, companies with a well-articulated long-term strategy, and a clear plan to address the transition to net zero, will distinguish themselves with their stakeholders.”

Some banks are positioning themselves to be early movers in this space. These include $187 billion Citizens Financial Group, which launched a pilot green deposit program in July 2021 that ties interest-bearing commercial deposits to a sustainable-focused lending portfolio. The challenger bank Aspiration launched a credit card in November that plants two trees with every purchase. And $87 million Climate First Bank opened its doors over the summer, offering residential and commercial solar loans, and financing environmentally-friendly condo upgrades. Climate First is founder and CEO Kenneth LaRoe’s second bank focused on the environment, and he sees a wide range of opportunities. “I call myself a rabid environmentalist — but I’m a rabid capitalist, too,” he told Bank Director magazine earlier this year.

 

Select Green Initiatives Announced in 2021

Source: Bank press releases and other public information

Climate First Bank (St. Petersburg, Florida)
Specialized lending to finance sustainable condo retrofits and residential/commercial solar loans; contributes 1% of revenues to environmental causes.

Citizens Financial Group (Providence, Rhode Island)
Launched pilot green deposit program in July 2021, totaling $85 million as of Sept. 30, 2021.

Aspiration (Marina Del Rey, California)
Fintech introduced Aspiration Zero Credit Card, earning cash back rewards and planting two trees with every purchase.

JPMorgan Chase & Co. (New York)
Designated “Green Economy” team to support $1 trillion, 10 year green financing goal.

Bank of America Corp. (Charlottesville, North Carolina)
Increased sustainable finance target from $300 million to $1.5 trillion by 2030.

Fifth Third Bancorp (Cincinnati, Ohio)
Issued $500 million green bond to fund green building, renewable energy, energy efficiency and clean transportation projects.

 

Boards that don’t address climate change as a risk in the boardroom will likely overlook strategic opportunities. “Banks that are poorly prepared to identify climate risks will be at a competitive disadvantage to their better-prepared peers in seizing those opportunities when they arise,” Hsu said.

Hsu offered two additional questions for bank boards in his speech. “How exposed are we to a carbon tax?”references the price the U.S. government could place on greenhouse gas emissions; however, he also stated that the passage of such a tax in the near future is unlikely. The other, “How vulnerable are our data centers and other critical services to extreme weather?” certainly warrants attention from the board and executive team as part of any bank’s business continuity and disaster recovery planning.

Most management teams won’t be able to answer broader, strategic questions on climate initially, Hsu said, but that shouldn’t keep boards from asking them. “Honest responses should prompt additional questions, rich dialogue, discussions about next steps and management team commitments for action at future board meetings,” Hsu stated. “By this time next year, management teams hopefully should be able to answer these questions with greater accuracy and confidence.”

Complacency Becomes a Major Risk

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One word seems to encapsulate concerns about banker attitudes’ toward risk in 2022: complacency.

As the economy slowly — and haltingly — normalizes from the impact of the coronavirus pandemic, bankers must ensure they hew to risk management fundamentals as they navigate the next part of the business cycle. Boards and executives must remain vigilant against embedded and emerging credit risks, and carefully consider how they will respond to slow loan growth, according to prepared remarks from presenters at Bank Director’s Bank Audit & Risk Committees Conference, which opens this week at the Swissotel Chicago. Regulators, too, want executives and directors to shift out of crisis mode back to the essentials of risk management. In other words, complacency might be the biggest danger facing bank boards and executives going into 2022.

The combination of government stimulus and bailouts, coupled with the regulatory respite during the worst of the pandemic, is “a formula for complacency” as the industry enters the next phase of the business cycle, says David Ruffin, principal at IntelliCredit, a division of QwickRate that helps financial institutions with credit risk management and loan review. Credit losses remained stable throughout the pandemic, but bankers must stay vigilant, as that could change.

“There is an inevitability that more shakeouts occur,” Ruffin says. A number of service and hospitality industries are still struggling with labor shortages and inconsistent demand. The retail sector is grappling with the accelerated shift to online purchasing and it is too soon to say how office and commercial real estate will perform long term. It’s paramount that bankers use rigorous assessments of loan performance and borrower viability to stay abreast of any changes.

Bankers that remain complacent may encounter heightened scrutiny from regulators. Guarding against complacency was the first bullet point and a new item on the Office of the Comptroller of the Currency’s supervisory operating plan for fiscal year 2022, which was released in mid-October. Examiners are instructed to focus on “strategic and operational planning” for bank safety and soundness, especially as it concerns capital, the allowance, net interest margins and earnings.

“Examiners should ensure banks remain vigilant when considering growth and new profit opportunities and will assess management’s and the board’s understanding of the impact of new activities on the bank’s financial performance, strategic planning process, and risk profile,” the OCC wrote.

“Frankly, I’m delighted that the regulators are using the term ‘complacency,’” Ruffin says. “That’s exactly where I think some of the traps are being set: Being too complacent.”

Gary Bronstein, a partner at the law firm Kilpatrick Townsend & Stockton, also connected the risk of banker complacency to credit — but in underwriting new loans. Banks are under immense pressure to grow loans, as the Paycheck Protection Program winds down and margins suffer under a mountain of deposits. Tepid demand has led to competition, which could lead bankers to lower credit underwriting standards or take other risks, he says.

“It may not be apparent today — it may be later that it becomes more apparent — but those kinds of risks ought to be carefully looked at by the board, as part of their oversight process,” he says.

For their part, OCC examiners will be evaluating how banks are managing credit risk in light of “changes in market condition, termination of pandemic-related forbearance, uncertainties in the economy, and the lasting impacts of the Covid-19 pandemic,” along with underwriting for signs of easing structure or terms.

The good news for banks is that loan loss allowances remain high compared to historical levels and that could mitigate the impact of increasing charge-offs, points out David Heneke, principal at the audit, tax and consulting firm CliftonLarsonAllen. Banks could even grow into their allowances if they find quality borrowers. And just because they didn’t book massive losses during the earliest days of the pandemic doesn’t mean there aren’t lessons for banks to learn, he adds. Financial institutions will want to carefully consider their ongoing concentration risk in certain industries, explore data analytics capabilities to glean greater insights about customer profitability and bank performance and continue investing in digital capabilities to reflect customers’ changed transaction habits.

New Rule Settles a Vexing Problem for Bank Exams

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One of the most contentious aspects of post-financial crisis bank examinations under the administration of President Barack Obama just got resolved.

A new set of rules implemented this year confirm a rather simple and straightforward idea: Supervisory guidance and bank regulations are different. It attempts to address concerns from banking trade groups that the regulators sometimes used supervisory guidance in place of a formal rule in examination feedback — in short, that supervisory guidance effectively substituted as a rule — and has implications for how supervisory guidance should be used going forward.

“I think there was a growing concern that [regulators] were using the soft guidance as a means of enforcing hard requirements,” says Charles Horn, a regulatory and transaction attorney at Morgan Lewis. He cites the supervisory guidance around leveraged lending as one example of guidance that created concern and confusion for the banking industry.

The Rule
The rules, which build on a 2018 interagency statement, were passed by the individual bank regulatory agencies — the Office of the Comptroller of the Currency, the Federal Deposit Insurance Corp., the Consumer Financial Protection Bureau and the Federal Reserve — at different times but feature similar language. They specify that supervisory guidance does not establish rules that have the force and effect of law, in contrast to rules that undergo the rulemaking process that includes notice and comment periods, according to notice from the law firm Covington. A regulator’s examination staff cannot use supervisory guidance as the basis for issuing the dreaded report known as a “Matter Requiring Attention” or for any other enforcement action or report of noncompliance.

Both the Fed’s and OCC’s rules state that its examiners will not base supervisory criticisms or enforcement actions on a “violation” of or “non-compliance with” supervisory guidance, and will limit the use of thresholds or other “bright-lines” included in supervisory guidance expectations.

“Unlike a law or regulation, supervisory guidance does not have the force and effect of law,” stated the OCC in January 2021 and the Federal Reserve in March of the same year. “Rather, guidance outlines expectations and priorities, or articulates views regarding appropriate practices for a specific subject.”

There are several reasons why regulators issue supervisory guidance. Guidance can educate and inform the agency’s examiners, and could be shared with banks so that both groups are on the same page. Regulators may also issue guidance on issues that are too timely or trivial to merit rulemaking. Sometimes, banks ask regulators to provide guidance or insights on an issue. It can come in many shapes and forms: bank bulletins, frequently asked questions and circulars, among others. Most pieces of supervisory guidance are not issued with a notice and comment period.

“It’s remarkable how much guidance the agencies have issued over the years,” says Greg Baer, president and CEO of the Bank Policy Institute, a research organization whose membership includes some of the biggest banks in the country. The BPI was one of the groups that formally petitioned the agencies to turn the 2018 interagency statement into a rule.

Unlike rules, supervisory guidance wasn’t supposed to be binding. But if a bank examiner treated it as binding, it could pressure bank executives to adopt the same approach. Bank trade groups became concerned that examiners could cite situations where the bank was not following supervisory guidance as the reason for issuing an MRA. MRAs fall below the seriousness of enforcement actions like consent orders, but examiners still expect banks to respond to and address them. Failure to address an MRA can generate subsequent MRAs or contribute to more formal administrative actions.

Of course, a rule on the paper could be different than a rule that is applied and enforced during an exam. It may be too soon to know if the rule has made an impact on exams. The impetus for the new rules began under the administration of President Donald Trump, although many of the rules were finalized at the start of President Joe Biden’s administration. The change in administrations and continued regulatory adjustments made in response to the coronavirus pandemic means that the agencies could still be in an adjustment period. It may take some time for the edict to trickle down from the agency heads to the front-line examiners. Bank executives and boards may also need time to learn about the rule and how it might apply to feedback they’ve received from examiners.

Bank examinations are famously secret. And while bankers and directors may have more leeway to ask for clarification on examination feedbacks or even appeal the findings of the report, especially if feedback cites supervisory guidance, they may not feel comfortable doing so to maintain good relationships with their regulators and examiners. Horn, for his part, expects banks to be cautious about challenging examination actions even with this new rule.

“Banks do value good relationships with the regulators, and there are a number of banks that don’t want to take the risk of pushing back against regulatory criticism unless they think it’s important,” he says. “Personally I think [the rule] can be helpful, but we don’t know how helpful it will be until we can see how this plays out over the coming months and, frankly, the coming years.”

Strengthening Stress Tests After Covid-19

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Banks below $50 billion in assets aren’t required to conduct an annual stress test, following regulatory relief passed by Congress in May 2018. But most banks still conduct one or more annual tests, according to Bank Director’s 2021 Risk Survey.

A stress test determines whether a bank would have adequate capital or liquidity to survive an adverse event, based on historical or hypothetical scenarios. Financial institutions found value in the practice through the Covid-19 pandemic and related economic events, which created significant uncertainty around credit — particularly around commercial real estate loans and loans made to the hospitality sector, which includes hotels and restaurants.

“It gives you a peace of mind that we are prepared for some pretty big disasters,” says Craig Dwight, chair and CEO at $5.9 billion Horizon Bancorp, based in Michigan City, Indiana. Horizon disclosed its stress test results in third quarter 2020 to reassure its investors, as well as regulators, customers and its communities, about the safety and soundness of the bank. “We were well-capitalized, even under two-times the worst-case scenario,” he says. “[T]hat was an important message to deliver.”

Horizon Bancorp has been stress testing for years now. The two-times worst case scenario he mentions refers to loss history data from the Office of the Comptroller of the Currency; the bank examines the worst losses in that data, and then doubles those losses in a separate analysis. Horizon also looks at its own loan loss history.

The bank includes other data sets, as well. Dwight’s a big fan of the national and Midwest leading indicators provided by the Federal Reserve Bank of Chicago; each of those include roughly 18 indicators. “It takes into consideration unemployment, bankruptcy trends, the money supply and the velocity of money,” he says.

It’s a credit to the widespread adoption of stress testing in the years following the financial crisis of 2008-09. “All the infrastructure’s in place, so [bank management teams] can turn on their thinking fairly quickly, and [they] aren’t disconnected [from] what’s happening in the world,” says Steve Turner, managing director at Empyrean Solutions, a technology provider focused on financial risk management.

However, Covid-19 revealed the deficiencies of an exercise that relies on historical data and economic models that didn’t have the unexpected — like a global pandemic — in mind. In response, 60% of survey respondents whose bank conducts an annual stress test say they’ve expanded the quantity and/or depth of economic scenarios examined in this analysis.

“We have tested pandemics, but we really haven’t tested a shutdown of the economy,” says Dwight. “This pandemic was unforeseen by us.”

Getting Granular
The specific pain points felt by the pandemic — which injured some industries and left others thriving — had banks getting more granular about their loan portfolios. This should continue, says Craig Sanders, a partner at Moss Adams LLP. Moss Adams sponsored Bank Director’s 2021 Risk Survey.

Sanders and Turner offer several suggestions of how to strengthen stress testing in the wake of the pandemic. “[D]issect the portfolio … and understand where the risks are based on lending type or lending category,” says Sanders. “It’s going to require the banks to partner a little more closely with their clients and understand their business, and be an advisor to them and apply some data analytics to the client’s business model.” How will shifting behaviors affect the viability of the business? How does the business need to adjust in response?

He recommends an annual analysis of the entire portfolio, but then stratifying it based on the level of risk. High risk areas should be examined more frequently. “You’re focusing that time, energy and capital on the higher-risk areas of the bank,” says Sanders.

The survey finds two-thirds of respondents concerned about overconcentrations in their bank’s loan portfolio, and 43% of respondents worried specifically about commercial real estate loan concentrations. This represents a sharp — but expected — increase from the prior year, which found 78% expressing no concerns about portfolio concentrations.

We’re still not out of the woods yet. Many companies are now discussing what their workplace looks like in the new environment, which could have them reducing office spaces to accommodate remote workers. If a bank’s client has a loan on an office space, which they then rent to other businesses, will they be able to fill the building with new tenants?

If this leads to defaults in 2021-22, then banks need to understand the value of any loan collateral, says Sanders. “Is the collateral still worth what we think it was worth when we wrote the loan?”

It’s hard to predict the future, but Sanders says executives and boards need to evaluate and discuss other long-term effects of the pandemic on the loan portfolio. Today’s underlying issues may rise to the surface in the next couple of years.

Knowing What Will Break Your Bank
Stress testing doesn’t tend to focus on low-probability events — like the pandemic, which (we hope) will prove to be a once-in-a-lifetime occurrence. Turners says bank leaders need to bring a broader, more strategic focus to events that could “break” their bank. That could have been the pandemic, without the passage of government support like the CARES Act.

It’s a practice called reverse stress testing.

“Reverse stress testing helps to explore so-called ‘break the bank’ situations, allowing a banking organization to set aside the issue of estimating the likelihood of severe events and to focus more on what kinds of events could threaten the viability of the banking organization,” according to guidance issued by the Federal Reserve, Federal Deposit Insurance Corp. and OCC in 2012. The practice “helps a banking organization evaluate the combined effect of several types of extreme events and circumstances that might threaten the survival of the banking organization, even if in isolation each of the effects might be manageable.”

Statistical models that rely on historical norms are less useful in an unforeseen event, says Turner. “[I]f someone told you in February of 2020 that you should be running a stress test where the entire economy shuts down, you’d say, ‘Nah!’” he says. “What are the events, what are the scenarios that could happen that will break me? And that way I don’t have to rely on my statistical models to explore that space.”

Testing for black swan events that are rare but can have devastating consequences adds another layer to a bank’s stress testing approach, says Turner. These discussions deal in hypotheticals, but they should be data driven. And they shouldn’t replace statistical modeling around the impact of more statistically normal events on the balance sheet. “It’s not, ‘what do we replace,’” says Turner, “but, ‘what do we add?’”

With stress testing, less isn’t more. “My advice is to run multiple scenarios, not just one stress test. For me, it’s gotta be the worst-case stress test,” says Dwight. And stress testing can’t simply check a box. “Can you sleep at night with that worst case scenario, or do you have a plan?”

Bank Director’s 2021 Risk Survey, sponsored by Moss Adams LLP, 188 independent directors, chief executive officers, chief risk officers and other senior executives of U.S. banks below $50 billion in assets. The survey was conducted in January 2021, and focuses on the key risks facing the industry today and how banks will emerge from the pandemic environment.

Bank Director has published several recent articles and videos about stress testing, including an Online Training Series unit on stress testing. You may also consider reading “Recalibrating Bank Stress Tests to a New Reality.”

The Coming Buyback Frenzy

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Capital planning is examined as part of Bank Director’s Inspired By Acquire or Be Acquired. Click here to access the content on BankDirector.com.

The banking industry hasn’t been this well capitalized in a long time. In fact, you have to go back to the 1940s — almost 80 years ago — before you find a time in history when the tangible common equity ratio was this high, says Tom Michaud, president and CEO of investment bank Keefe, Bruyette & Woods, during a presentation for Bank Director’s Inspired By Acquire or Be Acquired platform.

That ratio for FDIC-insured banks has nearly doubled since 2008, he says, reaching 8.5% as of Sept. 30, 2020, says Michaud.

A big part of the industry’s high levels of capital goes back to the passage of the Dodd-Frank Act in 2010, the Congressional response to the financial crisis of 2008-09. Because of that law, banks must maintain new regulatory capital and liquidity ratios that vary based on their size and complexity.

During the pandemic, banks were in much better shape. You can see the impact by looking at the capital ratios of just a handful of big banks. Citigroup, for example, had a tangible common equity ratio in the third quarter of 2020 that was nearly four times what it was in 2008, Michaud says.

With a deluge of government aid and loans such as the Paycheck Protection Program, the industry’s losses during the pandemic have been minimal so far. The Federal Deposit Insurance Corp. has closed just four banks, far fewer than the deluge of failures that took place during the financial crisis. So far, financial institutions have maintained their profitability. Almost no banks that pay a dividend cut theirs last year.

Meanwhile, regulators required many of the large banks, which face extra scrutiny and stress testing compared to smaller banks, to halt share repurchases and cap dividends last year, further pumping up capital levels.

That means that banks have a lot of capital on their books. Analysts predict a wave of share repurchases in the months ahead as banks return capital to shareholders.

“The banking industry continues to make money,” said Al Laufenberg, a managing director at KBW, during another Bank Director session. “The large, publicly traded companies are coming out with statements saying, ‘We have too much capital.’”

Investors have begun to ask more questions about what banks are doing with their capital. “We see investors getting a little bit more aggressive in terms of questions,” he says. “‘What are you going to do for me?”

Bank of America Corp. already has announced a $2.9 billion share repurchase in the first quarter of 2021. In fact, KBW expects all of the nation’s universal and large regional banks to repurchase shares this year, according to research by analysts Christopher McGratty and Kelly Motta. They estimate the universal banks will buy back 7.3% of shares in 2021, while large regionals will buy back 3.5% of shares on average. On Dec. 18, 2020, the Federal Reserve announced those banks would again be allowed to buy back shares after easing earlier restrictions.

Regulators didn’t place as many restrictions during the pandemic on small- and medium-sized banks, so about one-third of them already bought their own stock in the fourth quarter of 2020, according to McGratty.

In terms of planning, banks that announce share repurchases don’t have to do them all at once, Laufenberg says. They can announce a program and then buy back stock when they determine the pricing is right.

Shareholders can benefit when banks buy back stock because that can reduce outstanding shares, increasing the value of individual shares, as long as banks don’t buy back stock when the stock is overvalued. Although bank stock prices compared to tangible book value and earnings have returned to pre-Covid levels, the KBW Regional Banking Index (KRX) has underperformed broader market indices during the past year, making an argument in favor of more repurchases.

Robert Fleetwood, a partner and co-chair of the financial institutions group at the law firm Barack Ferrazzano Kirschbaum & Nagelberg LLP, who spoke on the Bank Director session with Laufenberg, cautions bank executives to find out if their regulators require pre-approval. Every Federal Reserve region is different. Regulators want banks to have as much capital as possible, but Fleetwood says they understand that banks may be overcapitalized at the moment.

High levels of capital will help banks grow in the future, invest in technology, add loans and consolidate. For the short term, though, investors in bank stocks may be the immediate winners.

When it Comes to Loan Quality, Who Knows?

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Seven months into the Covid-19 pandemic, which has flipped the U.S. economy into a deep recession, it’s still difficult to make an accurate assessment of the banking industry’s loan quality.

When states locked down their economies and imposed shelter-in-place restrictions last spring, the impact on a wide range of companies and businesses was both immediate and profound. Federal bank regulators encouraged banks to offer troubled borrowers temporary loan forbearance deferring payments for 90 days or more.

The water was further muddied by passage of the $2.2 trillion CARES Act, which included the Paycheck Protection Program – aimed at a broad range of small business borrowers – as well as weekly $600 supplemental unemployment payments, which enabled individuals to continuing making their consumer loan repayments. The stimulus made it hard to discriminate between borrowers capable of weathering the storm on their own and those kept afloat by the federal government.

The CARES Act undoubtedly kept the recession from being even worse, but most of its benefits have expired, including the PPP and supplemental unemployment payments. Neither Congress nor President Donald Trump’s administration have been able to agree on another aid package, despite statements by Federal Reserve Chairman Jerome Powell and many economists that the economy will suffer even more damage without additional relief. And with the presidential election just two months away, it may be expecting too much for such a contentious issue to be resolved by then.

“We expect charge-offs to increase rapidly as borrowers leave forbearance and government stimulus programs [end],” says Andrea Usai, associate managing director at Moody’s Investors Service and co-author of the recent report, “High Volume of Payment Deferrals Clouds a True Assessment of Credit Quality.”

Usai reasons that if there’s not a CARES Act II in the offing, banks will become more selective in granting loan forbearance to their business borrowers. Initially, banks were strongly encouraged by their regulators to offer these temporary accommodations to soften the blow to the economy. “And the impression that we have is that the lenders were quite generous in granting some short-term relief because of the very, very acute challenges that households and other borrowers were facing,” Usai says.

But without another fiscal relief package to help keep some of these businesses from failing, banks may start cutting their losses. That doesn’t necessarily mean the end of loan forbearance. “They will continue to do that, but will be a little more careful about which clients they are going to further grant this type of concessions to,” he says.

For analysts like Usai, getting a true fix on a bank’s asset quality is complicated by the differences in disclosure and forbearance activity from one institution to another.  “Disclosure varies widely, further limiting direct comparisons of practices and risk,” the report explains. “Disclosure of consumer forbearance levels was more comprehensive than that of commercial forbearance levels, but some banks reported by number of accounts and others by balance. Also, some lenders reported cumulative levels versus the current level as of the end of the quarter.”

Usai cites Ally Financial, which reported that 21% of its auto loans were in forbearance in the second quarter, compared to 12.7% for PNC Financial Services Group and 10% for Wells Fargo & Co. Usai says that Ally was very proactive in reaching out to its borrowers and offering them forbearance, which could partially explain its higher percentage.

“The difference could reflect a different credit quality of the loan book,” he says. “But also, this approach might have helped them materially increase the percentage of loans in forbearance.” Without being able to compare how aggressively the other banks offered their borrowers loan forbearance, it’s impossible to know whether you’re comparing apples to apples — or apples to oranges.

If loan charge-offs do begin to rise in the third and fourth quarters of this year, it doesn’t necessarily mean that bank profits will decline as a result. The impact to profitability occurs when a bank establishes a loss reserve. When a charge-off occurs, a debit is made against that reserve.

But a change in accounting for loss reserves has further clouded the asset quality picture for banks. Many larger institutions opted to adopt the new current expected credit losses (CECL) methodology at the beginning of the year. Under the previous approach, banks would establish a reserve after a loan had become non-performing and there was a reasonable expectation that a loss would occur. Under CECL, banks must establish a reserve when a loan is first made. This forces them to estimate ahead of time the likelihood of a loss based on a reasonable and supportable future forecast and historical data.

Unfortunately, banks that implemented CECL this year made their estimates just when the U.S. economy was experiencing its sharpest decline since the Great Depression and there was little historical data on loan performance to rely upon. “If their assumptions about the future are much more pessimistic then they were in the previous quarter, you might have additional [loan loss] provisions being taken,” Usai says.

And that could mean that bank profitability will take additional hits in coming quarters.

Evolving Considerations in the CECL Countdown

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CECL-7-23-19.pngExecutives gearing up for the transition to the new loan loss accounting standard need to understand their methodologies and be prepared to explain them.

Many banks are well underway in their transition to the current expected credit loss methodology, or CECL, and coming up with a preliminary allowance estimate under the new standard. CECL will require banks to book their allowance based on expected credit losses for the life of their assets, rather than when the loss has been incurred.

The standard goes into effect for some institutions in 2020, which is slightly more than six months away. To prepare, executives are reviewing their bank’s initial CECL allowance, beginning to operationalize their process and preparing the documentation around their decision-making and approach. As they do this, they will need to keep in mind the following key considerations:

Bankers will need time to review their bank’s preliminary results and make adjustments as appropriate. Banks may be surprised by their initial allowance adjustments under CECL. Some banks with shorter-term portfolios have disclosed that they expect a decrease of their allowance under CECL, compared to the incurred loss estimate.

Some firms may find that they do not have the data needed to segment assets at the level they initially intended or to use certain loan loss methodologies. These findings will require a bank to spend more time evaluating different options, such as identifying simpler methodologies or switching to a segmentation approach that is less granular.

These preliminary CECL results may take longer to analyze and understand. Executives will need to understand how the assumptions the bank made influence the allowance. These assumptions include the periods from which the bank gathered its historical loss information for each segment, the reasonable and supportable forecast period, the reversion period, its prepayment assumptions, the contractual life of its loans—and how these interact. Bankers need to leave enough time for their institutions to iterate through this process and become comfortable with their results.

Incorporate less material or non-mainline loan asset classes into the overall process. Many banks spent last year determining and analyzing various loan loss methodologies and how those approaches would potentially impact their larger and more material asset classes. They should now broaden their focus to include less material or non-mainline asset classes as well.

Banks may be able to use a simplified methodology for these assets, but they will still need to be integrated into the bank’s core CECL process to satisfy internal controls and management and financial reporting.

Own the model and calculations. Executives will need to support their methodology elections and model calculations. This means they will need to explain the data and detailed calculations they used to develop their bank’s CECL estimate. It includes documenting why they decided that certain models or methodologies were the most appropriate for their institution and for specific portfolios, how they came to agree upon their key assumptions and what internal processes they use to validate and monitor their model’s performance.

Auditors and regulators expect the same level of scrutiny from executives whether the bank uses an internally developed model, engages with a vendor or purchases peer data. Executives may need specialized resources or additional internal governance and oversight to aid this process.

Know the qualitative adjustments. Qualitative adjustments may shift in the transition from an incurred loss approach to an expected lifetime one. Executives will need a deep understanding of the bank’s portfolios and how their concentration of risk has changed over time. They will also need to have an in-depth knowledge of the models and calculations their bank uses to determine the CECL allowance, so they can understand which credit characteristics and macro-economic variables are contemplated in the models. This knowledge will inform the need for additional qualitative adjustments.

Anticipate stakeholder questions. CECL adoption will require most banks to take a one-time capital charge to adjust the allowance. Executives will need to explain this charge to internal and external stakeholders. Moving from a rate versus volume attribution to a more complex set of drivers of the allowance estimate, including the incorporation of forecasted conditions, will require the production of additional analytics to properly assess and report on the change. Executives will need ensure their bank has proper reporting framework and structure to produce analytics at the portfolio, segment and, ultimately, loan level.