Following the filing of a lawsuit by the American Bankers Association (ABA) and others, on January 14, 2014 five federal agencies approved an interim final rule to permit banking entities to retain interests in certain collateralized debt obligations backed primarily by trust preferred securities (TruPS CDOs) from the investment prohibitions of Section 619 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, known as the Volcker rule. Under the interim final rule, the agencies permit the retention of an interest in, or sponsorship of, covered funds by banking entities if the following qualifications are met: 

• the TruPS CDO was established, and the interest was issued, before May 19, 2010;

• the banking entity reasonably believes that the offering proceeds received by the TruPS CDO were invested primarily in Qualifying TruPS Collateral; and

• the banking entity’s interest in the TruPS CDO was acquired on or before December 10, 2013, the date the agencies issued final rules implementing Section 619 of the Dodd-Frank Act.  

The interim final rule defines Qualifying TruPS Collateral as any trust preferred security or subordinated debt instrument that was: 

• issued prior to May 19, 2010, by a depository institution holding company that as of the end of any reporting period within 12 months immediately preceding the issuance of such trust preferred security or subordinated debt instrument had total consolidated assets of less than $15 billion; or

• issued prior to May 19, 2010, by a mutual holding company.  

Section 171 of the Dodd-Frank Act provides for the grandfathering of trust preferred securities issued before May 19, 2010, by certain depository institution holding companies with total assets of less than $15 billion as of December 31, 2009, and by mutual holding companies established as of May 19, 2010. The TruPS CDO structure was the vehicle that gave effect to the use of trust preferred securities as a regulatory capital instrument prior to May 19, 2010, and was part of the status quo that Congress preserved with the grandfathering provision of Section 171. The interim final rule also provides clarification that the relief relating to these TruPS CDOs “extends to activities of the banking entity as a sponsor or trustee for these securitizations and that banking entities may continue to act as market makers in TruPS CDOs.” 

The interim final rule was approved by the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, the Office of the Comptroller of the Currency, the Commodity Futures Trading Commission, and the Securities and Exchange Commission, the same agencies that issued final rules to implement Section 619. The agencies will accept comment on the interim final rule for 30 days following publication of the interim final rule in theFederal Register.  

Following issuance of the interim final rule, the ABA dropped its request for emergency relief, but indicated that the lawsuits will remain pending, while the association consults with its membership on the “impact and implications” of the interim final rule, according to a statement by ABA president and CEO Frank Keating. 

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