Financial Stability Oversight Council Reports to Congress on Secured Creditor Haircuts

Two of the goals of The Dodd-Frank Wall Street Reform and Consumer Protection Act 2010 (“Dodd-Frank Act”) are to promote market discipline and taxpayer protection. Section 215 of the Dodd-Frank Act calls on the Financial Stability Oversight Council (“Council”) to study whether allowing regulators in a resolution proceeding to treat a portion of fully secured creditors’ claims as unsecured (“secured creditor haircuts”) would promote these objectives. While section 215 contemplates evaluating secured creditor haircuts in the utilization of the Orderly Liquidation Authority (“OLA”) authorized by Title II of the Dodd-Frank Act, OLA provides no authority to impose secured creditor haircuts. The report: (i) summarizes the Council’s evaluation of the ‘key questions’ prescribed by section 215(a)(2)-(6) of the Dodd-Frank Act; (ii) describes the mechanics of secured creditor haircuts, and evaluates their intended benefits and potential drawbacks; (iii) sets out aspects of the Bankruptcy Code, the Federal Deposit Insurance Act, and the Orderly Liquidation Authority that bear on the issue of secured creditor haircuts; and (iv) reviews other reforms that would help to achieve the same goals of market discipline and taxpayer protection as secured creditor haircuts would be intended to achieve. The report concludes that the combination of the OLA and the new supervisory framework provided by Title I of the Dodd-Frank Act can be used to achieve the goals of market discipline and taxpayer protection effectively in the absence of secured creditor haircuts.

Originally Published: 
18/07/2011