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Financial Services Alert

FDIC Cautions Against Deposit Insurance Assessment Fee Pass-through

Monday, August 06, 2012

On July 9, 2012, the Federal Deposit Insurance Corporation (FDIC) issued Financial Institution Letter FIL-33-2012 cautioning insured depository institutions (IDIs) on the manner in which they pass along deposit insurance assessment fees to customers. The alert was issued after the FDIC became aware that certain IDIs are charging customers fees labeled as an “FDIC” or similarly described fee, which might compensate the IDI for some or all of its FDIC deposit insurance assessment costs. How IDIs decide to cover the costs of the FDIC’s risk-based assessments are business decisions left to the IDIs, but subject to certain restrictions. Labeling the fees “FDIC fees,” may violate applicable law.

The regulations prohibiting IDIs from certain practices in passing along deposit insurance fees to customers are Parts 309 and 327 of the FDIC’s Rules and Regulations, 12 C.F.R. §§ 309.5(g)(8) and 327.4(d) and (e). An IDI is prohibited from disclosing supervisory or confidential information in connection with the examination and evaluation of the depository institution. IDIs that pass along FDIC assessment fees labeled as such to customers could indirectly violate this prohibition if a customer was able to calculate the IDI’s supervisory rating or deposit insurance assessment risk assignment. Additionally, fees labeled as “deposit insurance fees” when they are not reasonably related to the proportional cost of deposit insurance for a particular customer may also mislead customers.

Pepper Points

  • IDIs should review fees charged to customers and refrain from identifying specific fees as “deposit insurance fees,” “FDIC fees,” or other similarly described fees.
     
  • IDIs that choose to charge fees to recoup deposit insurance assessment costs should take actions to ensure they adequately address the FDIC’s concerns regarding this practice.
     
  • IDIs should not advise customers to contact the FDIC if they have questions about risk-assessment-related fees.
     
  • Prior guidance on this subject, including FDIC Advisory Opinions 91-30 (April 17, 1991) and 90-78 (December 24, 1990), is withdrawn and superseded by FIL-33-2012.

Frank A. Mayer, III and Andrew R. Mavraganis

Written by

Frank A. Mayer, III
Phone: 215.981.4632
Fax: 215.981.4750
mayerf@pepperlaw.com



Andrew R. Mavraganis

The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.


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