It’s Time to Pass the Financial Institutions Bankruptcy Act

Today the House Judiciary Subcommittee lead by Tom Marino held a hearing on the Financial Institution Bankruptcy Act (FIBA) which lays out in clear legislative language the “Chapter 14 type” reform proposals that Stanford’s Hoover Resolution Project have been working on since the financial crisis. Based on this hearing, which included top legal experts familiar with the bankruptcy code, including Bankruptcy Judge Mary Walrath, I am optimistic that the bill will become law soon.  The written testimony of all of the witnesses, including me, can be found here.

As I stated in my opening remarks at the hearing, FIBA, which adds a new Subchapter to Chapter 11, is an essential element of a pro-growth economic program.  The legislation makes failure feasible under clear rules without disruptive spillovers. It would

  • help prevent bailouts
  • diminish excessive risk-taking
  • remove uncertainty associated with an ad hoc bailout process
  • reduce the likelihood and severity of financial crises and thereby lead to stronger economic growth.

Chapter 11 has many benefits, including its basic reliance on the rule of law, but for large complex financial institutions it has shortcomings because it is likely to be too slow and cumbersome to deal with runs on failing financial institutions.

FIBA would also rely on the rule of law and strict priority rules of bankruptcy, but it would operate faster—over a weekend—leaving operating subsidiaries outside of bankruptcy entirely. It would do this by moving the original financial firm’s operations to a new bridge company that is not in bankruptcy.  This bridge company would be recapitalized by leaving behind long-term unsecured debt. It would thus let a failing financial firm go into bankruptcy in a predictable, rules-based manner without spillovers.

It is important to understand how a reformed bankruptcy code would resolve a large financial institution and in an important contribution Emily Kapur has done just that, examining how it would have worked in the case of Lehman.

FIBA would work better than Title II of the Dodd-Frank Act in which the FDIC would have to exercise considerable discretion and might wish to hold some creditors harmless in order to prevent spillovers.  The perverse incentive effects of such bailouts occur whether or not the extra payment comes from the Treasury, from a fund financed by financial institutions, or from smaller payments for other creditors.

Moreover, under Title II, a government agency, the FDIC, would make the decisions. In contrast, under bankruptcy reorganization, private parties, motivated and incentivized by profit and loss considerations, make key decisions about the direction of the new firm.

Another advantage of FIBA is that it would facilitate resolution planning under Dodd-Frank. Some of the resolution plans submitted by the large financial firms have been rejected by Fed and FDIC. With FIBA the plans would be feasible.

The issue of liquidity should be considered if FIBA were to replace Title II.  The new firm might need lender of last lender support. Section 13(3) of the Federal Reserve Act would be available in such circumstances.

International arrangements should also be considered if FIBA were to replace Title II.  For example, current European resolution authorities contemplate a parallel authority abroad. If Title II were repealed and there was no parallel authority in the U.S., then a way to cooperate internationally would have to be created.

In sum, reform of the bankruptcy law, such as FIBA, is essential for ending government bailouts and for creating a robust financial system supporting economic stability and growth.


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