On May 22, the New York State Department of Financial Services (NYDFS) announced it was issuing interpretative guidance regarding the New York Banking Law requirement that mandates prior NYDFS approval for an acquisition or change of control of a banking institution. The guidance was released in response to a request by the New York Bankers Association amid concerns that some investors have been developing non-transparent methods of acquiring and controlling banking institutions without obtaining NYDFS’ review and approval. According to the guidance, “control” is achieved by having direct or indirect power to direct or cause the direction of a banking institution’s management and policies through the ownership of voting stocks or otherwise, and that control is achieved when individuals or entities work together or act in concert to acquire control of a banking institution but with each individual or entity staying below the threshold required for seeking NYDFS’ prior review and approval. The Superintendent of Financial Services, Maria T. Vullo issued a reminder to state-chartered banks that “all proposed changes of control in any banking institution must be submitted to the Department for prior approval under our mandate to safeguard the institutions we supervise and regulate, and to protect the public they serve.”

The guidance was released the same day Vullo testified at a New York State Assembly hearing on the “Practices of the Online Lending History,” which sought to “explore . . . predatory online lending practices which need to be mitigated, and potential regulatory or legislative action which may be needed to address [this issue].” Vullo urged legislators to clarify the statutory definition of “making loans” to include a wider range of companies and “to include situations where an entity, in addition to soliciting a loan, is arranging or facilitating the funding of a loan, or ultimately purchasing or acquiring the loan.”