12 U.S.C. § 5381 — Definitions

Page 1870 TITLE 12—BANKS AND BANKING § 5373 Editorial Notes REFERENCES IN TEXT This Act, referred to in text, is Pub. L. 111–203, July 21, 2010, 124 Stat. 1376, known as the Dodd-Frank Wall Street Reform and Consumer Protection Act, which en- acted this chapter and chapters 108 (§ 8201 et seq.) and 109 (§ 8301 et seq.) of Title 15, Commerce and Trade, and enacted, amended, and repealed numerous other sec- tions and notes in the Code. For complete classification of this Act to the Code, see Short Title note set out under section 5301 of this title and Tables. § 5373. International policy coordination (a) By the President The President, or a designee of the President, may coordinate through all available inter- national policy channels, similar policies as those found in United States law relating to limiting the scope, nature, size, scale, con- centration, and interconnectedness of financial companies, in order to protect financial sta- bility and the global economy. (b) By the Council The Chairperson of the Council, in consulta- tion with the other members of the Council, shall regularly consult with the financial regu- latory entities and other appropriate organiza- tions of foreign governments or international organizations on matters relating to systemic risk to the international financial system. (c) By the Board of Governors and the Secretary The Board of Governors and the Secretary shall consult with their foreign counterparts and through appropriate multilateral organiza- tions to encourage comprehensive and robust prudential supervision and regulation for all highly leveraged and interconnected financial companies. (Pub. L. 111–203, title I, § 175, July 21, 2010, 124 Stat. 1442.) § 5374. Rule of construction No regulation or standard imposed under this subchapter may be construed in a manner that would lessen the stringency of the requirements of any applicable primary financial regulatory agency or any other Federal or State agency that are otherwise applicable. This subchapter, and the rules and regulations or orders pre- scribed pursuant to this subchapter, do not di- vest any such agency of any authority derived from any other applicable law. (Pub. L. 111–203, title I, § 176, July 21, 2010, 124 Stat. 1442.) Editorial Notes REFERENCES IN TEXT This subchapter, referred to in text, was in the origi- nal ‘‘this title’’, meaning title I of Pub. L. 111–203, July 21, 2010, 124 Stat. 1391, which is classified principally to this subchapter. For complete classification of title I to the Code, see Short Title note set out under section 5301 of this title and Tables. SUBCHAPTER II—ORDERLY LIQUIDATION AUTHORITY § 5381. Definitions (a) In general In this subchapter, the following definitions shall apply: (1) Administrative expenses of the receiver The term ‘‘administrative expenses of the receiver’’ includes— (A) the actual, necessary costs and ex- penses incurred by the Corporation as re- ceiver for a covered financial company in liquidating a covered financial company; and (B) any obligations that the Corporation as receiver for a covered financial company determines are necessary and appropriate to facilitate the smooth and orderly liquidation of the covered financial company. (2) Bankruptcy Code The term ‘‘Bankruptcy Code’’ means title 11. (3) Bridge financial company The term ‘‘bridge financial company’’ means a new financial company organized by the Cor- poration in accordance with section 5390(h) of this title for the purpose of resolving a cov- ered financial company. (4) Claim The term ‘‘claim’’ means any right to pay- ment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, con- tingent, matured, unmatured, disputed, undis- puted, legal, equitable, secured, or unsecured. (5) Company The term ‘‘company’’ has the same meaning as in section 1841(b) of this title, except that such term includes any company described in paragraph (11), the majority of the securities of which are owned by the United States or any State. (6) Court The term ‘‘Court’’ means the United States District Court for the District of Columbia, unless the context otherwise requires. (7) Covered broker or dealer The term ‘‘covered broker or dealer’’ means a covered financial company that is a broker or dealer that— (A) is registered with the Commission under section 78o(b) of title 15; and (B) is a member of SIPC. (8) Covered financial company The term ‘‘covered financial company’’— (A) means a financial company for which a determination has been made under section 5383(b) of this title; and (B) does not include an insured depository institution. (9) Covered subsidiary The term ‘‘covered subsidiary’’ means a sub- sidiary of a covered financial company, other than— (A) an insured depository institution; (B) an insurance company; or Page 1871 TITLE 12—BANKS AND BANKING § 5382 (C) a covered broker or dealer. (10) Definitions relating to covered brokers and dealers The terms ‘‘customer’’, ‘‘customer name se- curities’’, ‘‘customer property’’, and ‘‘net eq- uity’’ in the context of a covered broker or dealer, have the same meanings as in section 78lll of title 15. (11) Financial company The term ‘‘financial company’’ means any company that— (A) is incorporated or organized under any provision of Federal law or the laws of any State; (B) is— (i) a bank holding company, as defined in section 1841(a) of this title; (ii) a nonbank financial company super- vised by the Board of Governors; (iii) any company that is predominantly engaged in activities that the Board of Governors has determined are financial in nature or incidental thereto for purposes of section 1843(k) of this title other than a company described in clause (i) or (ii); or (iv) any subsidiary of any company de- scribed in any of clauses (i) through (iii) that is predominantly engaged in activi- ties that the Board of Governors has deter- mined are financial in nature or incidental thereto for purposes of section 1843(k) of this title (other than a subsidiary that is an insured depository institution or an in- surance company); and (C) is not a Farm Credit System institu- tion chartered under and subject to the pro- visions of the Farm Credit Act of 1971, as amended (12 U.S.C. 2001 et seq.), a govern- mental entity, or a regulated entity, as de- fined under section 4502(20) of this title. (12) Fund The term ‘‘Fund’’ means the Orderly Liq- uidation Fund established under section 5390(n) of this title. (13) Insurance company The term ‘‘insurance company’’ means any entity that is— (A) engaged in the business of insurance; (B) subject to regulation by a State insur- ance regulator; and (C) covered by a State law that is designed to specifically deal with the rehabilitation, liquidation, or insolvency of an insurance company. (14) Nonbank financial company The term ‘‘nonbank financial company’’ has the same meaning as in section 5311(a)(4)(C) of this title. (15) Nonbank financial company supervised by the Board of Governors The term ‘‘nonbank financial company su- pervised by the Board of Governors’’ has the same meaning as in section 5311(a)(4)(D) of this title. (16) SIPC The term ‘‘SIPC’’ means the Securities In- vestor Protection Corporation. (b) Definitional criteria For purpose of the definition of the term ‘‘fi- nancial company’’ under subsection (a)(11), no company shall be deemed to be predominantly engaged in activities that the Board of Gov- ernors has determined are financial in nature or incidental thereto for purposes of section 1843(k) of this title, if the consolidated revenues of such company from such activities constitute less than 85 percent of the total consolidated reve- nues of such company, as the Corporation, in consultation with the Secretary, shall establish by regulation. In determining whether a com- pany is a financial company under this sub- chapter, the consolidated revenues derived from the ownership or control of a depository institu- tion shall be included. (Pub. L. 111–203, title II, § 201, July 21, 2010, 124 Stat. 1442.) Editorial Notes REFERENCES IN TEXT This subchapter, referred to in text, was in the origi- nal ‘‘this title’’, meaning title II of Pub. L. 111–203, July 21, 2010, 124 Stat. 1442, which is classified principally to this subchapter. For complete classification of title II to the Code, see Tables. The Farm Credit Act of 1971, referred to in subsec. (a)(11)(C), is Pub. L. 92–181, Dec. 10, 1971, 85 Stat. 583, which is classified principally to chapter 23 (§ 2001 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under sec- tion 2001 of this title and Tables. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 1 day after July 21, 2010, except as otherwise provided, see section 4 of Pub. L. 111–203, set out as a note under section 5301 of this title. § 5382. Judicial review (a) Commencement of orderly liquidation (1) Petition to District Court (A) District Court review (i) Petition to District Court Subsequent to a determination by the Secretary under section 5383 of this title that a financial company satisfies the cri- teria in section 5383(b) of this title, the Secretary shall notify the Corporation and the covered financial company. If the board of directors (or body performing similar functions) of the covered financial company acquiesces or consents to the ap- pointment of the Corporation as receiver, the Secretary shall appoint the Corpora- tion as receiver. If the board of directors (or body performing similar functions) of the covered financial company does not ac- quiesce or consent to the appointment of the Corporation as receiver, the Secretary shall petition the United States District Court for the District of Columbia for an order authorizing the Secretary to appoint the Corporation as receiver. (ii) Form and content of order The Secretary shall present all relevant findings and the recommendation made