Bankers May Have to Sue Over Volcker Rule (Update 1)

Updated from 11:35 a.m. ET with comment from Kevin Petrasic, a partner in the Global Banking and Payments Systems practice of Paul Hastings in Washington.

NEW YORK ( TheStreet) -- The three-year Volcker Rule Saga may not be close to being settled.

The Wall Street Journal reported Monday night that the American Bankers Association was "threatening legal action" over regulators' complicated set of final regulations issued on Dec. 10.

The Volcker Rule -- named after former Federal Reserve chairman Paul Volcker -- is part of the Dodd-Frank bank reform legislation of 2010, and is meant to ban "proprietary trading" by banks.  After an initial set of rules was proposed by the Fed and other bank regulators in October 2011, the finalized rules clarified many of exceptions, to allow banks with broker/dealer subsidiaries to maintain inventories of securities and to make hedge trades to protect from losses on those securities. 

The idea of the Volcker Rule is to make sure banks don't "gamble," while enjoying the advantage of gathering deposits insured by the F ederal Deposit Insurance Corp.

The regulations implementing Volcker are long and complicated, and "the only certainty is that waves of agency guidance and interpretations will fill the coming months and years," according to the first of two " observations on the Volcker Rule" published this month by Pepper Hamilton LLP.

One of the items that received some clarification in the final set of Volcker regulations is requirement for banks not to invest in "covered funds," which include many collateralized debt obligations (CDOs) backed by trust preferred securities.

Following a "preliminary assessment" of the final Volcker regulations, Zions Bancorporation ( ZION) of Salt Lake City on Dec. 16 said it had determined that "substantially all" of its investments in trust preferred collateralized debit oblations (CDOs) would be disallowed under Volcker. The company said it would record a fourth-quarter other-than-temporary impairment charge of $629 million on the transfer of disallowed held-to-maturity securities to held-for-sale.  The bank also said it had until July 21, 2015 to sell the trust preferred CDOs, "unless, upon application, the Federal Reserve grants extensions to July 21, 2017."

It would appear that Zions made a very responsible decision to get the worst of Volcker out of the way immediately, rather than surprise some of its investors down the line.

KBW analyst Collyn Gilbert wrote in a note to clients on Dec. 16 that there were two community banks under her firm's coverage that could see relatively large losses from the sale of securities springing from the Volcker Rule. 

The Federal Reserve, FDIC and the Office of the Comptroller of the Currency made an attempt to curb the uproar among community bankers last Thursday when it released its FAQ Regarding Collateralized Debt Obligations Backed by Trust Preferred Securities under the Final Volcker Rule.  In the FAQ, the regulators said banks could evaluate their CDOs backed by trust preferred securities to determine if they "could be restructured during the conformance period to avail itself of another exclusion or exemption under the Investment Company Act."

But the ABA didn't buy it, releasing a letter the same day in which the organization's CEO Frank Keating said "ABA is dismayed that the regulators have not found a resolution to address the disruptive consequences of the Volcker Rule on community banks. Community banks were reassured that the Volcker Rule wouldn't affect them, as they pose no conceivable systemic risk, but they have found out otherwise -- and with only two weeks before the end of the year. The consequences of this unexpected bureaucratic bombshell are millions of dollars in losses that will undermine affected banks' ability to serve their customers and communities."

In Pepper Hamilton's second observation of the Volcker Rule, the firm agreed that there was "a dangerous, but presumably unintended, consequence -- under the new regulations," that could force community banks to sell CDOs backed by trust preferred securities.  The firm also said the the "FAQs just published by the banking agencies have failed to calm fears, and the banking industry has galvanized to demand corrective regulatory measures to avert a crisis."

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