NORTH CAROLINABANKING INSTITUTE

Volume 15 | Issue 1 Article 5

2011

The Dodd-Frank Act: Tarp Bailout Backlash andToo Big To FailLissa Lamkin Broome

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Recommended CitationLissa L. Broome, The Dodd-Frank Act: Tarp Bailout Backlash and Too Big To Fail, 15 N.C. Banking Inst. 69 (2011).Available at: http://scholarship.law.unc.edu/ncbi/vol15/iss1/5

THE DODD-FRANK ACT: TARP BAILOUTBACKLASH AND TOO BIG TO FAIL

LISSA LAMKIN BROOME*

I. INTRODUCTION

In the pages of this journal two years ago, I wrote about"Extraordinary Government Intervention to Bolster BankBalance Sheets."' One component of this intervention was theTroubled Asset Relief Program (TARP) created by theEmergency Economic Stabilization Act of 2008.2 Although TARPmay have saved the United States economy from a lengthydepression, it was perceived by many as a "bailout" of the bankswhose own greed had precipitated the financial crisis. A number ofinstitutions received TARP funds, but two - Citigroup and Bankof America - were identified as "systemically significant" andreceived additional equity infusions and other extraordinary aidfrom the government. As I noted then, "systemically significant"had become a "thinly veiled code-name for institutions that are'too big to fail."' There were significant concerns that thegovernment's intervention created moral hazard and that risk-taking of financial institutions would remain unchecked if themarket believed that the government would intervene if necessaryto prevent the failure of the largest financial institutions.

On July 21, 2010, President Obama signed the massiveDodd-Frank Wall Street Reform and Consumer Protection Act of

.Wachovia Professor of Banking Law; Director, Center for Banking and Finance,University of North Carolina School of Law. Thanks to Brian Choi, UNC School ofLaw Class of 2010, for his helpful research assistance with this article.

1. Lissa L. Broome, Extraordinary Government Intervention to Bolster BankBalance Sheets, 13 N.C. BANKING INST. 137 (2009) [hereinafter ExtraordinaryIntervention]. See also Lissa L. Broome, Government Investment in Banks: CreepingNationalization or Prudent, Temporary Aid?, 4 FIU L. REV. 409 (2009) [hereinafterGovernment Investment].

2. Emergency Economic Stabilization Act of 2008 § 101, 12 U.S.C.A. § 5211(West 2009).

3. Broome, Extraordinary Intervention, supra note 1, at 153.

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2010 (Dodd-Frank). 4 This essay will describe how Dodd-Frankresponds to TARP and attempts to change the phrase "too big tofail" to "too big, will fail." The centerpiece of Dodd-Frank is thecreation of the Financial Stability Oversight Council (FSOC) asthe new systemic risk regulator, with the authority to identifysystemically significant institutions, subject them to additionalprudential regulation by the Federal Reserve Board, and tomandate an orderly liquidation without the possibility ofreorganization in the event they are not able to remain solvent ontheir own. Whether this new regime will ever be used and whetherit will incentivize bank and nonbank financial institutions toreduce their size and complexity so they will not become subject toit, of course, remain to be seen.

II. OVERVIEW OF TARP

After the numerous financial calamities of September2008,' Congress enacted the Emergency Economic StabilizationAct of 2008 (EESA) on October 3, 2008.6 A centerpiece of EESAwas the authorization of up to $700 billion to fund TARP. Whatoften gets lost in this very large number is that only $245 billion ofthis sum (still a huge number) was actually used for governmentinvestments in the preferred stock of banks and bank holdingcompanies. Of that $245 billion, $204.9 billion was expended to

4. Pub. L. No. 111-203, 124 Stat. 1376 (2010) (to be codified in scattered sectionsof U.S.C.).

5. During September 2008, Fannie Mae and Freddie Mac were placed ingovernment conservatorship, Merrill Lynch was taken over by Bank of America,Lehman Brothers entered bankruptcy with the Fed declining to provide it assistancesimilar to that extended to assist JP Morgan Chase in a takeover of Bear Stearns theprior spring, AIG was taken over by the government, the net asset value of themoney market mutual fund Reserve Primary Fund fell below $1 per share, and thegovernment contemplated providing assistance to Citigroup to purchase Wachoviabank - the fourth largest banking institution in the U.S. at the time - as it borderedon insolvency. See Federal Reserve Bank of St. Louis, The Financial Crisis: ATimeline of Events and Policy Actions, http://timeline.stlouisfed.org/ (last visited Feb.7, 2011).

6. Pub. L. No. 110-343, 122 Stat. 3767 (2008) (to be codified in scattered sectionsof U.S.C.).

7. Of the $700 billion initially authorized by Congress for this program, only$474.8 billion had been obligated as of October 3, 2010, and no further obligationscould be incurred with TARP funds after the two-year anniversary of EESA.SIGTARP, QUARTERLY REPORT TO CONGRESS 43 (Oct. 26, 2010)[hereinafter

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buy preferred stock in banks under the Capital Purchase Program(CPP).' The Treasury determined that the maximum that could beinvested in any one institution under the CPP would be $25billion.! Nine of the largest financial institutions received the lion'sshare of the initial CPP funds, $125 billion, 0 even though JamieDimon, the CEO of one of those recipients - JPMorgan Chase -was reported to say, "we didn't ask for it, didn't want it, and didn'tneed it."" Nevertheless, government authorities wanted thelargest institutions to participate in the program so that therewould be no stigma attached to accepting the funds for the banksthat did need the additional capital to maintain solvency andliquidity.12

It didn't take long, however, for Citigroup to find itself inneed of additional equity. On November 23, 2008, Citigroup wasgranted an additional $20 billion in funding under the newlycreated Targeted Investment Program (TIP). This "program" hadone participant until Citigroup was joined by Bank of America onJanuary 16, 2009. Bank of America also received an additional $20billion to assist it with unexpected losses resulting from itsacquisition of Merrill Lynch." The government's total investmentin each institution of $45 billion gave it a very significantownership percentage in each.14

SIGTARP ]. Of the $475 billion, $250 billion was the maximum allocated toinvestments in bank capital, with $245 billion of that sum actually spent. OFFICE OFFINANCIAL STABILITY, TROUBLED ASSET RELIEF PROGRAM: TWO YEARRETROSPECTIVE i (Oct. 2010) [hereinafter OFFICE OF FINANCIAL STABILITY].

8. SIGTARP, supra note 7.9. U.S. TREAS. DEPT., PROGRAM DESCRIPTIONS, CAPITAL PURCHASE PROGRAM

1-2 (Jan. 2009).10. Citigroup ($25 billion), JPMorgan Chase & Co. ($25 billion), Wells Fargo &

Company ($25 billion), Bank of America Corporation ($15 billion plus $10 billionfrom Merrill Lynch), The Goldman Sachs Group, Inc. ($10 billion), Morgan Stanley($10 billion), The Bank of New York Mellon Corporation ($3 billion), State StreetCorporation ($2 billion). U.S. TREAS. DEPT., TROUBLED ASSET RELIEF PROGRAM(TARP) MONTHLY 105(a) - REPORT - DECEMBER 2010 App. 2 (Jan. 2011).

11. Interview by Erin Burnett, CNBC Street Signs, with Jamie Dimon, Chairmanand CEO, JPMorgan Chase (Dec. 11, 2008).

12. Mike Ferullo, Credit Markets: Industry Group, Lawmakers Welcome TreasuryPlan to Purchase Equity in Banks, 91 BNA BANKING REP. 644 (Oct. 20, 2008).

13. See Extraordinary Intervention, supra note 1, at 142.14. Id. at 153-54.

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TARP recipients were not required to use TARP funds forany particular purpose, although many hoped that the additionalcapital would be used by the recipients to support new lending thatwould help ease the credit crunch which had stalled the economy.Some TARP recipients found the conditions attached to TARPfunding to be onerous, leading them to seek to repay the

government as soon as feasible. These conditions includedquarterly dividend payments to the government of five percent peryear (with the TIP dividend at eight percent per year), dividendsthat could be paid to common stockholders limited to one cent perquarter, and restrictions on executive compensation. The latterrestriction seemingly provided the most powerful incentive to getout from under the TARP funding regime. As a result, as ofSeptember 30, 2010, $192 billion of the $245 billion in TARP bankstock investments, or 78% of the total, had been repaid." Thisincludes the Citigroup and Bank of America CPP and TIPpreferred stock, along with the CPP stock in the remaining six ofthose nine large financial institutions. A few of the smallerinstitutions receiving TARP investments have failed, but it ishoped that the remainder of the outstanding investments will berepaid in the future. Moreover, as of September 30, 2010, thegovernment earned some $26.8 billion in income from its TARPinvestments through the dividends it received as a preferredstockholder and on the sale of warrants that it was granted by theTARP recipients at the time of the initial preferred stockinvestment.16

The TARP program has been remarkably successful, interms of cost to the government and in its goal to help stabilize thefinancial system. 7 The largest financial institutions did not fail.Citigroup and Bank of America survived. Wachovia might exist as

15. OFFICE OF FINANCIAL STABILITY, supra note 7, at i.16. Id.17. Steven Rattner, How an Unloved Bail-out Saved America, FIN. TIMEs, Oct. 3,

2010 ("But instead of euthanising Tarp [sic] we should be eulogizing it as, withoutexaggeration, this legislation did more to keep America's financial system - andtherefore its economy - functioning than any passed since the 1930s."); Kera Ritter,Bank Bailout Seen to Benefit Big Banks More than Small Ones; $49 Billion Unpaid,96 BNA BANKING REP. 132 (Jan. 21, 2011) ("Banking organizations, Treasuryofficials and the Office of the Special Inspector General for TARP agree that CPPand other components of TARP averted a financial collapse.").

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an independent institution today if its liquidity crisis had occurredafter the passage of EESA instead of before. Ironically,Wachovia's purchase by Wells Fargo was announced the same daythat EESA was enacted, but this followed a week of turmoil inwhich Wachovia was almost sold to Citigroup with FDICassistance.

Notwithstanding the relatively low losses to thegovernment and the rapid payback of TARP funds, there is seriousconcern about the moral hazard created by TARP. As discussedin a report on Citigroup by the Office of the Special InspectorGeneral for TARP (SIGTARP), when the government "assuredthe world in 2008 that it would not let Citigroup fail, it did morethan reassure troubled markets - it encouraged high-risk behaviorby insulating risk-takers from the consequence of failure." 9 AsProfessor Art Wilmarth of George Washington University LawSchool observed, the "explicit and implicit public subsidies . . .undermine market discipline and distort economic incentives" forthe institutions that receive them.20

III. THE DODD-FRANK ACT AND Too BIG To FAIL

Dodd-Frank addressed the financial crisis and its fallout ona number of fronts. A centerpiece of Dodd-Frank was thecreation of the Financial Stability Oversight Council (FSOC orCouncil), to serve as a systemic risk regulator. 21 Dodd-Frank doesnot continue TARP, and instead consciously adopted numerousprovisions indicating that systemically significant bank andnonbank financial companies would be subject to stringentregulation and subject to liquidation if unable to maintain their

18. See RICK ROTHACKER, BANKTOWN: THE RISE AND STRUGGLES OFCHARLOTTE'S BIG BANKS 123-26 (2010) (discussing the sale of Wachovia).

19. SIGTARP, EXTRAORDINARY FINANCIAL ASSISTANCE PROVIDED TOCITIGROUP, INC.: SUMMARY OF REPORT: SIGTARP-11-002 (Jan. 2011).

20. Arthur E. Wilmarth, Jr., The Dodd-Frank Act: A Flawed and InadequateResponse to the Too-Big-To-Fail Problem, 89 OR. L. REV. - (forthcoming 2011).

21. Dodd-Frank Act § 111 (to be codified at 12 U.S.C. § 5321 and 5 U.S.C. §5314). The voting members of the FSOC, headed by the Secretary of the Treasury,include the heads of the Board of Governors of the Federal Reserve System, OCC,FDIC, NCUA, SEC, CFTC, Federal Housing Finance Agency, the new Bureau ofConsumer Financial Protection, and an independent member appointed by thePresident and knowledgeable about insurance. Id.

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solvency. The tough measures are an obvious reaction to theconcerns about the moral hazard created by TARP and othergovernment measures used to diminish the harsh effects of thefinancial crisis on the economy.

A. TARP Measures

The total amount of TARP funds authorized under theEESA was reduced by Dodd-Frank from $700 billion to $475billion.22 Furthermore, Dodd-Frank provides that no new TARPprograms may be established, and that any money repaid may notbe reused to fund additional TARP expenditures under existingTARP programs.23

Although Dodd-Frank purposely does not provide anyTARP-like structure for government investment in bank equityduring difficult financial times, it does require the FSOC toconduct a study about the "feasibility, benefits, costs, and structureof a contingent capital requirement" for the systemicallysignificant bank holding companies and nonbank financialcompanies identified by the FSOC.24 If contingent capital bondswere required to be issued by these largest institutions and couldbe converted to equity capital in times of financial stress, then thecapital markets could provide equity, rather than the governmentstepping in as in TARP. Further, the pricing of the contingentcapital bond would provide the market's measure of the riskinessof each institution's activities, with those viewed the riskiest (andmost likely to require conversion in times of financial stress),priced the highest. It is possible, however, that the price of suchcontingent capital would be so high,2 because of the possibility ofconversion to equity and loss of the creditor's priority claim in a

22. Id. § 1302 (to be codified at 12 U.S.C. § 5225). By the terms of EESA, TARPfunds not committed on October 3, 2010, could not be allocated further, so thisprovision reinforced the existing TARP commitment level of $475 billion.

23. Id.24. Id. § 115(c) (to be codified at 12 U.S.C. § 5325).25. Wilmarth, supra note 20 (institutional investors are likely to demand a

"comparatively high yield and other investor-friendly features that may not beacceptable to" the systemically significant institutions that might be required to issuecontingent capital).

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liquidation, that institutions would break themselves into smallerpieces so as not to be within the systemically significant group ofinstitutions subject to this requirement.

Subsequent to Dodd-Frank, Congress enacted the SmallBusiness Jobs Act of 2010 (SBJA).26 The SBJA established a $30billion Small Business Lending Fund (SBLF) and itself providesfor government equity investment in small banks. The SBJA hasbeen dubbed "Son of TARP" by some. The SBLF providescapital to each bank and takes an ownership interest in the bank,but the dividend amounts and repayment plans are determined ona bank-by-bank basis. A bank with less than $10 billion in assetswould be subject to an initial dividend payment to the governmentof five percent, but this rate could be reduced to as low as onepercent depending on how much the bank increased its smallbusiness lending after receiving the government's equityinvestment. The SBLF provides a clear incentive to a bank tomake the loans that the government wishes to encourage, incontrast to TARP which was premised on the idea that increasedcapital would naturally result in increased credit, but did not haveany specific requirement that the capital be used to support newloans. In addition, the SBJA provides a disincentive for notlending by increasing the dividend rate payable to the governmentif the government's capital infusion has not increased the bank'ssmall business lending in the first two and one-half years after thegovernment's equity investment. If no small business lendingimprovement is shown thereafter, the dividend rate may increaseto nine percent. Those banks currently enrolled in TARP mayswitch to the SBJA program in an effort to lower the dividendpayment rate.27 The focus of the SBLF is on small banks sincesmaller banks - those with less than $1 billion in assets - hold fortypercent of all outstanding small business loans, although onlytwelve percent of all bank assets.28

26. See The Small Business Jobs Act of 2010, Pub. L. No. 111-240, 124 Stat. 2504(to be codified in scattered sections of U.S.C.).

27. Banks that have missed a TARP dividend payment to the government are noteligible for the SBLF.

28. Rob Cox & Rolfe Winkler, Smaller Banks Don't Need $30 Billion From U.S.,N.Y. TIMES, Feb. 1, 2010, at B2.

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B. Too Big to Fail Countermeasures

Dodd-Frank responded to concerns about the bailout oftoo big to fail financial institutions during the financial crisis inpart by creating the FSOC. Dodd-Frank provides that the

Purposes of the Council are -(A) to identify risks to the financial stability of theUnited States that could arise from the materialfinancial distress or failure, or ongoing activities, oflarge, interconnected bank holding companies ornonbank financial companies, or that could ariseoutside the financial services marketplace;(B) to promote market discipline, by eliminatingexpectations on the part of shareholders, creditors,and counterparties of such companies that theGovernment will shield them from losses in theevent of failure; and(C) to respond to emerging threats to the stability ofthe United States financial system.29

The large, interconnected bank holding companies whoserisks the FSOC must identify, include bank holding companieswith greater than $50 billion in consolidated assets, although theBoard of Governors may, upon a recommendation of the FSOC,increase the asset size above $50 billion.30 The Council must alsoidentify systemically significant nonbank financial companies; oncedesignated, the Fed will for the first time have supervision of andregulatory authority over these companies. A company will beconsidered a "financial company" if eighty-five percent of itsconsolidated assets or revenues come from "financial in nature"activities as specified in the Bank Holding Company Act.32

29. Dodd-Frank Act § 112 (to be codified at 12 U.S.C. § 5322).30. Id. § 115(a) (to be codified at 12 U.S.C. § 5325). As of June 30, 2010,

approximately 25 domestic bank holding companies had assets exceeding $50 billion.Banks and Thrifts with Most Assets, AM. BANKER, Nov. 18, 2010,http://www.americanbanker.com/rankings/bt-most-assets-1028909-1.html.

31. Dodd-Frank Act § 113 (to be codified at 12 U.S.C. § 5323).32. Id. § 101 (to be codified at 12 U.S.C. § 5311).

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Presumably, if this authority had been in place prior to thefinancial crisis, Bear Stearns, Lehman Brothers, AIG, and thelargest bank holding companies, such as Bank of America,Citigroup, JP Morgan Chase, and Wachovia, among others, wouldhave been identified as systemically significant.

Systemically significant institutions are subject to morestringent capital, leverage, and liquidity requirements as to berecommended by the Council and developed by regulation by theFed." Of most relevance to this discussion, however, is how Dodd-Frank directs such institutions to be treated in the event they seemheaded towards failure. These "systemic" institutions are the onesthat have been thought of as "too big to fail," but Dodd-Frankturns this assumption on its head and seems determined to allowthe institutions to fail and be handled through an orderlyliquidation process. To assist in planning for a systemicinstitution's demise, the institution must prepare and submit to theFed a so-called "resolution plan," otherwise dubbed a "living will"to instruct the FDIC as receiver how to resolve and unwind theinstitution's various exposures. 4 If the institution poses a "gravethreat" to the financial stability of the United States, as a "lastresort" the FSOC may order the institution to divest some of itsholdings, presumably making the institution less systemicallysignificant if it has been broken up into separate pieces. If theinstitution is still unable to retain solvency, then the FSOC mayrecommend that instead of a bankruptcy procedure, the institutionbe subject to an "orderly liquidation authority."3 6 The FDICwould serve as the institution's receiver, even for nonbankinstitutions." Its mandate is to liquidate the institution, withoutthe possibility of reorganization.

Any costs associated with the insolvency would be fundedby FDIC borrowing from the Treasury.39 This debt would be

33. Id. § 115 (to be codified at 12 U.S.C. § 5325).34. Id. §165 (to be codified at 12 U.S.C. § 5365).35. Id. § 121 (to be codified at 12 U.S.C. § 5331).36. Id. § 204 (to be codified at 12 U.S.C. § 5384).37. The SIPC would act as trustee for an orderly liquidation of a broker-dealer.

Id. at § 205 (to be codified at 12 U.S.C. § 5385).38. Id. § 204 (to be codified at 12 U.S.C. § 5384).39. Id. § 201(n)(5) (to be codified at 12 U.S.C. § 5384).

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repaid by the assets of the liquidated institution. In the eventthese funds are not sufficient to reimburse the Treasury, then allother systemically significant institutions would be assessed theirshare of the cost of the resolution.4" The potential for fundinglosses associated with another systemic institution's demise mightbe an incentive to bank holding companies to reduce theirconsolidated assets below the $50 billion threshold and to nonbankfinancial companies to voluntarily divide their multiple businesslines into separate entities so that no one of them is considered tobe systemically significant and subject to the FDIC's orderlyliquidation authority.4 1 Indeed, one might suggest to thosefinancial institutions that became bank holding companies duringthe financial crisis to have access to TARP funds and the investorcomfort of the Fed as an involved regulator, that they should undothe bank holding company label. Congress, however, was one stepahead and inserted a "Hotel California" provision that states thatif an institution had $50 billion in assets or more, was a bankholding company on January 1, 2010, and if it had received TARPfunds, it may cease to be a BHC, but it will continue to beregulated as one.42

Dodd-Frank also enacted two provisions to preventsystemically significant institutions from receiving other specialtreatment that might manifest the government's decision that theyindeed are too big to fail. First, the Fed's emergency lendingauthority, Section 13(3) of the Federal Reserve Act, was revised.43

During the financial crisis, this authority had been used as thebasis for a number of the Fed's broad-based credit and liquidityprograms, but also as the vehicle to justify credit extended to assistJPMorgan Chase in its acquisition of Bear Stearns, and to provideextraordinary loans to AIG. Dodd-Frank limits the Fed's

40. Id. at §§ 204, 210, 214 (to be codified in scattered sections of U.S.C.).41. See Wilmarth, supra note 20 (criticizing this ex post funding mechanism in

part because it does not require systemically significant institutions to internalize thecosts of their own risk-taking activities).

42. Dodd-Frank Act § 117 (to be codified at 12 U.S.C. § 5327). The "HotelCalifornia" reference is to an Eagles song by the same name with the lyric, "You maycheck out any time you like, but you can never leave." THE EAGLES, HOTELCALIFORNIA (Asylum Records 1977). So too, new BHCs may cease to have thatstatus, but they cannot leave the regulatory apparatus that applies to BHCs.

43. Dodd-Frank Act, § 1101 (to be codified at 12 U.S.C § 343).

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emergency lending authority to permit assistance only to a"participant in any program or facility with broad-basedeligibility."" Second, the Act amended the systemic risk exceptionto the requirement that the FDIC use the "least cost method ofresolution" for an insolvent depository institution.45 This languagewas used first by the FDIC to justify aid to Citigroup for thepotential acquisition of Wachovia, although ultimately WellsFargo won Wachovia's hand in a bid without governmentassistance. The FDIC also used the systemic risk authority tosupport its broad-based guarantee programs for bank deposits andother liabilities that benefited all banks, not just those nearinginsolvency. Dodd-Frank responded to those who criticized this asan improper use of the systemic risk exception" and provided anew statutory scheme that specifically authorizes the use of suchbroad measures during times of severe economic distress, ratherthan including these programs within the systemic risk exception.47

As Professor Wilmarth notes, the FDIC's systemic risk exceptionand the Federal Reserve's section 13(3) authority to provideemergency assistance under a highly selective "program" are stillavailable to bail out creditors of failing systemically significantinstitutions."

Finally, Dodd-Frank introduced a liability concentrationlimit for "financial companies" that includes bank holdingcompanies and the systemically significant nonbank financialcompanies identified by the FSOC. These entities may not capturemore than ten percent of the consolidated liabilities of all suchentities via any merger or combination.49 The FSOC is required toprepare a study regarding how this concentration limit will affectfinancial stability, moral hazard, efficiency, and competitiveness ofU.S. financial firms, and the cost and availability of credit."o The

44. Id. (emphasis added).45. Id. at §1105 (to be codified at 12 U.S.C. § 5612). The FDIC's systemic risk

exception to the least cost resolution for an insolvent depository institution is at 12U.S.C. § 1823(c)(4)(G).

46. See Extraordinary Intervention, supra note 1.47. Dodd-Frank Act § 1105 (to be codified at 12 U.S.C. § 5612).48. Wilmarth, supra note 20.49. Dodd-Frank Act, sec. 622, § 14 (to be codified at 12 U.S.C. §1852).50. Id.

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FSOC may then make recommendations regarding modification ofthe liability cap." For this reason, Professor Wilmarth is worriedthat the FSOC will succumb to pressure to "weaken or remove"the liability cap.52 This provision will complement the ten percentnationwide deposit cap introduced by Riegle-Neal for bankacquisitions" by adding a new size cap that will relate tocombinations between financial companies and between banks andother financial companies.

IV. CONCLUSION

Dodd-Frank represents a multi-faceted effort to tackle theproblem of financial institutions that may grow so big that theirfailure would lead to a systemic risk to our financial system. Theimpetus for these changes was the public's backlash to the TARPbailout and the moral hazard that it created. Financial institutionsthat do not bear the full costs of their risky activities have noincentive to reduce or alleviate that risk. Dodd-Frank attempts toreverse that moral hazard by clearly providing that theseinstitutions are subject to additional oversight, must provideresolution plans, are subject to asset divestiture, and in the eventtheir failure may still not be prevented must be liquidated withoutthe possibility of reorganization. Moreover, large, systemicallysignificant financial institutions may be stuck with the costsassociated with the failure of other systemically significantinstitutions even if they are not themselves engaging ininappropriate or excessively risky activities. Large institutions willalso have a hard cap on how large they may grow throughacquisition (rather than internal growth) through the liabilityconcentration provision.

It remains to be seen, however, whether the FSOC willhave the political will and foresight to identify the systemicallysignificant nonbank financial institutions, to hold to the $50 billionasset threshold for systemically significant bank holdingcompanies, and whether and under what circumstances the FDIC

51. 12 U.S.C. § 1852.52. Wilmarth, supra note 20.53. 12 U.S.C. § 1842(d)(2).

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will exercise the orderly liquidation authority rather than opt for aChapter 11 reorganization. Dodd-Frank provides a framework forending too big to fail if the regulators have the will.5 4

54. Ron Feldman, Senior Vice President for Supervision, Regulation and Creditat the Federal Reserve Bank of Minneapolis asserts that "if Dodd-Frank isimplemented effectively, large financial companies will voluntarily choose todownsize because their funding costs will increase as creditors realize they will not beprotected in a failure." Barbara A. Rehm, Strange But True: Dodd-Frank MayActually End TBTF, AM. BANKER, Oct. 21, 2010,http://www.americanbanker.comlissues/175_202/dodd-frank-too-big-to-fail-1027404-1.html.

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