SDNY Adopts Bank Examination Privilege for FHFA Communications with Fannie Mae and Freddie Mac

In a matter of first impression, the US District Court for the Southern District of New York adopted the bank examination privilege to protect from compelled discovery communications between the Federal Housing Finance Agency (FHFA) and the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac).  FHFA v. JPMorgan Chase & Co., 2013 WL 5660247 (S.D.N.Y. Oct. 16, 2013).  You may access the opinion here.

FHFA,fhfa as conservator of Fannie Mae and Freddie Mac, sued several financial institutions involved with the packing, marketing, and sale of residential mortgage-backed securities purchased by Fannie Mae and Freddie Mac.  FHFA asserted the bank examination privilege to withhold from discovery approximately 15,000 documents.  The financial institutions argued that the privilege did not apply because Fannie Mae and Freddie Mac are not banks and the FHFA is not a bank regulator.

The court first reviewed the rationale behind the common-law bank examination privilege.  Effective practical regulation requires bank regulatory agencies and their regulated entities to communicate openly, and the privilege encourages banks to have candid and open communications with its regulatory overseers.  And public disclosure of bank–regulator communications may lead to public scrutiny of an entity’s soundness—a consequence that regulators seek to avoid.

The court found no precedent addressing whether the federal common-law bank examination privilege applied to the FHFA.  But in this matter of first impression, the court held that the FHFA may assert the bank examination privilege because its regulatory oversight of Fannie Mae and Freddie Mac implicates the same concerns that justify the bank examination privilege in the banking regulatory sphere.

The court determined that FHFA’s oversight duties overlap the oversight duties of bank regulators.   And the need for Fannie Mae and Freddie Mac to communicate freely with the FHFA mimics banks’ need for open communications with their regulators.  And the need for public confidence in the federal lending system is as strong as the private financial system.  In short, “considerations of economic stability counsel in favor of a regulatory regime in which FHFA can informally and confidentially discuss issues of capitalization and liquidity with [Fannie Mae and Freddie Mac] in a privileged manner rather than through formal comment and adjudication.”

The court rejected the financial institutions’ argument that FHFA is not a bank regulator and Fannie Mae and Freddie Mac are not banks, stating that to do so elevates semantics over substance.  And to decide whether to adopt the privilege in the FHFA setting “on the sole ground that a judge at some point in the past named this privilege the ‘bank’ examination privilege, without looking to the principles underlying the privilege and their application to the facts at hand, would run counter to the standard enunciated in Rule 501 and in the caselaw.”

Judge Scheindlin Provides Thorough Discussion of Bank-Examination Privilege

Judge Shira Scheindlin, who authored the influential Zubalake decision on e-discovery, recently issued an opinion providing a thorough discussion of the federal bank-examination privilege.  Judge Sheindlin ultimately ruled that the bank-examination privilege covered only part of a bank’s communications to the Office of the Comptroller of the Currency (OCC), but neverthelessbankexamination ordered their production because the plaintiff showed a sufficient level of need to overcome the privilege.  Wultz v. Bank of China Ltd., 2013 WL 1453258 (S.D.N.Y. Apr. 9, 2013).  You may access the opinion here.

The case arises from an interesting factual setting.  The Palestinian Islamic Jihad (PIJ) orchestrated a suicide bombing in Tel Aviv, Israel in 2006 that killed Florida resident Daniel Wultz and severely injured Yekutiel Wultz.  You may read a news account of this attack here.

The Wultz family sued the Bank of China (BOC) under the Antiterrorism Act alleging acts of international terrorism and aiding and abetting international terrorism.  The family claimed that BOC facilitated, through PIJ leadership in Iran and Syria, wire transfers in the millions of dollars for PIJ’s benefit.

The Wultz family sought discovery of a variety of BOC documents, including BOC’s communications with the OCC discussing risk reports, self-analyses, and compliance procedures; the OCC’s bank examination reports, evaluations of BOC’s policies, and communications regarding deficiencies in BOC’s counter-terrorism financing compliance function.  BOC asserted the bank-examination privilege in an effort to avoid production of these documents.

Judge Scheindlin ruled that the bank-examination privilege belongs to federal banking regulatory agencies, not to banks.  The privilege is a qualified privilege that protects communications between banks and their examiners in order to preserve absolute candor essential to the effective supervision of banks.  Banks cannot assert the privilege on behalf of banking agencies; only the banking agency may assert the privilege and it has the burden of establishing that the privilege applies.  Where a claim of privilege is appropriate, courts must provide banking agencies the opportunity to assert and establish the privilege. Purely factual material falls outside the bank-examination privilege.

Because the privilege is qualified, a party seeking privileged information may overcome the privilege upon a showing of good cause.  To evaluate good cause, courts must balance the competing interests of the party seeking the documents and the banking regulatory agency.  Courts typically consider the following five factors:

  1. The relevance of the evidence sought to be protected;
  2. The availability of other evidence;
  3. The seriousness of the litigation and the issues involved;
  4. The role of the government in the litigation; and
  5. The possibility of future timidity by government employees who will be forced to recognize that their secrets are violable.

In Wultz, Judge Scheindlin first determined whether the OCC actually asserted the bank-examination privilege, finding that it adequately asserted the privilege only as to communications between it and BOC.  But as to these privileged communications, the judge ruled that the five factors weighed in favor of production.