U.S. banks look for kinder, gentler death plans

By Dave Clarke and Lauren Tara LaCapra

WASHINGTON/NEW YORK (Reuters) - U.S. banks preparing to submit plans on how they can be put to death are pushing regulators to put more emphasis on how to keep them alive.

This week, U.S. regulators are set to unveil a final rule that requires banks and some other large financial companies to write "living wills" that provide a road map for how they could be quickly liquidated if they run into trouble.

The rule is required by the 2010 Dodd-Frank financial oversight law, and the Federal Deposit Insurance Corp board is scheduled to vote on Tuesday on the final rule. The Federal Reserve also would have to approve the rule before it takes effect, most likely in about a month.

Banking executives and consultants working for large banks say the rule should include room for what a financial institution would do to nurse itself back to health and avoid having to be liquidated.

If not something this explicit, they want a reference in the rule to the idea that these death plans will be part of a larger oversight process that includes planning for both recovery and death.

At the heart of the request is a broader anxiety in the industry that the new law and what regulators are doing with it is putting too much emphasis on preparing to fail.

"What we would like to say and what we are trying to encourage in the rule is: Don't have a rule that is biased toward failure, have a rule that presumes recovery," said Wayne Abernathy, a top executive at the American Bankers Association.

That idea is being met skeptically by regulators, at least as a component of the living will rule.

One of Dodd-Frank's main goals is to establish a way to better handle the failure of a large financial company and so avoid the kind of chaos that followed the demise of Lehman Brothers <LEHMQ.PK> in 2008.

The rule applies to banks with more than $50 billion in assets -- a group that includes giants such as Bank of America <BAC.N> and Goldman Sachs <GS.N> -- and to other large non-bank financial firms.

A regulatory official noted that the law is clear that a living will is supposed to focus on how a firm could be liquidated quickly and easily.

The law also contains other sections, the official noted, that address recovery efforts such as rules the Federal Reserve will write on what should be done to stanch the bleeding when a financial institution is suffering.

While banks support the idea of a better process for handling a large failure, there is a lack of enthusiasm for spending a lot of time and money on plans that focus on how to turn off the lights rather than on keeping them lit.

"When we speak to our bank clients, they almost view it as though, 'The regulators want us to manage the business for failure while our shareholders want us to make sure we have plans to react to situations and save the bank,'" said Richard Davis, vice president of strategic planning and special projects at FTI Consulting.

"They would much rather focus on the recovery aspect for a host of reasons, but the primary one being, resolution should be a last resort."

In the push for more of a focus on recovery, supporters of the law detect a reluctance by banks to hand over a stark assessment of whether they are "too big to fail."

"If it's done well, the resolution planning process is really going to reveal to the regulators which banks could not be handled in a crisis -- too big, too complicated, too interconnected," said Marcus Stanley, policy director for the group Americans for Financial Reform. "They may not want that revealed to regulators so clearly."

(Reporting by Dave Clarke in Washington and Lauren Tara LaCapra in New York, Editing by Gary Hill)