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University of Miami Business Law Review

Document Type

Article

Abstract

The definition of a bank under the Bank Holding Company Act of 1956 (“BHCA”) has changed several times since the statute was first enacted. Congress has identified a number of underlying rationales for applying the BHCA to certain entities thus necessitating a change in the definition. Recent innovations in technology, however, have made it challenging to adapt the U.S. financial regulatory regime to these advances, particularly for the financial technology (“FinTech”) industry. The Office of the Comptroller of the Currency’s (“OCC”) FinTech charter is one example of an attempt by a U.S. financial regulator to grapple with emerging technologies in financial services in a meaningful way. Despite the OCC initially suggesting that the BHCA could apply to FinTech companies chartered as special purpose national banks (“SPNBs”), these entities do not and cannot meet the definition of a bank under the BHCA because FinTech SPNBs are not permitted to take deposits. This Comment sets out a framework by which to analyze whether the definition of a bank under the BHCA should include FinTech firms who make loans and do not take deposits, i.e., “marketplace leaders.” This Comment finds that including FinTech firms, specifically marketplace lenders, in the statutory definition of a bank would serve a majority of the BHCA’s underlying policy rationales.

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