On September 1, 2020, the Department of Justice (DOJ) Antitrust Division requested comments on whether it should update its 1995 Bank Merger Competitive Review guidelines (Banking Guidelines). As Assistant Attorney General Makan Delrahim recently recognized, "Innovative emerging technologies are disrupting traditional banking models and introducing new competitive elements to the financial sector." Accordingly, comments are requested on a number of questions regarding the revision of the Banking Guidelines "to reflect emerging trends in the banking and financial services sector and modernize [the Antitrust Division’s] approach to bank merger review under the antitrust laws." The request for comments may be found at this link.

Public comments on possible revisions to the Banking Guidelines must be received by DOJ no later than October 1, 2020. It should be noted that this process does not involve a formal rulemaking but rather the adoption of a revised supervisory policy, and thus DOJ is not constrained by Administrative Procedure Act requirements and could implement new Banking Guidelines as early as the fourth quarter. Continue reading >