Order Approving the Acquisition of a Savings Association and Nonbanking Subsidiaries -- Capital One Financial Corporation

-1- FRB Order No. 2012-2

(February 14, 2012)

FEDERAL RESERVE SYSTEM

Capital One Financial Corporation

McLean, Virginia

Order Approving the Acquisition of a Savings Association

and Nonbanking Subsidiaries

Capital One Financial Corporation (“Capital One”), a financial holding

company within the meaning of the Bank Holding Company Act (“BHC Act”),

has requested the Board’s approval under sections 4(c)(8) and 4(j) of the BHC Act and

section 225.24 of the Board’s Regulation Y

to acquire ING Bank, fsb (“FSB”),

Wilmington, Delaware, and thereby indirectly acquire ShareBuilder Advisors, LLC

(“ShareBuilder”) and ING Direct Investing, Inc. (“IDII”), both of Seattle, Washington.

Capital One, with total consolidated assets of approximately $200 billion,

is the 24

largest depository organization in the United States measured by asset size.

Capital One is the eighth largest depository organization in the United States measured

by deposits, controlling deposits of approximately $127 billion, which represents

approximately 1.4 percent of the total amount of deposits of insured depository

institutions in the United States.

Capital One controls two insured depository

institutions, Capital One, National Association (“CONA”), McLean, Virginia, and

12 U.S.C. §§ 1843(c)(8) and (j); 12 CFR 225.24.

FSB is owned by ING Groep N.V. (“ING Groep”), Amsterdam, The Netherlands. In

2008 and 2009, the government of The Netherlands provided ING Groep a guarantee of

some of ING Groep’s assets, including certain U.S. assets of FSB. Under this proposal,

Capital One would not acquire any FSB assets that are subject to the guarantee of the

Dutch government.

Asset and nationwide deposit ranking data are as of September 30, 2011. In this

context, insured depository institutions include commercial banks, savings banks, and

savings associations.

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Capital One Bank (USA), National Association (“COBNA”), Glen Allen, Virginia, that

operate in eight states and the District of Columbia.

FSB, with total consolidated assets of approximately $92 billion, is the

largest depository organization in the United States measured by deposits, controlling

deposits of approximately $82 billion, which represents less than 1 percent of the total

amount of deposits of insured depository institutions in the United States. FSB’s only

banking office is in Delaware, but FSB solicits business and operates nationwide

primarily through the Internet.

On consummation of the proposal, Capital One would become the

fifth largest depository organization in the United States by deposit size, with

consolidated deposits of approximately $210 billion, representing approximately

2.3 percent of the total amount of deposits of insured depository institutions in the

United States. Capital One would become the 20

largest depository organization

in the United States by asset size, with total consolidated assets of approximately

$292 billion.

Public Comment on the Proposal

Notice of the proposal, affording interested persons an opportunity to

submit comments, has been published in the Federal Register (76 Federal Register 44,008

(July 22, 2011) and 76 Federal Register 54,770 (September 2, 2011)), and the time for

filing comments has expired. The Board extended the initial period for public comment

to accommodate the broad public interest in this proposal, providing interested persons

more than 85 days to submit written comments.

Because of the extensive public interest in the proposal, the Board held

public meetings in Washington, D.C., Chicago, Illinois, and San Francisco, California,

CONA is Capital One’s largest subsidiary depository institution as measured by

both assets and deposits. COBNA primarily offers credit and debit card products

in addition to deposit products.

FSB operates eight cafés in the United States that are marketing offices of FSB

and do not meet the definition of “branch” under the regulations of the Office of

Thrift Supervision (“OTS”) and Office of the Comptroller of the Currency (“OCC”).

See 76 Federal Register 48,999 (August 9, 2011), to be codified at 12 CFR 145.92.

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to provide interested persons an opportunity to present oral testimony on the factors

that the Board must review under the BHC Act.

Approximately 235 people testified

at the public meetings, and many of the commenters who testified also submitted

written comments.

In total, approximately 915 individuals and organizations submitted

comments on the proposal through oral testimony, written comments, or both.

Commenters included members of Congress, state legislators, community groups,

nonprofit organizations, customers of Capital One or FSB, and other interested

organizations and individuals.

A large number of commenters supported the proposal. Many of the

commenters in support of the proposal commended Capital One for its commitment

to local communities and described favorable experiences with the small business,

community development, and affordable mortgage programs of the organization.

Commenters also praised the willingness of Capital One to provide products and

services under the Community Reinvestment Act (“CRA”),

such as affordable

mortgage products, educational seminars, and funds to support community development

activities. In addition, commenters praised Capital One’s charitable contributions and

noted that Capital One officers and employees frequently provide valuable services to

community organizations as board members and volunteers.

A significant number of commenters opposed the proposal, requested that

the Board only approve the proposal subject to certain conditions, or expressed concerns

The Board held the Washington public meeting on September 20, 2011, the Chicago

public meeting on September 27, 2011, and the San Francisco public meeting on

October 5, 2011. Several commenters requested that the Board further extend the

comment period and hold additional public meetings in New York City, Los Angeles,

Atlanta, New Orleans, and other communities. The Board believes that holding public

meetings in Washington, Chicago, and San Francisco, as well as providing all

commenters an extended period to submit written comments, provided sufficient

opportunity for interested persons to provide relevant information to the Board. The

three public meetings were distributed across the United States, and as noted above,

the written comment period exceeded 85 days.

12 U.S.C. § 2901 et seq.

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about the proposal.

Many commenters expressed concern about the impact of the

proposal on the financial stability of the U.S. banking or financial system. Commenters

also expressed their belief that, if approved by the Board, Capital One’s acquisition of

FSB would result in adverse effects that would outweigh the public benefits provided by

the proposal.

A significant number of commenters criticized the performance of Capital

One and FSB under the CRA. Some of the commenters criticized the compliance records

of the mortgage lending operations of Capital One and FSB and expressed concern about

their records of lending to minorities. Commenters also criticized Capital One’s

performance record of lending to small businesses and the record of its credit card

lending operations. In addition, commenters expressed concern about the impact of the

acquisition on Capital One’s commitment to CRA-related initiatives and its future

performance under the CRA. Commenters also noted concern about Capital One’s

proposed acquisition of credit card assets from subsidiaries of HSBC Holdings plc

(“HSBC”), London, United Kingdom, and requested that the Board review the two

proposals together or require an application from Capital One to acquire those assets,

to ensure that the HSBC proposal is taken into consideration in connection with the

review of the CRA, financial stability, and other factors related to the FSB proposal.

In evaluating the statutory factors under the BHC Act, the Board considered

the information and views presented by all commenters, including the testimony at the

Approximately 425 comments were submitted in the form of substantially identical

letters.

Capital One has applied to the OCC for approval under the Bank Merger Act to acquire

various assets from HSBC. The OCC is required to take into consideration the same

factors that are reviewed by the Board under the BHC Act, including the effects of the

acquisition on financial stability and on the convenience and needs of the community

to be served. 12 U.S.C. § 1828(c)(5). Although Capital One is not required by law to

apply for approval by the Federal Reserve to acquire the HSBC assets, Capital One has

provided information to the Board regarding the proposed acquisition of HSBC’s assets.

The Board has taken this information into account for purposes of its review of the

factors it must consider with respect to Capital One’s notice to acquire FSB.

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public meetings and in the written submissions.

The Board also considered all the

information presented in the notice and supplemental filings by Capital One; various

reports filed by the relevant companies; publicly available information; and other

information and reports. In addition, the Board reviewed confidential supervisory

information, including examination reports on the depository institution holding

companies and the depository institutions involved and information provided by

other federal financial supervisory agencies, the Department of Housing and Urban

Development (“HUD”), and the Department of Justice (“DOJ”). After a review of all

the facts of record, and for the reasons discussed in this order, the Board has concluded

that the statutory factors it is required to consider under the BHC Act are consistent with

approval of the proposal.

Factors Governing Board Review of the Transaction

The Board previously has determined by regulation that the operation of a

savings association by a bank holding company and the other nonbanking activities for

which Capital One has requested approval are closely related to banking for purposes of

section 4(c)(8) of the BHC Act.

The Board requires that savings associations acquired

by bank holding companies or financial holding companies conform their direct and

indirect activities to those permissible for bank holding companies under section 4(c)(8)

of the act.

Capital One has committed that all the activities of FSB and the other

One commenter expressed concern about ex parte communications and the

opportunity for the public to rebut all information that was provided by Capital One.

On review, the Board found that the public had a full opportunity to provide the

Board with any information related to the factors that the Board must consider in

acting on the notice. The information submitted by Capital One, and the release of

that information to the public, was in accordance with the Board’s regulations and

policies. The Board confirmed that all contacts between Capital One and staff were

in accordance with the Board’s rules on ex parte communications.

12 CFR 225.28(b)(4), (6), and (7).

A savings association operated by a bank holding company may engage only in

activities that are permissible for bank holding companies under section 4(c)(8) of

the BHC Act. 12 CFR 225.28(b)(4).

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nonbanking subsidiaries of FSB that it proposes to acquire will conform to those

activities that are permissible under section 4 of the BHC Act and Regulation Y.

Section 4(j)(2)(A) of the BHC Act requires the Board to consider whether

the proposed acquisition of FSB and its nonbanking subsidiaries “can reasonably be

expected to produce benefits to the public, such as greater convenience, increased

competition, or gains in efficiency, that outweigh possible adverse effects, such as

undue concentration of resources, decreased or unfair competition, conflicts of interests,

unsound banking practices, or risk to the stability of the United States banking or

financial system.”

As part of its evaluation of these factors, the Board reviews the

financial and managerial resources of the companies involved, the effect of the proposal

on competition in the relevant markets, the risk to the stability of the United States

banking or financial system, and the public benefits of the proposal.

In acting on a

notice to acquire a savings association, the Board reviews the records of performance

of the relevant insured depository institutions under the CRA. In cases involving the

interstate acquisition of an insured depository institution under section 4(c)(8) of the

BHC Act, the Board must also consider the concentration of deposits on a nationwide

basis.

Interstate and Deposit Cap Analyses

The Dodd-Frank Act amended section 4 of the BHC Act to provide that,

in general, the Board may not approve an application by a bank holding company to

acquire an insured depository institution if the home state of the insured depository

12 U.S.C. § 1843(j)(2)(A). Section 604(e) of the Dodd-Frank Wall Street Reform

and Consumer Protection Act of 2010, Pub. L. No. 111-203, 124 Stat. 1601 (2010),

(“Dodd-Frank Act”) added the “risk to the stability of the United States banking or

financial system” to the list of possible adverse effects.

See 12 CFR 225.26; see, e.g., Bank of America Corporation/Countrywide, 94 Federal

Reserve Bulletin C81 (2008) (“Bank of America Order”); Wachovia Corporation,

92 Federal Reserve Bulletin C138 (2006); BancOne Corporation, 83 Federal Reserve

Bulletin 602 (1997).

12 U.S.C. § 1843(i)(8).

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institution is a state other than the home state of the bank holding company, and the

applicant controls or would control more than 10 percent of the total amount of

deposits of insured depository institutions in the United States (“nationwide deposit

cap”).

The intended purpose of the nationwide deposit cap was to help guard against

undue concentrations of economic power.

For purposes of the BHC Act, the home

state of Capital One is Virginia, and the home state of FSB is Delaware.

Based on the latest available data reported by all insured depository

institutions in the United States, the total amount of deposits of insured depository

institutions is $8.9 trillion.

On consummation of the proposed transaction,

Capital One would control approximately 2.3 percent of the total amount of deposits

in insured depository institutions in the United States. Accordingly, in light of all the

facts of record, the Board is not required to deny the proposal under section 4(i) of the

BHC Act.

Dodd-Frank Act § 623(b), codified at 12 U.S.C. § 1843(i)(8). For a detailed

discussion of the nationwide deposit cap, see Bank of America Corporation/LaSalle,

93 Federal Reserve Bulletin C109, C109-C110 (2007); Bank of America

Corporation/Fleet, 90 Federal Reserve Bulletin 217, 219-220 (2004) (“Fleet Order”).

Fleet Order at 219.

A bank holding company’s home state is the state in which the total deposits of

all banking subsidiaries of such company were the largest on July 1, 1966, or the

date on which the company became a bank holding company, whichever is later.

12 U.S.C. § 1841(o)(4)(C). For a federal savings association, the home state is

the state in which the home office of the savings association is located. 12 U.S.C.

§ 1841(o)(4)(E).

See Fleet Order at 219. Deposit data are calculated based on reports filed by

insured depository institutions and are as of September 30, 2011. Each bank insured by

the Federal Deposit Insurance Corporation (“FDIC”) in the United States must report data

regarding its total deposits in accordance with the definition of “deposit” under the

Federal Deposit Insurance Act, 12 U.S.C. § 1813(l), on the institution’s Consolidated

Report of Condition and Income. Each insured savings association similarly must report

its total deposits on the institution’s Thrift Financial Report. Deposit data for FDIC-

insured U.S. branches of foreign banks and federal branches of foreign banks are

obtained from the Report of Assets and Liabilities of U.S. Branches and Agencies of

Foreign Banks. These data are reported quarterly to the FDIC and are publicly available.

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Competitive Considerations

As part of the Board’s consideration of the factors under section 4 of the

BHC Act, the Board has considered the competitive effects of Capital One’s acquisition

of FSB and its nonbanking subsidiaries, in light of all the facts of record. Capital One’s

subsidiary banks and FSB’s deposit-taking and lending operations are located in different

banking markets. Based on all the facts of record, including the differences in business

models, products, and methods for providing services to consumers, the Board has

concluded that the acquisition by Capital One of FSB’s deposit-taking and lending

operations would not result in any significant adverse effect on competition in any

relevant banking market.

The Board also has considered the competitive effects of Capital One’s

proposed acquisition of FSB’s other nonbanking subsidiaries and activities in light of

all the facts of record.

Capital One and FSB both engage in investment advisory and

securities brokerage services through subsidiaries that are registered broker-dealers.

The Board previously has determined that these activities are permissible for bank

holding companies.

Under the 2010 Horizontal Merger Guidelines (“Guidelines”) issued by the DOJ and

the Federal Trade Commission, the post-merger level of market concentration and the

change in concentration resulting from a merger are important factors in evaluating the

effect of the merger on competition. Market shares alone may not fully reflect the

competitive significance of firms in the market or the impact of a merger and are used

in conjunction with other evidence of competitive effects.

The Guidelines use the Herfindahl-Hirschman Index (“HHI”) as a measure of

concentration. For mergers that do not involve banks, the Guidelines state that mergers

resulting in unconcentrated markets are unlikely to have adverse competitive effects and

ordinarily require no further analysis. The Guidelines also state that mergers involving

an increase in the HHI of less than 100 points are unlikely to have adverse competitive

effects and ordinarily require no further analysis. Press Release, Department of Justice,

August 19, 2010, www.justice.gov/opa/pr/2010/August/10-at-938.html.

Although both Capital One and FSB currently own insurance subsidiaries, FSB’s

insurance subsidiary, ING Direct Insurance Agency, LLC, is inactive and did not engage

in any sales activity in 2010 or 2011. Accordingly, there is no overlap in competition

between Capital One and FSB in providing insurance services.

See 12 CFR 225.28(b)(7).

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Capital One and FSB compete in the securities brokerage business.

The

Board previously has determined that the geographic market for securities brokerage is

either regional or national in scope.

On consummation of the proposal, the securities

brokerage market would remain unconcentrated, and numerous competitors would

continue to engage in the securities brokerage business.

Capital One and FSB also compete in the investment advisory business.

The Board previously has determined that the geographic market for investment advisory

services is either regional or national in scope.

The record in this case indicates that

there are numerous competitors that would continue to engage in the investment advisory

business on consummation of the proposal and that Capital One’s and FSB’s levels of

participation are relatively small.

Based on all the facts of record, the Board concludes that consummation of

the proposed transaction would not have a significantly adverse effect on competition or

Capital One has two registered broker-dealers: Capital One Southcoast, Inc., which is

a full-service investment banking firm that provides corporate finance, equity research,

and institutional equity sales and trading services; and Capital One Investment Services

LLC, which offers services to retail investors. FSB owns IDII, which is an Internet-based

broker-dealer that provides brokerage services to retail investors and employer-sponsored

401(k) plans.

See Bank of America Order at C86; Allied Irish Banks, p.l.c., 94 Federal Reserve

Bulletin C11 (2007); Wachovia Corporation, 92 Federal Reserve Bulletin C183 (2006);

Marshall & Ilsley Corporation, 92 Federal Reserve Bulletin C121 (2006); Wells Fargo &

Company, 88 Federal Reserve Bulletin 103 (2002); and NationsBank Corporation,

84 Federal Reserve Bulletin 858 (1998).

Capital One has two registered investment advisors: Capital One Financial Advisors,

which distributes third-party investment management products through Capital One’s

branch network; and Capital One Asset Management, which provides investment

advisory services to certain clients of CONA. FSB indirectly owns ShareBuilder, a

registered investment advisor that creates exchange-traded funds for consideration by

retail brokerage customers of IDII. ShareBuilder does not offer personalized investment

advice.

See Marshall & Ilsley Corporation, 92 Federal Reserve Bulletin C121 (2006);

SunTrust Banks, Inc., 90 Federal Reserve Bulletin 533 (2004); and Fifth Third Bancorp,

87 Federal Reserve Bulletin 330 (2001).

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on the concentration of resources in any relevant banking or nonbanking activities market

and is consistent with approval.

Financial and Managerial Resources

The Board considered the financial and managerial resources of Capital

One, FSB, and their subsidiaries and the effect of the transaction on those resources, in

light of confidential reports of examination, other supervisory information from the

primary federal supervisor of the organizations involved in the proposal, publicly

reported and other financial information, information provided by Capital One and FSB,

and other relevant information. The Board also consulted with the OCC as the primary

federal supervisor of Capital One’s subsidiary depository institutions and FSB.

In addition, the Board considered the public comments that relate to these

factors. As noted above, the Board received a number of comments requesting that it

consider the current proposal in light of Capital One’s proposed acquisition of assets

from subsidiaries of HSBC. Commenters asserted that these proposals represent unsound

banking practices that would allow Capital One to acquire high-cost deposits from FSB

to fund the origination and acquisition of subprime credit card assets.

In evaluating financial resources in expansionary proposals by banking

organizations, the Board reviews the financial condition of the organizations involved

on both a parent-only and consolidated basis, as well as the financial condition of the

subsidiary insured depository institutions and the organizations’ significant nonbanking

operations. In this evaluation, the Board considers a variety of information, including

capital adequacy, asset quality, and earnings performance. In assessing financial factors,

the Board consistently has considered capital adequacy to be especially important. The

Board evaluates the financial condition of the combined organization at consummation,

including its capital position, asset quality, and earnings prospects, and the impact of the

proposed funding of the transaction. The Board also considers the ability of the

organization to absorb the costs of the proposal and the proposed integration of the

operations of the institutions.

The Board has considered the financial factors of the proposal. Capital

One’s regulatory capital ratios are well above the minimums required of well-capitalized

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bank holding companies and would remain so on consummation of the proposal. Capital

One’s subsidiary depository institutions and FSB also are well capitalized and would

remain so after consummation. The proposed transaction is structured as a cash and

share exchange. Capital One would acquire FSB from ING Groep in exchange for

approximately $6.2 billion in cash and 55.9 million Capital One common shares,

valued at approximately $2.8 billion.

Capital One represented that the cash portion of

the purchase price of FSB would be funded with the proceeds from the sale of $2 billion

of additional shares and the issuance of $3 billion of senior unsecured debt,

with the

remaining $1.2 billion to be funded from available cash resources. This transaction

would not materially increase the debt service requirements of the combined company.

Asset quality and earnings prospects also are consistent with approval.

The Capital One common shares to be acquired by ING Groep represent

approximately 9.6 percent of Capital One’s voting shares. One commenter asserted that

ING Groep must file an application for control of more than 4.9 percent of Capital One’s

voting stock. The commenter also argued that ING Groep would control Capital One

by virtue of its ownership of up to 9.9 percent of Capital One’s voting shares. These

assertions are not legally correct in this case. As a result of the proposal, ING Groep

would no longer control a savings association and, consequently, would no longer be a

regulated savings and loan holding company or bank holding company. As such, ING

Groep would not require the Board’s approval to acquire up to 9.9 percent of the voting

stock of Capital One. In addition, the Board has determined in a separate action that

ING Groep would not control Capital One as a result of this proposal. See Board letter

to Mark Menting, Esq. (February 14, 2012).

In July 2011, Capital One entered into forward sale agreements totaling $2 billion

in connection with a public offering of 40 million common shares. Also in July 2011,

Capital One closed a public offering of $3 billion of senior unsecured notes. Capital One

represented that it expects to use the proceeds of the forward sale agreements and the

debt offering to fund the proposed acquisition of FSB.

In reviewing the financial factors in this case, the Board has taken account of

Capital One’s plan to acquire certain assets from HSBC and to fund the acquisition of

HSBC assets primarily with cash and the proceeds from the repositioning of FSB’s

balance sheet. In addition, Capital One expects to issue additional equity, including

up to $750 million in equity that Capital One has the option to issue to HSBC.

Several commenters expressed concern that Capital One’s asset portfolio is highly

concentrated in credit cards, including a substantial amount of subprime credit card

assets. The Board believes that Capital One has the financial and managerial resources

to manage its asset portfolio. Capital One lends across a full spectrum of borrowers,

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The Board also has considered the managerial resources of the

organizations involved and the proposed combined organization. The Board has

reviewed the examination records of Capital One, its subsidiary depository institutions,

and FSB, including assessments of their management expertise, internal controls,

risk-management systems, and operations. In addition, the Board has considered its

supervisory experiences and those of other relevant financial supervisory agencies with

the organizations and the organizations’ records of compliance with applicable banking

laws and with anti-money-laundering (“AML”) laws.

Capital One and its subsidiary depository institutions are considered to be

well managed. Capital One has a demonstrated record of successfully integrating large

organizations into its operations and risk-management systems following acquisitions,

including its integrations of Hibernia Corporation in 2005, North Fork Bancorporation in

2006, and Chevy Chase Bank in 2009. Capital One is devoting significant financial and

other resources to address all aspects of the post-acquisition integration process for this

proposal. Capital One would implement its risk-management policies, procedures, and

controls at the combined organization. In addition, Capital One’s management has the

experience and resources to ensure that the combined organization operates in a safe and

sound manner.

The Board also has considered comments that allege weaknesses in

Capital One’s compliance management as it relates to consumer protection practices.

Commenters criticized Capital One for attempting to collect credit card debts from

and its overall business is diversified. Capital One has substantially decreased its

reliance on credit card revenue since 2005. Currently, credit card loans represent

approximately 48 percent of Capital One’s loan portfolio and approximately

28 percent of the company’s total assets.

One commenter contended that ING Groep and FSB are being reviewed by

U.S. authorities, including the DOJ, for possible violations of AML and economic

sanctions laws. ING Groep has represented that these reviews focus on ING Bank N.V.,

Amsterdam. Capital One represented that it plans to integrate its corporate compliance

program at FSB and each of its subsidiaries, that it has begun to engage in full

assessments of FSB’s AML and economic sanctions programs in order to immediately

manage compliance by Capital One and FSB at consummation, and that it plans to

integrate the organizations’ different compliance processes over time.

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customers whose debts previously had been discharged in bankruptcy,

not complying

with laws governing repossession of automobiles,

not following state and federal laws

that protect exempt income from debt collection,

and failing to comply with fair lending

laws, among other matters.

The Board believes that it is appropriate in connection with the acquisition

of FSB for Capital One to enhance its risk-management systems and policies to account

for the size, complexity, and diversification of the business lines that would result from

the acquisition of FSB. To ensure minimal disruption to FSB’s customers and maintain

focus on risk management during the integration, Capital One has committed that it will

ensure the adequate completion of the integration of FSB as well as the HSBC portfolio,

referenced above, in a timely manner consistent with supervisory expectations.

In addition, the Board expects that Capital One will ensure that its

risk-management framework and methodologies, including its compliance functions,

are commensurate with its new size and complexity. The various consumer complaints

In early 2007, Capital One determined that it had inadvertently filed proofs of

claim on discharged debts. Capital One cooperated with a U.S. bankruptcy trustee’s

investigation and, pursuant to a November 2008 consent order, retained an independent

auditor to oversee a review of its proofs of claim to determine whether Capital One had

filed claims on previously discharged debts. Capital One addressed this issue by

retaining an outside vendor to perform an additional review in advance of any filing of a

claim by Capital One. Capital One represented that the court-mandated auditor has

revealed that the error rate in filing proofs of claim dropped significantly after the outside

vendor was retained. Capital One paid $2.35 million in restitution to affected customers.

The Federal Reserve will use the supervisory and examination process to ensure the

effectiveness of the debt collection practices and programs adopted by Capital One.

Capital One has settled several class action lawsuits regarding its automobile

repossession practices prior to 2008. Capital One corrected errors in its automobile

finance processing systems in 2008 by fully integrating systems from its acquisitions

of Hibernia Corporation and North Fork Bancorporation.

Capital One represented that in mid-2011, a small number of depositors had been

improperly subjected to garnishment orders requested by Capital One. Capital One

subsequently took corrective steps to provide remediation to the depositors and to

implement new processes and controls to prevent improper garnishment requests.

Comments relating to fair lending compliance are discussed in Other Considerations,

infra.

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and legal actions against Capital One referenced in this order suggest that Capital One’s

processes and procedures for enterprise-wide compliance transaction testing could be

improved. Accordingly, the Board conditions its decision on Capital One augmenting

these processes and procedures by adopting a plan within 90 days acceptable to the

Federal Reserve Bank of Richmond that specifies the areas in which transaction testing

will be conducted, the type of testing appropriate for each area, and an appropriate

sampling methodology; addresses the frequency and scope of compliance transaction

testing; provides for periodic reporting to management and the Audit and Risk

Committee of the board of directors; provides for improved employee training; and

includes requirements for at least an annual review by internal audit of the testing

implementation for at least the next three years. Compliance with this condition will be

monitored as part of the supervisory process.

Based on all the facts of record, including a review of the comments

received, and in reliance on the commitments and conditions discussed above, the Board

has concluded that considerations relating to the financial and managerial resources of the

organizations involved in the proposal are consistent with approval under section 4 of the

BHC Act.

Records of Performance Under the CRA

As noted previously, the Board reviews the records of performance under

the CRA of the relevant insured depository institutions when acting on a notice to acquire

any insured depository institution, including a savings association.

The CRA requires

the federal financial supervisory agencies to encourage insured depository institutions to

help meet the credit needs of the local communities in which they operate, consistent

with their safe and sound operation,

and requires the appropriate federal financial

supervisory agency to take into account a relevant depository institution’s record of

12 U.S.C. § 2901 et seq.

12 U.S.C. § 2901(b).

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meeting the credit needs of its entire community, including low- and moderate-income

(“LMI”) neighborhoods, in evaluating bank expansionary proposals.

The Board has considered all the facts of record, including reports of

examination of the CRA performance records of Capital One’s subsidiary banks and of

FSB, data reported by Capital One and FSB under the CRA and the Home Mortgage

Disclosure Act (“HMDA”),

other information provided by Capital One, confidential

supervisory information, and public comments received on the proposal. As noted above,

the Board held three public meetings to allow interested members of the public an

opportunity to provide oral testimony regarding the proposal in addition to having the

opportunity to submit written information and views. As a result of the meetings and

through the course of the public comment period, the Board received approximately

915 comments.

Approximately 340 individuals, organizations, and businesses submitted

comments or testified in support of the proposal. These commenters generally

commended Capital One’s record of performance under the CRA, particularly its support

for community development and small business programs, through loans, investments

and grants, donated space, and corporate volunteers; its business education programs to

small business owners, including in LMI communities; its development of affordable

home purchase loans for borrowers in LMI communities; and its other programs.

Approximately 575 other individuals and groups expressed concern in

their comments and testimony about the mortgage, small business, and consumer lending

records of Capital One and FSB; Capital One’s ability to satisfy its CRA obligations after

consummation of the proposal; or related matters.

Among the criticisms made by

commenters were that:

12 U.S.C. § 2903.

12 U.S.C. § 2801 et seq.

Many commenters urged the Board to require Capital One to provide specific pledges

or plans, or to take certain future actions, or asked the Board to condition its approval on

a commitment by Capital One to provide loans or investments to specific communities.

The Board focuses on the existing CRA performance record of an applicant and the

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● Capital One has not engaged in an adequate amount of home mortgage

lending to LMI and minority borrowers.

● Capital One has failed to meet the community development and small

business needs in communities served by banks that Capital One

previously acquired. Some of these commenters asserted that Capital

One had reduced its small business loans in various communities and

replaced affordable loans to small businesses with higher-cost credit

cards.

● Capital One’s lending in California, especially to minority- and

women-owned businesses, has been inadequate.

● Capital One and FSB have been inconsistent in making branches

and services available to LMI communities.

● FSB’s record of lending to LMI and minority borrowers and FSB’s

café locations have disproportionately excluded LMI consumers.

A. CRA Performance Evaluations

As provided in the CRA, the Board has evaluated the proposal in light

of the examinations by the appropriate federal supervisors of the CRA performance

records of the relevant insured depository institutions. An institution’s most recent

CRA performance evaluation is a particularly important consideration in the applications

process because it represents a detailed, on-site evaluation of the institution’s overall

record of performance under the CRA by its appropriate federal supervisor.

Capital One’s lead bank, CONA, received an “outstanding” rating at its

most recent CRA performance evaluation by the OCC, as of April 4, 2011 (“CONA

programs that an applicant has in place to serve the credit needs of its assessment areas

at the time the Board reviews a proposal. See Bank of America Order at C87.

Two commenters also asserted that FSB personnel cash checks and otherwise perform

activities that qualify those cafés as branches of FSB. Capital One has represented that

café personnel currently do not cash checks or accept deposits, and, consequently, that

these cafés are not branches of FSB under the Home Owners’ Loan Act (“HOLA”),

12 U.S.C. § 1461 et seq., and were not included in the OTS analysis of FSB’s record

under the CRA. Four of the cafés are in LMI census tracts, one is in a middle-income

tract, and three are in upper-income tracts. Capital One has represented that it intends to

add deposit-taking ATMs at FSB’s cafés and expand its CRA assessment areas to include

the relevant communities served by these cafés.

See Interagency Questions and Answers Regarding Community Reinvestment,

66 Federal Register 11,642 at 11,665 (2010).

- 17 -

Evaluation). COBNA received a “satisfactory” rating at its most recent CRA

performance evaluation by the OCC, as of April 4, 2011 (“COBNA Evaluation”).

FSB received an “outstanding” rating at its most recent CRA performance

evaluation by the OTS, as of August 6, 2008 (“FSB Evaluation”).

Capital One has

represented that it will institute elements of the community development and community

investment policies of CONA and COBNA at FSB to strengthen FSB’s ability to meet

the banking needs of the communities it serves.

CRA Performance of CONA. CONA is the largest insured depository

institution controlled by Capital One, representing approximately 65 percent of

Capital One’s insured depository institution assets. In the CONA Evaluation, the

bank received “outstanding” ratings for the lending and investment tests and a “high

satisfactory” rating for the service test. CONA’s performance in the New York-

Northern New Jersey-Long Island Multi-State Metropolitan Area (“NY Metro AA”),

the Washington, D.C. Multi-State Metropolitan Area (“D.C. Metro AA”), and the

State of Louisiana (“Louisiana AA”) was given considerably more weight than its

The period for the CONA Evaluation was January 1, 2007, through December 31,

2010. COBNA is a limited-purpose bank for purposes of the CRA, and it is evaluated

under the community development test. The period for the COBNA Evaluation was

March 1, 2008, through December 31, 2010.

The period for the FSB Evaluation was January 1, 2005, through December 31, 2007.

Several commenters asserted that Capital One should meet the credit needs of

LMI customers in California. The CRA requires a bank or savings association to

meet the credit needs of the communities in which it operates, which include

geographies of the institution’s main office, its branches, and its deposit-taking

ATMs. 12 CFR part 228; 12 CFR part 195. As noted above, Capital One expects

to add services to FSB’s cafés that will cause the cafés to be branches for purposes

of HOLA, beginning with the cafés in San Francisco and Los Angeles. After the

cafés become branches, Capital One will be required under the CRA to provide

banking products and services to LMI customers in San Francisco and Los Angeles.

12 U.S.C. § 2901 et seq.; 12 CFR part 195.

Several commenters also suggested that the Board delay action on the proposal

to allow the federal banking agencies to promulgate updated CRA regulations that

would impose broader CRA requirements on companies like Capital One and FSB that

conduct business outside their branch footprints. The Board has analyzed the proposal

under the existing CRA regulations and procedures.

- 18 -

performance in the other states that are part of CONA’s assessment area

to reflect

the fact that 90 percent of the bank’s deposits are booked in branches in those areas.

Examiners stated that CONA had good lending activity and characterized

its distribution of loans among geographies of different income levels as excellent.

Examiners reported that CONA’s distribution of HMDA-reportable mortgage loans

among borrowers of different income levels was good.

Examiners commended

CONA’s community development lending, which they described as serving significant

community development needs. Examiners also stated that CONA exhibited an adequate

distribution of loans among borrowers of different income levels. Examiners noted that

CONA’s branches were accessible to geographies and individuals of different income

levels and stated that product innovation and flexibility had a positive impact on the

lending test. In addition, examiners noted an excellent level of community development

investments that were responsive to the needs of the bank’s assessment areas and

community development services that were responsive to the areas’ needs as well.

The other states are Delaware, Maryland, New Jersey, Texas, and Virginia.

Some commenters alleged that Capital One’s depository institution subsidiaries

decreased their home mortgage lending between 2007 and 2009. The Board reviewed

HMDA data for 2008 and 2009, which indicate that Capital One’s home mortgage

application volume decreased nationwide by more than 61 percent. This decline was

attributable to general economic conditions and Capital One’s decisions to concentrate

on direct lending and to close the legacy mortgage businesses of recently acquired

North Fork Bank and Chevy Chase Bank, which focused on broker-originated

alternative mortgage products.

In CONA’s NY Metro AA, examiners generally found that the bank’s lending

levels were excellent. The examiners concluded that the distribution of home

purchase, home improvement, and home refinance loans was excellent and that the

distribution of multifamily loans was good. In the D.C. Metro AA, examiners found

that CONA’s lending activity was good, that the distribution of home purchase loans

in LMI geographies was consistent with the number of owner-occupied housing units,

and that the distribution of home improvement loans was adequate. In the Louisiana AA,

examiners reported that CONA’s lending activity and geographic distribution of home

mortgage loans and home refinance loans was good and that the geographic distribution

of home purchase loans was excellent. The geographic distribution for home

improvement loans was adequate in this assessment area.

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Examiners also reported that CONA’s level of community development lending

significantly enhanced its lending test performance.

In addition, examiners reported that CONA’s distribution of small

business loans was good.

As noted above, many commenters expressed concern

that Capital One had reduced its small business lending and, in particular, alleged that

Capital One had replaced affordable loans to small businesses with higher-cost credit

cards. Although Capital One’s CRA-reportable small business loan volume declined by

more than 81 percent between 2008 and 2009 (compared with a decrease of 56 percent

for lenders in the aggregate), Capital One increased its CRA-reportable small business

loan volume by more than 18 percent in 2010 (compared with an additional decrease

of more than 9 percent for lenders in the aggregate). In addition, the percentage

of Capital One’s CRA-reportable small business loans that were made in minority or

LMI census tracts in 2010 exceeded that of lenders in the aggregate. The Board also

has reviewed data provided by Capital One and determined that credit cards account

for a small portion of its small business lending.

In the CONA Evaluation, examiners commended the bank’s performance

under the investment test. During the evaluation period, CONA made more than

1,350 investments, including grants and contributions, that totaled more than $1 billion.

Examiners also commended CONA’s demonstrated leadership and responsiveness to

Examiners commended CONA’s community development lending performance

in Louisiana for being complex, innovative, and responsive to the needs of the area.

In the NY Metro AA, CONA originated 300 community development loans totaling

$1.1 billion during the assessment period. Examiners also praised CONA’s community

development lending in the D.C. Metro AA as demonstrating a high level of

responsiveness. CONA made over $71 million in loans to rehabilitate affordable

housing units in the D.C. Metro AA.

In this context, “small business loans” are loans with original amounts of

$1 million or less that either are secured by nonfarm, nonresidential properties or

are classified as commercial and industrial loans. In both the NY Metro AA and

the Louisiana AA, examiners noted that the percentage of loans to small businesses

in LMI areas exceeded the percentage of such businesses in these geographies.

Capital One represented that it does not market small business credit cards to

applicants who are denied traditional small business loans.

- 20 -

community development needs.

In addition, examiners found that CONA exhibited

leadership and used innovative and complex methods to continue investing in

Low Income Housing Tax Credits (“LIHTC”).

CONA received an overall “high satisfactory” rating under the service test

in the CONA Evaluation. Examiners found that CONA’s distribution of branches was

accessible to geographies and individuals of different income levels.

Examiners

reported that the bank provided a good level of community development services and

praised the amount of time bank employees volunteered with different organizations.

CRA Performance of COBNA.

COBNA’s overall CRA rating was

lowered from “outstanding” to “satisfactory” as a result of a review of the bank’s credit

Examiners stated that CONA demonstrated exceptional levels of commitment

and leadership in supporting the Louisiana AA’s recovery from the devastation of

Hurricanes Katrina and Rita. In the Louisiana AA, CONA originated or renewed

38 community development loans and lines of credit totaling $338 million.

CONA provided more than $70 million in LIHTC investments in affordable housing

in the NY Metro AA. In 2010, CONA made $20.4 million in LIHTC investments in the

D.C. Metro AA. In the Louisiana AA, CONA made more than $50 million in LIHTC

investments that included providing critical financing for a low-income-housing project

in Jefferson, Louisiana, when another lender was unable to fulfill its commitment.

Some commenters noted that in CONA’s CRA evaluation in 2007, the bank received

a “low satisfactory” rating on the service test. At that time, examiners reported that

CONA lacked an appropriate distribution of branches and ATMs in LMI communities

in Louisiana and Texas. Capital One represented that this rating was attributable to

Capital One’s acquisition of Hibernia Bank in 2005, which had not invested sufficiently

in building branches in LMI communities in Louisiana and Texas. Capital One

represented that, of the 33 new branches CONA opened in LMI areas since 2007,

19 are in Louisiana and Texas.

In the NY Metro AA, examiners found that CONA provided an excellent level of

community development services and stated that bank employees were involved with

188 different organizations. Examiners reported that in the D.C. Metro AA, CONA

provided a good level of community development services, with a majority of those

services being geared toward community services, such as providing financial

education to students. In the Louisiana AA, examiners found that the level of

community development services was good and that bank employees were involved

with more than 200 different organizations.

COBNA’s assessment area includes all of Henrico County and the City of Richmond,

both in Virginia. COBNA’s community development strategy targeted opportunities first

- 21 -

card program that reflected certain disclosure issues identified by COBNA.

During

the evaluation period, COBNA made more than $527 million in qualified investments.

Examiners stated that COBNA demonstrated a high level of qualified investments and

community development services. Examiners found that COBNA made extensive use

of complex or innovative qualified investments, community development services, and

community development loans. Examiners also found that COBNA demonstrated

excellent responsiveness to community development needs in its assessment area.

addition, examiners praised bank personnel for providing approximately 5,000 hours of

participation as members of boards of directors and for providing financial and technical

expertise.

CRA Performance of FSB. As noted above, FSB received an overall

“outstanding” rating in its 2008 CRA evaluation, with a “high satisfactory” rating on

the lending test and “outstanding” ratings on both the investment and service tests.

Examiners noted that FSB’s distribution of home mortgage loans reflected good

penetration of LMI geographies in its assessment area and in the supplemental areas

used to evaluate performance.

In addition, examiners found that FSB’s lending

performance to borrowers of different income levels in its assessment areas and in the

supplemental areas was satisfactory, considering the bank’s nationwide lending strategy

and unique branchless platform. Examiners noted a significant level of qualified

within its assessment area; then within the Commonwealth of Virginia, the surrounding

states, and the Northeast region; and finally opportunities nationwide. Because there was

a great need for qualified community development investments and lending in the Gulf

Coast region following Hurricanes Katrina and Rita, COBNA focused its community

development opportunities in that region.

The violations related to credit card disclosures for a specific add-on product offered

between January 2004 and April 2010. COBNA identified the violation in early 2010

and had provided restitution to affected consumers by June 2010.

COBNA invested $25.5 million in 5 LIHTC developments, creating 654 units of

affordable housing for LMI individuals.

FSB’s assessment area consists of the Philadelphia-Camden-Wilmington Metropolitan

Statistical Area (or “MSA”). FSB’s Supplemental MSAs include MSAs that encompass

many large and midsize cities across the United States, including Washington, D.C.,

San Francisco, Chicago, Los Angeles, Phoenix, and Denver.

- 22 -

investments and grants to community development organizations, which showed a good

responsiveness to credit and community economic development needs, particularly the

needs of small businesses. In addition, examiners found that FSB was a leader in

providing access to community development services in its assessment area through

alternative delivery systems, such as the Internet, call centers, and a network of ATMs.

Examiners also commended FSB on the record of its employees in providing community

development services.

B. Conclusion on CRA Performance

The Board has considered all the facts of record, including the CRA

performance records of the institutions involved, information provided by Capital One,

comments received on the proposal and responses to those comments, and confidential

supervisory information. Based on a review of the entire record, and for the reasons

discussed above, the Board concludes that the CRA performance records of the relevant

insured depository institutions are consistent with approval of the proposal.

Other Considerations

In its evaluation, the Board has considered the records of Capital One and

FSB in complying with fair lending and other consumer protection laws.

A. HMDA Analysis

The Board has reviewed HMDA data from 2008, 2009, and 2010 reported

by CONA and FSB and their lending affiliates.

Several commenters alleged that

Capital One and FSB denied the home mortgage loan applications of minority borrowers

more frequently than those of nonminority applicants in certain MSAs.

The HMDA

The Board reviewed HMDA data for CONA in its combined assessment areas, in

each of its states, in its multistate assessment areas (Texarkana MSA, D.C. Metro AA,

and NY Metro AA), and in two out-of-market areas of interest to the commenters (the

State of California and the Chicago MSA). The HMDA data for CONA include

Chevy Chase Bank, which Capital One acquired in 2009, in order to ensure consistent

results. The Board reviewed HMDA data for FSB nationwide, in its assessment area,

in its Supplemental MSAs, and in MSAs of interest to the commenters.

Some commenters also questioned Capital One’s efforts in awarding contracts to

minority- and women-owned businesses. Although the Board fully supports programs

designed to promote equal opportunity and economic opportunities for all members of

- 23 -

data indicate that, with the exception of certain areas outside CONA’s branch footprint,

the percentage of CONA’s applications from and originations to minority borrowers,

LMI borrowers, and borrowers in predominantly LMI areas generally exceeded the

percentage for lenders in the aggregate. In addition, the data indicate that CONA did

not exhibit a higher denial rate for minority applicants relative to its denial rate for

nonminority applicants (“denial disparity ratio”), as compared with the denial disparity

ratio for minority and nonminority applicants of lenders in the aggregate. The HMDA

data do not suggest that Capital One excluded any racial, ethnic, economic, or geographic

segment of the population within its branch footprint.

In a small number of markets outside Capital One’s branch footprint,

including California and the Chicago MSA, the data indicate that CONA’s percentage of

HMDA applications from and originations to minority borrowers was lower than for

lenders in the aggregate in 2008 and 2009.

The Board is concerned when HMDA data

society, the comments about supplier diversity practices are beyond the factors the Board

is authorized to consider under the BHC Act. See, e.g., Bank of America Order at C90.

In addition, one commenter asserted that the Board should ensure that Capital

One’s supplier diversity practices are consistent with section 342 of the Dodd-Frank Act,

codified at 12 U.S.C. § 5452, which instructs the Board, including the Federal Reserve

Banks, and certain other federal agencies each to establish an Office of Minority and

Women Inclusion that is authorized to develop standards for “assessing the diversity

policies and practices of entities regulated by the agency.” The Board and the other

federal agencies are developing standards for assessing the diversity policies and

practices of regulated firms in accordance with section 342. Section 342 specifically

provides, however, that those standards may not mandate any particular diversity practice

or require any specific action based on the agency’s assessment. 12 U.S.C. § 5452(b)(4).

The HMDA data also indicate that although FSB generally received a lower

proportion of its applications from minorities relative to lenders in the aggregate,

FSB’s denial disparity ratio for minority borrowers generally approximated or was

more favorable than lenders in the aggregate.

California and the Chicago MSA accounted for a relatively small proportion of

CONA’s application volume in 2008 and 2009, consistent with Capital One’s strategy

to make mortgage loans primarily within its branch footprint. In 2009, CONA received

3,329 applications in California and 1,304 applications in the Chicago MSA, representing

4.6 percent and 1.8 percent of its HMDA-related application volume, respectively. In

2010, Capital One’s HMDA-related application volume dropped to 110 in California

and 20 in the Chicago MSA.

- 24 -

for an institution indicate disparities in lending and believes that all lending institutions

are obligated to ensure that their lending practices are based on criteria that ensure not

only safe and sound lending but also equal access to credit by creditworthy applicants

regardless of their race or ethnicity. Moreover, the Board believes that all bank holding

companies and their affiliates must conduct their mortgage lending operations without

any abusive lending practices and in compliance with all consumer protection laws.

Although the HMDA data might reflect certain disparities in the rates

of loan applications, originations, and denials among members of different racial or

ethnic groups in certain local areas, they provide an insufficient basis by themselves on

which to conclude whether Capital One or FSB has excluded or imposed higher costs on

any group on a prohibited basis. The Board recognizes that HMDA data alone, even with

the recent addition of pricing information, provide only limited information about the

covered loans.

HMDA data, therefore, have limitations that make them an inadequate

basis, absent other information, for concluding that an institution has engaged in illegal

lending discrimination.

Because of the limitations of HMDA data, the Board has considered these

data and taken into account other information, including examination reports that provide

on-site evaluations of compliance with fair lending and other consumer protection laws

and regulations by CONA and its lending affiliates.

The Board also has consulted with

the OCC, the primary federal supervisor of Capital One’s subsidiary banks and FSB.

The data, for example, do not account for the possibility that an institution’s outreach

efforts may attract a larger proportion of marginally qualified applicants than other

institutions attract and do not provide a basis for an independent assessment of whether

an applicant who was denied credit was, in fact, creditworthy. In addition, credit history

problems, excessive debt levels relative to income, and high loan amounts relative to the

value of the real estate collateral (the reasons most frequently cited for a credit denial or

higher credit cost) are not available from HMDA data.

Examiners reported that the CONA Evaluation was not impacted by fair lending issues

at the former Chevy Chase Bank, which Capital One acquired in 2009. Capital One

identified fair lending issues at Chevy Chase Bank shortly after the acquisition but

before Capital One merged Chevy Chase Bank into CONA. Examiners reported that

Capital One took appropriate actions to address the issues.

- 25 -

In addition, the Board has considered information provided by Capital One about its

compliance risk-management systems.

As discussed further below, Capital One’s compliance program includes

fair lending policy and product guides, testing of the integrity of its HMDA data, and fair

lending training for lending-related employees. In addition, Capital One has adopted a

process for evaluating new laws and regulations for applicability to its mortgage lending

operations. Moreover, the CRA examinations of CONA and COBNA found that both

banks demonstrated good lending activity with a good dispersion of loans across income

levels in the areas within the banks’ CRA assessment areas. The Board notes that lending

in the areas referenced by commenters outside the banks’ assessment areas was not

significant. Overall, despite the disparities indicated by the HMDA data for Capital One,

the Board’s analysis of the HMDA data, consultations with the OCC, and review

of Capital One’s compliance programs suggest that Capital One’s mortgage lending

operations and compliance programs are adequate to ensure compliance with fair lending

and other consumer protection laws.

B. Other Commenter Concerns

Commenters expressed a number of specific concerns regarding Capital

One’s compliance with fair lending and consumer protection laws. For instance,

commenters alleged that Capital One’s policies on originating home mortgage loans

insured by the Federal Housing Administration (“FHA”) have had an illegal

discriminatory impact on minorities. Specifically, commenters alleged that Capital One

refused to lower its minimum FICO credit score required for FHA loans from 620 to 580,

the minimum threshold established by FHA for such loans, and that Capital One’s policy

had a discriminatory impact.

To address these concerns, Capital One is preparing to

offer FHA loans to borrowers with FICO scores of between 580 and 620, with

appropriate protections to minimize the risk of the borrower’s default, by developing

the servicing and reporting platforms necessary to sell such loans directly to the

Government National Mortgage Association.

One organization noted that it had filed a complaint with HUD regarding Capital

One’s policies.

- 26 -

Commenters also alleged that Capital One had failed to participate in the

Department of the Treasury’s Hardest Hit Fund (“HHF”) Program under the Troubled

Asset Relief Program and that the alleged inaction has had a discriminatory impact on

minorities and LMI borrowers. Commenters further alleged that Capital One has not

participated in other mortgage modification programs, such as the Home Affordable

Mortgage Program (“HAMP”), which commenters asserted also has had a discriminatory

impact on minorities and LMI borrowers. Capital One enrolled in four state HHF

programs, including those of Oregon and Washington, D.C., after receiving requests on

behalf of borrowers. In addition, Capital One participates in HAMP and also offers a

proprietary mortgage modification program similar to HAMP. More borrowers are

eligible for mortgage modifications under Capital One’s proprietary program than under

HAMP because the proprietary program has broader eligibility requirements, including a

higher balance limit.

Commenters also alleged that Capital One’s overdraft protection practices

are unfair. Capital One has adopted policies and procedures regarding the payment of

overdrafts consistent with the requirements of Regulation E.

In addition, Capital One

has a daily limit on overdraft fees charged to an individual customer and a threshold

account balance below which overdraft fees are not assessed. Capital One also provides

consumer financial education about avoiding overdrafts to its customers with repeat

overdrafts and makes available a line of credit linked to the customers’ checking accounts

to prevent overdraft fees.

Several commenters expressed concern that Capital One has engaged in

false, misleading, or deceptive credit card practices. Commenters referenced pending

litigation against Capital One alleging misleading marketing practices.

Some

commenters stated that Capital One had received a high number of complaints regarding

12 CFR part 205.

On January 7, 2012, Capital One entered into a settlement agreement with the

West Virginia Attorney General to resolve a lawsuit alleging that Capital One violated

the West Virginia Consumer Credit and Protection Act between 2001 and 2005 by,

among other things, offering a payment protection product to customers who were

ineligible for certain benefits at the time of enrollment and encouraging customers to

- 27 -

its credit card practices and alleged that Capital One’s statements about its credit cards

and the interest rates and fees are unfair or deceptive. In addition, a commenter

expressed concern that Capital One has engaged in abusive credit card practices by

offering borrowers multiple high-fee cards with low credit limits rather than a single card

with a higher credit limit.

The Board has consulted with the OCC about Capital One’s compliance

with regulatory requirements related to its credit card lending operations and the systems

Capital One has adopted to prevent false, misleading, or deceptive practices. Capital One

conducts ongoing reviews to ensure that the terms and marketing of its credit card and

other products are appropriate and comply with applicable laws and regulations,

including the Truth in Lending Act and Regulation Z. Capital One’s compliance program

includes fair lending policy and product guides, compliance file reviews, testing of the

integrity of its HMDA data, and other quality-assurance measures to help ensure

compliance with consumer protection laws. Capital One also provides computer-based

fair lending training for lending-related employees and supplemental, in-person training

for personnel with higher fair lending compliance risks in their jobs. Capital One has

represented that it will implement its compliance management program at FSB. In

addition, the Board has considered the commitments made by Capital One and the

conditions imposed by the Board, discussed above, that are designed to further enhance

the compliance programs at Capital One. Finally, Capital One does not issue “high fee”

cards as defined by the Credit Card Accountability Responsibility and Disclosure Act of

2009. Capital One also has policies that limit an individual customer to a maximum of

two unsecured, general-purpose credit cards.

enter into debt repayment plans through solicitations that purported to be offers of new

credit. As part of the settlement, under which Capital One did not admit guilt, Capital

One agreed to provide $13.5 million for debt forgiveness, debt relief, and consumer

education for West Virginia consumers. Capital One has enhanced its compliance

risk-management practices since the period to which the complaint relates and

discontinued one of the lines of business that was the focus of the lawsuit.

- 28 -

Financial Stability

The Dodd-Frank Act added “risk to the stability of the United States

banking or financial system” to the list of possible adverse effects that the Board must

weigh against any expected public benefits in considering proposals under section 4(j)

of the BHC Act.

A financial stability factor also was added by the Dodd-Frank Act

to the list of considerations in reviewing proposals under section 3 of the BHC Act.

Financial Stability Standard

In reviewing applications and notices under sections 3 and 4 of the

BHC Act, the Board expects that it will generally find a significant adverse effect if

the failure of the resulting firm, or its inability to conduct regular-course-of-business

transactions, would likely impair financial intermediation or financial market functioning

so as to inflict material damage on the broader economy. This kind of damage could

occur in a number of ways, including seriously compromising the ability of other

financial institutions to conduct regular-course-of-business transactions or seriously

disrupting the provision of credit or other financial services.

To assess the likelihood that failure of the resulting firm may inflict

material damage on the broader economy, the Board will consider a variety of metrics.

These would include measures of the size of the resulting firm; availability of substitute

providers for any critical products and services offered by the resulting firm;

interconnectedness of the resulting firm with the banking or financial system; extent to

which the resulting firm contributes to the complexity of the financial system; and extent

Dodd-Frank Act, § 604(e), codified at 12 U.S.C. § 1843(j)(2)(A). Other provisions of

the Dodd-Frank Act impose a similar requirement that the Board consider or weigh the

risks to financial stability posed by a merger, acquisition, or expansion proposal by a

financial institution See sections 163, 173, and 604(d) and (f) of the Dodd-Frank Act. A

special process was established by the Dodd-Frank Act for requiring the divestiture of a

business by a financial firm. Section 121 of the Dodd-Frank Act provides that the Board

shall require a financial firm to divest or terminate a business if the Board determines that

the company “poses a grave threat to the financial stability of the United States;” the

Financial Stability Oversight Council (“FSOC”), by a vote of two-thirds of its members,

approves the action; and the Board has determined that actions other than divestiture or

termination of the business are inadequate to mitigate the grave threat. 12 U.S.C. § 5331.

Dodd-Frank Act, § 604(d), codified at 12 U.S.C. § 1842(c)(7).

- 29 -

of the cross-border activities of the resulting firm.

These categories are not exhaustive,

and additional categories could inform the Board’s decision.

These metrics are useful

in evaluating the extent to which an institution’s creditors, counterparties, investors, or

other market participants may have financial exposure to the institution and thus may

experience strain when the firm does not meet its financial obligations to them; the extent

to which the institution holds assets that, if liquidated quickly, would significantly disrupt

trading or funding in key markets or cause significant losses or funding problems for

other firms with similar holdings due to falling asset prices; the extent to which financial

distress in the resulting institution may cause other institutions that hold similar assets or

are engaged in similar activities or are perceived to be dependent in important ways upon

the distressed institution to experience a loss of market confidence; and the extent to

which an institution in financial distress may no longer be able to provide a service that

market participants rely upon and for which there are limited readily available substitutes.

In addition to these quantitative measures, the Board will consider

qualitative factors, such as the opaqueness and complexity of an institution’s internal

organization, that are indicative of the relative degree of difficulty of resolving the

A large value of a metric for any one category may suggest that distress at the

resulting firm is likely to result in material damage to the broader economy. Many of

the metrics considered by the Board measure an institution’s activities relative to the

U.S. financial system (“USFS”). For example, pro forma asset size of the resulting firm

is expressed in terms of the resulting firm’s pro forma assets as a share of total assets of

the USFS. For this purpose, the USFS comprises all U.S. financial institutions (“USFIs”)

used in computing total liabilities for the purposes of calculating the limitation on

liabilities of a financial company required under section 622 of the Dodd-Frank Act

and includes U.S.-based bank and nonbank affiliates of foreign banking organizations.

In connection with its supervision of nonbank financial institutions that the FSOC

determines could pose a threat to the financial stability of the United States, the Board

may require financial and other reporting by these institutions, which would increase

the pool of available data for financial stability analyses. See sections 113 and 151 of

the Dodd-Frank Act, codified at 12 U.S.C. §§ 5323 and 5341, respectively.

The metrics for the resulting entity are not, by themselves, determinative. The Board

will take into account all factors that are relevant to a transaction, some of which may not

be captured by the metrics.

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resulting firm. A financial institution that can be resolved in an orderly manner is less

likely to inflict material damage to the broader economy.

The Board’s methodology is compatible with the Basel Committee’s

approach to identifying global systemically important banks (“GSIBs”)

but differs from

the Basel Committee’s approach in three important ways. First, the Board will consider a

broader and somewhat different set of metrics. Second, the Board will consider the

systemic footprint of the resulting firm relative to the USFS. Third, under the Board’s

approach, it is possible that if even a single category of metrics indicates that a resulting

firm would pose a significant risk to the stability of the U.S. banking or financial system,

the Board may determine that there is an adverse effect of the proposal on the stability of

the U.S. banking or financial system.

This methodology will help identify not only the

more obvious risks associated with significant expansion proposals by GSIBs, but also

transactions involving other firms that could pose a risk to the stability of the U.S.

banking or financial system, even if the resulting firm is not a GSIB.

On the other hand, certain types of transactions likely would have only a

de minimis impact on an institution’s systemic footprint and, therefore, are not likely

to raise concerns about financial stability. For example, a proposal that involves an

acquisition of less than $2 billion in assets, results in a firm with less than $25 billion

in total assets, or represents a corporate reorganization may be presumed not to raise

financial stability concerns absent evidence that the transaction would result in a

significant increase in interconnectedness, complexity, cross-border activities, or

other risk factor.

See Basel Committee on Banking Supervision (“Basel Committee”). “Global

systemically important banks: assessment methodology and the additional loss

absorbency requirement. Rules text.” November 2011.

The Board will consider each metric both individually and in combination with

others, rather than following the Basel Committee approach of focusing solely on a

weighted average of all the metrics. For example, a merger of two firms that are

dominant providers of critical products or services would likely present a significant

risk to U.S. financial stability, even if the values of the resulting firm’s metrics were

low in all other categories.

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Analysis of the Financial Stability Impact of this Proposal

In this case, the Board has undertaken its metrics-based analysis to

determine whether this proposal presents a significant risk to the stability of the

U.S. banking or financial system. The Board also has considered the relative degree

of difficulty of resolving the resulting firm. The Board reviewed publicly available

data, comments received from the public, data compiled through the supervisory

process, and data obtained through information requests to the institutions involved

in the proposal, as well as qualitative information.

Size. An organization’s size is one important indicator of the risk that

the organization poses to the financial system. Congress has imposed a specific

10 percent nationwide deposit limit and a 10 percent nationwide liabilities limit

on potential combinations by banking organizations.

Other provisions of the

Dodd-Frank Act impose special or enhanced supervisory requirements on large

banking organizations.

These measures are helpful indicators of potential systemic

risk; however, the fact that Congress also requires the Board to review the potential

systemic impact of a transaction that does not reach these limits likely indicates they

were not meant to substitute for an analysis of size as part of the systemic risk factor.

12 U.S.C. §§ 1843(i)(8) and 1852.

Section 165 of the Dodd-Frank Act, codified at 12 U.S.C. § 5365, requires the Board

to subject all bank holding companies with total consolidated assets of $50 billion or

more, and any nonbank financial company designated by the FSOC for supervision by

the Board, to enhanced prudential standards in order to prevent or mitigate risks to the

financial stability of the United States that could arise from the severe distress or failure

of these firms. Two commenters urged the Board not to approve the proposed transaction

until the Board adopts rules to implement section 165 of the Dodd-Frank Act. The

Board, jointly with the FDIC, has issued a notice of final rulemaking that implements the

requirements of section 165(d). See 76 Federal Register 67,323 (November 1, 2011).

The Board also has issued a notice of proposed rulemaking, implementing the other

requirements within section 165 of the Dodd-Frank Act. 77 Federal Register 594

(January 5, 2012).

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The Board has considered measures of Capital One’s size relative to the

USFS, including Capital One’s consolidated assets, its consolidated liabilities,

its total

leverage exposures,

and its U.S. deposits. As a result of the proposed acquisition of

FSB and the HSBC assets,

Capital One would become between the 14

and 20

largest

USFI based on assets, liabilities, and leverage exposures with between 1.1 percent and

1.6 percent of the USFS total. Based on deposits, Capital One would become the fifth

largest USFI, with 2.3 percent of the total. These measures suggest that, although the

combined organization would be large on an absolute basis, its shares of USFS assets,

liabilities, leverage exposures, and deposits would remain modest, and its shares of

national deposits and liabilities would fall well below the 10 percent limitations set by

Congress.

Measures of a financial institution’s size on a pro forma basis could either

understate or overstate risks to financial stability posed by the financial institution. For

instance, a relatively small institution that operates in a critical market for which there

is no substitute provider, or that could transmit its financial distress to other financial

organizations through multiple channels, could present significant risks to the stability

of the USFS.

Although the proposed transaction would increase Capital One’s overall

size, and result in it becoming the fifth largest bank in the United States based on

U.S. deposits, its larger size must be viewed in conjunction with the other metrics.

Accordingly, the Board has considered other factors, both individually and in

The Board has considered both consolidated liabilities on Capital One’s balance sheet

and liabilities as computed under the limitations on consolidated liabilities in section 622

of the Dodd-Frank Act, codified at 12 U.S.C. § 1852.

Total leverage exposure is calculated in a manner roughly equivalent to the

methodology set out in “Basel III: A global regulatory framework for more resilient

banks and banking systems” and takes into account both on- and off-balance-sheet assets.

As noted above, Capital One has applied to the OCC for approval under the Bank

Merger Act to acquire up to $29 billion in credit card assets from HSBC. The Board

has assumed the acquisition of the entire $29 billion in assets.

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combination with size, to evaluate the likely impact of this transaction on financial

stability.

Substitutability. The Board has examined whether Capital One or FSB

engages in any activities that are critical to the functioning of the USFS and whether

there would be adequate substitute providers that could quickly step in to perform such

activities should the combined entity suddenly be unable to do so as a result of severe

financial distress. Capital One accepts retail deposits and engages in mortgage lending,

mortgage and credit card servicing, commercial real estate financing, small business

lending, credit card and other consumer lending, and securities brokerage services.

FSB offers savings accounts, certificates of deposit, residential mortgage loans, and

retail securities brokerage services. In most of these activities, Capital One has, and as a

result of the proposals, would continue to have a small share on a nationwide basis, and

numerous competitors would remain for each of the activities in which Capital One and

FSB engage.

Capital One is currently the fifth largest provider of credit cards in the

United States. Assuming the acquisition of the HSBC credit card assets (a transaction

subject to review by the OCC in a separate proceeding), Capital One would increase

its share of outstanding credit card balances in the United States from 7.7 percent to

11.8 percent and thereby become the fourth largest provider of credit cards in the

United States. In considering the potential effect on financial stability in this case, the

Board also has considered that three competing credit card lenders would each have

outstanding credit card balances that are between one-third and two-thirds larger than

those of Capital One, and two other lenders would each have balances approximately

half the size of the outstanding credit card balances of Capital One. In addition, there

are numerous other credit card lenders that operate on a national or regional basis.

Capital One’s share of credit card loans does not appear to be substantial enough to cause

significant disruptions in the supply of credit card loans if Capital One were to experience

distress, due to the availability of substitute providers that could assume Capital One’s

business.

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Interconnectedness. The Board has examined data to determine whether

financial distress experienced by the combined entity could create financial instability

by being transmitted to any other institutions or markets within the U.S. banking or

financial system.

Capital One does not engage currently and as a result of this transaction

would not engage in business activities or participate in markets to a degree that would

pose significant risk to other institutions, in the event of financial distress of the

combined entity. The combined entity’s use of wholesale funding, as a share of USFS

wholesale funding usage, is less than 1 percent and is well below its corresponding share

of USFS consolidated assets. The combined entity’s shares of USFS intra-financial

system assets and liabilities also are less than 1 percent. The transaction under review in

this case also would not increase exposure to any single counterparty that is among the

top three counterparties of either Capital One or FSB before the merger.

Commenters argued that Capital One is materially interconnected with the USFS

because it securitizes a portion of its credit card receivables into securities that are

sold to pension funds, insurance companies, and other large, systemically important

institutions. This factor is mitigated in several ways. Capital One’s credit card

securitizations represent a relatively small portion of the credit card securitization

market. Taking into account the acquisition of HSBC’s credit card business, Capital

One’s total share of credit card securitizations is less than 9 percent, consistent with

its share of outstanding credit card loans. A number of factors align Capital One’s

interest in ensuring sound underwriting of the underlying credit card accounts with

those of investors in the securitization. These include recent changes to accounting

rules that require credit card securitizations to be consolidated on the balance sheet

of the securitizer in many situations and capital rules that require a capital reserve.

See Statements of Financial Accounting Standards Nos. 166 and 167, codified in

Accounting Standards Codification Topics 860 and 810; Final Rule for Regulatory

Capital Standards Related to Statements of Financial Accounting Standards Nos. 166

and 167, 75 Federal Register 4636 (January 28, 2010). In addition, Capital One retains

a seller’s interest that exposes the institution to losses from the underlying credit card

receivables on a pari passu basis with investors in its credit card securitizations. The

Dodd-Frank Act also enhanced the disclosure and reporting obligations of securitizers

to provide better information to investors to analyze the credit risks and ongoing

performance of the securitized assets and, ultimately, whether to purchase or sell the

asset-backed securities. See §§ 942, 943, and 945 of the Dodd-Frank Act, as codified

by 15 U.S.C. §§ 78o-7, 77d, and 77g, respectively.

- 35 -

Complexity. The Board has considered the extent to which the combined

entity would contribute to the overall complexity of the USFS. The combined entity’s

complex assets and trading book and available-for-sale securities represent a significantly

lower share in the USFS than its corresponding share of consolidated assets. The Board

also has considered whether the complexity of the combined entity’s assets and liabilities

would hinder its timely and efficient resolution in the event it were to experience

financial distress. Capital One and FSB do not engage in complex activities, such as

being a core clearing and settlement organization for critical financial markets, that might

complicate the resolution process by increasing the complexity, costs, or timeframes

involved in a resolution. Under the circumstances, resolving the combined organization

would not appear to involve a level of cost, time, or difficulty such that it would cause a

significant increase in risk to the stability of the USFS.

Cross-Border Activity. The Board has examined the cross-border activities

of Capital One and FSB to determine whether the cross-border presence of the combined

organization would create difficulties in coordinating any resolution, thereby significantly

increasing the risk to U.S. financial stability. Capital One has credit card operations in

the United Kingdom and Canada that total approximately $8.7 billion. These businesses

are similar to Capital One’s operations in the United States and do not add any substantial

complexity to its operations. Although FSB currently is owned by ING Groep, a Dutch

financial institution, FSB operates only in the United States. The combined organization

is not expected to engage in any additional activities outside the United States as a result

of the proposed transaction. In addition, the combined organization would not engage in

the provision of critical services whose disruption would impact the macroeconomic

condition of the United States by disrupting trade or resulting in increased resolution

difficulties.

As noted previously, the Dodd-Frank Act requires bank holding companies that

hold more than $50 billion in total consolidated assets, such as Capital One, to submit

resolution plans, which are intended to assist the institutions in managing their risks and

to plan for a rapid and orderly resolution in the event of material distress or failure and to

enable the regulators to understand an institution’s complexity. See 12 U.S.C. § 5365.

- 36 -

Financial Stability Factors in Combination. The Board has assessed the

foregoing factors individually and in combination to determine whether interactions

among them might mitigate or exacerbate risks suggested by looking at them

individually. The Board also has considered whether the proposed transaction would

provide any stability benefits and whether enhanced prudential standards applicable to

the combined organization would offset any potential risks.

For instance, concerns regarding Capital One’s size would be greater if

Capital One were also highly interconnected to many different segments of the USFS

through its counterparty relationships or other channels, or if Capital One participated to

a larger extent than it does in short-term funding and capital markets. The Board’s level

of concern also would be greater if the structure and activities of Capital One were

sufficiently complex that, if Capital One were to fail, it would be difficult to resolve

quickly without causing significant disruptions to other financial institutions or markets.

As discussed above, the combined entity would not be highly

interconnected. Furthermore, the organizational structure and operations of the combined

organization would be centered on a commercial banking business, and in the event of

distress, the resolution process would be handled in a predictable manner by relevant

authorities. The Board also has considered other measures that are suggestive of the

degree of difficulty with which Capital One could be resolved in the event of a failure,

such as the organizational and legal complexity and cross-border activities of the

resulting firm. These measures suggest that Capital One would be significantly less

complicated to resolve than the largest U.S. universal banks and investment banks.

Based on these and all the other facts of record, the Board has determined

that considerations relating to financial stability are consistent with approval.

Public Benefits of the Proposal

As noted above, the Board is required to consider whether the proposed

acquisition of FSB and its nonbanking subsidiaries “can reasonably be expected to

Section 165 of the Dodd-Frank Act, codified at 12 U.S.C. § 5365.

- 37 -

produce benefits to the public, such as greater convenience, increased competition, or

gains in efficiency, that outweigh possible adverse effects, such as undue concentration

of resources, decreased or unfair competition, conflicts of interests, unsound banking

practices, or risk to the stability of the United States banking or financial system.”

As part of this review, the Board considered that the European Commission

required ING Groep to divest FSB by 2013 as a condition of its approval to allow the

government of The Netherlands to provide aid to ING Groep in 2008 and 2009. The sale

of FSB to Capital One provides depositor continuity to the U.S. operations of FSB and to

FSB customers and enables all FSB customers to continue receiving their banking

services by virtue of its acquisition by a single organization.

The record indicates that consummation of the proposal would result in

additional benefits to consumers currently served by FSB. The proposal would allow

Capital One to offer a wider array of mortgage loans and banking products and services

to FSB’s customers, including fixed-rate 30-year mortgage loans, full-access checking

accounts, automobile loans, small business loans, commercial loans, and credit card and

other consumer loans, none of which are provided by FSB. In addition, FSB customers

would have access to Capital One’s branch locations and ATM network, small business

technical assistance programs, and corporate trust services.

As noted above, Capital One plans to add deposit-taking facilities to FSB’s

eight cafés, which will enhance the services available to the customers and communities

served by these cafés. The conversion of these locations to branches of FSB would also

expand Capital One’s CRA assessment areas to the relevant communities served by those

cafés. Seven of the eight cafés are in areas that are not currently served by branches of

FSB; four of these cafés are in LMI census tracts.

12 U.S.C. § 1843(j)(2)(A).

Some commenters advocated that Capital One continue to offer the same terms and

conditions applicable to FSB’s savings accounts. Capital One has represented that it

does not plan to change any of FSB’s current product features.

- 38 -

In addition, Capital One’s customers would benefit from access to a more

efficient and robust Internet banking service than is currently offered by Capital One.

This provides Capital One customers a broader suite of products and services and more

convenient ways to access their accounts than currently available.

The proposed acquisition of FSB would also increase Capital One’s access

to low-cost deposits, which will diversify Capital One’s funding base. The proposal also

would result in significant operational efficiencies for Capital One. Capital One would

realize significant cost savings from consolidating systems, platforms, and corporate staff

functions. In addition, Capital One would achieve substantial funding savings from

optimizing management of the combined deposit portfolio. By improving efficiencies

and strengthening its funding and liquidity profile, Capital One would be better placed to

provide credit and other banking services to its entire customer base, including current

customers of FSB.

The Board has determined that the conduct of the proposed nonbanking

activities within the framework of Regulation Y and Board precedent is not likely to

result in significant adverse effects, such as undue concentration of resources, decreased

or unfair competition, conflicts of interests, unsound banking practices, or risk to the

stability of the United States banking or financial system. Moreover, for the reasons

discussed above, the Board believes that the factors related to competition, financial and

managerial resources, convenience and needs, and financial stability are consistent with

approval of this case.

Based on all the facts of record, including the commitments and conditions

noted in this case, the Board has concluded that consummation of the proposal can

reasonably be expected to produce public benefits that would outweigh any likely adverse

effects. Accordingly, the Board has determined that the balance of the public benefits

under the standard of section 4(j)(2) of the BHC Act is consistent with approval.

- 39 -

Conclusion

Based on the foregoing and all the facts of record, the Board has

determined that the proposal should be, and hereby is, approved.

In reaching its

conclusion, the Board has considered all the facts of record in light of the factors that

it is required to consider under the BHC Act. The Board’s approval is specifically

conditioned on compliance by Capital One and FSB with the conditions imposed in

this order and the commitments made to the Board in connection with the notice. The

Board’s approval also is subject to all the conditions set forth in Regulation Y, including

those in sections 225.7 and 225.25(c),

and to the Board’s authority to require such

modification or termination of the activities of a bank holding company or any of its

subsidiaries as the Board finds necessary to ensure compliance with, and to prevent

evasion of, the provisions of the BHC Act and the Board’s regulations and orders issued

thereunder. For purposes of this action, these conditions and commitments are deemed

to be conditions imposed in writing by the Board in connection with its findings and

decision herein and, as such, may be enforced in proceedings under applicable law.

Several commenters requested that the Board hold a public hearing on the proposal.

The Board’s regulations provide for a hearing on a notice filed under section 4 of the

BHC Act if there are disputed issues of material fact that cannot be resolved in some

other manner. 12 CFR 225.25(a)(2). Under its rules, the Board also may, in its

discretion, hold a public hearing if appropriate to allow interested persons an opportunity

to provide relevant testimony when written comments would not adequately present their

views. The Board has considered the commenters’ requests in light of all the facts of

record. In the Board’s view, the commenters have had ample opportunity to submit

comments on the proposal and, in fact, submitted written comments that the Board has

considered in acting on the proposal. The commenters’ requests fail to identify disputed

issues of fact that are material to the Board’s decision and would be clarified by a public

hearing. In addition, the requests fail to demonstrate why the written comments do not

present the commenters’ views adequately or why a hearing otherwise would be

necessary or appropriate. For these reasons, and based on all the facts of record, the

Board has determined that a public hearing is not required or warranted in this case.

Accordingly, the requests for a public hearing on the proposal are denied.

12 CFR 225.7 and 225.25(c).

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The acquisition shall not be consummated later than three months after the

effective date of this order, unless such period is extended for good cause by the Board

or by the Federal Reserve Bank of Richmond, acting pursuant to delegated authority.

By order of the Board of Governors,

effective February 14, 2012.

(signed)

Robert deV. Frierson

Deputy Secretary of the Board

Voting for this action: Chairman Bernanke, Vice Chair Yellen, and Governors Duke,

Tarullo, and Raskin.