Securities Industry v. Comptroller of the Currency, Civ. A. No. 82-2865.

• Decision Date: 02 November 1983
• Docket Number: Civ. A. No. 82-2865.
• Parties: SECURITIES INDUSTRY ASSOCIATION, Plaintiff, v. COMPTROLLER OF THE CURRENCY, et al., Defendants.
• Court: U.S. District Court — District of Columbia

577 F. Supp. 252

SECURITIES INDUSTRY ASSOCIATION, Plaintiff, v. COMPTROLLER OF THE CURRENCY, et al., Defendants.

Civ. A. No. 82-2865.

United States District Court, District of Columbia.

November 2, 1983.

John M. Liftin, James B. Weidner, Harry M. Yohalem, Thomas M. Shoesmith, Rogers & Wells, Washington, D.C., William J. Fitzpatrick, New York City, Donald J. Crawford, Securities Industry Association, Washington, D.C., for plaintiff.

Alphonse M. Alfano, Harriet Kerwin, Civil Div., U.S. Dept. of Justice, and Brian W. Smith, Ronald Glancz, Donald N. Lamson, Ginger S. Baraum, Washington, D.C., for defendants.

Leonard H. Becker, Arnold & Porter, Washington, D.C., amicus curiae for Planter Nat. Bank of Memphis.

B. Boyd Hight, O'Melveny & Myers, Washington, D.C., amicus curiae for Security Pacific Nat. Bank.

Robert S. Rifkind, Cravath, Swain & Moore, New York City, amicus curiae for N.Y. Clearing House Ass'n.

William H. Smith, American Bankers Association, Washington, D.C., amicus curiae for American Bankers Ass'n.

MEMORANDUM OPINION

FLANNERY, District Judge.

This matter is before the court on cross-motions for summary judgment. Plaintiff Securities Industry Association ("SIA"), a national trade association representing more than five hundred securities brokers, dealers and underwriters, challenges the actions of the Comptroller of the Currency, C.T. Conover, in approving the applications of two national banks for the establishment or purchase of discount securities brokerage subsidiaries. For the reasons set forth below, plaintiff's motion is granted in part and the Comptroller's decision is reversed.

Facts

On June 23, 1982 Union Planters National Bank of Memphis applied to the Comptroller for approval of the acquisition by Union Planters of Brenner Steed and Associates, Inc., a discount brokerage business in Memphis, Tennessee. In its application Union Planters said it intended to offer securities brokerage services through Brenner Steed at certain branch offices of Union Planters in Tennessee, at affiliated banks in Tennessee, and at correspondent banks in Tennessee and six other states.

On July 2, 1982 Security Pacific National Bank applied to the Comptroller for approval of its proposed establishment of a new operating subsidiary to provide discount brokerage services. In its application Security Pacific said the new subsidiary would offer brokerage services at certain Security Pacific branch offices and might in the future offer those services at non-branch offices in California and other states. The new subsidiary will process and extend margin loans.

Brenner Steed is, and the Security Pacific subsidiary will be, "discount" brokerages, which will buy and sell securities solely as agent, on the order and for the account of customers. Neither will purchase or sell securities for its own account, nor engage in underwriting, nor give investment advice. "Discount" brokers are so characterized because their commissions are significantly lower than those charged by full-service brokers who, in addition to trading on behalf of customers, offer investment advice.

On August 26, 1982 the Comptroller approved the Security Pacific application. On September 20, 1982 the Comptroller approved the Union Planters application, and in September, 1982 Union Planters acquired Brenner Steed. This action followed.

Discussion

SIA argues that the Comptroller's decisions should be set aside as in excess of his statutory authority for two reasons. First, the operation of a brokerage business by a national bank or its affiliate violates Sections 16 and 21 of the Glass-Steagall Act of 1933, 12 U.S.C. §§ 24 Seventh, 378. Second, the operation of a brokerage business by a national bank or its affiliate at offices other than those branches which the bank is allowed to establish consistent with state law violates the McFadden Act, 12 U.S.C. §§ 36, 81. The court addresses these two arguments below.

A. Standard of review

The degree of deference due the Comptroller was described by this court in New York Stock Exchange v. Smith, 404 F.Supp. 1091 (D.D.C.1975), vacated on other grounds, 562 F.2d 736 (D.C.Cir.1977), cert. denied, 435 U.S. 942, 98 S.Ct. 1520, 55 L.Ed.2d 538 (1978) ("NYSE"):

At the outset, the court notes that it gives "great weight" to the Comptroller's ruling. The Supreme Court has consistently held that reasonable constructions of regulatory statutes by the agencies charged with enforcement of those statutes are to be respected by reviewing courts.... The Comptroller's ruling will be respected, even if the court would have reached a different result were this a question of first impression.

404 F.Supp. at 1096 (Citations omitted). The reasons for the deference accorded the Comptroller are similar to those given by the court in A.G. Becker, Inc. v. Board of Governors, 693 F.2d 136 (D.C.Cir.1982), explaining its deference to the opinions of that other federal body charged with banking regulation, the Board of Governors of the Federal Reserve System. In A.G. Becker plaintiffs, including SIA, challenged the Board's decision to allow Bankers Trust Company to act as agent in the sale of commercial paper. In upholding the Board's decision, and in reversing the district court, the court of appeals explained that the Board's decision warranted deference because of the scope of the Board's authority, its expert knowledge of commercial banking, and its application of general, undefined statutory terms to particular facts. The court wrote:

The regulatory structure of the banking laws must be permitted to adapt to the changing financial needs of our economy. Congress has delegated to the Federal Reserve Board, rather than to this court, the complex task of applying the Act's general proscriptions to the current business reality. We must therefore defer to the Board's interpretation of the statute if that interpretation is reasonable.

693 F.2d at 141. For the same reasons, this court must uphold the Comptroller's decision if it is reasonable.

B. The Glass-Steagall Act

1. The Act does not limit bank affiliates to securities transactions solely for pre-existing customers

SIA argues that Glass-Steagall permits banks to provide brokerage services only to pre-existing, bona fide bank customers. Glass-Steagall, says SIA, intended to erect impenetrable barriers between commercial banks and investment banks in order to avoid the kind of rampant speculation of the 1920's which brought the banking system to the brink of collapse, when banks would use depositors' money to push speculative securities out on the market. In support of its argument SIA points to two provisions of Glass-Steagall. Section 21, 12 U.S.C. § 378, prohibits any organization "engaged in the business of issuing, underwriting, selling or distributing, at wholesale or retail ... securities ..." from engaging at the same time in the banking business.¹ Discount brokers engage in the retail purchase and sale of securities and so, argues the SIA, are prohibited from being part of a banking business at the same time.

Section 16, 12 U.S.C. § 24 Seventh, limits bank brokerage activity to that "upon the order, and for the account of, customers..."² This section, says SIA, is a very limited exception to the otherwise unyielding barrier between commercial and investment banking established by Glass-Steagall, and exists only in order to accommodate existing bank customers. In support of its position, SIA cites several early Comptroller opinions holding that Section 16 limits bank brokerage transactions to those performed for customers of the bank whose relationship with the bank exists independently of the securities transaction. See, e.g., 1 Bulletin of the Comptroller of the Currency No. 2 at 2 (Oct. 26, 1936). Although the first such opinion dates from 1936, SIA maintains that the Comptroller has affirmed that interpretation of Section 16 until today. The SIA concedes that the Comptroller modified his position in 1974 when, in approving an application to provide Automatic Investment Services, a ruling upheld by this court in New York Stock Exchange v. Smith, supra, the Comptroller reversed his prior interpretations to say that "accommodation" did not mean that banks could not charge customers for the brokerage service. But the Comptroller left untouched, says SIA, the requirement that the customer relationship exist independent of the securities transaction conducted as part of the brokerage services.

The court is not persuaded by SIA. The language of Section 16 limiting bank securities to those "for the account of customers" does not limit bank brokerage activity, but serves to distinguish such activity from buying and selling of securities by the bank for its own account. Despite the exhaustive cataloging in the legislative history of Glass-Steagall of the ills arising out of the previous intermingling of investment and commercial banking, see, e.g., S.Rep. No. 77, 73rd Cong., 1st Sess. 8-10 (1933), there is no mention of limiting bank brokerage activity. On the contrary, the one mention appearing in the legislative history says that Glass-Steagall will permit national banks to sell and buy securities for their customers "to the same extent as heretofore." Id. at 16. And as the Comptroller demonstrates, through citation both to earlier case law and secondary sources, prior to the passage of Glass-Steagall banks offered brokerage services to members of the general public, and not just to existing customers. See, e.g., Blakey v. Brinson, 286 U.S. 254, 52 S.Ct. 516, 76 L.Ed. 1089 (1932); McNair v. Davis, 68 F.2d 935 (5th Cir.1934), cert. denied, 292 U.S. 647, 54 S.Ct. 780, 78 L.Ed. 1497 (1934).

The early opinions of the Comptroller relied on by SIA embody "an overcautious approach to bank regulation reflecting the atmosphere of the years immediately after the 1929 market crash..." NYSE, supra, 404 F.Supp. at 1097, and have gradually been disavowed by the...