An Identity in Disarray: The Federal Deposit Insurance Corporation’s Government-Agency Status

Banking Law Journal, Vol. 128, No. 1, pp. 36-49, 2011

16 Pages Posted: 30 Nov 2010

See all articles by Adam Shajnfeld

Adam Shajnfeld

Cleary Gottlieb Steen & Hamilton LLP

Date Written: November 29, 2010

Abstract

In the last three years, the world has experienced one of the worst banking catastrophes in its history. In the United States alone, some 282 banks have failed since January 2008. This burgeoning devastation has catapulted the Federal Deposit Insurance Corporation (“FDIC”) to the forefront of crisis-management as it acts as receiver for each of these failed institutions. With high stakes, vast consequences, and little time to dither, the receivership process and its participants require stable, clear and predictable jurisprudence. One issue, however, continues to elude these jurisprudential virtues: is the FDIC, when acting as a failed bank’s receiver, considered an agency of the United States, or merely a private party? Surprisingly, the answer is far from clear, and the ramifications significant and numerous. Years of judicial analysis have produced cacophony, not chorus, and there is a startling absence of scholarly exposition. This article, after outlining the problem, delineates and critically evaluates two solutions.

Keywords: FDIC, Agency Status

Suggested Citation

Shajnfeld, Adam, An Identity in Disarray: The Federal Deposit Insurance Corporation’s Government-Agency Status (November 29, 2010). Banking Law Journal, Vol. 128, No. 1, pp. 36-49, 2011, Available at SSRN: https://ssrn.com/abstract=1717247 or http://dx.doi.org/10.2139/ssrn.1717247

Adam Shajnfeld (Contact Author)

Cleary Gottlieb Steen & Hamilton LLP ( email )

One Liberty Plaza
New York, NY 10006
United States

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