WASHINGTON -- A group of disgruntled "professional" depositors has sued federal regulators, objecting to provisions in a new rule for mutual thrifts selling shares for the first time that puts them at a disadvantage for buying the hot stock.
A Blue Bell, Pa.-based trade association called Thrift Depositors of America Inc. sued Friday in U.S. District Court for the District of Columbia.
The suit charges that an Office of Thrift Supervision rule that took effect May 3 requires mutual thrifts "to discriminate among their depositors on a geographic basis when they convert to stock form."
'Keep the Flippers Out'
The Office of Thrift Supervision refused to comment on the pending litigation.
In response to complaints from Congress and consumer groups that insiders at depositor-owned S&Ls were reaping windfall profits in the wave of stock conversions during recent years, the OTS issued an interim final rule this month that made sweeping changes in its conversion rules.
Because stock prices in these deals have increased by 30% on average in the first month of trading, investors have opened deposit accounts at mutuals across the country so that they would be allowed to buy shares if the thrift later converted to stock form.
The new rules strip insider benefits from most deals for at least one year, tighten appraisal rules, and make more stock available to local depositors by giving depositors who live less than 100 miles from the converting thrift priority for buying shares.
Lack of Comment Period
The suit asks the court to judge those provisions of the rule unlawful on the ground that, "by making the rule effective immediately, without notice and comment, the agency violated the Administrative Procedures Act," said Michael S. Helfer, a partner at Wilmer, Cutler & Pickering, which is representing the thrift depositors group.
The group was formed in recent weeks to protect the interests of mutual depositors.
The thrift trade group is hoping the depositors lose.
"Our point of view is favorable toward providing a preference toward local depositors," said Randy McFarlane, director of government relations at Savings and Community Bankers of America. Local depositors have typically contributed to the institution's development over the years more than those from out of town, he said.
'Keeping the Flippers Out'
In recent years, many mutuals have tried to "keep the flippers out," Mr. McFarlane said. Professional depositors often sell their stock after realizing quick gains, while local depositors tend to hold it longer.
The lawsuit only challenges the procedures the OTS used in adopting its rule. So even if the disgruntled depositors win, the OTS could later promulgate the identical rule by following legal procedures.
However, the depositor group plans to submit a comment letter objecting to the provisions it dislikes, if the rulemaking procedure is rerun. "There are serious questions about whether it is legal to have geographic discrimination" in the OTS rule, Mr. Helfer said.
The SCBA's Mr. McFarlane commented: "The plaintiffs here have sort of an uphill battle" because courts usually defer to regulators on rulemaking.
