§ 1849. — Saving provision.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 12USC1849]
TITLE 12--BANKS AND BANKING
CHAPTER 17--BANK HOLDING COMPANIES
Sec. 1849. Saving provision
(a) General rule
Nothing herein contained shall be interpreted or construed as
approving any act, action, or conduct which is or has been or may be in
violation of existing law, nor shall anything herein contained
constitute a defense to any action, suit, or proceeding pending or
hereafter instituted on account of any prohibited antitrust or
monopolistic act, action, or conduct, except as specifically provided in
this section.
(b) Antitrust review
(1) In general
The Board shall immediately notify the Attorney General of any
approval by it pursuant to section 1842 of this title of a proposed
acquisition, merger, or consolidation transaction and, if the
transaction also involves an acquisition under section 1843 of this
title, the Board shall also notify the Federal Trade Commission of
such approval. If the Board has found that it must act immediately
in order to prevent the probable failure of a bank or bank holding
company involved in any such transaction, the transaction may be
consummated immediately upon approval by the Board. If the Board has
advised the Comptroller of the Currency or the State supervisory
authority, as the case may be, of the existence of an emergency
requiring expeditious action and has required the submission of
views and recommendations within ten days, the transaction may not
be consummated before the fifth calendar day after the date of
approval by the Board. In all other cases, the transaction may not
be consummated before the thirtieth calendar day after the date of
approval by the Board or, if the Board has not received any adverse
comment from the Attorney General of the United States relating to
competitive factors, such shorter period of time as may be
prescribed by the Board with the concurrence of the Attorney
General, but in no event less than 15 calendar days after the date
of approval. Any action brought under the antitrust laws arising out
of an acquisition, merger, or consolidation transaction approved
under section 1842 of this title shall be commenced prior to the
earliest time under this subsection at which the transaction
approval under section 1842 of this title might be consummated. The
commencement of such an action shall stay the effectiveness of the
Board's approval unless the court shall otherwise specifically
order. In any such action, the court shall review de novo the issues
presented. In any judicial proceeding attacking any acquisition,
merger, or consolidation transaction approved pursuant to section
1842 of this title on the ground that such transaction alone and of
itself constituted a violation of any antitrust laws other than
section 2 of title 15, the standards applied by the court shall be
identical with those that the Board is directed to apply under
section 1842 of this title. Upon the consummation of an acquisition,
merger, or consolidation transaction approved under section 1842 of
this title in compliance with this chapter and after the termination
of any antitrust litigation commenced within the period prescribed
in this section, or upon the termination of such period if no such
litigation is commenced therein, the transaction may not thereafter
be attacked in any judicial proceeding on the ground that it alone
and of itself constituted a violation of any antitrust laws other
than section 2 of title 15, but nothing in this chapter shall exempt
any bank holding company involved in such a transaction from
complying with the antitrust laws after the consummation of such
transaction.
(2) Section 1823(f) cases
(A) If--
(i) the Federal Deposit Insurance Corporation learns that a
bank insured by such Corporation is in danger of closing; and
(ii) the Corporation is considering assisting the
acquisition of such bank and its affiliated banks by another
bank or holding company under section 1823(f) of this title and
such acquisition is subject to the approval of the Board under
section 1842 of this title;
the Corporation shall immediately notify the Board of such facts.
(B) Upon receipt of notice from the Federal Deposit Insurance
Corporation under subparagraph (A) or at such earlier time as deemed
appropriate by the Board, the Board shall immediately notify the
Attorney General of the United States of the facts concerning the
possible acquisition.
(C) Within 5 days of receiving notice under subparagraph (B),
the Attorney General shall notify the Board in writing of the
Attorney General's preliminary finding as to the consistency of the
possible acquisition with the antitrust laws.
(D) The Board may reduce or eliminate the post-approval waiting
period established under paragraph (1) for an acquisition to which
this paragraph applies, except that such period may not be
eliminated or reduced to less than 5 days without the concurrence of
the Attorney General.
(c) Antitrust proceedings; Board and State banking agency as party;
representation by counsel
In any action brought under the antitrust laws arising out of any
acquisition, merger, or consolidation transaction approved by the Board
under section 1842 of this title, the Board and any State banking
supervisory agency having jurisdiction within the State involved, may
appear as a party of its own motion and as of right, and be represented
by its counsel.
(d) Treatment of merger transactions consummated prior or subsequent to
May 9, 1956, and not in litigation prior to July 1, 1966
Any acquisition, merger, or consolidation of the kind described in
section 1842(a) of this title which was consummated at any time prior or
subsequent to May 9, 1956, and as to which no litigation was initiated
by the Attorney General prior to July 1, 1966, shall be conclusively
presumed not to have been in violation of any antitrust laws other than
section 2 of title 15.
(e) Antitrust litigation; substantive law applicable to proceedings
pending on or after July 1, 1966, with respect to merger
transactions
Any court having pending before it on or after July 1, 1966, any
litigation initiated under the antitrust laws by the Attorney General
with respect to any acquisition, merger, or consolidation of the kind
described in section 1842(a) of this title shall apply the substantive
rule of law set forth in section 1842 of this title.
(f) ``Antitrust laws'' defined
For the purposes of this section, the term ``antitrust laws'' means
the Act of July 2, 1890 (the Sherman Antitrust Act), the Act of October
15, 1914 (the Clayton Act), and any other Acts in pari materia.
(May 9, 1956, ch. 240, Sec. 11, 70 Stat. 146; Pub. L. 89-485, Sec. 11,
July 1, 1966, 80 Stat. 240; Pub. L. 91-607, title I, Sec. 104, Dec. 31,
1970, 84 Stat. 1766; Pub. L. 95-188, title III, Sec. 303, Nov. 16, 1977,
91 Stat. 1390; Pub. L. 100-86, title V, Sec. 502(h)(3), Aug. 10, 1987,
101 Stat. 628; Pub. L. 103-325, title III, Sec. 321(a), Sept. 23, 1994,
108 Stat. 2226; Pub. L. 106-102, title I, Sec. 131, Nov. 12, 1999, 113
Stat. 1382.)
References in Text
Act of July 2, 1890 (the Sherman Antitrust Act), referred to in
subsec. (f), is classified to sections 1 to 7 of Title 15, Commerce and
Trade. For complete classification of this Act to the Code, see Short
Title note set out under section 1 of Title 15 and Tables.
Act of October 15, 1914 (the Clayton Act), referred to in subsec.
(f), is act Oct. 15, 1914, ch. 323, 38 Stat. 730, as amended, which is
classified generally to sections 12, 13, 14 to 19, 20, 21, and 22 to 27
of Title 15, and sections 52 and 53 of Title 29, Labor. For further
details and complete classification of this Act to the Code, see
References in Text note set out under section 12 of Title 15 and Tables.
Amendments
1999--Subsec. (b)(1). Pub. L. 106-102 inserted before period at end
of first sentence ``and, if the transaction also involves an acquisition
under section 1843 of this title, the Board shall also notify the
Federal Trade Commission of such approval''.
1994--Subsec. (b)(1). Pub. L. 103-325 inserted before period at end
of fourth sentence ``or, if the Board has not received any adverse
comment from the Attorney General of the United States relating to
competitive factors, such shorter period of time as may be prescribed by
the Board with the concurrence of the Attorney General, but in no event
less than 15 calendar days after the date of approval''.
1987--Subsec. (b). Pub. L. 100-86 designated existing provisions as
par. (1) and added par. (2).
1977--Subsec. (b). Pub. L. 95-188 authorized a proposed acquisition,
merger, or consolidation transaction to be consummated immediately upon
approval by the Board where the Board has found that it must act
immediately in order to prevent the probable failure of a bank or bank
holding company involved in any such transaction; prohibited a
transaction from being consummated before the fifth calendar day after
the date of approval by the Board where the Board has advised the
Comptroller of the Currency or the State supervisory authority, as the
case may be, of the existence of an emergency requiring expeditious
action and has required the submission of views and recommendations
within ten days; continued for all other cases the thirty day waiting
period after date of approval by the Board for consummation of the
transaction; and substituted provision for commencement of stay actions
prior to the earliest time at which the transaction approval under
section 1842 of this title might be consummated for prior provision for
commencement of such stay actions within the thirty-day waiting period.
1970--Subsec. (b). Pub. L. 91-607, Sec. 104(a), substituted
``section 1842 of this title'' for ``this chapter'' where appearing
first two times, and inserted ``approved under section 1842 of this
title'' in second sentence before ``shall be commended'' and in last
sentence before ``in compliance with this chapter''.
Subsec. (c). Pub. L. 91-607, Sec. 104(b), substituted ``under
section 1842 of this title'' for ``pursuant to this chapter''.
1966--Pub. L. 89-485 designated existing provisions as subsec. (a),
inserted ``except as specifically provided in this section'', and added
subsecs. (b) to (f).
Effective Date of 1999 Amendment
Amendment by Pub. L. 106-102 effective 120 days after Nov. 12, 1999,
see section 161 of Pub. L. 106-102, set out as a note under section 24
of this title.
