UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JUSTINE HURRY, Plaintiff, v. Civil Action No. 18-2435 (RDM) FEDERAL DEPOSIT INSURANCE CORPORATION, et al., Defendants. MEMORANDUM OPINION The Change in Bank Control Act of 1978 (“CBCA”) prohibits a person from acquiring a controlling interest in a bank unless the “appropriate Federal banking agency has been given sixty days’ prior written notice of [the] proposed acquisition and within that time period the agency has not issued a notice disapproving the proposed acquisition.” 12 U.S.C. § 1817(j)(1). The agency may extend that period for up to 120 days if certain conditions are met, and it may disapprove the proposed acquisition if, among other things, the “acquiring person neglects, fails, or refuses to furnish the [agency] all the information [the agency] require[s].” Id. § 1817(j)(7)(E). If the agency disapproves the proposed transaction, “the acquiring party may request an agency hearing on the proposed transaction,” and, at the completion of the hearing, the agency must issue an order either approving or disapproving the proposed acquisition. Id. § 1817(j)(4). If the acquisition is again disapproved after the hearing, the acquiring party may then seek review in the D.C. Circuit or in “the circuit in which the home office of the bank to be acquired is located.” Id. § 1817(j)(5). This case poses the question whether a federal banking agency may circumvent this process by declining to accept a notice of proposed acquisition in the first place on the ground that it is not “substantially complete.” If so, the 60-day clock (or, if extended, the 180-day clock) never starts, and neither an administrative hearing nor direct review in a court of appeals is available. The answer to that question turns on the particular circumstances presented. Here, Plaintiff Justine Hurry provided the relevant federal banking agency—Defendant Federal Deposit Insurance Corporation (“FDIC”)—with written notice of her proposed acquisition of the Bank of Orrick. A few weeks later, the FDIC concluded that the notice was incomplete and, accordingly, returned it to Hurry. In response, Hurry resubmitted her notice, along with additional information and documentation. But the FDIC was still unsatisfied, and it once again returned the notice as incomplete. After the FDIC and Hurry’s counsel conferred about the missing information, Hurry submitted her written notice for a third time. That third effort helped but not enough, and the FDIC warned Hurry that, if she did not promptly provide it with additional information relating to (1) the source of funds necessary to complete the transaction and (2) Hurry’s associations and affiliations (along with relevant trust documentation), the agency would conclude that she did “not want to furnish the requested information.” Dkt. 29-1 at 295. In response, Hurry submitted some additional material, but she also took issue with the FDIC’s request for information regarding two irrevocable trusts, arguing that the information was both unnecessary and invasive of third-party privacy interests. The FDIC, for its part, concluded that Hurry’s submission was “improved” but that it was still inadequate. After yet another submission …
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