Securities Activities of Banks in the GLB Era - Cleary Gottlieb Steen ...

C. Exceptions to the Anti-Tying Prohibitions
1. Tying Arrangements Involving Traditional Bank Products
a. Statutory and Regulatory Exceptions
(i) The Anti-tying Statute allows a bank to condition both
the availability and price of any product on the
requirement that the customer obtain a traditional bank
product from the bank.
The Board has provided by regulation
(12 C.F.R. § 225.7(b)(1)) that the traditional bank
product exception also applies to traditional bank
products obtained from affiliates of a bank.
(ii) Several facts are important in determining whether the
traditional bank product exception applies in a given
situation:
(A) The exception is available only if the tied
product is a traditional bank product. The
availability of the exception, however, does not
depend on the type of desired (i.e., tying)
product involved. 14
(B) The exception applies only if the tied product is
a defined traditional bank product. The
Proposed Anti-tying Interpretation indicated
that products that fall within the scope of the
exception include, among others, the following:
14 See, e.g., OCC Interpretive Letter No. 982 (September 29, 2003), CCH Fed. Banking
L. Rep. 81-508 (bank may offer to provide underwriting services (a non-traditional
product) to a customer on the condition that the customer utilize a letter of credit (a
traditional product) issued by the bank).
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