# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 23, 2009 Decided July 7, 2009

No. 08-1259

J OSEPH S TILWELL

, ET AL

., P ETITIONERS

v.

O FFICE OF T HRIFT S UPERVISION

, R ESPONDENT

On Petition for Review of an Order of the Office of Thrift Supervision

Paul M. Smith argued the cause and filed the briefs for petitioners.

Christopher A. Sterbenz , Trial Attorney, U.S. Department of the Treasury, argued the cause for respondent. With him

on the brief were Dirk S. Roberts , Deputy Chief Counsel, and
Elizabeth R. Helke , Special Counsel.

Gregory Taylor was on the brief for amicus curiae

American Bankers Associati on in support of respondent.

Before: G INSBURG , H ENDERSON , and K AVANAUGH

, Circuit Judges

.2

Opinion for the Court filed by Circuit Judge

K AVANAUGH

.

K AVANAUGH

, Circuit Judge : A new Office of Thrift Supervision regulation allows s ubsidiaries of mutual holding companies to limit their minority shareholders to 10% of the subsidiary’s total minority stock. The idea is to prevent activist minority investors from taking advantage of voting rules that require a majority of the minority shareholders to approve management stock benefit plans. OTS was concerned that large minority stockholders would leverage their voting power so as to unduly interfere in certain areas of corporate governance – for example, by pressuring the institution to engage in stock repurchases or sale of the

institution. The rule is thus akin to an anti-takeover device.

Joseph Stilwell is a private i nvestor who has previously acquired more than 10% of minority stock in some subsidiaries of mutual holding companies – and who wants to do so again. He challenges the new OTS rule as arbitrary and capricious under the Administra tive Procedure Act. Applying the deferential arbitrary and capri cious test, we conclude that

the OTS rule is reasonable and reasonably explained. OTS struck a permissible balance be tween the goals of deterring management’s self-dealing and preventing abusive short-term investment strategies. We find no legal basis to upset that policy choice, and we theref ore must deny the petition.

I

The Home Owners’ Loan Ac t of 1933 authorizes the Federal Government to issue charters to mutual savings associations. 12 U.S.C. § 1464(a) . Under the federal charter, those associations are owned and governed by their members,3

who have the right to vote on “all questions requiring action by the members” and the right to receive an “equal distribution of assets, pro rata to the value of their accounts”

in the event the association is liquidated, dissolved, or wound up. 12 C.F.R. § 544.1. This owne rship structure differs from that of a stock bank, shares of which are bought and sold by members of the public at large.

One drawback to the mutual association structure is its inability to raise capital by o ffering ownership stakes to the public in the form of stock. Federal law does, however, permit mutual savings associations to raise outside capital if they first convert themselves to a mutual holding company (MHC) structure. See 12 U.S.C. § 1467a(o); 12 C.F.R. Pt. 575. Two new entities emerge from such a conversion – an MHC owned entirely by the mutual association’s original set of member-owners, and a subsid iary company in stock form owned by the MHC. In some cases, the MHC structure may also include the creation of a “mid-tier” holding company controlled by the MHC and owning all of the stock of the reorganizing mutual association. See 12 C.F.R. §§ 575.2(q), 575.14(a).

To raise capital, the MHC may sell a minority stake of the subsidiary to the genera l public in a stock offering. See 12 U.S.C. § 1467a(o)(8)(B); 12 C.F.R. § 575.8(a)(2). In so doing, it raises capital while reta ining a majority stake in – and hence control of – the subsidiary. In addition to allowing mutual associations to generate outside capital, this MHC structure allows directors, officers, and employees of the

mutual association to receive compensation in the form of stock in the subsidiary.

Congress created the Office of Thrift Supervision as an agency in the Department of the Treasury to regulate mutual4

associations, including the process by which those

associations can convert to the MHC structure. See 12 U.S.C. § 1467a(o)(3). OTS regulations set forth the basic charter form for the MHCs (and any mi d-tier holding companies) along with their subsidiaries. The regulations also include several “optional” pre-approve d charter provisions that MHC subsidiaries may choose to adopt. See 12 C.F.R. §§ 575.9(a)- (c), 575.14(c).

OTS rules also govern th e process by which MHC subsidiaries may create stock be nefit plans for the benefit of their directors, officers, and employees. See generally id. §§ 563b.500, 575.8. To prevent management’s self-dealing, OTS has required that those be nefit plans be approved by a majority vote of the minority shareholders in the MHC subsidiary. Id. § 575.8(c). In recent years, however, OTS has become concerned that minority shareholders (including Joseph Stilwell, the petitioner in this case) may be using their leverage in voting on those plans to take advantage of the results of the stock offering – for example, by demanding that management repurchase its stoc k or sell the institution. See OTS Br. at 41-44; Optional Charter Provisions in Mutual Holding Company Structures, 72 Fed. Reg. 35,205, 35,206 (June 27, 2007) (notice of proposed rulemaking).

To address this problem, OTS adopted a new rule following notice to and comment from the interested public.

See Optional Charter Provisions in Mutual Holding Company Structures, 73 Fed. Reg. 39,216 (Jul y 9, 2008) (final rule). The rule creates an optional provision that MHC subsidiaries may include in their respective charters. Under the optional provision, MHC subsidiaries may prohibit any person or entity from acquiring, or offering to acquire, more than 10% of the MHC subsidiary’s total minority stock within five years5

after the minority stock issu ance. 12 C.F.R. §§ 575.9(c), 575.14(c)(3). *

Shortly after OTS’s adopti on of the rule, petitioner Joseph Stilwell and a few affiliated companies filed the present petition for review. Stil well is a private investor who regularly buys minority stakes in subsidiaries created by mutual holding companies. Du ring the rulemaking process, Stilwell opposed the proposed rule on the grounds that it

* The full text of the optional provision for MHC subsidiaries

reads as follows:

Beneficial Ownership Limitation. No person may directly or indirectly offer to acquire or acquire the beneficial ownership of more than 10 percent of the outstanding stock of any class of voting stock of the associati on held by persons other than the association’s mutual holding company. This limitation expires on [insert date within five years of minority stock issuance] and does not apply to a transaction in which an underwriter purchases stock in connection with a public offering, or the purchase of stock by an employee stock ownership plan or other tax- qualified employee stock benefit plan that is exempt from the approval requirements under § 574.3(c)(1)(vii) of the Office’s regulations.

In the event a person acquires stock in violation of this section, all stock beneficially owned by such person in excess of 10 percent of the stock held by stockholders other than the mutual holding company shall be cons idered “excess shares” and shall

not be counted as stock entitled to vote and shall not be voted by any person or counted as voting stock in connection with any matters submitted to the stockholders for a vote.

12 C.F.R. § 575.9(c). The optional charter provision available to subsidiaries of mid-tier MHCs is virtually identical. Id . § 575.14(c)(3).6

would inappropriately favor the interests of MHC management, disenfranchise minority shareholders, and undermine sound corporate governance. Letter from Spencer L. Schneider, Counsel to Stil well, to OTS Chief Counsel (Aug. 24, 2007); Letter from Sp encer L. Schneider, Counsel to Stilwell, to OTS Chief Counsel (Nov. 20, 2007). He makes substantially the same claims in his petition for review to this Court, and he argues that the rule is arbitrary and capricious

under the APA.

II

Before proceeding to Stilwell’s challenge to the rule on its merits, we first consider whether his claim is justiciable. OTS argues that Stilwell lacks standing because the rule has not caused him an injury; it also contends that Stilwell’s petition is not ripe. We disagree on both counts.

A

To demonstrate standing under Article III of the Constitution, Stilwell must show an injury in fact caused by

the defendant and redressa ble by judicial relief. See Lujan v. Defenders of Wildlife , 504 U.S. 555, 560-61 (1992); Pub. Citizen v. Nat’l Highway Traffic Safety Admin. , 489 F.3d 1279, 1289 (D.C. Cir. 2007). The regulation at issue here directly regulates mutual holding company (MHC) subsidiaries, not investors. As an investor, Stilwell therefore

has a more difficult burden to de monstrate standi ng; he has to show a “substantial probability” of injury as a result of the

rule. St. John’s United Church of Christ v. FAA , 520 F.3d 460, 462 (D.C. Cir. 2008) (internal quotation marks omitted).

In light of Stilwell’s past pr actice and future investment plans, he has demonstrated su ch a substantial probability.7

There is plainly a hi gh – indeed, a near- certain – probability

that at least some MHC subsidia ries selling minority stock to the public will adopt the optiona l provision limiting the size of any individual’s minority stake. OTS proposed and ultimately adopted this new appr oach for this precise reason: to help solve the perceived pr oblems posed by activists like Stilwell investing in MHC subsidiaries. See generally Optional Charter Provisions in Mutual Holding Company Structures, 72 Fed. Re g. 35,205, 35,206 (June 27, 2007) (notice of proposed rulemaking); OTS Br. at 44. Comments on the rule – including from representatives of prominent

bankers’ trade associations – s upported the rule on the same grounds. See, e.g. , Letter from Patricia A. Milon, Chief Legal Officer, America’s Cmty. Bankers, to OTS Chief Counsel (Aug. 27, 2007); Letter from Christopher M. Paridon, Counsel to Am. Bankers Ass’n, to OTS Chief Counsel (Aug. 27, 2007); Letter from Christopher Cole, Regulatory Counsel, Independent Cmty. Bankers of Am., to OTS Chief Counsel (Aug. 27, 2007). Indeed, amicus curiae American Bankers

Association notes that “the outcome of this case will have a very real impact upon the ability of mutual associations to

defend themselves.” American Ba nkers Ass’n Br. at 3. There is no doubt, moreover, that a MHC subsidiary’s adoption of the optional charter provision will harm Stilwell’s economic interests: He has previously obtained, and wants to continue to obtain, more than 10% of the minority stock of certain MHC subsidiaries. We agree with Stilwell, therefore, that “it

is more than a little ironic th at OTS would sugge st Petitioners lack standing and then, later in the same brief, label Petitioner Stilwell as a prime example [of] one of the activist MHC shareholders who supposedly ha ve created the very problem the Rule was intended to address.” Stilwell Reply Br. at 7.

Under the OTS rule, it is substantially probable that MHC subsidiaries will adopt ch arter provisions that will cause8

Stilwell economic harm; he therefore has standing to challenge the rule as a violation of the APA. See Clinton v. City of New York , 524 U.S. 417, 432-33 (1998) (finding standing based on probable economic injury caused by government action changing market conditions); St. John’s

, 520 F.3d at 462 (“substantial probab ility” of injury needed for injury-in-fact); Sabre, Inc. v. Dep’t of Transp. , 429 F.3d 1113, 1119 (D.C. Cir. 2005) (findi ng standing where it was “reasonably certain that [petitioner’s] business decisions will be affected”). Put more ge nerally, when an agency adopts a rule with the purpose and substantially probable effect of economically helping regulated Party A and hindering Party B, Party B ordinarily will have standing to challenge the rule.

So it is here.

B

Stilwell’s challenge is also ripe. The OTS rule is concededly a final rule, and ther e is a substantial probability that MHC subsidiaries will adopt the optional charter provision it makes available. This, in turn, will harm Stilwell’s investment prosp ects. Because Stilwell is challenging the validity of the OTS rule itself – and not the charter provision’s subsequent adoption by any particular

mutual association – there is no persuasive reason to postpone consideration of his challenge. See Sabre , 429 F.3d at 1119- 21. For ripeness purposes, this case is no different from the myriad cases in which we entertain challenges to an agency’s

final rule. We therefore turn to the merits.

III

On the merits, Stilwell advances two main reasons that the OTS rule is arbitrary and capricious under the APA. Stilwell does not argue that the rule violates any particular9

statutory provision. Therefore, this is a State Farm case, not a
Chevron case. See Motor Vehicle Mfrs. Ass’n v. State Farm

, 463 U.S. 29 (1983); Chevron USA, Inc. v. Natural Res. Def.

Council , 467 U.S. 837 (1984). Under State Farm , we must uphold OTS’s rule so long as it is reasonable a nd reasonably explained. See State Farm , 463 U.S. at 43. Applying this deferential standard, we re ject Stilwell’s arguments.

First , Stilwell contends that OTS failed to present any substantial empirical evidence justifying the new regulation. In essence, Stilwell claims that the new regulation is a solution in search of a problem . Although Stilwell has made a forceful submission, this claim is ultimately resolved by the deferential nature of arbitrary and capricious review of agency

rules. See Bowman Transp., Inc. v. Ark.-Best Freight Sys.,

Inc. , 419 U.S. 281, 285-86 (1974). The APA imposes no general obligation on agencies to produce empirical evidence. Rather, an agency has to justify its rule with a reasoned explanation. Moreover, agen cies can, of course, adopt prophylactic rules to prevent potential pr oblems before they arise. An agency need not suffer the flood before building the

levee.

Here, OTS thoroughly explained its concern that minority

shareholders could use and were using their leve rage to “take unfair advantage” of the proceeds resulting from the stock offering. See Optional Charter Provisions in Mutual Holding Company Structures, 72 Fed. Reg. 35,205, 35,206 (June 27, 2007) (notice of proposed ru lemaking). OTS based its proposed rule on its long experi ence of supervising mutual savings associations; its vi ew found support in various comments submitted in response to the proposed rule. Optional Charter Provisions in Mutual Holding Company Structures, 73 Fed. Reg. 39,216, 39,217 (July 9, 2008) (final rule). We see no basis, at l east under the deferential arbitrary10

and capricious test, for overruling OTS’s considered judgment of the need for this regulation. See Consumer Elecs. Ass’n v.

FCC , 347 F.3d 291, 300 (D.C. Cir. 2003).

Second , Stilwell argues that the new rule will exacerbate the problem of allowing management to give itself generous stock plans. Stilwell argues, in particular, that the new rule makes it too difficult for minority shareholders to prevent the majority from doing so. Although Stilwell is correct that the

rule will make it harder for some minority shareholders to prevent MHC subsidiaries from adopting stock compensation plans, that alone does not establ ish that the rule is arbitrary and capricious. As OTS expl ained, the optional charter provision does not affect th e separate OTS regulation – readopted shortly before this ru le – requiring that a majority of minority shareholders approve stock benefit plans. See Optional Charter Provisions, 73 Fed. Reg. at 39,218-19; 12 C.F.R. § 575.8(c). Because th at voting requirement remains in place, minority shareholders as a class continue to have the power to vote down stock benefit plans.

Perhaps more to the point, OTS has discretion under this statutory scheme to balance the power of majority and minority shareholders in order to achieve its multiple regulatory objectives. Those objectives include both preventing majority shareholders from granting themselves overly generous stock packages and preventing minority shareholders from taking advant age of their veto power over such packages, to the harm of the institution. One can certainly quibble with the bala nce struck by OTS. But we

find no basis under th e arbitrary and capricious test for overturning its assessment.

Relatedly, Stilwell claims that the rule eliminates the right of minority shareholders to solicit proxies in excess of11

10% of the minority shares, thereby unduly weakening them. But the premise of this argument is inaccurate. As OTS explained in the preamble to th e rule, the treatment of such proxies as “beneficial ownershi p” for the purposes of the 10% limit is by no means automatic. Rather, the treatment depends on whether the proxies are held in circumstances that “give

rise to a . . . control determ ination” under OTS’s separate control regulations. Optional Charter Provisions, 73 Fed. Reg. at 39,219; see also 12 C.F.R. §§ 574.4(a)-(b). In the

absence of such a control determination, a minority shareholder therefore would typi cally be able to solicit and vote proxies in excess of 10% of the minority shares without violating the rule. OTS Br. at 53. In short, OTS’s approach to this issue does not rise to the level of arbitrary and capricious behavior for th e purposes of the APA.

* * *

We deny the petition for review.

So ordered.