We would like to purchase a building that we may use for a branch someday. In the meantime the building will be empty, but we want to attach a night drop box to the outside. Can we have one employee pick up the deposits every day? We are concerned about customers claiming their deposits never made it to the bank, but we do not have a large enough staff to allow two employees to do these daily pick-ups. The deposits will not be opened and recorded until after they reach the bank. We also plan to include an ATM outside of the building next to the night drop box. We will post a sign on the side of the building with our bank’s name, along with a member FDIC statement. We will also post the funds availability schedule outside next to the night drop box. If we place a sign above the drop box and ATM that states “ATM and Night Deposit Box,” would that also require the member FDIC advertising statement?

We are not aware of any requirement that two bank employees must pick up the night drop box deposits and deliver them to the bank. In addition, we believe your bank may adopt a policy to limit your liability for night drop box deposits until after the deposits are recorded at the bank.

Under the Illinois Banking Act, a bank may adopt a policy delaying its liability for deposits made in outside depositories until the deposits are recorded, provided that the bank notifies depositors in writing of this policy at least 21 days before it takes effect. An “outside depository” includes any receptacle (excluding ATMs and point of sale terminals) attached to any location for the purpose of making deposits either during or after regular banking hours. In our view, the night drop box that you describe will constitute an outside depository. Consequently, we believe you may limit your liability against claims that night drop box deposits never reached the bank, regardless of how many employees perform the pick-ups (with the required 21 day advance notice).

We do not believe that the sign that states “ATM and Night Drop Box” requires the FDIC advertising statement. The FDIC regulations require the official FDIC advertising statement to appear in all advertisements that either promote deposit products and services or non-specific banking products and services offered by the institution. An “advertisement” is defined broadly as “a commercial message, in any medium, that is designed to attract public attention or patronage to a product or business.” In our view, the sign you described — which will be posted above a night drop box and ATM that are clearly associated with your bank — promotes your bank’s deposit services and attracts attention or patronage to your business. However, the FDIC regulations exclude advertisements that do not contain the name of your bank. Consequently, we believe a sign that states “ATM and Night Drop Box” but does not include your bank’s name would not need the FDIC advertising statement.

For resources related to our guidance, please see:

Illinois Banking Act, 205 ILCS 5/5b(a) (“Except as provided in subsection (b), every bank is liable for deposits made in an outside depository from the time the deposit is made.”)
Illinois Banking Act, 205 ILCS 5/5b(c) (“For the purposes of this Section ‘outside depository’ means any receptacle attached to a main banking premise, branch as allowed in subsection (15) of Section 5 of this Act, or other location for the purpose of making deposits either during or after regular banking hours, but does not include an automatic teller machine or point of sale terminal, as defined in the Electronic Fund Transfer Act.”)
Illinois Banking Act, 205 ILCS 5/5b(b) (“A bank may adopt a policy that its liability for deposits made in outside depositories will be delayed until the deposits are recorded, and, if such a policy is adopted and depositors are notified in writing at least 21 days in advance of the effective date of such policy, the bank’s liability will be delayed in accordance with the policy. In case of deposit accounts opened after such a policy is adopted, the policy shall be effective if the depositor is given written notice of the policy at the time the deposit account is opened.”)
FDIC Regulations, 12 CFR 328.3(c)(1) (“Except as provided in § 328.3(d), each insured depository institution shall include the official advertising statement prescribed in § 328.3(b) in all advertisements that either promote deposit products and services or promote non-specific banking products and services offered by the institution. For purposes of this §328.3, an advertisement promotes non-specific banking products and services if it includes the name of the insured depository institution but does not list or describe particular products or services offered by the institution.”)
FDIC Regulations, 12 CFR 328.3(a) (“The term ‘advertisement,’ as used in this part, shall mean a commercial message, in any medium, that is designed to attract public attention or patronage to a product or business.”)
FDIC Regulations, 12 CFR 328.3(d) (“The following types of advertisements do not require use of the official advertising statement . . . Advertisements not setting forth the name of the insured depository institution . . . .”)