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Reinvestment Opportunities Created by Tax Reform

the-bank-accountJonathan and I are back in our studio, and took this opportunity to talk a little about what we’re seeing from our clients, particularly as it comes to reinvesting their tax savings into future opportunities.  Before digging into substance, we first take a little time on the therapist’s couch to address Jonathan’s experience at the College Football National Championship Game. Only 190 days until college football is back!

With regard to tax reform savings, the go to resource for identifying the breadth of ways that banks are addressing is the American Bankers Association’s page at aba.com/EnergizingTheEconomy.  As you can see from that list, the responses really run the gamut of possibilities, including salary increases, increasing employee benefits, greater charitable contributions, new positions and products, fintech investments and addressing margin compression.

As noted on the podcast, we are sponsoring two teams, one of lawyers and one of bankers, for the Atlanta Ragnar Trail Run on April 13th and 14th.  Sixteen of us will be taking turns running five mile legs at the Georgia International Horse Park over a 24-hour (or so) period.  More details to follow, but we’re certainly expanding away from traditional marketing efforts.

We also hope you’ll consider joining us in Macon, Georgia, on April 4, 2018, for the Georgia Bankers Association’s Current Expected Credit Loss (CECL) Workshop.  We’ll be joining our friends from Mauldin & Jenkins to discuss upcoming regulatory changes and the impact of tax reform from a strategic perspective.

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Partnering with Mercer Capital to Discuss Partnering with FinTechs

In our fourth and final podcast recorded onsite at Bank Director’s Acquire or Be Acquired (AOBA) Conference, we were honored to be joined by Jay Wilson with Mercer Capital.  Jay discusses, from start to finish, how banks should explore partnering with fintech companies.  Jay is the author of Creating Strategic Value through Financial Technology that looks how traditional financial institutions and FinTech companies can boost innovation and enhance valuation in a complex regulatory environment.

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We hope you enjoy this episode of The Bank Account.  This is the fourth and final podcast episode we recorded in Phoenix.  As you can see (and hear), we stepped outside on the grounds of the beautiful Arizona Biltmore hotel and enjoyed beautiful February weather.  Unfortunately, while the surrounding area seemed completely quiet before we started recording, once we hit record, every moving van, dump truck and other sound-making person, plant, animal and equipment seemed to invade our lovely spot.  But we think the quality of the conversation with Jay (and the lovely weather and environment) more than makes up for any audio issues.  We hope you enjoy the conversation with Jay as much as we did. 

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Data Privacy and Security Handbook – 2018 Edition

February 6, 2018

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Bryan Cave Partner David Zetoony has just published the 2018 Edition of the Data Privacy and Security Handbook: A Practical Guide for In House Counsel.

Five years ago few legal departments were concerned with – let alone focused on – data privacy or security. Most of those that were aware of the terms assumed that these were issues being handled by IT, HR, or marketing departments.

The world has changed. Data privacy class action litigation has erupted and data security breaches dominate the headlines. It is now well accepted that data privacy and data security issues threaten the reputation, profitability, and, sometimes, the operational survival of organizations. It is therefore perhaps not surprising to find that in almost every survey conducted of boards and senior management, data issues rank as one of their three top concerns, if not their single greatest concern. With that backdrop, organizations increasingly look to general counsel to manage data privacy and security risks.

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2018 Banking Trends with Raymond James

In our third podcast recorded onsite at Bank Director’s Acquire or Be Acquired (AOBA) Conference, we were honored to be joined by Bill Wagner and Matt Paramore with Raymond James.  Bill and Matt shared their outlook for 2018, including the potential of North Carolina serving as a potential preview for community banking across the country and the potential renewed entry of de novo participants.

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Another topic discussed with Bill and Matt is the impact of private equity monetizing some of their investments in financial institutions over the last several years, with the ability to monetize those investments with either M&A or by secondary security sales.  The ability for private equity to exit as reasonable pricing opens significant potential for management teams that believe that continued organic growth and returns can deliver long-term results for all shareholders.  We hope you enjoy this episode of The Bank Account.

This is the third of several podcast episodes we recorded in Phoenix.  Sound quality isn’t quite as good as you may have come to expect as we’re back on an older microphone and, as you can see from the pictures, our recording “studio” was rather large.  But we think the quality of the conversation with Bill and Matt more than makes up for any audio issues.  We hope you enjoy the conversation with Bill and Matt as much as we did. 

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A Recap of the AOBA M&A Simulation with FIG Partners

On the second day of Bank Director’s Acquire or Be Acquired (AOBA) Conference, we were honored to co-host with FIG Partners for the second year, the M&A Simulation.  The M&A Simulation is an exclusive, bankers-only, session at AOBA that attempts to walk through the initial stages of a bank merger.  Like last year, we divided the attending bankers into three groups, representing the boards of directors of three distinct participants: Bank A, a $700 million bank looking to sell, and Banks B & C, two larger potential acquirers.

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Immediately after the simulation, we sat down with Matt Veneri and Dan Flaherty with FIG Partners for a quick recap of the AOBA18 M&A Simulation on The Bank Account.

This is the second of several podcast episodes we recorded in Phoenix.  Sound quality isn’t quite as good as you may have come to expect as we’re back on an older microphone, but we jumped at the opportunity to be able to share our conversations with so many interesting colleagues at Acquire or Be Acquired.  We hope you enjoy the conversation with Matt and Dan as much as we did. We’re already planning a few new tricks for the M&A Simulation at the 2019 Acquire or Be Acquired Conference, and hope you’ll look to join us then.

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A Conversation with Rory McKinney of D.A. Davidson; Day 1 at AOBA

the-bank-accountFor the next several The Bank Account episodes, we’re on the road at Bank Director’s Acquire or Be Acquired (AOBA) Conference.  In our first installment from AOBA, we highlight our respective take-aways from the first day of AOBA and then sit down with Rory McKinney, Managing Director and Head of Investment Banking for D.A. Davison & Co. to discuss Rory’s outlook for bank M&A activity in 2018.

This is the first of several podcast episodes we recorded in Phoenix.  Sound quality isn’t quite as good as you may have come to expect as we’re back on an older microphone, but we jumped at the opportunity to be able to share our conversations with so many interesting colleagues at Acquire or Be Acquired.  We hope you enjoy the conversation with Rory McKinney as much as we did.

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Modifications to the California Homeowner Bill of Rights

On January 1, 2018, certain provisions of the California Homeowner Bill of Rights (“HBOR”) expired.  But contrary to what many assumed, the January 1, 2018 expiration date did not apply to all of the HBOR’s provisions, and many provisions have been replaced by new regulations.  We’ve prepared the below summary of some of the substantial changes to the law and how they will affect HBOR litigation in the future.

  • The new HBOR removes many of the distinctions between servicers conducting more/less than 175 annual foreclosures.  In most but not all respects, all servicers are treated the same going forward.
  • Changes in the private right of action/relief.
    • The HBOR still has a private cause of action, but only for material violations of section 2923.5 (pre-NOD notice requirements), 2923.7 (single point of contact), 2924.11 (dual tracking), and 2924.17 (accuracy of NOD declaration; substantiate right to foreclose).
    • Injunctive relief is available prior to the recording of a trustee’s deed.  After a trustee’s deed is recorded, a servicer may be liable for actual economic damage and the greater of treble or actual damages for material violations that are intentional or reckless.  Attorney’s fees are still available if the borrower prevails.
    • However, mortgage servicers who have engaged in “multiple and repeated uncorrected violations” of section 2924.17 are no longer liable for a $7,500 penalty.
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2017 Bank M&A Statistics

2017 Bank M&A Statistics

January 3, 2018

Authored by: Robert Klingler

It looks like we’ll end 2017 with a total of 263 bank and thrift transactions, representing a slight increase in the number of deals over 2016 (250), but well below 2014 and 2015 levels (307 and 294, respectively).  However, in light of the decline in total number of banks (and the dearth of de novo activity), 2017 basically equaled 2014 and 2015 transaction activity, with approximately 4.5% of institutions at the beginning of the year exiting through a business combination.  (2016’s 250 transactions represented approximately 4.0% of the outstanding banks at the beginning of 2016.)

Until and unless we see more de novo activities, it seems unlikely that we will return to 300 transactions in any given year.  However, on an annualized basis, the fourth quarter of 2017 saw 296 transactions!  Were 2018 to keep up that pace, over 5% of the remaining banks in the country would need to sell.  Each institution’s decision to sell remains subject to a number of unique considerations, but, if anything, it would seem the percentage of institutions selling in any given year would likely decline rather than increase going forward.

We are strong proponents of the proposition that “banks are sold, not bought.”  The fact that there remain a number of institutions looking to grow by completing acquisitions is thus unlikely to fundamentally change the number of transactions in any particular year.  Conversely, the age and stage of banks in the industry (and that of their management teams) remains a critical component of many sale determinations.  As we continue to see a shrinking universe of financial institutions, it stands to reason that we will also continue to see a decline in the number of institutions that decide a sale is the right strategic decision in any particular year.

2017 reflected, consistent with recent trends, a continued increase in the average price-to-book multiple paid in bank transactions.  While the average price-to-book multiple in 2014, 2015 and 2016 were each approximately 1.3 times book, average pricing in 2017 rose to almost 1.6x book.  This level of pricing likely continues to serve as a negative deterrent to de novo formation, as it’s much easier to build a broadly attractive investment model if it includes a sale for 3x book in 5 years (or less).  Looking at a more granular, quarterly, level, it would appear that the 2017 increase is likely tied to the “Trump bump” in bank stock prices.  The average price-to-book multiple rose to 1.4x in the fourth quarter of 2016 (which included pre-and post- Trump bump prices), and then jumped up 1.5x to 1.6x for each quarter in 2017.

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ICBA Negotiates Settlement with Plaintiff Group on Alleged ADA Liability

Numerous community banks that had received demand letters from the advocacy group Access Now alleging that their websites and mobile apps are inaccessible in violation of Title III of the Americans With Disabilities Act (the “ADA”) have now also received letters that those claims have been resolved under a settlement with the Independent Community Bankers of America (ICBA).

The settlement releases ICBA members and non-member banks with assets of $50 billion or less from all ADA claims concerning their electronic banking services, including online banking, mobile banking, ATM services, and telephone banking.  The settlement resolves numerous claims that Access Now had made through its counsel, Carlson Lynch Sweet Kilpela and KamberLaw LLC.  ICBA announced the news of the settlement directly to its members in November.

The settlement preceded an announcement by the U.S. Department of Justice (“DOJ”) that it is withdrawing all rulemaking concerning website accessibility under the ADA.  The DOJ first announced its intent to promulgate such regulations in 2010.  Its announcement leaves uncertain the issue of whether, and when, there will be a government standard for website accessibility.

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Tax Reform for Sub S Banks and a 2017 Year-end M&A Review

the-bank-accountOn the latest episode of The Bank Account, Jonathan and I analyzed the Rose Bowl, pitting Jonathan’s Georgia Bulldogs against Jonathan’s In-Laws’ Oklahoma Sooners.  With critical generational analysis, Jonathan won me over to support Kirby Smart and the Georgia Bulldogs; I simply have to support Generation X over a Millennial. We then turned our focus to on-topic banking issues: the impact of tax reform on Subchapter S banks and a look in review at the 2017 banking m&a market.

For Subchapter S institutions, tax reform offers/requires a re-evaluation of the tax consequences of a Subchapter S tax election.  While institutions regularly assess the overall tax difference involved in a Subchapter S tax election at the time of making the election, that analysis is often then put in the closet, and only rarely re-addressed upon future strategic decisions.  However, with the decline in the corporate tax rate to 21%, it now behooves Subchapter S institutions, particularly those that retain a significant amount of their earnings to support future growth, to update that analysis. Jonathan and I discuss some of the factors affecting that analysis, as well as the timing implications to make effective for 2018.

Looking at the final M&A statistics for 2017, it looks like we’ll end the year with a slight uptick in the number of deals (259, up from 250 in 2016), but remain significantly below 2014 and 2015 levels.   In addition, the average size of the selling banks in 2017 has declined significantly (almost 25% smaller, based on averages).  Jonathan and I discuss these trends, and make a few predictions on M&A going forward.

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