FED Releases Second Set of FAQs on Durbin Rules
The Federal Reserve Board recently posted a second set of questions and answers to the “Frequently Asked Questions About Regulation II (Debit Card Interchange Fees and Routing)” on the Fed’s website. This current release of FAQs has been merged with the previously published FAQs, with the newer questions annotated with the date added. For a summary of the new issues addressed in the FAQs, please click here to read the Alert published by the Financial Institutions Client Service Group on November 28, 2011.
FinCen Issues FAQs and Holds Webinar on Prepaid Access Rule
The Financial Crimes Enforcement Network ( “FinCEN”) recently released a set of FAQs related to the final rule on prepaid access that was issued on July 29, 2011 (the “Rule”). The FAQs are intended to provide interpretive guidance for the Rule, not supersede or replace any part of it. FinCen also recently gave a webinar presentation on the Rule. The most significant clarifications to the Rule made by FinCen are discussed in an Alert published by the Financial Institutions Client Service Group on November 28, 2011. To read this discussion, please click here.
Supreme Court to Determine Whether Corporations Are Liable in U.S. Courts for Human Rights Violations Committed Abroad
The U.S. Supreme Court may soon decide the extent to which corporations may be sued for alleged human rights violations which arise in connection with their business activities outside the U.S. The Court has granted certiorari petitions in two cases brought against corporations for alleged human rights violations committed abroad. In each case, the claims were discussed by a Court of Appeals on the ground that corporations are immune from such suits. The cases will be argued in tandem, even though different statutes apply. To read more the cases and the statutes being applied, please click here for the Alert published by the Commercial Litigation Client Service Group on November 11, 2011.
With offices all over the world, Bryan Cave attorneys are often quoted in the news. Recent Media Mentions of Financial Institutions Group attorneys include:
Hightower on BankDirector.com
Atlanta Associate Jonathan Hightower authored an article Nov. 18 for BankDirector.com concerning the pitfalls for banks negotiating lease renewals with insiders. “During the mid-2000s, it was commonplace for a bank, particularly a de novo bank, to lease some or all of their bank facilities from an entity controlled by the bank’s directors,” he wrote. “Most bank directors understand their duty to act in the best interests of the bank, but they are also facing personal financial exposure if the lease is not renewed on terms that allow the [director-owned] entity to continue to service its debt obligations. In addition, given public scrutiny of directors and officers who are perceived to have profited at the expense of the bank they serve, creating a proper process to manage these situations has never been more important.” Click here to read the full article.
McAlpin on BankDirector.com
Atlanta Partner Jim McAlpin authored the second article in a series on “best practices” for bank directors Dec. 2 for BankDirector.com. “A bank board is like any other working group in that the direction and decisions of a board can be heavily influenced by members who dominate the conversation, or by members who actively discourage discussion or dissent,” wrote McAlpin, who offers tips to help all board members achieve meaningful participation. Click here to read the full article.
Moeling in Bank Director
Atlanta Partner Walt Moeling was quoted in the fourth quarter 2011 issue of Bank Director on challenges facing new directors now and in the near future. “Business plans become much more realistic when they start out with the big picture rather than “do we really want a Wal-Mart greeter in the lobby?” Moeling said. “Are we going to build for five years and sell? Are we going to acquire? Are we going to stay local or expand?”
|Bryan Cave has been ranked number 2 out of approximately 650 law firms which serve Fortune 1000 companies, in BTI Consulting Group’s annual “Client Service A-Team.” BTI’s annual survey of law firm client service performance is designed to identify and recognize those firms which deliver best-in-class service. This marks the 4th consecutive year in which Bryan Cave has been included in the top 30 firms in the survey. “The results of this independent survey are a very important confirmation of our emphasis on client relationships and service,” said Don Lents, Chair of Bryan Cave LLP. To read more click here.|
Are any of your bank branches and offices owned by directors? That could spell trouble but it can be handled well. Here’s how.
During the mid-2000’s, it was commonplace for a bank, particularly a de novo bank, to lease some or all of their bank facilities from an entity controlled by the bank’s directors. At the time, these arrangements truly represented a “win-win” situation. The bank was able to occupy built-to-suit facilities while conserving liquidity so that cash could be deployed through making loans with attractive yields. At the same time, the directors, many of whom were real estate professionals, were able to make a sound real estate investment with the knowledge that a very stable tenant would occupy the property.
As we know, much has changed since the mid-2000’s. Vacancies in commercial properties have caused market lease rates to plummet. Similarly, market values of commercial properties have decreased substantially. Many banks have excess liquidity caused by soft loan demand, making a potential investment in fixed assets more attractive.
Because many of these leases were written with five-year initial terms, a number of banks are now weighing their options with respect to renewal, extension or renegotiation of the leases. To make matters more complex, many director-controlled entities borrowed money to construct the bank facilities. If those notes had five-year terms, they are coming up for renewal, and the lending bank may be eager to move the commercial real estate loans off of its books.
This fact presents a particularly difficult challenge for the affected directors. Banking regulations require that transactions with affiliates be made on terms at least as favorable to the bank as those terms prevailing at the time for transactions with unaffiliated parties. Most bank directors understand their duty to act in the best interests of the bank, but they are also facing personal financial exposure if the lease is not renewed on terms that allow the entity to continue to service its debt obligations. In addition, given public scrutiny of directors and officers who are perceived to have profited at the expense of the bank they serve, creating a proper process to manage these situations has never been more important.
The international law firm Bryan Cave LLP and 113-year-old, Denver-based Holme Roberts & Owen LLP (HRO) will combine their practices effective Jan. 1, 2012, following a recent vote by the partners of both firms. Globally, the firm will continue to be known as Bryan Cave LLP. The combination will add exceptional legal capabilities in energy, natural resources and sports law to Bryan Cave’s international resources while expanding the firm’s worldwide presence into the Rocky Mountain region and adding significant new depth and experience in California.
The combined law firm will have more than 1,100 attorneys in over 30 law and professional service offices around the globe. It is expected to rank among the 25 largest in the world. The combination with HRO will provide additional platforms for the continued expansion of Bryan Cave’s national community banking practice.
“Combining with HRO represents a unique opportunity for both firms to expand the resources we can offer to our clients while reinforcing a shared culture dedicated to superior client service,” said Don G. Lents, chairman of Bryan Cave. “Extending our geographic reach while expanding the range of our services in California are important steps in our firm’s long-term growth. We are very pleased to have as our colleagues lawyers coming from a firm with the stature of HRO, a name that has been synonymous with the highest-quality legal work in its region for more than a century.”
Based in Denver, HRO also serves clients from offices in Boulder, Colorado Springs, San Francisco and Los Angeles. For more than 100 years, the firm has had a tradition of developing lasting relationships with the entrepreneurial businesses which built the Rocky Mountain West, including numerous energy, mining, natural resource and telecommunications and technology clients. In more recent times, the firm has been a leader in providing counsel for complex business and securities transactions, emerging tech and environmental matters. In addition, HRO has developed a nationally recognized litigation group that has handled numerous multimillion dollar cases for some of the best-known companies in the United States. With the combination, the newly formed firm will be the only international firm with full-service capabilities on the ground in Colorado.
In recent exam cycles, bankers have generally been no strangers to heightened scrutiny by FDIC examiners on a variety of topics. In the past several months, the insurance policies carried by banks have been added to the list of potential hot-button items.
Specifically, FDIC examiners have begun to scrutinize bank insurance policies to determine whether the policies provide coverage for civil money penalties (“CMPs”) that may be assessed against bank officers or directors. If any bank insurance policies are found on examination to contain an endorsement extending coverage for CMPs to officers or directors, the FDIC is citing such policies as being in violation of Part 359 of the FDIC’s Rules and Regulations.
Part 359, among other things, prohibits banks and affiliated holding companies from making certain “prohibited indemnification payments.” These prohibited payments include any payment or agreement to pay or reimburse bank officers or directors for any CMP or judgment resulting from any administrative or civil action which results in a final order or settlement in which that officer or director is assessed a CMP, removed from office or ordered to cease and desist from certain activities. As a matter of public policy, this provision is designed to prevent banks from bearing the costs of penalties assessed against individuals for actions that could result in harm or potential harm to a bank or to the safety and soundness or integrity of the banking system more generally.
Part 359 explicitly permits reasonable payments by banks to purchase commercial insurance policies, provided that the policy not be used to pay or reimburse an officer or director the cost of any judgment or CMP assessed against him or her. However, Part 359 does permit the insurance paid for by the bank to cover (1) legal or professional expenses incurred in connection with such a proceeding and (2) the amount of any restitution to the bank, its holding company, or its receiver.
Today’s banking industry is constantly being buffeted by waves of financial, regulatory and operational challenges. The increased regulatory burden and related costs impact every financial institution in both the approach to doing business and the expense of doing business. The industry is in transition, with no clear path forward. As a result, there has never been a greater need for well functioning, informed and courageous boards of directors of banks and bank holding companies. There has also never been a more important time for board members to keep in mind that their responsibilities can be boiled down into one simple goal: the creation of sustainable long-term value for shareholders.
Achieving long-term value for shareholders may seem an elusive goal in the current environment. On more than one occasion, bank board members have commented to me that they feel they are now working for the benefit of the regulators. However, as with any time of turmoil and change, the challenges we now face will pass. As bank boards look for ways to strengthen their institutions, they should not overlook the opportunity to strengthen themselves as a group. One way of doing that is to adopt the practices of the most effective boards of directors.
Over the past several decades my partners and I have attended hundreds of bank board meetings, for institutions ranging in size from under $100 million in assets to well over $10 billion. Regardless of the size of the entity, we have noticed a number of common characteristics and practices of the most effective boards of directors. This is the first in a series of articles which will describe the 10 best practices we have observed among highly effective boards of directors. In this article I focus on two fundamental best practices — selecting good board members and adopting a meaningful agenda for the board meetings.
Best Practice No. 1―Selecting Good Board Members
Some of the most challenging and distracting issues a board can face are those related to its own members. These issues typically arise in connection with conflicts of interest between board members and the banks they serve, or when board members experience financial stress. They can also arise when there are personality clashes in the boardroom, or when one or more board members seek to dominate the conversation. The best time to avoid such issues is during the selection process for new directors. Compromise and wishful thinking in the selection of directors will almost always dilute the effectiveness of the board as a whole. Key characteristics of good directors include:
- Independence―being free of conflicts.
- Time to devote to the job — including time to gain a knowledge of the industry, to prepare for board meetings, and to participate in committees
- Attention — being fully engaged and proactive as a board member.
- Courage―having a willingness to deal with tough issues.
- Curiosity — possessing an intellectual curiosity about the bank, the financial services industry and the trends impacting both.
A group of good, solid and dependable board members is, in my experience, preferable to a big-hitter, all-star line-up of directors. A board is most effective when it acts as a group, with a culture in which all members can voice their opinions, and in which probing, and sometimes difficult questions can be asked. Dominant personalities and board cultures in which constructive debate never occurs have contributed to the demise of many banks in the current downturn. Careful selection of new board members, keeping in mind the strengths and weaknesses of the other members of the board, is well worth the time and effort involved.
With offices all over the world, Bryan Cave attorneys are often quoted in the news. Recent Media Mentions of Financial Institutions Group attorneys include:
McAlpin on BankDirector.com
Atlanta Partner Jim McAlpin authored the first in a series of articles concerning best practices of bank boards Oct. 25 for BankDirector.com. McAlpin said “there has never been a greater need for well-functioning, informed and courageous boards of directors of banks and bank holding companies. There has also never been a more important time for board members to keep in mind that their responsibilities can be boiled down into one simple goal: the creation of sustainable long-term value for shareholders.” This also was the lead article in the BankDirector November e-mail newsletter. Click here to read the full text. The second installment in the series will be published by BankDirector in early December.
Moeling in American Banker, Atlanta Journal-Constitution
Atlanta Partner Walt Moeling was quoted at length Nov. 17 by American Banker regarding the new perception businesspeople have toward serving on a bank board. “Most of them joined because it is one of the great clubs in an area and there is an opportunity to help people in your community. But after four years of foreclosing on your neighbors, watching your friends lose their jobs and seeing your investment lose its value, you’re done,” said Moeling, adding that banks still can find local people to serve, but those directors will have to be prepared to roll up their sleeves a lot. “The compliance burden is huge. Regulators are going to expect directors to be on top of things. The meetings will be longer and more detailed. It will be a lot more demanding than it ever was in the past and it is not going to be as much fun.” He also was quoted Nov. 7 in The Atlanta Journal-Constitution concerning the reasons for the failure of Decatur First Bank in Decatur, Ga. The bank’s quest for growth (it opened subsidiary banks in the mid-2000s in the once-booming Lake Oconee area, about 80 miles east of Atlanta) provided a windfall for a few years until the housing market crashed.
ReVeal on BankDirector.com
DC Counsel John ReVeal was interviewed for two videos now being used on the BankDirector.com Web site. One video focuses on the Bank Secrecy Act (BSA) and how violations are perceived today by regulators. The other, which outlines what a bank board should know about BSA, has become the group’s official training piece concerning BSA and is located in a password-protected section. Click here to view ReVeal’s video on BSA and regulators.
The FDIC sued the former directors and two former officers of Mutual Bank (Homewood, Illinois), along with Mutual Bank’s outside law firm, on October 25, 2011. Mutual Bank was placed into FDIC receivership in July 2009, and its failure currently is estimated to cost the Deposit Insurance Fund $775 million. A copy of the FDIC’s complaint is available here.
One of the unique aspects of this lawsuit is the FDIC’s allegations of corporate waste. For example, the FDIC alleges that the directors approved a $250,000 payment for sponsorship of a “bank function.” The bank function was actually the wedding of one of the directors, who was also the chairman’s and principal shareholder’s son. In another example, the FDIC alleges that the directors allowed $495,000 of Bank funds to be used to make payments to another director for his wife’s defense of a Medicare fraud case. In yet another example, the FDIC alleges that the directors permitted roughly $300,000 of Bank funds to be used to fund travel to an unnecessary directors’ meeting in Monte Carlo. In total, the FDIC is seeking to recover at least $1.09 million from the directors who approved the wasteful transactions.
The FDIC is also suing the directors for their approval of $10.5 million of illegal dividend payments in 2007 and 2008, at a time when the Bank was hemorrhaging and under severe regulatory criticism. The dividends were paid to the bank holding company, which in turn paid them to the shareholders, with 95% of the dividends being paid to the controlling family, which had four members on the Bank board.
The bulk of the FDIC’s complaint is devoted to its claims against the directors and senior officer defendants for approval of twelve loans that resulted in losses of over $115 million for the Bank. As a backdrop for those claims, the FDIC describes a litany of the Bank’s operational deficiencies and failures, including: (i) a “dangerous” concentration in CRE and ADC loans; (ii) a failure to maintain a proper credit administration staff; (iii) an inappropriate reliance on outside mortgage brokers to structure and facilitate large loans; (iv) a failure to establish procedures to ensure compliance with the Bank’s loan policy and prudent lending practices; (v) an inability to generate timely and accurate financial reports; (vi) a routine disregard of the Bank’s loan policy; and (vii) an arrogant disregard of bank regulators and their criticisms.
NLRB Postpones Effective Date of “Employee Rights” Posting Requirement
The National Labor Relations Board announced on October 5, 2011, the decision to postpone until January 31, 2012 the effective date of its recently published rule requiring employers to post notices informing employees of their rights under the National Labor Relations Act. The NLRB finalized its new notice-posting requirement in August and at that time announced that the rule would take effect on November 14, 2011. However, federal lawsuits were filed challenging the rule and prompting many questions and uncertainty from employers across the nation. To learn more about the rule, please click here to read the Alert published by the Labor & Employment Client Service Group on October 6, 2011.
The Computer Fraud and Abuse Act (CFAA) — The Benefits of a Computer Use Policy That Restricts Employee Access
Employers that provide employees unfettered access to company computer systems may unwittingly forfeit a valuable statutory remedy against the misappropriation of electronic data. Such employers should ensure that they have a computer use policy in place that explicitly distinguishes between authorized and unauthorized use. To learn more about the Act and the federal avenue it provides to pursue employees who have misappropriated electronic information, please click here to read the Alert published by the Labor & Employment Client Service Group on October 27, 2011.
Qualified Retirement Plan Limits for Calendar Year 2012
The IRS has announced its 2012 cost-of-living adjustments for retirement plans. To access a chart reflecting the qualified plan limits for calendar years 2009-2012, please click here for the Alert published by the Employee Benefits & Executive Compensation Client Service Group on October 24, 2011.
FINCEN Issues a Notice of Proposed Rulemaking Requiring Cross-Border Report for Prepaid Cards
The Financial Crimes Enforcement bureau has released a proposed rulemaking that would require consumers holding prepaid cards aggregating more than $10,000 in value to report the cards when crossing into or out of the U.S., in the same way that they report cash, travelers checks and other monetary instruments. Please click here to read the Alert published by the Financial Institutions Client Service Group on October 18, 2011.