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On May 26, the Office of the Comptroller of the Currency announced an interim final rule that would permit national banks and federal savings associations to hold all board of director, shareholder and member meetings telephonically or electronically, including after the Covid-19 emergency ends. The OCC also published optional model bylaws for mutual savings associations and federal savings associations to authorize and govern telephonic and electronic meetings. The interim final rule takes effect on May 28, and comments must be received by July 13, 2020.
On December 16, the FDIC issued Financial Institution Letter FIL-60-2015 announcing the final rule amending filing requirements and processing procedures for notices filed under the Change in Bank Control Act. The final rule applies to all FDIC-supervised institutions, including those with assets under $1 billion. Some of the changes brought by the rule, effective January 1, 2016, include (i) consolidating and conforming the change-in-control regulation of state savings associations and rescinding prior regulation and guidance transferred from the Office of Thrift Supervision; (ii) adopting presumptions of acting in concert with the other federal banking agencies; (iii) defining terms that were previously undefined, such as “voting securities”; (iii) establishing reporting requirements for stock loans held by foreign banks and their affiliates, and for a CEO and bank director following a change of control; and (iv) subject to waiver, requiring a person who was approved to and has acquired control of a covered institution to file a second notice if that person's ownership, control, or power to vote will increase to 25% or more of any class of voting securities.
On January 27, the SEC announced that it will host a roundtable to discuss ways to improve the proxy voting process, focusing most specifically on universal proxy ballots and retail participation in the proxy process. Divided into two panels, the roundtable will focus on (i) “the state of contested director elections and whether changes should be made to the federal proxy rules to facilitate the use of universal proxy ballots by management and proxy contestants;” and (ii) “strategies for advancing retail shareholder participation in the proxy process.” The roundtable is scheduled to take place on February 19 in Washington, D.C.
On September 8, the Court of Chancery of the State of Delaware upheld a bylaw of a Delaware corporation that designated an exclusive forum other than Delaware for resolution of actions against the company and its directors. City of Providence v. First Citizens BancShares Inc., No. 9795-CB, 2014 WL 4409816 (Del. Ch. Sept. 8, 2014). The company adopted the forum selection bylaw on June 10, 2014, the same day it announced a merger agreement with a holding company incorporated and based in South Carolina. The clause states that any (i) derivative action or proceeding brought on behalf of the company, (ii) claim of breach of fiduciary duty brought against a director, officer, or other employee, (iii) action brought under the General Corporation Law of Delaware, and (iv) action brought under the internal affairs doctrine must be brought in the Eastern District of North Carolina (or, if that court does not have jurisdiction, any North Carolina state court with jurisdiction). The plaintiff challenged that provision as invalid under Delaware law and/or public policy. The court granted the defendants’ motion to dismiss, relying on analysis used in Boilermakers Local 154 Retirement Fund v. Chevron Corp., 73 A.3d 934 (Del Ch. 2013) (upholding a forum selection clause requiring litigation relating to internal affairs of a company take place in Delaware). The court held that the forum selection clause was facially valid, explaining that the fact that the forum selected was outside of Delaware did not raise any concerns about the clause’s validity, noting that North Carolina was the “second most obviously reasonable forum” because the company is headquartered there. Further, the court noted that the clause stated it was enforceable “to the fullest extent permitted by law,” meaning that any claims that may only be asserted in Delaware were not precluded by the bylaw. The court also rejected the plaintiff’s argument that the company’s board breached its fiduciary duties in adopting the bylaw in question and determined that the plaintiff had failed to demonstrate that it would be “unreasonable, unjust, or inequitable” to enforce the forum selection clause.
Comptroller Curry Addresses Senior Management's AML Compliance Responsibilities, Criticizes "De-Risking"
On March 17, Comptroller of the Currency Thomas Curry reaffirmed his agency’s views with regard to BSA/AML compliance and the responsibilities of senior bank managers and boards of directors. Mr. Curry asserted that BSA infractions “can almost always be traced back to decisions and actions of the institution’s Board and senior management” and that the deficiencies underlying those infractions tend to involve failures in four areas: (i) the culture of compliance at the organization; (ii) the resources committed to BSA compliance; (iii) the strength of information technology and monitoring process; and (iv) the quality of risk management. Mr. Curry reported a recent positive trend, particularly at OCC-regulated large banks, which have increased spending and added BSA/AML compliance staff. He stated that such actions are one aspect of banks’ efforts to align “good compliance practices and the bank’s system of compensation and incentives.” The Comptroller criticized a separate trend of “de-risking”, in which banks avoid or end relationships with types of businesses deemed too risky. He warned that any business can be used for illicit purposes and “de-risking” is not a shortcut to circumvent a bank’s obligation to evaluate risk on an individual basis. He encouraged banks not to avoid high-risk businesses, but rather to apply stronger risk management and controls as necessary.
On January 15, the OCC announced its 2014 schedule of workshops for directors of national community banks and federal savings associations. The workshops, which are led by OCC examiners and are meant to provide practical training and guidance to directors, include (i) Mastering the Basics: A Director’s Challenge; (ii) Risk Assessment for Directors: Where is the Risk in Your Institution?; (iii) Compliance Risk: What Directors Need to Know; and (iv) Credit Risk: A Director’s Focus.
On January 3, the U.S. District Court for the Northern District of Illinois held that a relator failed to support allegations that the outside directors of a failed bank misrepresented to the FDIC the quality of the bank’s collateral on real estate loans, and dismissed those claims. U.S. v. Veluchamy, No. 11-4458, 2014 WL 51398 (N.D. Ill. Jan. 3, 2014). The relator alleges that the outside directors, as well as bank managers and employees and the bank’s appraisal company, violated the False Claims Act by engaging in a scheme to defraud the FDIC by misrepresenting the loan-to-value ratios for real estate lending and submitting fraudulent Call Reports based on overvalued appraisals. The court held that the bank’s outside directors were not shown to be involved in the day-to-day operations of the bank, and that the relator failed to demonstrate the directors had knowledge of or contributed to the alleged scheme. The court denied motions to dismiss filed by the other defendants. The court also held that the relator’s claims were not barred by prior public disclosure of the allegations. The court explained that a Material Loss Review issued by the FDIC’s inspector general following the bank’s failure did not include “critical elements” of the relator’s fraud claims, and that a prior state court employment case filed against the bank by the relator also did not reveal essential elements of the current claims.
On December 30, the FDIC responded to a recent joint letter from the AABD and ICBA expressing concern with the lack of new bank charters and proposing policy reforms to encourage more de novo applications. As the trade groups pointed out, the FDIC has only approved deposit insurance for one de novo bank since 2011, a dramatic shift from many years of de novo bank formation averaging over 170 per year. FDIC Director Doreen Eberley acknowledged the concern, but defended FDIC policy and cited cyclical conditions as a potential explanation for the current situation rather than any FDIC policy change. Ms. Eberley reasserted the FDIC’s commitment to assisting with potential de novo community bank formations.
On January 8, in a Daily Show interview, CFPB Director Richard Cordray discussed with host Jon Stewart some of the Bureau’s efforts to date, including implementation of the CFPB’s mortgage rules and the Bureau's credit card add-on product enforcement actions. Director Cordray added that the Bureau will continue to take enforcement actions against individual officers and employees responsible for company wrongdoing, including by imposing officer-director bans, seeking disgorgement, and referring matters for criminal investigation. “There’s always officials and people in the company that make the decisions. So going after them for money, making them feel at risk, sometimes going after them to take them out of the business for a period of time, or referring them criminally if that is appropriate, that’s part of what we’re doing,” Cordray stated.
These comments mirror statements Director Cordray made last year, in which he cautioned that “[i]ndividuals need to know they’re at risk when they do bad things under the umbrella of a company.” The agency has already pursued individuals in several enforcement actions, and Director Cordray’s remarks suggest the Bureau will continue to devote resources toward investigating individual involvement in alleged company misconduct, along with the entities themselves.
Eleventh Circuit Certifies Questions On Georgia Business Judgment Rule In Bank Officer Case, Declines To Apply "No Duty" Rule To Bar Affirmative Defenses
On December 23, the U.S. Court of Appeals for the 11th Circuit certified questions to the Georgia Supreme Court regarding whether bank directors and officers can be subject to claims for ordinary negligence under the state banking code. FDIC v. Skow, No.12-15878, 2013 WL 6726918 (11th Cir. Dec. 23, 2013). In this case, former directors and officers of a failed Georgia bank moved to dismiss a suit brought against them by the FDIC as receiver for the failed bank, asserting that the state’s business judgment rule blocked the FDIC’s ordinary negligence allegations. Specifically, the FDIC claimed that the former directors and officers were negligent in pursuing an unsustainable growth strategy that included approving high risk loans that resulted in substantial losses and contributed to the bank’s failure. The appeals court explained that state law appears to provide that a bank director or officer who acts in good faith might still be subject to a claim for ordinary negligence if he failed to act with ordinary diligence. However, given that its reading of the state statute conflicts with state intermediate appellate court holdings, the Eleventh Circuit asked the Supreme Court of Georgia to determine (i) whether a bank director or officer violates the standard of care established by state statute when he acts in good faith but fails to act with “ordinary diligence;” and (ii) whether, in a case applying Georgia’s business judgment rule, the bank officer or director defendants can be held individually liable if they are shown to have been ordinarily negligent or to have breached a fiduciary duty, based on ordinary negligence in performing professional duties. The court also affirmed the district court’s denial of the FDIC’s motion to strike certain affirmative defenses, rejecting the FDIC’s argument that under federal common law it owes “no duty” to bank officers or directors and it therefore is exempt from defenses under state law.
- Jonice Gray Tucker to discuss “How the new administration sets the tone for 2021” at the American Conference Institute Legal, Regulatory and Compliance Forum on Fintech & Emerging Payment Systems
- Sherry-Maria Safchuk to discuss UDAAP in consumer finance at an American Bar Association webinar
- Jeffrey P. Naimon to discuss "What to expect: The new administration and regulatory changes" at the Mortgage Bankers Association Legal Issues and Regulatory Compliance Conference
- Jonice Gray Tucker to discuss “The future of fair lending” at the Mortgage Bankers Association Legal Issues and Regulatory Compliance Conference
- Steven R. vonBerg to discuss "LO comp challenges" at the Mortgage Bankers Association Legal Issues and Regulatory Compliance Conference
- Michelle L. Rogers to discuss "Major litigation" at the Mortgage Bankers Association Legal Issues and Regulatory Compliance Conference
- Michelle L. Rogers to discuss “The False Claims Act today” at the Federal Bar Association Qui Tam Section Roundtable