Bank Counseling & Compliance
Practice Overview
Few industries are as fiercely competitive and as aggressively regulated and supervised as banking. Buckley delivers regulatory, enforcement, transactional, and litigation counsel to federal and state-chartered depository institutions and their holding companies.
Our clients include banking institutions of all sizes — global banks, domestic banks, regional and community banks, and specialty banks. We also help banks, financial services providers, and fintech companies perform “whole institution” enterprise-level oversight — from risk and data management to capital planning, governance, and other prudential issues — which can resolve regulators’ concerns, help firms grow, and expedite the lifting of limitations.
Representative Matters
- We conducted a comprehensive compliance review for a large bank to identify laws and regulations applicable to various lines of business and internal bank processes, including deposits, credit cards, mortgages, and consumer loans, and to review the related support functions of a number of affiliates of the bank.
- We have provided ongoing regulatory advice to a bank, including evaluation of its Community Reinvestment Act performance and related issues, assistance with fair lending self-assessments, review of the bank's appraisal program, and advice on multifamily loan origination policy based on state-issued guidance.
- We advised a publicly traded, multinational financial services corporation in its efforts to acquire U.S. banking operations, including the performance of extensive due diligence on the target bank and analysis of the proposed business plans. We also advised the company as it considered the bank holding company application process, assessing the proposed transaction against applicable banking law, including the Bank Holding Company Act and the Change in Bank Control Act; drafting application materials; engaging with state and federal regulators; and advising the company on the steps necessary to obtain regulatory approval and analyzing alternative transaction structures.
- We assisted a national bank to ensure that its online mortgage loan origination portal was compliant with relevant federal consumer financial laws, including the Truth in Lending Act, Fair Credit Reporting Act, Equal Credit Opportunity Act, ESIGN Act, and CAN-SPAM Act, by identifying features of the portal that triggered key regulatory requirements or could attract regulatory scrutiny, and developing procedures and scripts designed to assist mortgage applicants.
- We advised a large U.S.-based financial institution on its participation in a mobile P2P payments network. We reviewed the network’s operating rules and payment transactions, renegotiating existing contracts to enable its participation, and negotiating extensive amendments to its existing payment processing and related outsourcing contractual arrangements to handle transactions by its customers on the network.
- We assisted a large international financial institution prepare reports demonstrating compliance with the requirements of a U.S. banking agency consent order.
- We advised a private equity fund on regulatory due diligence for a noncontrolling equity investment in a bank participating in marketplace lending.
Bank Regulatory
Buckley works with national and state-chartered commercial banks, federal and state-chartered thrifts, and credit unions in complying with the laws and regulations governing their operations. Our experience includes advising on bank formation and de novo charters; routine filings, disclosures, and financial reporting; and reviewing, drafting, and implementing compliance policies and procedures involving all consumer protection and bank regulatory requirements.
We work with our clients to comply with capital, liquidity, reserve, credit rating, affiliate transaction, and corporate governance requirements (including those under the Sarbanes-Oxley Act, the Dodd-Frank Act, and other sources of director and officer responsibilities), as well as to comply with payment system requirements and e-commerce laws and regulations (including those related to investing in digital assets and making payments using digital currency). We also advise on mergers, acquisitions, divestitures, joint ventures, and outsourcing agreements, and navigate our clients through regulatory examinations, enforcement actions, litigation, and transactions.
Corporate Governance
Corporate governance standards applied by the banking agencies have never been more demanding. We counsel bank boards and executive management on regulatory expectations, and conduct reviews of corporate governance processes, working closely with boards, board committees, and executive management. Our lawyers regularly present to clients on the latest developments and provide recommendations on strengthening corporate governance practices.
New Products
Buckley assists banks and holding companies in developing new financial products and services that are permissible as part of, or incidental to, banking while remaining consistent with regulatory expectations, and risk management. We have assisted a number of banks entering the wealth management, trust, and insurance agency businesses, and with acquisitions of these companies.
Director & Officer Liability and Defense
Bank directors and officers are at greater risk of personal liability than other corporate directors and officers. They are subject to a variety of enforcement actions, including civil money penalties, restitution, and cease and desist orders and removals. If their bank fails, the Federal Deposit Insurance Corporation as receiver of the failed bank may sue them. Buckley supports the efforts of bank directors and officers to mitigate risk of personal liability through customized training and reviews of policies, processes, and practices to ensure that bank boards and management conduct business in a manner that protects them.
Our attorneys advise bank boards and management on protecting themselves against personal liability through D&O insurance policies, charter and bylaw indemnification provisions, and indemnification agreements with individual directors. Our team also defends against enforcement and civil actions filed by banking agencies and other governmental authorities. Members of our team include former bank regulators, white-collar crime prosecutors, and experienced civil and criminal litigators.
Troubled Banks
Our firm advises on issues that banks and their holding companies, directors, and officers face when confronted with a threat to their operations. We offer troubled banks comprehensive advice on complex regulatory, transactional, litigation, and personal liability issues, and work closely with investors to identify, negotiate, and close on investment opportunities with troubled institutions and their regulators. Our team defends matters involving the FDIC, Office of the Comptroller of the Currency, Federal Reserve Board, Securities and Exchange Commission, Department of Justice, and other regulatory and enforcement authorities. We help our clients conduct internal investigations, and represent directors and officers of insolvent banks, thrifts, and their holding companies through bank receivership and bankruptcy processes. We are also involved in transactions and design strategies that help our clients increase capital levels in order to avoid or delay regulatory enforcement actions and receiverships. Our attorneys assist banks operating under change in management or golden parachute restrictions comply with approval requirements.
Bankruptcy Trustee
Buckley represents Chapter 7 trustees of insolvent banks and thrift holding companies in fulfilling their responsibilities to creditors seeking to recover their interests through bankruptcy. We serve as special counsel to trustees and conducti or assist in investigations concerning the financial affairs of the debtor holding company and the failure of its underlying bank or thrift. We assess and litigate claims against insiders and third-party advisers of the debtor holding company and advise on investigations and litigation of avoidable transfers. We defend against government enforcement and civil actions naming or otherwise involving the debtor holding company. Our firm also handles similar matters for debtors in Chapter 11 proceedings.
Articles
"What the new information security reporting standards mean for financial institutions" by Jeffrey P. Naimon and James C. Chou (Cybersecurity Law Report)
Regulators recently proposed new rules that would require banking institutions to notify their primary regulators of some computer-security incidents within 36 hours, and service providers to notify regulated entities as soon as possible of any incident affecting its operations for four hours or...
Articles"CFPB order offers insight into pandemic mortgage servicing" by Jeffrey P. Naimon and H Joshua Kotin (Law360)
The U.S. Consumer Financial Protection Bureau in December issued a consent order based on alleged violations of its 2014 mortgage servicing regulations. The consent order, which also bootstraps claims of unfairness and deception to alleged technical violations of the servicing regulations —...
Articles"CFPB credit stance has broad specialty finance implications" by Jeffrey P. Naimon and H Joshua Kotin (Law360)
The Consumer Financial Protection Bureau issued an advisory opinion at the end of November that could compel specialty-finance companies — including those offering income-share agreements, litigation funding, merchant cash advances and earned wage access products — to take a fresh look at whether...
Articles"Square peg meets round hole: Regulatory responses to challenges created by innovation in banking" by Jonice Gray Tucker, Kari K. Hall, Brendan Clegg, and Anthony Carral (The Business Lawyer)
During the past decade, an underlying tension between the financial sector’s embrace of innovative products and services and the regulatory framework that governs the industry surfaced—and that tension has since become even more acute during the COVID-19 pandemic. Facing pressure from customers’...
Articles"OCC undermines own CRA rule by putting key metric on hold" by Warren W. Traiger (American Banker)
Critics of the Office of the Comptroller of the Currency’s new Community Reinvestment Act rule say it was rushed to completion, bypassing the interagency approach that once defined the rule. Left scattered in its place is a reform (from the OCC) and proposal ( from the Federal Reserve ), leaving...
Articles"Relief or risk?: The hidden costs of government lending" by Michelle L. Rogers, Katherine L. Halliday, and Katherine Brockway Katz (National Law Journal)
There is no longer any question that the economy will take years, not months, to fully recover from COVID-19, and additional funding for government and government-backed loans seems inevitable at some point. Examining the programs from the initial COVID-19 relief package provides context for...
Articles"After storm and fire: How states protect service members" by Jeffrey P. Naimon, Sasha Leonhardt, and Jessica M. Shannon (Law360)
This has been an active year for National Guard call-ups to active duty, as the U.S. addresses hurricanes, wildfires and the novel coronavirus pandemic. National Guard activations are likely to remain high for several months due to ongoing responses to COVID-19, the National Oceanic and Atmospheric...
Articles"Data security best practices for licensed lenders' telework" by Sherry-Maria Safchuk and James C. Chou (Law360)
State-licensed/registered brokers, lenders and servicers have increased their focus on data security as the spread of COVID-19 has extended work-from-home orders, and what now seems to be a lasting acceptance of remote work means that the tools used to secure data will remain relevant when the...
Articles"Budding decentralized finance industry comes with risks" by Ali M. Abugheida (Law360)
The sudden rise of Compound Labs Inc.'s COMP governance token in recent months pushed decentralized finance into the headlines, raising the profile of blockchain-based finance systems to a more mainstream audience. This article provides a short primer on decentralized finance and discusses some of...
Articles"Educational tools may bring regulatory risk for fintech cos." by H Joshua Kotin, Michelle L. Rogers, and Kathryn R. Goodman (Law360)
Financial services providers are increasingly combining delivery of products and services with advice designed to help consumers make better-informed financial decisions. Fintech companies, which typically rely upon data and analytics as fundamental components of their business proposition, should...
Articles"Resisting temptation in a crisis: Making sure ethics and compliance don’t get diluted under financial strain" co-authored by Daniel R. Alonso (Compliance & Enforcement)
As the pandemic crisis begins its long process of receding, near the top of mind in companies of all sizes is how to thrive, or even survive, with the economy in turmoil. With such pressures, it would be easy for business executives to let compliance issues drop down on their list of priorities...
Articles"What constitutes reasonable security per Calif. privacy law?" by Amanda R. Lawrence, Michael A. Rome, and James C. Chou (Law360)
California Consumer Privacy Act compliance has been focused on developing the policies, procedures and infrastructure to support new privacy rights for California residents, which include, among other things, the right to know what personal information companies have on them, the right to delete...
ArticlesSpecial Alert: OCC issues CRA final rule
On May 20, the Office of the Comptroller of the Currency announced a final rule to modernize the regulatory framework implementing the Community Reinvestment Act. The final rule marks the culmination of a three-year effort led by the Treasury Department to revamp the CRA and arrives exactly six...
Special Alerts"Ruling on anti-hacking law may guide fair lending tests" by Jeffrey P. Naimon and H Joshua Kotin (Law360)
Regulators, consumer groups, academics and private litigants are grappling with the fair lending implications of the credit models powering the explosive growth in online lending by banks and financial technology firms. The U.S. District Court for the District of Columbia in late March concluded...
Articles"CRA reform plan is suddenly outdated" by Warren W. Traiger (American Banker)
Bank regulators were in the process of reshaping a 43-year-old community lending law when the coronavirus pandemic hit, prompting calls from bankers and community advocates alike to suspend rulemaking and revealing how inflexible the proposal could be amid a crisis. Even absent current economic...
Articles"Navigating digitized mortgage processes during Covid-19" by Edward W. Somers (Law360)
The risks presented by the coronavirus pandemic have forced innovation in executing consumer contracts — and fast. Not least affected is the mortgage industry, which typically relies on in-person interactions for document execution to satisfy legal requirements and investor guidelines. Office...
Articles"Paycheck Protection Program poses AML compliance challenges" by Benjamin W. Hutten (Bloomberg Law)
Promised relief started flowing to small businesses recently under the $350 billion Paycheck Protection Program established by the Coronavirus Aid, Relief, and Economic Security Act, but many lenders releasing funds now face a substantial compliance burden: establishing an anti-money-laundering...
Articles"Preparing for private right of action under Calif. privacy law" by Amanda R. Lawrence and Michael A. Rome (Law360)
The California Consumer Privacy Act went into effect at the beginning of this year, and while the California attorney general will not begin enforcing it until July, the private right of action that the CCPA created is available to consumers now. The CCPA expressly provides for a private right of...
ArticlesSpecial Alert: CARES Act places significant burdens on servicers of consumer debt but provides some relief to depositories
President Trump late last week signed the Coronavirus Aid, Relief, and Economic Security Act that attempts to soften the negative economic effects of the Covid-19 pandemic on consumers, including by suspending payments for certain student loan borrowers and enabling mortgage loan borrowers to...
Special Alerts"5 FCA enforcement predictions after Coronavirus relief bill" by Andrew W. Schilling (Law360)
On March 27, President Donald Trump signed into law the Coronavirus Aid, Relief and Economic Security Act, also known as the CARES Act. Although the False Claims Act is not mentioned in this stimulus bill, the implications of the act on FCA enforcement are likely to be significant. Click here to...
Articles
News & Blogs
Fed provides guidance on LIBOR transition
On November 19, the Federal Reserve Board announced answers to “Supervision FAQs on the Transition away from LIBOR.” The Fed’s announcement follows an October 2021 joint statement by the CFPB, Fed, FDIC, NCUA, and OCC, in conjunction with the state bank and state credit union regulators, regarding...
InfoBytesOCC gives guidance on cryptocurrency, trust bank chartering
On November 23, the OCC issued Interpretive Letter 1179 , which clarified and expanded on prior interpretive letters concerning bank engagements in cryptocurrency activities. Interpretive Letter 1179 also addressed the OCC’s authority to charter national trust banks. According to the OCC, national...
InfoBytesAgencies discuss crypto-asset next steps
On November 23, the FDIC, OCC, and Federal Reserve Board issued a joint statement summarizing a recent series of interagency “policy sprints” focused on crypto-assets. During the policy sprints, the agencies conducted preliminary analysis on issues related to banking organizations’ potential...
InfoBytesOCC reminds banks of venture capital prohibitions
On November 23, the OCC sent banks a reminder that they are generally prohibited from making most equity investments in venture capital funds. The bulletin warned that simply because an investment in a fund qualifies for the venture capital fund exclusion under the Volcker Rule, it does not mean...
InfoBytesFDIC updates brokered deposit FAQs
On November 22, the FDIC released an update to the Questions and Answers Related to the Brokered Deposits Rule . The FDIC clarified in a new FAQ in conjunction with the updated Brokered Deposit framework that, with respect to the “facilitation” definition’s first prong, a “third party that has...
InfoBytesBiden nominates Powell and Brainard
On November 22, President Biden selected Jerome Powell to serve a second term as Chair of the Federal Reserve Board and nominated Fed Governor Lael Brainard to serve as Vice Chair of the Board of Governors, replacing current Vice Chair Richard Clarida. The White House highlighted Powell’s “steady...
InfoBytesNYDFS issues final guidance for insurers on climate change financial risks
On November 15, NYDFS issued final guidance to New York regulated-domestic insurers on managing climate change-related financial risks. The final guidance reflects the agency’s consideration of stakeholder comments from proposed guidance issued in March, and was informed by NYDFS’s collaboration...
InfoBytesJeffrey P. Naimon quoted in American Banker article, “Can OCC nominee calm fears of bankers, Senate that she is too extreme?”
The American Banker article, “Can OCC nominee calm fears of bankers, Senate that she is too extreme?” examined the upcoming, and what promises to be contentious, nomination hearing of Saule Omarova, President Biden’s pick for comptroller of the currency. Omarova, a Cornell University law professor...
In The NewsAgencies adopt standardized approach for counterparty credit risk Call Report
On November 9, the FDIC, Federal Reserve Board, and the OCC announced the publication of final regulatory reporting changes in the Federal Register applicable to three versions of the Call Report (FFIEC 031, FFIEC 041, and FFIEC 051). In July, the agencies proposed to revise and extend the Call...
InfoBytesOCC urges bank boards to promote climate risk management
On November 8, acting Comptroller of the Currency Michael J. Hsu discussed climate change risk at the OCC headquarters, highlighting areas for large bank boards of directors to consider when promoting and accelerating improvements in climate risk management practices. According to Hsu, bank boards...
InfoBytes
Press Releases & Announcements
Buckley recognized by Chambers USA for consumer financial services, white collar practices
Chambers USA named Buckley LLP a nationwide Band 1 firm in all consumer finance categories in its 2021 rankings, recognizing nine of its partners in those practices — more than any other firm in the country. The firm received top recognition in Consumer Finance Compliance, Consumer...
AnnouncementsBuckley recognized by Chambers USA as a “top-notch” firm in financial services and white collar work
Buckley has once again received top recognition in financial services regulation, white collar crime/government investigations, and fintech from Chambers USA, which ranks the country’s leading firms and lawyers in a range of practice areas based on research and client interviews....
AnnouncementsBuckley recognized by Chambers USA as a “first-rate firm” in financial services; “crème de la crème” for White Collar practice
Buckley has once again received top recognition in financial services regulation and white collar crime/government investigations from Chambers USA, which ranks the country’s leading firms and lawyers in a range of practice areas based on research and client interviews.
In total...
AnnouncementsGordon Miller joins Buckley Sandler
WASHINGTON, DC (August 13, 2018) – Buckley Sandler LLP announced today that banking regulatory lawyer Gordon L. Miller has joined the firm as a Senior Counsel in its Washington, D.C., office. Miller brings more than three decades of public- and private-sector experience in bank regulation,...
Press ReleasesBuckley Sandler represents Old Dominion National Bank in a $38.7 million private offering
Buckley Sandler LLP represented Old Dominion National Bank in an oversubscribed private offering of common equity, which raised approximately $38.7 million from about 320 accredited individual investors.
This was the bank's second successful private placement of common equity since...
AnnouncementsBuckley Sandler recognized by Chambers USA as “an excellent firm” with “a fine stable of expert attorneys”
Buckley Sandler once again has received top recognition in financial services regulation and white collar crime/government investigations from Chambers USA, which ranks the country’s leading firms and lawyers in a range of practice areas by researching the firms and interviewing...
AnnouncementsBuckley Sandler Represents FVCBankcorp in its Acquisition of Colombo Bank
Buckley Sandler LLP represented FVCBankcorp, Inc. (FVCB) in its acquisition of Colombo Bank in a cash and stock transaction for total consideration valued at approximately $33.3 million. Following the closing of the transaction, expected in the fourth quarter of 2018, Colombo will merge into...AnnouncementsBuckley Sandler Represents Luther Burbank Corp. in $150 Million IPO
Buckley Sandler LLP represented Luther Burbank Corp., a bank holding company headquartered in Santa Rosa, California, in its recent initial public offering of common stock, which raised gross proceeds of approximately $150 million.
Luther Burbank...
AnnouncementsBest Lawyers in America Recognizes 11 Buckley Sandler Partners for 2018
Buckley Sandler is pleased to announce that 11 of its partners have been recognized by their peers for inclusion in Best Lawyers in America® 2018.
Partners Jeremiah S. Buckley,...
AnnouncementsDaniel P. Stipano Receives Leadership Award From Association of Certified Anti-Money Laundering Specialists
The Association of Certified Anti-Money Laundering Specialists (ACAMS) awarded Buckley Sandler partner Daniel P. Stipano the 2017 AML/CTF Leadership in Government award at the ACAMS MoneyLaundering.com 22nd Annual International AML & Financial Crime Conference on April 4, 2017, in Hollywood...
Announcements
Our Bank Counseling & Compliance Team
Partners
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FYI
"What the new information security reporting standards mean for financial institutions" by Jeffrey P. Naimon and James C. Chou (Cybersecurity Law Report)
"CFPB order offers insight into pandemic mortgage servicing" by Jeffrey P. Naimon and H Joshua Kotin (Law360)
"CFPB credit stance has broad specialty finance implications" by Jeffrey P. Naimon and H Joshua Kotin (Law360)
Recent Blog Posts
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December 3, 2021
Fed provides guidance on LIBOR transition
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December 3, 2021
OCC gives guidance on cryptocurrency, trust bank chartering
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December 1, 2021
Agencies discuss crypto-asset next steps
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December 1, 2021
OCC reminds banks of venture capital prohibitions
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November 30, 2021
FDIC updates brokered deposit FAQs