Our colleagues at Antitrust Law Source posted an interesting update about probable charges alleging that traders at approximately a dozen global banks – including Deutsche Bank, JPMorgan Chase, Barclays, and USB – fixed the foreign exchange market, or “forex,” market. The U.S. Department of Justice may bring charges by the end of the year. Read the complete article on Antitrust Law Source.
We wanted to take a moment to announce our newest endeavor, Antitrust Law Source. Antitrust Law Source is a new site designed for visitors to quickly and easily learn about developments in this growing arena. The site primarily will focus on providing news and legal updates in the antitrust arena in a podcasting format. The podcasts will feature a variety of insights, educational offerings, discussions and interviews with thought leaders across a variety of industries.
The site is prepared by members of our firm’s Antitrust Practice Group and will feature news and information on a wide range of areas, including:
- Civil litigation
- Compliance programs/audits
- Consumer protection
- Criminal and civil government enforcement
- Distribution, pricing and promotional allowance programs
- Intellectual property/Technology
- International issues
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We encourage you to visit the site and share your thoughts with us.
It has been an active couple of weeks for FinCEN from a regulatory pronouncement perspective. For example, FinCEN has proposed a regulation to amend existing “know your customer” rules for certain financial institutions to require the verification of beneficial owners of legal entities. Legal entities in this context would mean corporations, partnerships or similar business entities. Public companies, regulated entities and trusts other than business and statutory trusts, would not be covered.
In addition, FinCEN issued an advisory for financial institutions on the importance of a “culture of compliance” with respect to BSA/AML. The guidance had these suggestions based on recent enforcement actions: ensure leadership that supports compliance; don’t mitigate BSA/AML efforts in light of revenue considerations; operating departments must share with compliance staff BSA/AML information; the organization must devote adequate resources to BSA/AML compliance; BSA/AML compliance should be tested by an independent party and the organization’s leadership and staff should understand the purpose and use of BSA/AML reporting. FIN-2014-A007 is available here.
FinCEN’s proposal to amend existing “know your customer” rules requires a financial institution would have to identify each individual who directly or indirectly own 25% or more of the equity and one individual who has responsibility to control, manage or direct the legal entity. This information is to be recorded on the standard certification form.
The proposal is available here. Comments are due on October 3rd, 2014. The original release contemplates that the rule would be effective one year after adoption, so it would appear that late 2015 is the earliest the final version of the regulation might become effective.
The proposed regulation is the culmination of a regulatory process that began in March 2012. While it is intended to be consistent with existing requirements for covered financial institutions, the proposed regulation is intended to address elements of a customer due diligence that had been previously unaddressed by regulation, according to FinCEN.
For FinCEN, the key elements of (customer due diligence) include: (i) identifying and verifying the identity of customers; (ii) identifying and verifying the identity of beneficial owners of legal entity customers (i.e., the natural persons who own or control legal entities); (iii) understanding the nature and purpose of customer relationships; and (iv) conducting ongoing monitoring to maintain and update customer information and to identify and report suspicious transactions.
The first element is already included in existing customer identification program requirements. The rule change is intended to address the three remaining elements. For covered financial institutions FinCEN believes its proposal is “substantively” the same as existing requirements or rules issued by the regulatory agencies for those institutions.
Does a conflict of interest arise under the Ohio Rules of Professional Conduct (“Rules”) when an attorney confesses judgment on a cognovit note? No, according to a recent opinion (Opinion 2014-3, August 8, 2014) issued by The Supreme Court of Ohio’s Board of Commissioners on Grievances & Discipline (“Board”), so long as the cognovit note contains a warrant of attorney that expressly waives a conflict and permits a creditor’s attorney to confess judgment pursuant to R.C. §2323.13. In issuing the Opinion, the Board reaffirmed and updated Advisory Opinion 93-3, which found no conflict existed under Ohio’s former Code of Professional Responsibility, which the current Rules replaced in 2007.
R.C. §2323.13 permits an attorney hired by a creditor to obtain cognovit judgment without notice or hearing in certain commercial transactions (typically loans and guaranties of loans) by producing in court a valid warrant of attorney that also contains a specific warning to the debtor of the rights being surrendered and otherwise complies with law. Ohio courts grant such cognovit judgments because the debtor consented in advance to the creditor obtaining a judgment upon the debtor’s default.
The Opinion specifically finds that confessing judgment does not create a conflict of interest under R. 1.7 of the Rules, which governs conflicts of interest, because the confessing attorney represents only the creditor and not the debtor under both contract law and statute. DiBenedetto v. Miller, 180 Ohio App.3d 69, 72, 2008-Ohio-6505, 904 N.E.2d 554 ¶15 (1st Dist.). In other words, there is no conflict of interest or violation of the Rules because the creditor’s attorney does not have an attorney-client relationship with the debtor.
On August 6, 2014, the Office of Federal Contract Compliance Programs (OFCCP) announced a proposed rule that should be of real concern to covered affirmative action federal contractors. The OFCCP is the agency that enforces federal affirmative action laws. If the proposed rule is adopted, it will add compensation data to the information that covered employers must submit with their annual EEO-1 reports. Keep in mind the “web” of coverage under affirmative action laws reaches far. Coverage is triggered not just by direct federal contracts but also by contracts to provide goods or services to any private sector entity, as long as those goods or services are used in connection with fulfilling some federal contract that your customer or their customers may have. Coverage of financial institutions is triggered by being a depository for federal funds or by being an issuing or paying agent for U.S. Savings Bonds or Notes. Coverage issues and obligations can vary with the dollar volume of the covered work.
Currently, the annual EEO-1 report contains race, ethnicity, and gender information about your workplace, sorted by nine EEO job-type categories. The proposed rule would expand the report to include the following information for each of the EEO categories by race, ethnicity, and gender: total number of employees; total W-2 income; total hours worked.
The obligation to provide compensation information on EEO-1 reports would apply to covered affirmative action employers with more than 100 employees and a covered federal contract or subcontract for $50,000 or more covering a period of at least 30 days, including modifications.
The employer community which is subject to affirmative action obligations has very legitimate concerns about this new reporting obligation. OFCCP will use the data as part of its method for identifying contractors for compliance reviews. An OFCCP compliance review can involve not just review of the Company’s written affirmative action plan, but, also, a detailed review of its employment practices including compensation, hiring, and terminations. Employers have a legitimate question whether this broad-based compensation data is a legitimate basis for identifying a contractor for compliance review based on alleged concern about equal pay. A second, very real concern for the covered employer community is confidentiality of compensation information. OFCCP assures that the information can be submitted on a web-based data tool conforming with government IT security standards. But, EEO-1 reports are subject to Freedom of Information Act requests from the public. Even though OFCCP assures companies they will be given notice of any FOIA requests for their data and an opportunity to object, there is no assurance that the objections would be successful. Therefore, this proposed rule opens the door for confidential compensation information to be made available to competitors and the general public.
OFCCP intends to release aggregate summary compensation data by race and gender annually to the public. OFCCP believes that public dissemination of the aggregate data will give employers an opportunity to evaluate their own compensation structure against that of others in their industry.
In a move of interest to both businesses organized under Delaware law and businesses that hold funds owned by Delaware residents, Delaware’s unclaimed property voluntary compliance program has been extended. Pursuant to 79 Del. Laws, c. 278 (the “Act”), which was signed by Governor Markell on June 30, 2014, the deadline to enter the Secretary of State’s voluntary compliance program (the “SOS VDA Program”), has been extended to September 30, 2014, and the deadline to resolve all unclaimed property liability under that program has been extended to June 30, 2016. Before the Act, those deadlines had been June 30, 2014 for entry into the SOS VDA and June 30, 2015 for resolution of liabilities.
The SOS VDA offers participants the opportunities to reduce years of liability and to eliminate interest and penalties.
Those who should participate include holders of property owned by Delaware residents and businesses organized under Delaware law that cannot locate a last known address for the owner of property. This second category, based on the holder’s place of organization, follows the U.S. Supreme Court case Texas v. New Jersey, 379 U.S. 674 (65), pursuant to which unclaimed property will be reported to the state of the owner’s last known address. However, if the owner’s last address is unknown or is in a foreign country, the unclaimed property is reported to the holder’s state of organization.
In addition to extending the entry and resolution deadlines, the Act made three other changes to Delaware’s unclaimed property law:
Record Confidentiality: The Act provides that it is unlawful for any officer or employee of the Department of Finance or the Department of State to disclose any of the following: (i) the amount of unclaimed property reported to the state; (ii) the terms of any annual filing, unclaimed property voluntary self-disclosure agreement or settlement agreement; or (iii) any supporting documentation related to such reports or agreements.
Penalties: Penalties for failure to file an unclaimed property report have been reduced from 5% of the amount owing under the report per month with a maximum penalty of 50% of the amount owing under the report to the lesser of (i) 5% of the amount owing under the report per month (not to exceed 50% of the amount owing under the report), or (ii) $100.00 per day (not to exceed $5,000).
Interest: The Act eliminates the imposition of 0.5% interest on unremitted unclaimed property.
For more information about unclaimed funds compliance, contact Polly Harris, Esq. at Porter Wright at mailto:email@example.com (614)227-1962. The Delaware Secretary of State’s unclaimed funds web site can be found at http://revenue.delaware.gov/unclaimedproperty.shtml.
At a time of relative affluence in the farming industry, the FDIC has issued a warning on a need for monitoring agricultural credits. FIL-39-2014 (July 16, 2014) suggests that banking institutions of all sizes should carefully consider a recent, negative projection by the U.S. Department of Agriculture.
While current market conditions are good, the projection suggests there will be a slowdown in the growth of the farming and livestock sectors and that agriculture may be affected by adverse weather and declining land values, among other factors.
The guidance suggests that financial institutions should work carefully with agricultural borrowers when they experience financial difficulties. The guidance states that the FDIC’s supervisory expectations previously expressed in a 2010 financial institution letter continue (although the letter is rescinded in light of the current letter).
Cash flow analysis, secondary repayment sources and collateral support levels must be considered in order to properly analyze agricultural credits, according to the guidance.
The guidance notes that smaller farms and ranches rely on the personal wealth and resources of the owners, including off-farm wages. A universal review of the financial strength of the credit is required.
The guidance also notes workout strategies must be specifically tailored for agricultural credits in light of experience in the 1980’s with depreciating farm land values, among other factors. The guidance suggests that properly restructured loans to farming operations with a documented ability to repay under the modified terms will not be subject to adverse classification because the value of the underlying collateral has declined.
Last April, a trade association for bank directors, the American Association of Bank Directors reported the results of a survey designed to measure the impact of concerns about personal liability on the decision of bank board members to resign and by individuals to turn down board seats on banking organizations.
One of the key concerns, the survey highlighted, is the possibility of an FDIC lawsuit against the directors if a bank failure occurs. The fear was bank directors would be liable for decisions made as directors notwithstanding what is commonly referred to as the business judgment rule. Generally, the business judgment rule shields corporate directors, including bank directors, from liability when board decisions result in losses to the corporation or to shareholders.
The AABD mentioned in particular a then pending lawsuit in Georgia arising out of FDIC claims related to the failure of Buckhead Bank. These claims against the directors sounded in simple negligence regarding the making of loans. And the directors had asserted the business judgment as a defense.
A few days ago the Georgia Supreme Court ruled on the matter and the decision is worth a review by bank directors and managers even though they don’t do business in Georgia. The Georgia Supreme Court decision elegantly summarizes the business judgment rule including its history and common law origins. So the opinion is a useful “read” for bankers everywhere because the development of local jurisprudence in most states is likely similar to the process described in the opinion.
The decision concluded the business judgment rule in Georgia does not preclude, as a matter of law, all claims sounding in ordinary negligence against officers and directors of a bank in a lawsuit brought by the FDIC as a receiver for the bank.
The Georgia court notes that the standard of care required of bank directors is to exercise the same skill ordinarily prudent men would exercise in positions at similarly situated banking institutions. The Court also observes that under Georgia law, it is reasonable for an officer or director to rely on information prepared by employees, other officers, counsel and public accountants which the director or officer reasonably believes to be within the preparer’s professional or expert competence.
For some, the ruling will confirm fears expressed in the AABD survey. That survey indicated that in the past 5 years roughly 25% of the 80 banks responding to the survey reported that a director had resigned out of fear of personal liability, a person had refused to serve out of a similar fear or a director had refused to serve on the board loan committee for a similar reason. The cautionary report of the AABD noted, further, anecdotal reports that bank examiners in some instances have sought information from directors concerning their net worth including recent tax returns.
For others, however, the ruling will confirm their understanding of what has always been the basic legal environment for bank directors:
[T]he business judgment rule makes clear that, when a business decision is alleged to have been made negligently, the wisdom of the decision is ordinarily insulated from judicial review, and as for the process by which the decision was made, the officers and directors are presumed to have acted in good faith and to have exercised ordinary care. . . Although this presumption may be rebutted, the plaintiff bears the burden of putting forward proof sufficient to rebut it. All together, the limited standard of care, the conclusive presumptions as to reasonable reliance, and the rebuttable presumptions of good faith and ordinary care offer meaningful protection, we think, to officers and directors who serve in good faith and with due care. The business judgment rule does not insulate “mere dummies or figureheads” from liability, of course, but it never was meant to do so.
The survey regarding bank director participation is available here and Georgia Supreme Court’s opinion is FDIC v. Loudermilk, No. S14Q0454, — S.E.2d —, 2014 WL 3396655 (Ga. July 11, 2014).
Legislation has been introduced in the Ohio House that would amend Ohio’s foreclosure law in a manner favorable to licensed auctioneers and realtors and unfavorable to county sheriffs and appraisers. As set forth below, House Bill 586 would, among other things, permit “private selling officers” to conduct judicial sales of real property; permit written or electronic bidding; eliminate the requirement that judgment creditors or lienholders who appear in an action pay deposits and eliminate the three-freeholder appraisal. The bill was introduced on June 17, 2014, and proposes amendments to O.R.C. §§2329.151, 2329.17, 2329.18, 2329.19, 2329.20, 2329.271, 2329.28, 2329.34, and 2329.39 and would enact new sections 2329.152 and 2329.311.
R.C. §2329.151 would be amended to permit goods and chattels levied upon execution to be sold by a licensed auctioneer who is a resident of the state and would permit sales of land upon execution to be auctioned by a “private selling agent”, defined at R.C. §2329.152(H) as a state resident who is both a licensed auctioneer under R. C. Chapter 4707 and a real estate agent under R. C. Chapter 4735. Continue Reading
In K One Limited Partnership v. Salh Khan, et al., 10th Dist. No. 13AP-830, 2014 Ohio 2079, the Tenth District Court of Appeals for Franklin County, Ohio reexamined the limited meritorious defenses available to obtain relief from a cognovit judgment under Civ. R. 60(B) and held that such defenses are restricted “to the integrity and validity of the creation of the debt or note, the state of the underlying debt at the time of confession of judgment, or the procedure utilized in the confession of judgment on the note.”
Defendants-Appellants executed a cognovit guaranty containing warrant of attorney language (“Guaranty”) to guarantee payment of a related-company’s revolving cognovit promissory note (“Note”) in favor of Plaintiff-Appellee. The parties and others were involved in numerous business ventures when they entered into the Guaranty and Note. When the Note subsequently went unpaid, Plaintiff-Appellee brought a cognovit action to confess judgment against Defendants-Appellants on the Guaranty, and the trial court entered cognovit judgment in favor of Plaintiff-Appellee. Defendants-Appellants timely filed a motion for relief from judgment under Civ. R. 60(B) admitting they executed the Guaranty but alleging as defenses that Plaintiff-Appellee and related individuals and entities had acted fraudulently toward them in this and other transactions and intentionally misled them into executing the Guaranty. They also alleged they had legal and equitable claims relating to these and other business transactions pending against these parties in another jurisdiction. The 60(B) motion did not allege payment, partial payment or defects in the Guaranty or Note as defenses, and the trial court denied their motion for relief from judgment. Defendants-Appellants then appealed to the Tenth District Court of Appeals (“Appeals Court”). Continue Reading