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UPDATE: Foreseeable pitfalls of the SAFE Banking Act

By Porter Wright and Porter Wright on

The SAFE Banking Act has hit a snag in Congress thanks to opposition from the chair of the Senate Banking Committee.  The October 2019 post, “Temper Your Expectations on Cannabis Banking Reform: foreseeable pitfalls of the SAFE Banking Act,” explained how the SAFE Act intended to alleviate the bank industry’s cannabis problem, and where it may fall short. We are proud to share that our first post on the topic recently received national recognition as “Best Legal Analysis” in the 2019 LexBlog Excellence Awards.

On September 25, 2019, the Secure and Fair Enforcement (SAFE) Banking Act of 2019 passed the U.S. House of Representatives by an impressive margin of 321 to 103. The U.S. Senate—once seen as a gauntlet of insurmountable obstacles to cannabis banking reform—has also seen some meaningful progress.

Senator Mike Crapo (R., Idaho), the influential chair of the Senate Banking Committee overseeing the SAFE Act in the Senate, previously expressed no interest in allowing the SAFE Act a vote out of committee that would enable the full Senate to vote on its passage. But now, Mr. Crapo has expressed interest in voting on the SAFE Act before year’s end. And Senate Majority Leader, Mitch McConnell,

…

Temper Your Expectations on Cannabis Banking Reform: foreseeable pitfalls of the SAFE Banking Act

By Porter Wright and Porter Wright on

On September 25, 2019, the Secure and Fair Enforcement (SAFE) Banking Act of 2019 passed the U.S. House of Representatives by an impressive margin of 321 to 103. The U.S. Senate—once seen as a gauntlet of insurmountable obstacles to cannabis banking reform—has also seen some meaningful progress.

Senator Mike Crapo (R., Idaho), the influential chair of the Senate Banking Committee overseeing the SAFE Act in the Senate, previously expressed no interest in allowing the SAFE Act a vote out of committee that would enable the full Senate to vote on its passage. But now, Mr. Crapo has expressed interest in voting on the SAFE Act before year’s end. And Senate Majority Leader, Mitch McConnell, whose public comments on marijuana have been negative, recently met with marijuana industry executives in a move some see as potentially signaling McConnell’s eventual support for cannabis banking reform.

Following the Act’s passage in the House, and with an improving outlook in the Senate, financial institutions have been preparing for increased involvement with cannabis-related businesses. However, while many believe the SAFE Act is closer than ever to solving the country’s cannabis banking woes, we believe that the Act’s passage alone may not provide the cannabis industry …

Judicial Review of CAMELS Ratings – Banking Organizations Weigh In

By Steven Hoying on

Several trade associations for the banking industry have weighed in on a pending potential landmark case in the Northern District of Illinois regarding the possible judicial review of CAMELS (Capital, Asset Quality, Management, Earnings, Liquidity and Sensitivity) ratings of financial institutions. As noted by this blog earlier this year, the United States Court of Appeals for the Seventh Circuit, in Builders Bank v. FDIC, 846 F.3d 272 (7th Cir.2017), vacated a lower court ruling stating that CAMELS ratings by the FDIC were committed to agency discretion and thus beyond judicial review. The case has been remanded to the Northern District of Illinois, where the Clearing House Association, the American Bankers Association, and the Independent Community Bankers of America have filed a brief as amici curiae, in support of neither party but solely to assert that CAMELS ratings are not exempt from judicial review.

In their brief, the amici assert that the availability of judicial review of agency decisions serves important purposes, by “providing assurance that agencies do not exceed the limits of their statutory authority and treat parties fairly, consistently, and rationally,” particularly in the arena of CAMELS ratings, which “are a cornerstone to bank regulation” and …

JUDICIAL REVIEW OF CAMELS RATINGS?

By Grant Stephenson on

Bankers will be interested in a recent appellate court order in a bank regulatory case. Their lawyers will be astonished by it because the ruling lights a flicker of hope in an area where there has been none for many years:  the judicial review of CAMELS ratings.

The ruling came early in a litigation seeking to contest the imposition of a CAMELS rating of 4. A CAMELS rating is a summary rating regulators use to quantify the condition of banks at a given point in time.  For the uninitiated, the term stands for Capital, Assets, Management, Earnings, Liquidity and interest rate Sensitivity.  It is a fundamental element of the relationship between banks and their regulators.  The rating impacts how much banks pay for federal deposit insurance, among other matters.  A bad rating increases the cost of this insurance.

There are very few bankers of any experience who have not in their heart of hearts wished that they could contest an unsatisfactory CAMELS rating. The prospect of an even-handed judicial review might be a popular choice for many bankers.…

High Risks of Banking with “Legal” Marijuana Businesses

By Porter Wright on

Twenty-three states and the District of Columbia now permit the use and possession of marijuana to some degree under state law, and public support for legalization is at an all-time high. Despite the growing number of states legalizing marijuana, however, it remains a Schedule 1 controlled substance under the federal Controlled Substances Act (CSA). President Trump’s appointment of Alabama Senator Jeff Sessions, a long-time cannabis critic, as attorney general, brings even more uncertainty to currently hazy federal enforcement efforts. For banks and other financial institutions interested in providing loans or other banking services to the “legal” marijuana industry, the current federal prohibition and related regulatory challenges continue to result in risks that most institutions will find too high to overcome.

Federal Law and Current Guidance.

Because the manufacture, distribution, and dispensation of marijuana remains illegal under the CSA, banks and other financial institutions providing services to marijuana-related businesses risk violation of federal anti-money laundering statutes (18 U.S.C. §§ 1956 and 1957), the unlicensed money-remitter statute (18 U.S.C. § 1960) and the Bank Secrecy Act (BSA). These statutes can impose criminal liability for engaging in certain financial and monetary transactions with the proceeds of a “specified unlawful activity” and for …

Federal Reserve Expresses Openness to Relaxation of HVCRE Regulations on Community Banks

By Steven Hoying on

Last year, as noted by this blog, the FDIC, OCC, and Federal Reserve imposed harsher capital requirements on certain “high volatility commercial real estate,” or HVCRE, exposures, in accordance with the Basel III international banking standards. These new requirements were opposed not only by the real estate industry but also by banking associations, particularly the Independent Community Bankers of America (ICBA). The ICBA argues that the Basel III rules were intended to apply only to large, internationally active banks, and that the rules place too great a regulatory burden on smaller institutions. A recent report by the Federal Reserve Bank of Philadelphia notes that CRE regulations disproportionately affect smaller banks, as “CRE represents approximately 50 percent of small bank loan portfolios, compared with just over 25 percent of large bank portfolios.” The report goes on to state that loans that might be classified as HVCRE under the new rules represent approximately 5% of total loans for the median commercial bank with total assets below $10 billion, “a modest, but certainly not insignificant, portion of small banks’ CRE portfolios.” …

NCUA’s Proposed Rules Concerning Credit Union Commercial Loans

By Grant Stephenson and Steven Hoying on

Credit unions’ ability to lend to businesses may receive a boost if proposed NCUA regulations are approved. Business loans are becoming an increasingly important part of credit unions’ operations. Total business loans at federally insured credit unions grew from $13.4 billion in 2004 to $51.7 billion in 2014, growing from 3% of all total credit union loans to 6.8% over the same period. As of 2014, 36% of credit unions offer business loans, the vast majority of which (76%) are held by credit unions with assets greater than $500 million.

However, certain business loans, termed “member business loans” (“MBLs”), are limited by statute and regulation. An MBL is defined as a loan through which the borrower uses the proceeds for commercial, corporate, agricultural, or other business purposes, excluding extensions of credit that: …

Newly Effective HVCRE Loan Rules

By Grant Stephenson and Steven Hoying on

Lenders who finance commercial real estate exposures should be aware of new regulations that impose harsher capital requirements on certain “high volatility commercial real estate,” or HVCRE, exposures. In June 2013, the FDIC, OCC, and Federal Reserve jointly approved proposed rules intended to implement new international banking standards, known as the Basel III Capital Accords, as well as establish new risk-based and leverage capital requirements for financial institutions, as required by Dodd-Frank. The rules have been in effect for all banks since January 1, 2015, having applied to the largest banks one year prior.

Under the rules, an HVCRE exposure is defined as “a credit facility that, prior to conversion to permanent financing, finances or has had financed the acquisition, development, or construction (“ADC”) of real property,” if it fails to satisfy any of the following three capital requirements:…

UPDATE: FDIC joins in on IOLTAs for CRA consideration

By Guest Blogger on

Editor’s Note: This post was prepared by Susan A. Choe, Deputy Director & General Counsel, The Ohio Legal Assistance Foundation.

As an update to our guest blog post of April 10, 2014, the Ohio Legal Assistance Foundation is pleased to report that the Federal Deposit Insurance Corporation (FDIC) will join the Ohio Office of the Comptroller of the Currency and the Federal Reserve Board of Cleveland, in reviewing on a case-by-case basis interest paid above market rates on Ohio IOLTAs (interest on lawyer trust accounts) for potential positive CRA consideration.…

“The Bandits’ Club” gets its due

By Polly Harris on

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.…

CIP To Cover Small Business Ownership And Control

By Grant Stephenson on

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 …

Covered affirmative action employers — more scary news from the OFCCP

By Mike Underwood on

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.

The Specifics:

What:

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 …

FDIC Guidance on Agricultural Credits

By Grant Stephenson on

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 …

Personal Liability, Bank Directors and the Business Judgment Rule

By Grant Stephenson on

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 …

Ohio IOLTA and IOTA Provide CRA Consideration

By Guest Blogger on

Editor’s Note:

This post was prepared by Susan A. Choe, Deputy Director & General Counsel, The Ohio Legal Assistance Foundation.

Federal bank examiners will now provide positive CRA consideration under the investment test for interest paid above the market rate on Ohio IOLTAs (“interest on lawyer trust accounts”) and IOTAs (“interest on title agent trust accounts”). This development was confirmed by the Cleveland office of the Office of the Comptroller of the Currency and representatives of the Federal Reserve Bank of Cleveland.  Confirmation was sought by the Ohio Legal Assistance Foundation to reinforce support for Ohio’s legal aids during a time of declining revenues and increased demand for legal aid.

Since the mid-1980’s, IOLTAs and IOTAs have been used to fund civil legal aid for Ohioans who cannot afford an attorney. In this way, civil legal aid ensures fairness in the justice system regardless of how much money a person has.

For more information on CRA investment credits related to IOLTA or IOTA accounts, please contact Susan Choe, Esq., Deputy Director and General Counsel for the Ohio Legal Assistance Foundation, by email to schoe@olaf.org.

 …

Regulatory Guidance on the Classification of Investment Securities Without Reliance on Credit Ratings

By Grant Stephenson on

Recently, the primary federal bank regulators took the latest step in the long and winding road toward the replacement of credit ratings in the analysis of investment securities by insured financial institutions. You will recall this process began with the passage of the Dodd-Frank Act in July 2010 that, in the wake of the financial crisis in 2008, required government regulators of all types to deemphasize the role of credit ratings from the traditional credit rating firms.

The three primary federal bank regulators — the Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System and the Federal Deposit Insurance Corporation — in November issued regulatory guidance in the form of an agreement among themselves regarding the appropriate approach to the asset classification of investment securities for regulatory purposes. The guidance applies to national banks, state-chartered banks, and state- and federally-chartered savings associations, and supersedes previous guidance from 2004.…

Lending License Required for Real Estate Commission Financing

By Polly Harris on

In a triumph of substance over form, on August 22, 2013, the Tenth Appellate District Court of Appeals disregarding self-serving labels and further clarified the distinction between a loan and a sale of accounts receivable in Fenway Financial, LLC dba Commission Express v. Greater Columbus Realty, LLC dba Keller Williams Greater Columbus Realty, LLC, No. 12AP-291. To cut to the chase, the Court found that regardless of the buzz words used, leaving the seller of an account receivable with the risk of collectability is a key factor in characterizing a transaction as a loan, not as a sale, and may implicate state loan licensing requirements and other statutes, including provisions dealing with the scope of UCC Article 9.…

SEC Updates: Staying Ahead of the Regulatory Curve

By Grant Stephenson on

Our colleagues on the Federal Securities Law Blog have been tracking new and updated SEC regulations that are likely to have an impact on your business now and in the near future. The compilation of articles in their most recent eBook — SEC Updates: Staying Ahead of the Regulatory Curve — discuss three important SEC regulatory changes: compensation committee rules, conflict minerals reporting and whether companies that use social media to communicate with investors are complying with Regulation Fair Disclosure. Download the SEC Updates: Staying Ahead of the Regulatory Curve eBook.…

SEC and CFTC Red Flag Rules Become Effective May 20, 2013

By Jack Gravelle on

The Securities and Exchange Commission and the Commodity Futures Trading Commission have adopted rules that require most broker-dealers, mutual funds, investment advisers, and certain other regulated entities to create programs to prevent identity theft. The new rules become effective May 20, 2013, and entities regulated by the new rules must comply by November 20, 2013.

Regulated entities subject to the rules must develop identity theft prevention programs to detect “red flags” signaling potential identity theft, to respond appropriately to such red flags, and to periodically update detection programs as identity theft risks change.

Among other requirements, the Red Flag Rules apply to “financial institutions” that offer or maintain “covered accounts.” “Covered accounts” are defined broadly to include personal accounts designed to permit multiple transactions and any account with a reasonably foreseeable risk of identity theft to customers. “Financial institutions” include any entity that holds a transaction account belonging to a consumer on which the account holder can make withdrawals to pay third parties. Examples cited by the SEC include:

  1. a broker-dealer that offers custodial accounts;
  2. a registered investment company that enables investors to make wire transfers to other parties or that offers check-writing privileges; and
  3. an investment adviser that directly or indirectly holds transaction
…

Financial Regulators Release Guidance Regarding Technology Service Providers

By Porter Wright on

Financial institution executives with responsibility for the management of the technology of their financial institutions or their institution’s relationship with technology service providers (TSPs) should become familiar with the updated guidance regarding supervision of TSPs by financial institutions that was issued on October 31, 2012 by various federal banking regulatory agencies.  The issuance updates material that is nearly ten years old.

The Federal Financial Institutions Examination Council (FFIEC) released a revised Supervision of Technology Service Providers booklet (TSP Booklet), part of the FFIEC Information Technology Examination Handboot (IT Handbook).  The FFIEC exists to prescribe uniform principles, standards, and report forms and to promote uniformity in the supervision of financial institutions.  The TSP Booklet describes federal financial institution regulatory agencies’ statutory authority to supervise TSPs that contract with federally regulated financial institutions and provides guidance for these institutions and their examiners.  The TSP Booklet, which replaces and rescinds a March 2003 booklet, emphasizes that the ultimate responsibility for the conduct of third-party service providers and their compliance with applicable law and regulation lies with a financial institution’s management and board of directors.

The TSP Booklet describes the federal Risk Based-Examination Priority Ranking Program (RB-EPRP) and the Uniform Rating System for Information Technology (URSIT) used in evaluating TSPs of financial institutions. …

CFPB Releases Examination Manual

By Grant Stephenson on

In October, the Consumer Financial Protection Bureau published its first supervision examination manual which will be of interest to bankers and other financial service executives.

On one level, the manual is fairly pedestrian and may contain little surprising in that most bankers have a fairly extensive appreciation of (and experience with) an examination process. And, of course, the Bureau has direct supervisory authority only over the roughly 100 large banks, thrifts, and credit unions that have assets more than $10 billion.

What should be interesting to many bankers, however, is the insight the Manual provides into the examination approach of the Bureau, an approach that will doubtlessly influence and inform the practices and procedures of all other financial institution regulators, large and small. Essentially, the Manual describes the Bureau’s process for risk assessment: first there will be the establishment of the inherent risk of a particular "product" line for consumers and then there will be an assessment of an entity’s set of quality controls to manage and mitigate the risks.…

Revised Discovery Guide and Document Production Lists for FINRA Customer Arbitration Proceedings Take Effect on May 16, 2011

By Jay Yurkiw on

On Monday, May 16, 2011, the revisions to FINRA’s Discovery Guide (“Guide”) and Document Production Lists (“Production Lists”) for customer arbitration proceedings take effect. These revisions will apply to all customer cases filed on or after May 16. FINRA first adopted the Guide in 1999 for use in customer arbitration proceedings and last revised the Guide in 2007. The Guide supplements the discovery rules contained in the FINRA Code of Arbitration Procedure for Customer Disputes. (See Rules 12505-12511.)

FINRA’s revisions to the Guide expand the guidance FINRA gives to parties and arbitrators on the discovery process. This expanded guidance is particularly important because of the growing prevalence and raising costs of electronic discovery (“e-discovery”). The revisions to the Guide also replace the current fourteen Production Lists with just two Production Lists of presumptively discoverable documents. One Production List will specify which documents firms/associated persons should produce. The other Production List will specify which documents customers should produce.…

IRS Releases Additional FATCA Guidance, Although Many Questions Remain

By Mark Snider on

In Notice 2011-34 issued April 8, 2011, the IRS provided supplemental guidance regarding foreign financial account reporting requirements under the Foreign Account Tax Compliance Act (“FATCA”). All businesses that makes payments to foreign financial institutions should be aware of these rules which take effect in 2013.  The recently released supplemental guidance, which is expected to be part of extensive future regulations, clarifies certain withholding, documentation, and reporting requirements under FATCA. Because many questions remain, it is expected that the IRS will continue to release additional FATCA guidance.

Background

Beginning on January 1, 2013, a 30% withholding tax will be imposed on certain U.S. source payments (“withholdable payments”) made to foreign financial institutions (“FFIs”). Withholding will be required on payments made to FFIs that do not enter into an agreement with the IRS to provide information on financial accounts held by certain U.S. persons. FATCA is another weapon in the IRS’s arsenal to track and monitor potentially abusive foreign account strategies, although FATCA applies to legitimate and routine business payments as well.…

Why You Should Care About FATCA

By Porter Wright on

The Foreign Account Tax Compliance Act (FATCA) [Sections 1471-1474 of the Internal Revenue Code] was enacted to prevent U.S. taxpayers from evading U.S. tax obligations by parking funds in foreign accounts or with foreign investors. FATCA requires each U.S. entity to withhold 30% of certain payments made after 2012 to foreign investors or foreign lenders unless such foreign entities satisfy certain new disclosure and reporting requirements. 

Failure to comply with FATCA will subject the U.S. entity to penalties and fines. Domestic lenders and domestic borrowers alike should ensure that foreign entities are FATCA compliant by adding language to the parties’ credit agreement that obligates each existing and future foreign entity to provide tax documents, certificates and other tax information upon demand. An example of such language follows:

Promptly upon receipt of written request, each Foreign Lender shall deliver to the Borrower and the Agent any information, document, or certificate, properly completed and in a manner prescribed by law or satisfactory to the Borrower or the Agent, as the case may be, in order to permit the Borrower or the Agent to make a payment under this Agreement or the Loan Documents without any withholding on account of any tax otherwise required to …

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