ALI-ABA Course of Study Financial Services Institute October 18-19, 2007 Washington, D.C. TABLE OF CONTENTS

Transcription

1 PROGRAM FACULTY PARTICIPANTS FACULTY BIOGRAPHIES STUDY MATERIAL ALI-ABA Course of Study Financial Services Institute 2007 October 18-19, 2007 Washington, D.C. TABLE OF CONTENTS 1. Bank Insurance Provisions of the Gramm-Leach-Bliley Act By Martin E. Lybecker 2. Financial Holding Companies and Financial Activities Provisions of the Gramm-Leach-Bliley Act By Martin E. Lybecker 3. Federal Preemption of State Consumer-Protection Laws after Watters (reprinted with permission from THE REVIEW OF BANKING & FINANCIAL SERVICES (July 2007) By Ralph E. Sharpe Submitted by Ronald R. Glancz 4. When Things Go Wrong: The Multi-Agency Proceeding By Ronald R. Glancz and John B. Beaty 5. Nontraditional Mortgage Products: The Next Wave of Regulatory, Enforcement & Class Action Cases By Andrew L. Sandler, Benjamin B. Klubes, and Benjamin P. Saul 6. The Home Mortgage Disclosure Act: An Overview of Recent Developments and a Guide to Limiting Risk (reprinted with permission from THE REVIEW OF BANKING & FINANCIAL SERVICES (July 2006) By Andrew L. Sandler, Anand S. Raman, Joseph L. Barloon, and Darren M. Welch Page ix 7. Material on Enforcement of Bank Secrecy Act/Anti-Money Laundering 89 Requirements By Daniel P. Stipano Interagency Statement on Enforcement of Bank Secrecy Act/Anti-Money Laundering Requirements 91 Presentation Slides In the Matter of: Grant Thornton LLP (Office of the Comptroller of the Currency: Final Decision and Order) (Dec. 7, 2006) Submitted by Daniel P. Stipano 9. Privacy, Data Security and Identity Theft Prevention By L. Richard Fischer vii xi xv

2 10. New Bank Securities Activities, Mutual Fund, and Common Trust Fund Provisions of the Gramm-Leach-Bliley Act By Martin E. Lybecker 11. Some New Developments in Bank Securities Regulation By Martin E. Lybecker 12. Resolving the Bank/Broker Impasse Proposed Regulation R Represents Joint Effort by SEC and Federal Reserve Board By Martin E. Lybecker 13. Ethical Issues By Tamar Frankel and Clifford E. Kirsch Submitted by Martin E. Lybecker 14. The Financial Institution Lawyer: Four Flavors of Failure (reprinted with permission from BUSINESS LAW TODAY (March/April 2007) By Thomas C. Baxter Jr., and Brian T. Baxter Submitted by Ronald R. Glancz viii

3 ALI-ABA Course of Study Financial Services Institute 2007 October 18-19, 2007 Washington, D.C. PROGRAM Thursday, October 18, :45 a.m. Registration and Continental Breakfast 8:45 a.m. Introductory Remarks and Course Overview 9:00 a.m. Keynote Address Scott M. Polakoff, Senior Deputy Director and Chief Operating Officer, Office of Thrift Supervision 9:30 a.m. Financial Mergers and Acquisitions: Cross-border Deals, Alternative Charters for Engaging in Deposit-taking and Exercising Financial Powers, and Related Issues Messrs. Alvarez, Cohen, and Williams 11:00 a.m. Coffee Break 11:15 a.m. The Effect of Federal Preemption Doctrines on the Offering of Financial Services Products Messrs. Bowman and Gorman and Mss. Gross and Williams 12:45 p.m. Lunch Break 2:00 p.m. Keynote Address Richard H. Neiman, Superintendent of Banks, New York State Banking Department 2:30 p.m. Investigations of Financial Services Companies: Current Enforcement Issues Messrs. McCormally, Murphy, Sandler, and Stipano 3:45 p.m. Coffee Break 4:00 p.m. Privacy and the Fair and Accurate Credit Transactions Act (FACT): Data Security, Data Breaches, and Litigation Messrs. Fischer and Ingis and Ms. Rich 5:00 p.m. Adjournment for the Day Friday, October 19, :00 a.m. Continental Breakfast 8:30 a.m. Bank Broker-Dealer Registration: Mutual Fund and Investment Adviser Activities Messrs. Colby and Plaze and Ms. Miller 10:00 a.m. Coffee Break 10:15 a.m. Current Legislative Priorities: Credit Cards, Subprime Lending, and Other Matters Messrs. Clinger, McDowell, Oesterle, Paese, and Sternhell 11:30 a.m. Ethical Considerations for Financial Services Lawyers Messrs. Glancz and Lybecker 12:30 p.m. Wrap-Up with the Planning Committee 1:00 p.m. Adjournment ix

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5 ALI-ABA Financial Services Institute 2007 October 18-19, 2007 Washington, D.C. PLANNING COMMITTEE A. Patrick Doyle, Esquire Arnold & Porter LLP Thurman Arnold Building th Street, NW Washington, DC Ronald R. Glancz, Esquire Venable LLP 575 Seventh Street, NW Washington, DC Martin E. Lybecker, Esquire Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Avenue, NW Washington, DC William J. Sweet, Jr., Esquire Skadden, Arps, Slate, Meagher & Flom LLP 1440 New York Avenue, NW Washington, DC KEYNOTE SPEAKER Mr. Scott M. Polakoff Senior Deputy Director and Chief Operating Officer Office of Thrift Supervision Fifth Floor 1700 G Street, NW Washington, DC FACULTY Scott G. Alvarez, Esquire General Counsel Board of Governors of the Federal Reserve System 20th and C Streets, NW Washington, DC John E. Bowman, Esquire Deputy Director and Chief Counsel Office of Thrift Supervision 5th Floor 1700 G Street, NW Washington, DC xi

6 James Clinger, Esquire Chief Minority Counsel U.S. House Committee on Financial Services B-301-C Rayburn House Office Building Washington, DC H. Rodgin Cohen, Esquire Sullivan & Cromwell LLP 125 Broad Street New York, NY Robert L.D. Colby, Esquire Deputy Director, Division of Market Regulation U.S. Securities and Exchange Commission 100 F Street, NE Washington, DC L. Richard Fischer, Esquire Morrison & Foerster LLP Suite Pennsylvania Avenue, NW Washington, DC John S. "Buz" Gorman, Esquire General Counsel Conference of State Bank Supervisors Fifth Floor 1155 Connecticut Avenue, NW Washington, DC Marjorie E. Gross, Esquire General Counsel New York State Banking Department One State Street New York, NY Benjamin B. Klubes, Esquire Skadden, Arps, Slate, Meagher & Flom 1440 New York Avenue, NW Washington, DC Stuart P. Ingis, Esquire Venable LLP 575 7th Street, NW Washington, DC Brian C. McCormally, Esquire Arnold & Porter LLP Thurman Arnold Building th Street, NW Washington, DC Carter K. McDowell, Esquire Chief Legislative Counsel American Bankers Association 7th Floor 1120 Connecticut Avenue, NW Washington, DC Sarah A. Miller, Esquire American Bankers Association 7th Floor 1120 Connecticut Avenue, NW Washington, DC John C. Murphy, Jr., Esquire Cleary Gottlieb Steen & Hamilton LLP 2000 Pennsylvania Avenue, NW Washington, DC Mark Oesterle, Esquire Republican Counsel and Deputy Chief of Staff U.S. Senate Committee on Banking, Housing and Urban Affairs 534 Dirksen Senate Office Building Washington, DC Michael Paese, Esquire Deputy Staff Director Committee on Financial Services U.S. House Committee on Financial Services 2129 Rayburn House Office Building Washington, DC xii

7 Robert E. Plaze, Esquire Associate Director Division of Investment Management U.S. Securities and Exchange Commission 100 F Street, NE Washington, DC Alex Sternhell, Esquire Deputy Staff Director and Senior Policy Advisor U.S. Senate Committee on Banking, Housing and Urban Affairs 534 Dirksen Senate Office Building Washington, DC Daniel P. Stipano, Esquire Deputy Chief Counsel Office of the Comptroller of the Currency 250 E Street, SW Washington, DC Mr. Basil Williams III Managing Director Lehman Brothers Inc. 20th Floor 745 Seventh Avenue New York, NY Julie L. Williams, Esquire First Senior Deputy Comptroller and Chief Counsel Office of the Comptroller of the Currency 250 E Street, SW Washington, DC Joel C. Winston, Esquire Associate Director for Financial Practices Division of Privacy and Identity Protection Federal Trade Commission 600 Pennsylvania Avenue, NW Washington, DC xiii

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9 Planning Co-Chairs FACULTY BIOGRAPHIES A. Patrick Doyle, Washington, D.C. Arnold & Porter LLP B.A., State University of New York at Oswego; J.D., Syracuse University Adjunct Professor, Morin Center for Banking Law Studies, Boston University School of Law ( ) Government and Public Service: Deputy General Counsel and Acting General Counsel, Federal Home Loan Bank Board ( ); Counsel, Multinational Banking Division, Office of the Comptroller of the Currency ( ) Publications Include: Opportunities and Challenges for Financial Institutions in the U.S. (Co-Author), GLOBAL BANKING AND FINANCIAL POLICY REV. (Dec. 2000); Unitary Thrift Holding Company Worry is Overdrawn (Co-Author), NAT'L L.J. (Mar. 3, 2000) Ronald R. Glancz, Washington, D.C. Venable LLP B.A., J.D., University of Michigan Government and Public Service: Federal Deposit Insurance Corporation (Assistant General Counsel, then Acting Deputy General Counsel, ); Director of Litigation, Office of the Comptroller of the Currency ( ); Civil Division, U.S. Department of Justice ( ; Assistant Director, ; Honors Attorney, ) Memberships: American Bar Association (Banking Law Committee: Former Committee Vice-Chair; Former Chair, Subcommittee on Insurance Services; Former Vice- Chair, Compliance, Examination and Audit Subcommittee); District of Columbia Bar; State Bar of Michigan; Federal Bar Association; Exchequer Club of Washington, D.C. (Chancellor); National Association of Corporate Directors Publications Include: Positive Trends in the Fight Against Money Laundering, AM. BNKR. (June 25, 2004); How the Sarbanes-Oxley Act Affects Non-Public Institutions, AM. COMMUNITY BNKR. (July 2003); Reform Law Expands Bank's Options, AM. BNKR. (Mar. 17, 2000); Last Chance for Unitary Thrift Holding Co. (Co-Author), NAT'L UNDERWRITER (Jan 18, 1999); Time Still for Unitary Thrift Charter.. (Co-Author), NAT'L UNDERWRITER (June 29, 1998); Why Insurers Should Apply for Thrift Charters (Co-Author), NAT'L UNDERWRITER (Apr. 13, 1998); Gaining Strength (Co-Author), BANK INVESTMENT MARKETING (Dec. 1997) xv

10 Martin E. Lybecker, Washington, D.C. Wilmer Cutler Pickering Hale and Dorr LLP B.B.A., J.D., University of Washington; LL.M. (Taxation), New York University; LL.M., University of Pennsylvania; Senior Lecturing Fellow in Law (2000- ) and Visiting Professor ( ), Duke University School of Law; Adjunct Professor, Georgetown University Law Center ( and ); Associate Professor, State University of New York at Buffalo Law School ( ); Visiting Professor, University of North Carolina School of Law (1977); Fellow, Center for the Study of Financial Institutions and the Securities Markets ( ) Government and Public Service: Division of Investment Management, Securities and Exchange Commission (Associate Director, ; Attorney, Office of Chief Counsel, ) Memberships: American Law Institute; American Bar Association (Section of Business Law: Council; Chair, Finance Committee; Chair, Committee on Developments in Investment Services, ; Chair, Banking Law Committee, : District of Columbia Bar; Pennsylvania Bar Association; Washington State Bar Association; Federal Bar Association Publications Include: Section 402 of the Sarbanes-Oxley Act: the Devil Was the Draftsman, 6 WALL ST. LWR. 1 (Oct. 2002); The Definition of Investment Company: A Riddle Wrapped in a Mystery Within an Enigma, 10 THE INVESTMENT LWR. 1 (Jan. 2003); Enhanced Corporate Governance for Mutual Funds: A Flawed Concept that Deserves Serious Consideration, 83 WASH. U. L.Q (Nov. 2005); New Bank Securities, Mutual Fund, and Common Trust Fund Provisions of the Gramm-Leach-Bliley Act, 116 BANKING L.J. 711 (Oct. 1999); Banks and the Sale of Insurance: The Legal Environment, 115 Banking L.J. 874 (Oct. 1998); Section 28 (e): "Soft Dollars" Revisited, 5 INVESTMENT LWR. 7 (Mar. 1998); The New Private Investment Company Exclusions: Life After the National Securities Markets Improvement Act of 1996, 11 INSIGHTS 18 (May 1997); Money Market Funds, in THE INVESTMENT COMPANY REGULATION DESKBOOK (Aspen Law & Business 1996); THE INVESTMENT LAWYER (Editorial Advisory Board) William J. Sweet, Jr., Washington, D.C. Skadden, Arps, Slate, Meagher & Flom LLP B.A., Bucknell University; J.D., Georgetown University Government and Public Service: Attorney, Board of Governors of the Federal Reserve System ( ) Memberships: American Bar Association (Banking Committee, Section of Business Law: Committee Chair; Chair, Mergers and Acquisitions Subcommittee, ) xvi

11 Keynote Speakers Richard H. Neiman, New York, New York Superintendent of Banks, New York State Banking Department (appointed 2007) B.A., American University; J.D., Emory University Prior Experience: TD Bank USA, N.A. (President and CEO, ); TD Waterhouse Group (Executive Vice President and General Counsel, ); Price Waterhouse LLP (Director of Regulatory Services, ); Citicorp (Vice President and Counsel and Global Equities Group General Counsel, ); former Special Assistant to the Chief Counsel, Office of the Comptroller of the Currency Scott M. Polakoff, Washington, D.C. Senior Deputy Director and Chief Operating Officer, Office of Thrift Supervision (appointed 2005) B.S., West Chester University; Graduate, Southern Methodist University Southwestern Graduate School of Banking, Graduate, Federal Executive Institute "Leaderships for a Democratic Society"; Graduate, Management Certificate Program, Loyola University (Chicago) Other Government and Public Service: Federal Deposit Insurance Corporation ( , with positions including Regional Director (Chicago), Deputy Regional Director (New York), Assistant Regional Director (Atlanta), Assistant to the Executive Director (Washington, D.C.), and Review Examiner (Dallas) Faculty Scott C. Alvarez, Washington, D.C. General Counsel, Board of Governors of the Federal Reserve System John E. Bowman, Washington, D.C. Deputy Director and Chief Counsel. Office of Thrift Supervision (appointed 2004) B.A., University of California at Berkeley; J.D., Pepperdine Universtiy Other Government and Public Service: Office of Thrift Supervision (Deputy Chief Counsel for Business Transactions, ); former Assistant General Counsel for Banking and Finance, U.S. Department of the Treasury Honors: Presidential Rank Award; Secretary of the Treasury's Distinguished Service Award James Clinger, Washington, D.C. Chief Minority Counsel, U.S. House Committee on Financial Services B.A., J.D., University of Virginia Other Government and Public Service: U.S. House Committee on Financial Services (Senior Banking Counsel, ; Chief Oversight Counsel, ); former Acting Assistant Attorney General for Legislative Affairs, U.S. Department of Justice xvii

12 H. Rodgin Cohen, New York, New York Sullivan & Cromwell LLP A.B., LL.B., Harvard University; LL.B. (Hon.), University of Charleston Government and Public Service: IIF Special Committee for a Strategic Dialogue for Effective Regulation (2007- ); The New York State Commission to Modernize the Regulation of Financial Services (2007- ); The Financial Services Roundtable's Blue Ribbon Commission on Enhancing Competitiveness (2007- ); Group of 30 Study Group on Financial Institution Reporting (2003); Group of 30 Study Group on Global Institutions, National Supervision and Systemic Risk (1997); New York Superintendent's Advisory Committee on Transnational Banking Institutions (1992) Publications Include: Compliance by International Banking Organizations: The Need for Prioritization, Balance and Cooperation, THE INTERNATIONAL WHO'S WHO OF BANKING LAWYERS 2006; M&A Outlook 2005: Ten Factors for the Financial Services Industry, AMER. BANKER (20025); Avoiding Legal Landmines in Financial Services (2005); Compliance and Regulatory Uniformity: The Two Principal Issues for the Banking Industry and Bank Regulators, THE INTERNATIONAL WHO'S WHO OF BANKING LAWYERS 2005; Global Consolidation, FIN. SVCS. SECTOR, GLOBAL BANKING & FIN. POLICY REV. (2001); Landmark Legislation, N.Y.L.J. (1999) Robert L.D. Colby, Washington, D.C. Deputy Director, Division of Market Regulation, Securities and Exchange Commission (appointed 1993) B.A., Bowdoin College; J.D., Harvard University Former Adjunct Professor, Georgetown University Law Center Other Government and Public Service: Securities and Exchange Commission, Division of Market Regulation: former Chief Counsel and Branch Chief, Office of Market Structure L. Richard Fischer, Washington, D.C. Morrison & Foerster LLP B.A., University of San Francisco; J.D., University of California (Hastings College of Law) Memberships: American Bar Association (Section of Business Law, Subcommittee on Consumer Financial Services);California Bar Association; D.C. Bar Association; Federal Bar Association; Payment Card Institute (Co-Chair,1988- ) Publications Include: THE LAW OF FINANCIAL PRIVACY (A.S. Pratt & Sons, 3d Ed.); PRIVACY AND INFORMATION LAW REPORT (Editor-in-Chief) (Legalworks) xviii

13 John S. "Buz" Gorman, Washington, D.C. General Counsel, Conference of State Bank Supervisors B.S., University of South Florida; J.D., Catholic University Other Government and Public Service: Assistant to U.S. Senator and Representative Connie Mack for banking and environmental issues ( ) Marjorie E. Gross, New York, New York General Counsel, New York State Banking Department B.A., Mount Holyoke College; J.D., Georgetown University Stuart P. Ingis, Washington, D.C. Venable LLP B.A., Hamilton College; J.D., Villanova University Memberships: American Bar Association Publications Include: PRIVACY PROTECTION IN THE UNITED STATES: A SURVEY Brian C. McCormally, Washington, D.C. Arnold & Porter LLP B.S., Emporia State University; J.D., University of Kansas Government and Public Service: former Assistant Director and Director, Enforcement and Compliance Division, Office of the Comptroller of the Currency; former Attorney, Office of Thrift Supervision/Federal Home Loan Bank Carter K. McDowell, Washington, D.C. B.A., University of Texas; J.D., Louisiana State University; LL.M. (Banking Law), Boston University Chief Legislative Counsel, American Bankers Association Government and Public Service: U.S. House Committee on Financial Services ( ; Senior Counsel for Banking and Holding Company Issues, then Chief Counsel and Policy Adviser) Sarah A. Miller, Washington, D.C. Director, American Banking Association Center for Securities, Trusts and Investments (appointed 2001); Chief Regulatory Counsel, American Banking Association (appointed 2005); General Counsel, ABA Securities Association B.A., Boston University; J.D., American University (Washington College of Law) Other Government and Public Service: Attorney, Division of Corporation Finance and Office of the General Counsel, Securities and Exchange Commission Publications Include: Warning: Do Not Violate Insider Trading Rules, TRUSTS & ESTATES (March 1990) xix

14 John C. Murphy, Jr., Washington, D.C. Cleary Gottlieb Steen & Hamilton LLP A.B., Georgetown University; J.D., University of Pennsylvania Government and Public Service: General Counsel, Federal Deposit Insurance Corporation ( ); Special Counsel, Office of the Bank Study, Securities and Exchange Commission ( ) Memberships: American Bar Association (past Chair, Subcommittee on Bank and Bank Holding Company and Acquisitions, Banking Law Committee); Federal Bar Association (past Chair, Banking Law Committee Executive Council) Publications Include: BANKING POLICY REPORT (Editorial Board); ELECTRONIC BANKING LAW AND COMMERCE REPORT (Editorial Board) Mark Oesterle, Washington, D.C. Republican Counsel and Deputy Chief of Staff, U.S. Senate Committee on Banking, Housing and Urban Affairs Michael Paese, Washington, D.C. Deputy Staff Director, U.S. House Committee on Financial Services Robert E. Plaze, Washington, D.C. Associate Director, Division of Investment Management, Securities and Exchange Commission A.B., J.D., Georgetown University Jessica L. Rich, Washington, D.C. Assistant Director, Division of Privacy and Identity Protection, Bureau of Consumer Protection, Federal Trade Commission (appointed Assistant Director in 1998) A.B., Harvard University; J.D., New York University Other Government and Public Service: Federal Trade Commission (former Assistant Director, Division of Financial Practices, Bureau of Consumer Protection) Andrew L. Sandler, Washington, D.C. Skadden, Arps, Slate, Meagher & Flom LLP B.A., Union College, M.B.A., J.D., University of Pennsylvania; M.A. University of Warwick (Rotary Foundation Fellow) Government and Publice Service: Financial Literacy Education Foundation (President, Board of Directors); The Wellness Community (National Board of Directors) Memberships: American Bar Association (Co-Chair, Consumer & Personal Rights Litigation Committee, ; Banking Law Committee (Vice Chair, ; Chair, Retail and Consumer Banking Subcommittee, ); Consumer Financial Services Committee); Mortgage Bankers Association (Lega Affairs Committee; HMDA Issues Coordinating Counsel) Publications Include: CONSUMER FINANCIAL SERVICES (Co-Author)(LawCatalog 2001) xx

15 Alex Sternhell, Washington, D.C. Deputy Staff Director and Senior Policy Advisor, U.S. Senate Committee on Banking, Housing and Urban Affairs Daniel P. Stipano, Washington, D.C. Deputy Chief Counsel, Office of the Comptroller of the Currency (appointed 2000) B.A., Union College; J.D., College of William and Mary (Marshall-Wythe School of Law) Other Government and Public Service: Office of the Comptroller of the Currency (Acting Chief Counsel, ; Director, Enforcement and Compliance Division, ; Assistant Director and Staff Attorney, Enforcement and Compliance Division, ); Staff Attorney, Federal Energy Regulatory Commission ( ); Treasury Department Bank Secerecy Act Advisory Group; National Interagency Bank Fraud Working Group Memberships: American Bar Association; Virginia State Bar Basil Williams, New York, New York Managing Director, Lehman Brothers; Co-head of firm U.S. Specialty Finance Practice B.A., Yale University Julie L. Williams, Washington, D.C. First Senior Deputy Comptroller and Chief Counsel, Office of the Comptroller of the Currency (First Senior Deputy since 1999; Chief Counsel since 1994) B.A., Goddard College; J.D., Antioch School of Law Other Government and Public Service: Office of the Comptroller of the Currency (Acting Comptroller, ; First Deputy, ; Deputy Chief Counsel, ); Office of Thrift Supervision/Federal Home Loan Bank Board ( ; Senior Deputy Chief Counsel, ) Publications Include: NATIONAL BANKS AND THE DUAL BANKING SYSTEM (OCC 2003); SAVINGS INSTITUTIONS: MERGERS, ACQUISITIONS AND CONVERSIONS (Law Journal Seminars-Press, 1988) xxi

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