Live Telephone Seminar/Audio Webcast Financial Services Industry Today: Enforcement Issues February 23, 2009 TABLE OF CONTENTS

Transcription

1 Live Telephone Seminar/Audio Webcast Financial Services Industry Today: Enforcement Issues February 23, 2009 PROGRAM FACULTY PARTICIPANTS FACULTY BIOGRAPHIES STUDY MATERIALS TABLE OF CONTENTS 1. Defending Bank Officers and Directors from Lawsuits Filed by the FDIC By Ronald R. Glancz 2. OTS Examination Handbook Section Regarding Enforcement Actions By Ronald R. Glancz 3. The Multi-Agency Proceeding By Ronald R. Glancz and John B. Beaty 4. Responding to Proposed Enforcement Actions by the Federal Banking Agencies By Joseph T. Lynyak III Submitted by Ronald R. Glancz 5. Grant Thornton v. OCC, 514 F.3d 1328 (D.C. Cir. 2008) Submitted by Ronald R. Glancz 6. Overview of OFAC's New Enforcement Guidelines By William J. Sweet, Jr. Page ix xi xiii vii

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3 ALI-ABA Teleseminar/Audio Webcast Financial Services Industry Today: Enforcement Issues February 23, 2009 PROGRAM All Times Eastern Standard 12:00 noon Potential Sources of Federal Government Liability and Claims Messrs. Joseph, Meyer, and Safwat 12:45 p.m. Preparing for and Defending Government Suits - Messrs. Doyle, Glancz, Lybecker, and Sweet 1:30 p.m. Adjournment ix

4 PROGRAM SCHEDULE National Eastern Central Mountain Pacific Alaska Hawaii Teleseminar/ Webcast Program Begins 12:00 noon 11:00 a.m. 10:00 a.m. 9:00 a.m. 8:00 a.m. 7:00 a.m. Adjournment 1:30 p.m. 12:30 p.m. 11:30 a.m. 10:30 a.m. 9:30 a.m. 8:30 a.m. SCOPE AND PURPOSE This is the second in a series of programs designed to expose practitioners in the financial services industry to the continuous challenges arising out of the current financial crisis, and how practices may change under the Obama administration. They also explore the evolving nature of the financial services industry - the changing ways in which banks, savings institutions, brokerdealers, insurance companies, investment companies, and investment advisers operate and are regulated, the scope of their powers, and the lines of business in which they can engage. Each short program has a narrow focus but is comprehensive enough to provide attendees with valuable insights from insiders. In this program, government representatives will be asked about: The types of investigations they are conducting relating to the credit crisis and the likely claims and enforcement actions that may be brought How the government s bailout of certain institutions, and closing or failure of others, complicate their claims The coordination of efforts by the banking agencies, SEC, and DOJ, and whether there are any special task forces set up to coordinate government investigations and prosecutions Experienced pracititoners will also consider: The circumstances under which issuers should or must waive the attorney-client privilege and the current status of the latest iteration of the McNulty memo Dealing with multiple regulators (federal, state, and criminal) simultaneously The problems associated with conducting internal investigations and representing issuers and their employees simultaneously This interactive seminar also gives you the opportunity to submit your questions in advance (send via to aweinberg@ali-aba.org) and/or during the program for live discussion by the expert faculty. Total 60-minute hours of instruction: 1.5; Total 50-minute hours: 1.8 Suggested Prerequisite: Some experience in practice in subject matter Learning Objectives: Acquisition of knowledge and skills to develop proficiency as a practitioner; maintenance of professional competence as a practitioner; provision of information on recent legal developments Level of Instruction: Advanced x

5 ALI-ABA Telephone Seminar/Audio Webcast Financial Services Industry Today: Enforcement Issues Monday, February 23, 2009 PLANNING CHAIRS 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 FACULTY Mr. Ken Joseph Assistant Regional Director U.S. Securities and Exchange Commission Suite World Financial Center New York, NY Mr. Stephen H. Meyer Assistant General Counsel Board of Governors of the Federal Reserve System 20th & C Streets NW Washington, DC Mr. Adam G. Safwat Assistant Chief Fraud Section, Criminal Division U.S. Department of Justice 1400 New York Avenue, NW Washington, DC xi

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7 FACULTY BIOGRAPHIES Planning Co-Chairs A. Patrick Doyle has a broad background in financial institution regulation and has headed the firm s financial services practice group since Mr. Doyle regularly counsels bank holding companies, foreign banks, savings institutions, insurance companies, and securities firms on a wide variety of matters, including strategic planning, complex regulatory issues, enforcement proceedings and legislation. In addition, he has represented firm clients on numerous mergers and acquisitions including such recent acquisitions as BB&T s acquisition of First Virginia Bank and M&T Bancorp s acquisition of Allfirst Financial. Prior to joining Arnold & Porter LLP in 1983, Mr. Doyle served as Deputy General Counsel and Acting General Counsel of the Federal Home Loan Bank Board and earlier served in a variety of legal positions at the Office of the Comptroller of the Currency, including Counsel to the Multinational Banking Group. Mr. Doyle served on the adjunct faculty of the Morin Center for Banking Law Studies at Boston University School of Law from 1985 to 1993, and currently serves on the Board of Advisors of the University of North Carolina School of Law s Banking Law Institute. He currently is in the International Who s Who of Business Lawyers Banking Mr. Doyle is a frequent lecturer on topics related to the regulation of the financial services industry. He earned his B.A. from the State University of New York Oswego, and his J.D. from Syracuse University College of Law. Ronald R. Glancz is chair of Venable's Financial Services Group, and represents banks, savings associations, bank and thrift holding companies, insurance companies, credit unions, brokerage firms, financial industry trade associations, and directors and officers of financial institutions. He focuses on bank and thrift regulation, mergers and acquisitions, new financial products and services, corporate governance, enforcement, and Bank Secrecy Act compliance. Mr. Glancz was formerly Assistant General Counsel and Acting Deputy General Counsel of the Federal Deposit Insurance Corporation, where he served on the U.S. Attorney General s Bank Fraud Enforcement Working Group. Mr. Glancz also was formerly the Director, Litigation Division, Office of the Comptroller of the Currency (OCC) and an Assistant Director, Civil Division, U.S. Department of Justice. Mr. Glancz has also served as vice-chair of the American Bar Association s Banking Law Committee, chair of the Subcommittee on Insurance Services, and vicechair of the Audit and Examination Subcommittee. He is Chancellor of The Exchequer Club of Washington. He is a member of the Federal Bar Association and a member of Women in Housing and Finance (WHF). He is a member of the National Association of Corporate Directors (NACD) and served on its Commission on the prevention of fraud. Mr. Glancz has written or co-written some 40 articles on banking and finance topics, and has been quoted in the New York Times, the Wall Street Journal, the Washington Post, and the American Banker. He earned his B.A. and J.D. from the University of Michigan. xiii

8 Martin E. Lybecker is a partner in Wilmer Hale s Regulatory and Government Affairs and Securities Departments, and a member of the Financial Institutions and Investment Management Practice Groups. In private practice since 1981, Mr. Lybecker is considered to be a leader in the development of the legal theories with regard to the substantial growth of bank securities activities. He also has considerable experience representing the insurance industry in disputes over the authority of banks to engage in insurance underwriting. From 1978 to 1981, Mr. Lybecker served as Associate Director of the Division of Investment Management at the Securities and Exchange Commission and previously served as a lawyer in the Division's Office of Chief Counsel. Mr. Lybecker has taught law at Georgetown University Law Center, the State University of New York at Buffalo, Duke University and the University of North Carolina, and since 2000 has been Senior Lecturing Fellow in Law at Duke University. He is a member of numerous professional organizations, including the American Bar Association, where he chaired the ABA Section of Business Law's Committee on Banking Law from He previously chaired the ABA Committee on Developments in Investment Services ( ) and he is now a member of the council that governs the Section of Business Law and serves as Chair of the Finance Committee. In addition, Mr. Lybecker is a member of the American Law Institute and a member of the editorial advisory board of The Investment Lawyer (Aspen Law & Business). He earned his B.A. and J.D. from the University of Washington, and has two LL.M. degrees, from New York University School of Law and the University of Pennsylvania Law School. William J. Sweet, Jr., is a partner at Skadden, Arps, Slate, Meagher & Flom LLP in Washington, D.C., where he concentrates in financial institution merger and acquisition, regulatory and enforcement matters. Before joining the firm, Mr. Sweet was a staff attorney with the Federal Reserve Board, where he handled bank holding company regulatory, litigation and enforcement matters. Mr. Sweet is part of the Skadden team advising clients on various aspects of the U.S. Treasury s Capital Purchase Program (CPP) to inject capital into financial institutions under the Emergency Economic Stabilization Act of 2008, as well as clients considering selling assets under the EESA s Troubled Asset Relief Program. He has represented some of the first institutions to issue stock to the U.S. Treasury as part of the $250 billion CPP, including Citigroup Inc. in its sale of $25 billion of preferred stock and warrants to the U.S. Treasury; and Northern Trust Corporation in connection with the issuance of $1.5 billion of perpetual preferred stock to the Treasury. He also represents various U.S. and non-u.s. organizations before the Federal Reserve Board, Comptroller of the Currency, FDIC, Office of Thrift Supervision and other financial regulatory agencies seeking rulings, interpretations and approvals in connection with new products and services. Mr. Sweet is a member of the ABA s Banking Committee of the Section of Business Law, and served as the chair of the Mergers and Acquisitions Subcommittee from He also writes on banking issues and appears frequently at seminars on financial institution mergers and acquisitions, regulatory issues and enforcement matters. xiv

9 Faculty Ken C. Joseph is an Assistant Director in the Enforcement Division of the U.S. Securities and Exchange Commission. Mr. Joseph joined the Commission s staff in 1996 after graduating from the University of North Carolina at Chapel hill School of Law. He also earned an MBA degree in Marketing Management and a post-graduate Certificate in International Finance, both from St. John s University, in New York. During his tenure at the SEC, Mr. Joseph has been responsible for investigations or enforcement actions involving financial fraud, auction rate securities, subprime-related securities, credit default swaps, reinsurance transactions, hedge funds, ponzi schemes, special purpose entities, auditors, investment advisers, self regulatory organizations, and broker-dealers, among others. He and his colleagues are responsible for enforcement actions against: the American International Group, Inc., which resulting in an $800 million settlement and civil actions against seven former senior executives of AIG and General Re, a subsidiary of Berkshire Hathaway; Renaissancere Holdings, Ltd., which resulting in a $15 million penalty against the issuer and civil liability being imposed against the issuer s former CEO, controller, and underwriter; PNC Financial Services Group Inc., which was the SEC s first enforcement action alleging the misuse of special purpose entities; and a litigated action against two former brokers of Credit Suisse Securities (USA) LLC alleging unauthorized purchases of over $1 billion of subprime-related auction rate securities. Stephen H. Meyer is Assistant General Counsel for Enforcement in the Legal Division at the Board of Governors of the Federal Reserve System. In this position, Mr. Meyer is responsible for supervising enforcement-related investigations and litigation. Before coming to the Federal Reserve in 1992, Mr. Meyer was an Assistant Director in the Enforcement Division at Commodity Futures Trading Commission. He started his legal career as an attorney in the Bureau of Consumer Protection of the Federal Trade Commission. Mr. Meyer received a J.D. degree from New York University School of Law, and a B.A. in history from Trinity College, Hartford, Connecticut. Adam G. Safwat is an Assistant Chief of the Fraud Section, which he joined in June 2006, and he specializes in corporate securities fraud investigations. Mr. Safwat also works on investigations involving allegations of violations of the Foreign Corrupt Practices Act. While at the Fraud Section, he has worked on investigations involving accounting fraud related to the improper use of special purpose entities by a financial services subsidiary of American International Group ( AIG ), and was a member of the trial team in a securities fraud trial of former executives of AIG and General Re, a subsidiary of Berkshire Hathaway, who were alleged to have engaged in a sham transaction designed to window-dress AIG s financial statements. Mr. Safwat is currently involved in investigations relating to sub-prime securitization issues. He is a 1994 graduate of Duke Law School and was a note editor on the Duke Law Journal. After graduating from law school, Mr. Safwat clerked for the Honorable Walter K. Stapleton, United States Court of Appeals for the Third Circuit. xv

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