Banking and Financial Institutions
McAfee & Taft has a long history representing banks and other financial institutions. We represent local, regional and national financial institutions in all aspects of their relationships with borrowers, depositors, regulators, investors, directors and employees. We facilitate acquisitions, sales and mergers for community and regional banks and other financial institutions. We form banks, savings associations and trust companies (at both state and national levels), bank, savings and loan and financial holding companies, and subsidiaries. We participate in strategic decision-making to assist in analyzing the risks and regulatory requirements of new loan or deposit products or other lines of business. We establish branches, convert charters, and obtain licenses and approvals for various forms of activities. We assist in buying and selling financial institution assets (including branches), acquiring distressed assets and the assets of failed institutions, and raising capital.
We help banks determine the activities in which they can lawfully engage and how to structure those activities so that they comply with all applicable laws and regulations. See Financial Institutions Corporate and Regulatory.
We have also defended against regulators in actions to impose civil money penalties, revoke charters and licenses, and terminate deposit insurance. See Troubled Banks.
We have negotiated all aspects of commercial and real estate loan transactions in all industries and in the syndication and participation of those loans. This includes drafting or reviewing loan agreements, notes, security agreements, control agreements, guaranty agreements, intercreditor agreements, loan participation agreements, syndicated loan documentation, loan modification agreements, loan workout agreements and letters of credit. We also determine the proper methods of perfecting security interests in all forms of collateral, including real property, tangible personal property (including inventory, equipment, farm products and aircraft) and intangible personnel property (including patents, trademarks and licenses). We also negotiate ISDA Documentation of hedging transactions, including interest rate swaps.
We have represented lenders in negotiations and litigation arising from the lending relationship. This includes allegations of violation of the Truth-in-Lending Act, claims for rescission of consumer loans, lien and mortgage foreclosures, disputes among loan participants, lien priority disputes and swap valuation issues.
We advise on lending regulations generally, and specifically on consumer protection regulations. This practice entails drafting or reviewing forms, policies, processes and procedures for compliance with these protective regulations. See Financial Institutions Compliance.
We have represented lenders in negotiations, enforcement actions and litigation arising out of consumer protection obligations. This includes allegations of violation of the Truth-in-Lending Act, claims for rescission of consumer loans, and administrative enforcement of NFIP penalties. See Banking Litigation.
We have drafted all of the various documents utilized in deposit taking activities, including deposit account agreements, funds transfer agreements, lock box agreements, positive pay agreements; and repo agreements. We have advised banks on all aspects of the relationship, including liability for unauthorized transfers.
We advise on all statutes and regulations relating to deposit taking activities, including Uniform Commercial Code (particularly UCC Articles 3, 4 & 4A governing negotiable instruments, bank collections and deposits, and funds transfers), Rules of the National Automated Clearing House Association and other payment systems, Regulations of the Federal Reserve Board governing deposit and funds transfer activities (such as Reg D, Reg E, Reg J, Reg O, Reg CC, and Reg DD) and its Operating Circulars, deposit insurance rules of the FDIC, and anti-money laundering and Bank Secrecy Act requirements.
We have represented banks in issues related to forged checks, unauthorized withdraws, and unauthorized funds transfers.
Traditional banking activities are now being conducted more increasingly via electronic means. We advise banks on all aspects of electronic banking. See Financial Institutions eCommerce.
Requirements regarding privacy and information security now apply to almost all businesses. As a consequence, we have advised banks, savings associations, credit unions, credit card issuers, asset based lenders, national retailers, hospitals, medical clinics, and insurance companies, among others, regarding privacy issues. We regularly deal with issues arising under the Health Insurance Portability and Accountability Act and the Gramm-Leach-Bliley Act and the regulations issued by the various agencies responsible for their enforcement (specifically, the Privacy Rules, the Safeguard Rules, the Red-Flag Guidelines and data breach response rules). We have assisted in establishing policies and procedures for information security, and drafting privacy notices.
We have assisted regulated entities in dealing with unauthorized disclosures of protected information and defending against agency enforcement actions based on breach of these regulations.
We have had substantial experience in all aspects of crises in the financial markets. Our experience includes counseling directors and officers on properly discharging their responsibilities to their shareholders and regulators, analyzing D&O and E&O insurance policy issues and making claims, disputing findings in reports of examination, acquiring troubled institutions or their assets, due diligence on failed bank acquisitions, purchasing assets from the FDIC, dealing with defaulted loans where the FDIC is lead, analyzing trouble assets, and negotiating and drafting pre-negotiation agreements, settlement agreements, amendments to loan documents and deeds-in-lieu of foreclosure.
Our attorneys practice in all state and federal courts and before all regulatory bodies. We have substantial experience litigating a variety of disputes, including defending numerous banks and credit unions against individual and putative consumer class action claims involving the assessment of overdraft/NSF fees. See Banking Litigation.