News Archives

News

Oct

07

2014

Jon Cohen and Kristina Del Vecchio Present at Consumer Financial Services Committee Panel on Consumer Arbitration Clauses

SAN FRANCISCO, CA – October 07, 2014. Joseph & Cohen, Professional Corporation, announced today that two of the firm’s attorneys, Jonathan M. Cohen, Senior Partner, and Kristina Del Vecchio, Of Counsel, were selected by the California Bar Association to speak at their Annual Convention in San Diego.  The Firm’s attorneys participated in the Consumer Financial Services Committee program entitled “New Developments in the Enforcement of Consumer Arbitration Clauses” on September 14, 2014.

Ms. Del Vecchio moderated the panel of speakers that included Jonathan Cohen, Bill Webb of Webb Legal Group, and Scott Pearson of Seyfarth Shaw LLP. The panel discussed the current state of arbitration clauses in consumer financial services contracts and recent developments post-Concepcion (AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011)).

Their discussion, which was videotaped by the California State Bar and will be offered for MCLE credit, focused on class action arbitration and waivers, drafting tips, recent litigation surrounding such clauses and what to expect in the future, particularly given the Consumer Financial Protection Bureau’s authority in this area.  Consumer arbitration has undergone radical change as a result of recent US Supreme Court and California Court of Appeals decisions and every attorney should know how it will affect their clients.

Ms. Del Vecchio, Chair of State Bar Consumer Financial Services Committee, said of her experience, “The panel was outstanding; we also received several excellent questions from our audience.”

Mr. Cohen added, “It was an honor to speak at the Annual Meeting about a topic that may seem esoteric but that can drastically alter the outcome of litigation even before a dispute has arisen.”

In addition, on September 9th, Ms. Del Vecchio delivered a 60-minute webinar titled “Spotlight on CFPB Mortgages: Keys to Keeping Up with Federal Standards.”

Hosted by Progressive Business Executive Education, Ms. Del Vecchio’s presentation focused on the continually changing and complex rules of the Consumer Financial Protection Bureau (CFPB).  She addressed the CFPB’s January 10th, 2014 “final” ruling requiring mortgage lenders to assess the consumer’s ability to repay mortgage loans before extending credit became effective, a ruling that the CFPB is still in the process of amending.

Ms. Del Vecchio gave insight on how mortgage lenders can remain up to speed on the latest rule, how it impacts the industry, issues that may arise, and what to expect in terms of future changes.  A recording of the webinar is available for order.  Click here for further details.

Joseph & Cohen, Professional Corporation, is a Financial Services and Litigation Boutique headquartered in San Francisco that emphasizes complex banking, corporate and financial services matters, regulatory and bank enforcement defense, private equity, bankruptcy and insolvency, employment and commercial litigation services.  Joseph & Cohen is known for sophisticated expertise, extraordinary commitment to clients, relationship-based services, and a range of specialized skills typically found only in the largest American law firms.

For additional information about the Joseph & Cohen, Professional Corporation, please visit our website at http://josephandcohen.com/or Facebook at http://www.facebook.com/josephandcohen.

Press Contact:  Jonathan Joseph at Joseph & Cohen, 415-817-9200, ext. 9 or jon@josephandcohen.com.

Kristina Del Vecchio Appointed Chair of Consumer Financial Services Committee – CA State Bar Business Law Section

SAN FRANCISCO, CA – August 12, 2014. Joseph & Cohen, Professional Corporation, announced today that Kristina Del Vecchio has been named Chair of the State Bar of California’s Business Law Section’s Consumer Financial Services Committee.

An accomplished advisor and litigator for banks, credit unions and other financial services companies, Ms. Del Vecchio joined Joseph & Cohen as Of Counsel in January 2014. Del Vecchio previously served as Vice Chair of Communications for the committee, and notes of her new role, “I am honored to have the opportunity to lead this outstanding committee, which is comprised of a variety of impressive attorneys committed to enhancing their practice and awareness of issues affecting the consumer financial services industry.”

Ms. Del Vecchio’s appointment adds to the list of notable positions served by Joseph & Cohen partners in the State Bar of California’s Business Law Section. Founder and Managing Partner, Jonathan Joseph is Chair of the Financial Institutions Committee; and Kenneth Sayre-Peterson, Partner, serves as the Vice-Chairman of Legislation for the Consumer Financial Services Committee.

Additionally, Jonathan Cohen, Head of Litigation at Joseph & Cohen, is slated to speak on a panel, moderated by Ms. Del Vecchio, titled New Developments in the Enforcement of Consumer Arbitration Clauses at the annual State Bar meeting on September 14.

Joseph & Cohen, Professional Corporation, is a Financial Services and Litigation Boutique headquartered in San Francisco that emphasizes complex banking, corporate and financial services matters, regulatory and bank enforcement defense, private equity, bankruptcy and insolvency, employment and commercial litigation services.  Joseph & Cohen is known for sophisticated expertise, extraordinary commitment to clients, relationship-based services, and a range of specialized skills typically found only in the largest American law firms.

For additional information about the Joseph & Cohen, Professional Corporation, please visit our website at http://www.josephandcohen.com or Facebook at www.facebook.com/josephandcohen.

Press Contact:  Jonathan Joseph at Joseph & Cohen, 415-817-9200, ext. 9 or jon@josephandcohen.com.

Jonathan Cohen Quoted in ACAMS moneylaundering.com Article on Directors and Officers Liability Insurance Issues

Joseph & Cohen, Professional Corporation, was featured in a recent ACAMS moneylaundering.com article by Kira Zalan and Colby Adams titled “With Regulators’ Talk of Individual Fines Comes Bankers’ Queries on Insurance.”

Published on June 17, 2014, the article explores why more and more bank compliance officers are exploring the scope of insurance coverage under Directors and Officers (D&O) liability insurance policies to address the rise of regulatory penalties against individual bankers.

The article notes an important and often overlooked reality that many financial institutions and their officers are unaware of the exclusions in their D&O policies, to which Jonathan Cohen, the firm’s head of litigation, was quoted:

“More often than not an officer or director will be surprised by the lack of coverage that they have.”

Joseph & Cohen’s core corporate and regulatory practice includes the representation of federally insured depository institutions and the defense of Officers and Directors of financial institutions in civil damage actions instituted by the FDIC or shareholders and administrative proceedings brought by the FDIC for civil money penalties or other sanctions.   Joseph & Cohen also has extensive experience in advising institutions and their Offices and Directors in connection with insurance coverage and related litigation.

For additional information about Joseph & Cohen, Professional Corporation, please visit our website at  www.josephandcohen.com or Facebook at www.facebook.com/josephandcohen.

Litigators Nicole Dogwill and Robyn Callahan Join Joseph & Cohen

SAN FRANCISCO, CA – April 08, 2014.  Joseph & Cohen, Professional Corporation, announced today that the firm has added two skilled litigation attorneys to its expanding boutique litigation practice. Nicole P. Dogwill joined the firm as a Partner, and Robyn C. Callahan as Of Counsel.

Nicole Dogwill is an experienced litigator with core expertise advising and defending mature and emerging companies, as well as their directors and officers, on matters involving fiduciary duty, corporate governance, securities, fraud, antitrust/unfair business practices, and related business claims. Ms. Dogwill also advises and litigates fiduciary duty and related claims arising in trust and estate matters.

Ms. Dogwill was named a “future star” in both the 2012 and 2013 editions of Benchmark Litigation. The National LGBT Bar Association selected Ms. Dogwill as one of the Top 40 under 40 LGBT Attorneys for 2010. She is currently the President of the National LGBT Bar Association’s Board of Directors.

Jonathan Joseph, Joseph & Cohen’s Managing Partner, stated “Nicole Dogwill shares our passion to deliver world class legal services to business and financial institution clients via a boutique law firm model that embraces long term client relationships, diversity, collegiality and quality in everything we do.”

Nicole Dogwill added “I am honored to be joining this esteemed group of lawyers, many of whom I’ve had the privilege of working with before to provide exceptional services to my clients in California and across the United States.”

Prior to joining Joseph & Cohen, Ms. Dogwill was a partner at Shartsis Friese LLP.  She was also a partner at Winston & Strawn LLP in San Francisco for seven years.

Also an accomplished litigator, Robyn C. Callahan brings her expertise in business litigation, employment law and commercial disputes, including complex class actions. With over a decade of experience working for both boutique and global Am Law 100 ranked firms, Ms. Callahan has successfully represented clients across a broad range of industries in federal, state and appellate courts.   She previously worked at Winston & Strawn’s San Francisco office alongside Jonathan Cohen, Jeffrey Lederman and Nicole Dogwill.

Jonathan Cohen, the Head of Litigation, said “We could not be happier to have Robyn join us.  She is a truly skilled lawyer and adds significant depth to our team, with extensive trial experience in both commercial and employment litigation.”

Ms. Callahan noted, “I am thrilled to reunite with Jon, Jeff and Nicole and to be working with such a talented team of attorneys who value the importance of integrity in the practice of law and in fostering long-term client relationships.

Joseph & Cohen, Professional Corporation, is a Financial Services and Litigation Boutique headquartered in San Francisco that emphasizes complex banking, corporate and financial services matters, regulatory and bank enforcement defense, private equity, bankruptcy and insolvency, employment and complex commercial litigation services.  Joseph & Cohen is known for sophisticated expertise, extraordinary commitment to clients, relationship-based services, and a range of specialized skills typically found only in the largest American law firms.

For additional information about the Joseph & Cohen, Professional Corporation, please visit our website at http://www.josephandcohen.com or Facebook at www.facebook.com/josephandcohen.

Press Contact:  Jonathan Joseph at Joseph & Cohen, 415-817-9200, ext. 104 or jon@josephandcohen.com.

Feds Bite Largest Bitcoin Exchange: Lessons for Virtual Currency Entrepreneurs

By Jonathan D. Joseph

When the US Treasury’s Financial Crimes Enforcement Network, a/k/a FinCEN, published an interpretative ruling on March 18, 2013 discussing how its regulations applied to users, exchangers and administrators of virtual currencies, Mt. Gox, the world’s largest exchange for Bitcoin transactions, should have taken note.   Mt. Gox and other early pioneers in the virtual currency space have anarchist roots and generally eschew governmental regulation; however, it is now clear that the survivors in the Bitcoin and cryptocurrency ecosystem will be those that successfully navigate the complex web of federal and state money transmission laws and regulations.

Earlier this week, Homeland Security Investigations (“HSI”) obtained a warrant, issued by the U.S. District Court of Maryland, authorizing U.S. government seizure of assets of Mt. Gox held at Iowa based payment processing start-up Dwolla and Wells Fargo Bank.   HSI acted after it discovered that Mt. Gox, based in Tokyo, Japan, was operating as an unlicensed money transmission service through its American affiliate, Mutum Sigillum LLC, and it may have lied to Wells Fargo when it opened its initial US bank account.

FinCEN is the bureau of the Treasury Department that seeks to prevent money laundering and terrorism financing through its regulation of Money Service Businesses (“MSBs”).  Its March 2013 guidance states that those dealing in or administering virtual currencies such as exchanges like Mt. Gox, but not users or “miners”, need to register as MSBs and comply with anti-money laundering regulations. While Bitcoin is the best-known cryptocurrency or digital currency, others have sprung up recently, including Opencoin, Litecoin, Terracoin, Feathercoin and Novacoin, among others.   While concepts underlying virtual or cryptocurrencies can be mind- numbingly complex, the FinCEN guidance is reasonably clear as to who is regulated:

“A person that creates units of this convertible virtual currency and uses it to purchase real or virtual goods and services is a user of the convertible virtual currency and not subject to regulation as a money transmitter. By contrast, a person that creates units of convertible virtual currency and sells those units to another person for real currency or its equivalent is engaged in transmission to another location and is a money transmitter.  In addition, a person is an exchanger and a money transmitter if the person accepts such de-centralized convertible virtual currency from one person and transmits it to another person as part of the acceptance and transfer of currency, funds, or other value that substitutes for currency.”  FIN-2013-G001, March 18, 2013.

FinCEN categorizes participants in the virtual currency market into three generic categories: “user,” “exchanger,” and “administrator.” A user is a person that obtains virtual currency to purchase goods and services. An exchanger is a person engaged as a business in the exchange of virtual currency for real currency, funds or other virtual currency.   An administrator is a person engaged as a business in issuing (circulating) a virtual currency and who has the authority to redeem or withdraw from circulation that virtual currency.

A person may engage in “obtaining” a virtual currency in a number of different manners such as “earning,” “mining,” “harvesting,” “manufacturing,” “creating,” and “purchasing,” depending on the details of the specific virtual currency model involved.   FinCEN concluded that how a person obtains a virtual currency is immaterial to the legal characterization under the Bank Secrecy Act of the process or of the person engaging in the process.   This means that a user who obtains convertible virtual currency and uses it to purchase real or virtual goods or services is not a Money Service Business under FinCEN’s regulations.   Users must still be cautious, as an activity which is exempt from FinCEN’s rules, may still violate other federal or state statutes, rules and regulations.  Additionally, almost all states have money transmission laws that may apply even if FinCEN rules do not.

An administrator or exchanger that (1) accepts and transmits a convertible currency or (2) buys or sells convertible virtual currency for any reason is a money transmitter under FinCEN’s regulations, unless a limitation or exemption from the definition applies to the person.  As one illustration, a federally-insured commercial bank is exempt from the definition.  However, in most cases, whether a person is a money transmitter is a matter of facts and circumstances.  Under FinCEN’s interpretations and the law of many states there is no differentiation between real currencies and convertible virtual currencies.  Accepting and transmitting anything of value that substitutes for currency makes a person a money transmitter under BSA regulations.  31 CFR section 1010.100(ff)(5)(i)(A).

An exchange’s activities most often involve acting as a seller of Bitcoins or other virtual currency where it accepts real currency or its equivalent from a user/purchaser and transmits the value of the real currency to fund the purchaser’s virtual currency account held by an administrator.  In the Dwolla/Mt. Gox case described above, users were transferring U.S. Dollars to Mt. Gox’s American affiliate via Dwolla.  Prior to the HSI seizure, the American affiliate had been transferring U.S Dollars received from Dwolla to Mt. Gox in Japan and Mt. Gox allegedly used the Wells Fargo account to route funds from Japan to and from accounts at Dwolla at the direction of users. Dwolla, headquartered in Des Moines, offered an easier way for people to buy or sell Bitcoins through Mt. Gox, rather than attempting international wires to and from the company’s Japanese bank.

Under FinCEN regulations, sending “value that substitutes for currency” to another person or to another location constitutes money transmission, unless a limitation to or exemption from the definition applies.  Consequently, based on the HSI warrant, Mt. Gox was transmitting funds to another location, namely from the user’s real currency account at a bank to the user’s virtual currency account with the administrator.   The government alleges this is illegal since the only services being provided are unlicensed money transmission services.

Once a person or entity is engaging in the business of money transmission (both real or virtual currencies), doing so without registering with FinCEN as a Money Service Business and obtaining licenses under State money transmitter laws is mandatory unless certain enumerated exemptions apply. Most States including California, New York, Florida, Texas and Illinois and the District of Columbia require money transmitting businesses to obtain a license and comply with the other regulatory requirements (unless certain exemptions apply).  Failure to be registered and licensed can constitute a felony.

The fervor of the cyrptocurrency movement is starting to resemble the California Gold Rush after gold was discovered in 1849.  Millions of dollars are being invested in starts-up companies mainly in the Silicon Valley as Bitcoin entrepreneurs and venture capitalists race after what some believe could ultimately be worth billions.  In fact, Opencoin recently announced it had completed an angel round which included Silicon Valley heavy hitters Andreessen Horowitz, Lightspeed Venture Partners and Barry Silbert’s Bitcoin Opportunity Fund.

Importantly, it doesn’t appear that Homeland Security or FinCEN is cracking down on Bitcoin itself, just on how it’s being exchanged by Mt. Gox. This is good news for Mt. Gox’s US-based competitors, such as Seattle-based CoinLab and San Francisco-based Coinbase, Bitcoin exchanges that have registered with the Treasury Department as money transmitters.

An important lesson for entrepreneurs and VCs entering the virtual currency space is that virtual currency business models must be analyzed by lawyers with corporate and venture capital expertise, as well as deep familiarity with state and federal currency and money transmission laws.  For those that would turn a blind-eye to the necessity of robust legal compliance at an early stage based on libertarian or anarchist beliefs, naivety or an extraterritorial structure, failure is almost certainly guaranteed.

Smart entrepreneurs understand this.  Success stories include PayPal, Square and presently Google Payment Corp., and Facebook Payments are muscling into the space.  Staying lean until proof of concept has been achieved is important,  but when it comes to federal and state money transmitter regulation,  early angel and VC investment rounds must include funds for legal compliance.  Joseph & Cohen has the expertise and experience to successfully establish and plan innovative legal compliance programs for VCs, virtual currency and Bitcoin start-ups.

Jonathan Joseph is the Managing Partner of Joseph & Cohen, Professional Corporation, a Financial Services and Litigation Boutique headquartered in San Francisco that emphasizes complex banking, corporate and venture capital transactions, regulatory and money transmission activities, securities, M & A, bankruptcy and insolvency, employment law and commercial and executive employment litigation services.

For additional information about Joseph & Cohen, Professional Corporation, please visit our website at www.josephandcohen.com or contact Jonathan Joseph at 415-817-9250 or jon@josephandcohen.com.

Bankruptcy Attorney David Honig Joins Boutique Financial Services and Litigation Law Firm – Joseph & Cohen

SAN FRANCISCO, CA – May 2, 2013.  Joseph & Cohen, Professional Corporation, announced today that leading bankruptcy and restructuring attorney David A. Honig has joined the Firm as a Partner. Mr. Honig, who has worked in the restructuring field for over 20 years, comes to Joseph & Cohen after his successful 10-year tenure as a corporate partner at Winston & Strawn LLP, a prestigious international law firm, where he practiced in that firm’s restructuring and insolvency group in San Francisco.  Prior to that, he was a partner at San Francisco-based Murphy Sheneman Julian & Rogers (previously known as Murphy Weir & Butler), a nationally recognized bankruptcy and restructuring boutique, which he joined as an associate in 1992.

Mr. Honig’s arrival at Joseph & Cohen significantly broadens the boutique firm’s core banking, financial services, regulatory, and litigation expertise.  He is a talented and multifaceted financial services lawyer who was recently selected by his peers for inclusion in The Best Lawyers in America® 2013 in the field of Litigation – Bankruptcy.

During his career he has specialized in business restructuring, insolvency, corporate finance, and related transactions and litigation.  He is known for his ability to create practical, business-oriented solutions to complex legal and financial problems.

Mr. Honig represents debtors, institutional and non-traditional lenders, trustees, receivers, official creditors’ committees, private equity funds, vendors, licensors, real and personal property lessors, and asset purchasers in bankruptcy, receivership, and other restructuring and workout matters in and out of court. He has extensive experience in the reorganization of distressed financial services businesses, vineyards and wineries, and other food and beverage companies, as well as manufacturing, technology, telecommunications, retail, and real estate investment concerns.

“We are both flattered and honored that David Honig chose Joseph & Cohen over the countless opportunities available to him,” said Jonathan Cohen, litigation partner at Joseph & Cohen. “His bankruptcy, workout and litigation expertise will undoubtedly further our standing as a well-rounded and world-class boutique firm.”

Of his new position, Mr. Honig stated, “Joseph & Cohen impressed me with their vision, energy, and depth of experience.  I look forward to working with them. Together, we’ll provide exceptional service to our clients throughout California and the United States.”

Joseph & Cohen, Professional Corporation, is a Financial Services and Litigation Boutique headquartered in San Francisco that emphasizes complex banking, corporate and transactional matters, regulatory and bank enforcement defense, securities, M & A, bankruptcy and insolvency, employment and commercial and executive employment litigation services.  Joseph & Cohen is known for sophisticated expertise, extraordinary commitment to clients, relationship-based services, and a range of specialized skills typically found only in the largest American law firms.

For additional information about the Joseph & Cohen, Professional Corporation, please visit our website at  www.josephandcohen.com or Facebook at www.facebook.com/josephandcohen.

Press Contact:  Jonathan Joseph at Joseph & Cohen, 415-817-9200, ext. 9 or jon@josephandcohen.com.

Joseph & Cohen Elevates Ken Sayre-Peterson to Partner

SAN FRANCISCO, CA – May 1, 2013. Joseph & Cohen, a Professional Corporation headquartered in San Francisco, announced today that Kenneth Sayre-Peterson has been elected a partner following his successful stint as Of Counsel with the firm that began in February 2012.

Managing Partner, Jonathan Joseph stated, “Joseph & Cohen’s clients have benefited from Ken Sayre-Peterson’s enormous expertise in bank regulation, credit union matters, financial services, corporate transactions, money transmitter compliance and bank enforcement work.  He has helped to secure the firm’s position as one of the leading bank and depository institution regulatory practices in California. Elevating Ken to partner was an incredibly easy decision.”

Sayre-Peterson adds, “It is a delight to work with this team of distinguished attorneys in a collegial boutique setting. I am honored to be invited in as a partner, and look forward to continuing to deliver superlative regulatory and transactional legal services to our valued clients.”

Prior to joining Joseph & Cohen, Ken Sayre-Peterson held increasingly senior positions as an attorney with the California Department of Financial Institutions. During his distinguished twenty-two year career, he practiced general financial institutions law and garnered an intimate knowledge of the banking, credit union, money transmitters, securities, and trust laws of California, as well as the pertinent and corresponding federal laws.

Joseph & Cohen, Professional Corporation, is a Financial Services and Litigation Boutique headquartered in San Francisco that emphasizes complex banking, corporate and transactional matters, regulatory and bank enforcement defense, securities, M & A, bankruptcy and insolvency, employment and commercial and executive employment litigation services.  Joseph & Cohen is known for sophisticated expertise, extraordinary commitment to clients, relationship-based services, and a range of specialized skills typically found only in the largest American law firms.

For additional information about the Joseph & Cohen, Professional Corporation, please visit our website at www.josephandcohen.com or Facebook at www.facebook.com/josephandcohen.

Press Contact:  Jonathan Joseph at Joseph & Cohen, 415-817-9200, ext. 9 or jon@josephandcohen.com.

Marie F. Hogan

Marie F. Hogan is Of Counsel in the firm’s San Francisco office. She has practiced law in California for more than thirty years with a core emphasis on representing commercial banks, other depository institutions and financial service companies in connection with mortgage lending, bank operations, loan workouts, consumer law and compliance, credit and debit cards, bankruptcy and insolvency and similar matters.

Ms. Hogan has been active in the State Bar of California for many years, having served as chair of the Executive Committee of the Business Law Section in 1998 and as a member or advisor to the Executive Committee from 1994 to the present. Marie Hogan is currently also a member of the Consumer Financial Services Committee of the State Bar’s Business Law Section. Ms. Hogan was previously a member of the Uniform Commercial Code Committee where she contributed her extensive skills related to, among other areas, deposits, letters of credit and personal property leasing.

Prior to joining Joseph Law, she has held senior legal positions in some of the largest banking organizations in California including Bank of America NT & SA, The Bank of California NA, World Savings Bank and Charles Schwab Bank.
Ms. Hogan has been a member of the Board of Directors of American Bach Soloists since 2000. She also served two terms as President of the organization. American Bach Soloists perform music of the Baroque era and are known around the world for the quality of their performances and interpretation

Ms. Hogan was awarded her Juris Doctor degree from Hastings College of the Law in San Francisco. Ms. Hogan received her undergraduate degree from the School of Foreign Service at Georgetown University in Washington D.C.
Ms. Hogan is a member of the State Bar of California.

Joseph & Cohen Rolls Out New Marketing Campaign

SAN FRANCISCO, CA – March 22, 2013. Joseph & Cohen, headquartered in San Francisco, rolled out a new marketing campaign today as part of its sponsorship of the Western Independent Bankers’ (WIB) Annual Conference for Bank Presidents, Senior Officers & Directors being held in Kauai, HI from March 23 – 27, 2013. Managing Partner Jonathan Joseph notes, “Joseph & Cohen is proud to be a major sponsor of WIB for the fourth consecutive year. WIB’s commitment to assist bankers and directors in navigating the complex changes in the industry mirrors our own.”

For this year’s marketing sponsorship, Joseph & Cohen, which specializes in representing independent and regional banks, chose the image below of a well-dressed attorney riding a skateboard. The concept emphasizes the firm’s ability to solve complex legal matters with skill and agility in a laid-back but professional and cutting edge manner. Joseph & Cohen believes its fresh vision provides a competitive edge in connecting with the next generation of banking leaders.

To learn more, call 415.817.9200 to speak to either of the firm’s name partners: Jonathan Joseph or Jon Cohen.

Joseph & Cohen Settles All Claims by FDIC Against Five Former Officers of County Bank

SAN  FRANCISCO,  CA  –  November  13,  2012. Joseph  &  Cohen,  Professional Corporation, located in San Francisco, California, announced today that it successfully structured a settlement for its clients, five former officers of County Bank, Merced, California,  in  connection  with  a  lawsuit  brought  by  the  Federal  Deposit  Insurance Corporation, in its capacity as receiver for County Bank.   County Bank, which collapsed in February 2009, had been the wholly-owned banking subsidiary of Capital Corp of the West (Nasdaq: CCOW).

The case, which was filed by the FDIC in the Federal Court in Fresno, California in January 2012, was titled FDIC, as receiver for County Bank v. Hawker, et al., (Case No. 1:12-CV-000127-LJO) (“FDIC v. Hawker”). The settlement completely settles and satisfies all claims  brought by the FDIC against the five former officers of the Bank: Thomas Hawker, Edward Rocha, John Incandela, David Kraechan and Jay Lee (the “officers”).

A companion case that the officers filed against BancInsure, Inc. and the FDIC in July 2012, in the same Fresno based Court, remains outstanding.  In that case,  Hawker et al v. BancInsure (Case No. 1:12-cv-01261-LJO-GSA), Tom Hawker and the other officers asserted claims against  BancInsure for declaratory relief, breach of contract, bad faith, punitive  damages  and  reformation.  The  officers  were  forced  to  sue  BancInsure,  the professional liability insurer for County Bank, after it  abandoned them and refused to defend the claims in the FDIC Action.

Jonathan Joseph, counsel for the officers stated “We believed that we had strong legal and factual  defenses to the FDIC’s claims.   In our view, County Bank collapsed as a result of the greatest recession in our lifetime.  So, we vigorously defended Tom Hawker and the other four officers of County Bank against all of the government’s allegations. But, after the D&O Insurer abandoned our clients and refused to defend them or settle the FDIC lawsuit, we are pleased to have successfully structured this deal with the FDIC as the settlement eliminates all claims, further uncertainty and the trouble, risk and expense associated with the litigation.”

An essential element of the settlement involved an assignment to the FDIC by the officers of their lawsuit against BancInsure including claims for bad faith and breach of contract. The officers retained the right  to recover their defense expenses incurred prior to the FDIC settlement from BancInsure.  The officers  maintained the right to continue to control and prosecute this retained claim against BancInsure.

Tom Hawker, former CEO of County Bank and President and CEO of CCOW, said “I am relieved to put this case behind me as it eliminates further uncertainty, cost or risk to me and my family.  I am outraged that the Bank’s D&O insurer abandoned me as I would have  been  financially  ruined  if  I  continued  to  defend  myself  against  the  FDIC’s allegations despite having excellent legal and factual defenses to their claims.”

As a result of the settlement, the FDIC will control and prosecute the officers’ assigned claims against BancInsure at its cost and expense.  Jon Cohen, litigation partner at Joseph & Cohen, explained “We look forward to litigating alongside the FDIC on behalf of our clients  to  prove  that  BancInsure  improperly  applied  the  so-called  “insured  versus insured” exclusion to deny the coverage our clients had expected and relied upon.”

The parties exchanged other valuable covenants including an agreement not to bring any other civil claims against each other and a promise by the FDIC not to take any further action or assert any claims against any of the property or assets of the officers.

Joseph & Cohen, Professional Corporation, is an AV® rated law firm based in San Francisco,  California,  that  emphasizes  the representation  of community and  regional banks  and  bank  holding  companies  and  their  officers  and  directors.  The firm also specializes in representing financial service companies, credit unions and private equity firms in connection with corporate, securities, regulatory, litigation, executive employment and merger matters.  Joseph & Cohen is known for sophisticated expertise, extraordinary  commitment  to  clients,   relationship-based services, and  a  range of specialized capabilities typically found only in the largest American law firms.

For additional information about the Joseph & Cohen, Professional Corporation, please visit our website at  www.josephandcohen.com or Facebook at www.facebook.com/josephandcohen.