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News

Aug

12

2014

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.

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.

Department of Financial Institutions Attorney Ken Sayre-Peterson Joins Joseph & Cohen – Expands Firm’s Core Regulatory Practice

SAN FRANCISCO, CA February 21, 2012.   Joseph & Cohen, Professional Corporation, announced today it has expanded the depth and scope of its bank regulatory, financial services and legislative practice with the addition of Kenneth Sayre-Peterson as Of Counsel.  Sayre-Peterson elected to join Joseph & Cohen following his retirement from the California Department of Financial Institutions (DFI), where he served in various legal capacities during a lengthy career, most recently having acted as the DFI’s General Counsel.

Kenneth Sayre-Peterson acted as the General Counsel for the California Department of Financial Institutions from June 2007 until his retirement in November 2011.  His final position with the DFI was the culmination of 22 years of service that began in 1988.  Prior to joining the legal staff of the California DFI, Mr. Sayre-Peterson practiced tax law for four years as a staff counsel with the California State Board of Equalization. Before entering state service, he spent two years in private practice, specializing in appellate work and lobbying.

“We are extremely pleased that Ken Sayre-Peterson is teaming up with Joseph & Cohen. Ken is one of the preeminent financial institutions lawyers in California.  His many years of bank and credit union regulatory expertise and financial services legislative skills  coupled with the firm’s well regarded financial services practice, deepens and expands Joseph & Cohen’s ability to offer complete legal solutions to banks, thrifts, money transmitters and other financial institutions,” said Jonathan D. Joseph, Joseph & Cohen’s Managing Partner.

Joseph added “Ken’s insider perspective from more than two decades with the Department of Financial Institutions allows the firm to provide an unprecedented level of legal Joseph added “Ken’s insider perspective from more than two decades with the California services  to money center, regional and community banks in connection with their most complex acquisitions, transactional and regulatory imperatives while also lending unparalleled strength to our existing team that advises troubled banks and defends officers and directors of failed banks in all types of enforcement proceedings.”

Ken Sayre-Peterson stated “I’ve known Jonathan Joseph since my early days with the CA DFI. From my vantage point in the Department I’ve admired the quality, integrity and tenacity of his lawyering in matters before the DFI.  Consequently, I am delighted to step back into private practice with Joseph & Cohen and believe that we will achieve significant synergies through our respective talents.”

Throughout his career at the California Department of Financial Institutions, Mr. Sayre-Peterson practiced general financial institutions law which resulted in 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.  Additionally, Mr. Sayre-Peterson was the attorney responsible for assisting the DFI’s Legislative Section.  In that position, Ken spearheaded the recent revision and restatement of California’s Banking Law as newly codified in the California Financial Code, and drafted all legislation necessary to complete that four year project. While serving as the DFI’s General Counsel, Ken also played a major role in the policy making process, influencing both the direction and scope of the DFI’s examination and enforcement program.

Ken Sayre Peterson became a member of the State Bar of California in1983 after graduating from the McGeorge School of Law in Sacramento, with distinction.  He earned a Bachelor of Arts degree in History from California Polytechnic State University, San Luis Obispo, in 1977.

Joseph & Cohen, Professional Corporation, is an AV® rated law firm headquartered in San Francisco, California.  The firm emphasizes complex banking, corporate, regulatory, securities, employment, litigation and transactional matters for financial institutions, small businesses, investors and venture capital firms.  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. The Firm’s core areas include advice related to banking and financial services law; directors and executives; regulatory and legislative matters; mergers & acquisitions; securities offerings; SEC disclosure matters; employment litigation; D & O insurance coverage; money transmitters; bank operations; and regulatory agency enforcement proceedings.

For additional information, visit the firm’s website at www.josephandcohen.com and Facebook at www.facebook.com/josephandcohen.

Contact: Jonathan D. Joseph:   jon@josephandcohen.com or 415.817.9200,  ext. 9; and Kenneth Sayre-Peterson:   ken@josephandcohen.com or 916.204.2053.

Joseph & Cohen Sponsors 2011 Bank President and Directors Conference in Maui

Joseph & Cohen is a sponsor of the Western Independent Banker’s 2011 Bank Presidents, Senior Officers and Directors Conference in Maui, Hawaii.  WIB’s annual conference, attended by leaders of the community banking industry, will focus on preparing for the opportunities and challenges of 2011 and beyond.   Joseph & Cohen is one of the few boutique law firms in California with a core banking law expertise that helps bank CEO’s and bank directors successfully adjust to the opportunities and challenges they face.  Jonathan M. Cohen, one of the firm’s founders, will be a featured speaker at WIB’s “hot topic” session entitled “D & O Insurance: What You Don’t Know Can Cost You,” addressing the highlights and pitfalls found in many, if not all policies and the steps banks should take to ensure that coverage is there, if and when it is needed. This annual event brings together leaders in the banking industry, federal banking regulators and community and independent bank executive officers and directors for four days of high level presentations, conversations and networking.

For additional information, please visit WIB’s website.

Joseph & Cohen, Professional Corporation, is an AV® rated firm based in California that emphasizes complex banking, corporate, regulatory, securities, executive employment and litigation matters for financial institutions, entrepreneurs, businesses, investors and venture capital firms.  Joseph Law 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.

SF Bank Attorneys Association Invites Jonathan Joseph to Speak about Dodd-Frank Wall Street Reform Act

SAN FRANCISCO, CA – July 21, 2010. The San Francisco Bank Attorneys Association (SFBAA) has invited Jonathan Joseph to be its keynote speaker regarding the newly enacted Dodd Frank Wall Street Reform Act at its monthly luncheon to be held at the Merchants Exchange in San Francisco on August 2, 2010.   Mr. Joseph’s speech to SFBAA’s membership entitled “Dodd-Frank Act – Selected Provisions Impacting the Financial Services Industry” will focus on how and why the final financial reform legislation took shape and its implications for banking organizations.

Mr. Joseph, who has over three decades of legal experience in the financial services industry, observed that “The genesis of this far reaching Wall Street Reform and Consumer Protection Act began in 1999 shortly after repeal of the Glass-Steagall Act of 1933, which had mandated a clear demarcation between commercial banking and investment banking for more than six decades. Significant new measures in the Dodd-Frank Act will change the shape of Wall Street and the financial services industry for years to come by filling legal and regulatory gaps and reregulating what had largely been an unfettered environment in which the major financial related companies had become too intertwined to fail.”

The SFBAA is a time honored institution dating back to 1939. Over many years its members have been among the leaders of the legal and business community in San Francisco. Today, its membership includes in-house attorneys from major California banks, outside lawyers in law firms that practice banking law, venture capital attorneys, lobbyists and federal banking and California Department of Financial Institution regulators. Additional information about joining the SF Bank Attorneys Association and attending the monthly luncheon program can be found at the SFBAA website at http://www.sfbankattorneys.com.

Jonathan Joseph has over thirty years of experience representing banking organizations and public companies. He is the founder of Joseph Law Corporation located in San Francisco. His practice is devoted largely to complex banking, corporate finance and board matters, mergers and acquisitions, venture capital and bank regulatory issues. Mr. Joseph is a member of the Financial Institutions Committee of the State Bar of California’s Business Law Section. He has also  been a frequent lecturer and writer on subjects relating to banking, financial institutions, corporate and securities law, mergers and acquisitions and venture capital. For additional information, please visit Joseph Law’s website at www.josephlawcorp.com or contact Jonathan Joseph at 415 817 9200, ext 9.

This press release is provided as a general informational service to clients and friends of Joseph Law Corporation. It should not be construed as, and does not constitute, legal advice on any specific matter, nor does this message create an attorney-client relationship. These materials may be considered Attorney Advertising in some states. Please note that prior results discussed in the material do not guarantee similar outcomes.

Joseph Law Announces Monthly Fixed Fee Model for Employment and Corporate Law Matters as Alternative to Traditional Hourly Billing

SAN FRANCISCO, CAJoseph Law Corporation announced today that it has begun offering a subscription fee model for employment, transactional, corporate and securities law services as an alternative to the traditional hourly billing format utilized by most business oriented law firms.  “Business clients, particularly those with recurring legal costs and matters, are requiring alternative billing models as an option to the hourly rate structure.  The fixed fee subscription provides predictability and drives down legal costs while encouraging clients to seek legal input earlier.  It is a perfect solution for businesses that routinely require employment and HR advice or have recurring transactional, contract, bank regulatory or securities law counseling needs and are tired of ever increasing legal costs,” said Jonathan Joseph, the firm’s chief executive officer.

The fixed fee subscription eliminates hourly billing and provides unlimited legal counseling within all agreed upon core areas.  With a subscription model, the client is empowered to invite its lawyers to participate sooner since the meter doesn’t’ start running every time the client calls. While alternative billing has become more popular in recent years, Joseph Law is one of the first California based law firms to craft a monthly subscription fee model for banks, venture capital firms and public corporations with legal service needs related to transactional work such as venture capital financing, employment and labor law matters including executive compensation, bank regulatory and corporate issues, contract negotiations and securities disclosure matters.

Our fixed fee subscription service is easy to implement.  Each client’s fee is based on that particular client’s needs within defined core areas.  The first month is an initiation month with a flat fee that covers all of our services within the agreed upon core areas. During the month, our lawyers meet with the client’s executives and other key personnel, attend board or planning meetings and otherwise learn the client’s business. At the end of the month, we meet with the client and agree upon a fixed monthly rate going forward.  In practice, the Joseph Law monthly fixed fee model tends to reduce business annual legal costs within defined core areas by as much as 40%.  That fixed rate continues until either party requests an adjustment and is usually reset annually.

The fixed fee or flat fee billing structure is informed by Joseph Law’s senior lawyers’ years as billing partners at large national law firms that emphasized the billable hour model.  Jonathan  Joseph worked as a partner for many years at Pillsbury Winthrop and Kirkpatrick & Lockhart (now known as K & L Gates) while Jonathan Cohen was a litigation partner at Winston & Strawn and Kirkpatrick & Lockhart.

Joseph Law Corporation is an AV® rated firm based in California that emphasizes complex banking, corporate, regulatory, transactional and litigation matters for financial institutions, private businesses, public companies and venture capital firms.  Joseph Law 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, please visit the firm’s website.

For more information:

Jonathan M. Cohen can be reached at jcohen@josephlawcorp.com or at 415.817.9200, ext 8.

Jonathan D.  Joseph can be reached at jon@josephlawcorp.com or at 415.817.9200, ext 9.

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This communication is provided as a general informational service to clients and friends of Joseph Law Corporation. It should not be construed as, and does not constitute, legal advice on any specific matter, nor does this message create an attorney-client relationship. These materials may be considered Attorney Advertising in some states. Please note that prior results discussed in the material do not guarantee similar outcomes.

JOSEPH LAW NEWSBRIEF: FDIC Paves the Way for Private Investors to Recapitalize Troubled Banks and Bid for Failed Banks

The recently announced high profile recapitalization of Pacific Capital Bancorp by investor Gerald Ford and affiliates, coupled with the newest FAQ issued by the FDIC on April 23, 2010, indicates that private equity now has several paths to successfully enter the queue for failed bank acquisitions and troubled bank recapitalizations.  However, it is also clear that the FDIC, as gatekeeper, is primarily opening the door to “patient” money invested by “anchor groups” who are willing to subject themselves to federal bank agency scrutiny.  It remains extremely important for such potential investors to engage qualified bank regulatory attorneys and consult closely and early with the FDIC staff as every prospective transaction will inevitably involve a variety of significant bank regulatory and policy judgments.

At the end of August 2009, the FDIC promulgated its Policy Statement for Failed Bank Acquisitions (“Policy Statement”).  It provided that covered private equity investors will be required to hold their investments in subject institutions for a three year period and agree to other restrictions not applicable to non-covered organizations that acquire failed banks.  On January 6, 2010, the FDIC issued Questions and Answers (“Initial FAQ”) to interpret portions of the Policy Statement. Both the Policy Statement and the Initial FAQ appeared to signal the FDIC’s discomfort with the supervisory risks associated with private investors participating in failed bank acquisitions.  As a result, the ability and willingness of private equity investors to participate in the huge recapitalization needs of the banking industry were stymied.  By default, existing banks and thrifts and their holding companies were favored in connection with failed bank acquisitions.

On April 23, 2010, the FDIC issued new Questions and Answers (“April FAQ”) to clarify elements of the Policy Statement and the Initial FAQ.  The April FAQ helped to clarify, among other things,  the “one-third test” first discussed in the Policy Statement, the applicability of the Policy Statement to “less than 5% investors” and requirements for offshore investors. Additionally, and perhaps most significantly for existing “troubled banks,” the FDIC provided a reasonably clear test of when recapitalizations of existing banking organizations will be exempt from the Policy Statement. As a result, a road map now exists for private investors to participate in failed bank acquisitions and recapitalizations of existing banks.

Private equity investors that are seeking to participate in so called “inflatable” banks or “platform” banks (i.e., smaller healthy banks that are super capitalized with the intention to acquire assets of failed or troubled banks) may find one element of good news in the April FAQ.  The recapitalization standard mentioned above provides that the Policy Statement will not apply to investors if a recapitalized institution acquires one or more failed bank in an eighteen month period following recapitalization if the acquired assets in the aggregate are less than 100% of the recapitalized organization’s total assets.   In the final analysis, the Initial FAQ and the April FAQ make clear that private investors wishing to flip their investments or make quick profits will face overwhelming obstacles.  On the other hand, private investors with a long term investment horizon may now potentially enter the banking arena.

Private equity contemplating investments in existing banking organizations will need to clearly understand the restrictions and limitations in the Policy Statement if the institution they invest in anticipates exceeding the “100% of total assets” threshold.   While the FDIC has offered more clarity about the one-third test and recapitalizations, ambiguity regarding the rules in this area is  still plentiful.  Our sense is that bank holding companies and banks seeking to rely on the recapitalization exemption, should probably commit to private investors in recapitalizations that future bank acquisitions will be structured so that the Policy Statement will not apply.  At this point in the economic cycle, banking organizations and private equity investors must work closely together in consultation with the banking agencies, qualified bank regulatory and transactional lawyers and investment bankers in order to wisely and pragmatically manage the complex legal, regulatory and business risks that exist in the current banking environment.

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References:

  • FDIC, Final Statement of Policy on Qualifications for Failed Bank Acquisitions, August 26, 2009 (http://edocket.access.gpo.gov/2009/pdf/E9-21146.pdf).
  • FDIC, Questions and Answers Posted January 6, 2010 (http://www.fdic.gov/regulations/laws/faqfbqual.html).
  • FDIC, Additional Questions & Answers Proposed to Address Recent Questions – April 23, 2010 (added to the January 6, 2010 Q&As).

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This communication is provided as a general informational service to clients and friends of Joseph Law Corporation. It should not be construed as, and does not constitute, legal advice on any specific matter, nor does this message create an attorney-client relationship. These materials may be considered Attorney Advertising in some states. Please note that prior results discussed in the material do not guarantee similar outcomes.  © 2010 Joseph Law Corporation.  All Rights Reserved.

Joseph Law Corporation ▪ San Francisco, CA 94110 ▪ Tel: 415.817.9200 ▪ www. josephlawcorp.com