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.
Press Contact: Jonathan Joseph at Joseph & Cohen, 415-817-9200, ext. 9 or firstname.lastname@example.org.
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.
Press Contact: Jonathan Joseph at Joseph & Cohen, 415-817-9200, ext. 9 or email@example.com.
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.
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.
By Jonathan Joseph*
The total number of bank failures since the banking crisis began in 2008 is now dangerously close to 400. To date, the FDIC has only filed 14 lawsuits against failed bank directors and officers from thirteen different failed banks. A total of 103 former bank directors and officers have been named in these suits.
Based on published statistics and our own analysis of U.S. bank failures from 2008 to September 16, 2011, we believe that approximately 80 additional suits will be brought by the FDIC, as receiver, in the next two years. While the FDIC’s investigation and claim process has moved slowly, the number of damage suits authorized and filed is quickening and, we expect, will spike in 2012.
In August 2011, 5 new suits were filed, more than double any previous month. Currently, the FDIC’s website states it has authorized suits in connection with 32 failed institutions against 294 individuals for D&O liability with damage claims of at least $7.2 billion. All but one of these suits involved banks that failed prior to July 2009. Consequently, while 14 lawsuits have been filed and the FDIC has approved claims against an additional 191 directors and officers who served 18 different failed banks, this significantly understates the number of new suits to be filed and D&O’s to be named.
The current round of bank failures began somewhat slowly in 2008. The closing of IndyMac Bank in July 2008 marked the beginning of a huge acceleration of failures with 140 failures in 2009 and 157 in 2010. The pace has slowed in 2011 with 71 failures year to date. Some of the 18 authorized FDIC lawsuits not yet filed may settle; however, the FDIC will approve additional lawsuits against bank directors and officers at an increased pace in the ensuing months because 252 or 64 percent of the current round of bank failures occurred between July 9, 2009 and December 31, 2010. The FDIC is now approaching the decision point in many of these pre-2011 failures including the retention of outside law firms to prosecute damage claims on its behalf, as receiver.
D&O liability suits are generally only pursued if the FDIC concludes they are both meritorious and cost-effective. Before seeking recoveries from individual directors and officers, the FDIC conducts an investigation into the causes of the failure. The FDIC states on its website that investigations are usually completed within 18 months from the time the institution is closed, but lawsuits typically aren’t filed for another few months to a year. Investigations can extend longer and lawsuits are sometimes filed just before the third anniversary of a bank’s failure.
Here are some illustrations: Georgia’s Silverton Bank failed on May 1, 2009 and suit was filed on August 22, 2011 (27 months). Haven Trust Bank in Georgia failed on December 12, 2008 and suit wasn’t filed until July 14, 2011 (32 months). Cooperative Bank in North Carolina was closed in June 2009 and suit was filed August 10, 2011 (26 months). On the other hand, Wheatland Bank in Illinois failed on April 23, 2010 and suit was filed on May 5, 2011 (13 months). With $11.2 billion in assets, San Francisco based United Commercial Bank was closed and most of its assets were assumed by East West Bank on November 6, 2009. Yet after almost two years, no public announcement of FDIC damage claims against any of UCB’s executive officers and directors have surfaced. United Commercial Bank was California’s largest ever commercial bank failure.
Not all bank failures result in Director and Officer (D&O) lawsuits. The FDIC brought claims against directors and officers in 24 percent of the bank failures between 1985 and 1992. Since July 2009, the FDIC was named receiver at 323 failed banks. Bank failures have been most heavily focused in Georgia (70), Florida (56), Illinois (45), California (37), Washington (17) and Minnesota (16). If one assumes the same 24 percent ratio of suits from the 1985 – 1992 era will be repeated in connection with failures since June 2009, former directors and officers of about 80 additional banks could be targets of FDIC damage suits in the next two years in addition to the 14 suits already underway. The actual number could be somewhat higher but we doubt it will be much lower.
Prior to filing a lawsuit against a director or officer of a failed bank, staff for the FDIC, in its capacity as the receiver (or outside counsel representing the FDIC as receiver), will mail a demand letter to the bank’s officers and directors asserting the FDIC’s claims for monetary damages arising out of the bank’s failure. These demand letters typically do not distinguish between the different roles that officers and directors may have played under the circumstances nor is much effort made (at this point in the process) to determine which officers and directors in a particular organization may have been negligent, grossly negligent, breached fiduciary duties or wasted assets.
In a number of recent suits, the FDIC has focused on outside directors that had more banking industry expertise than other directors (i.e., directors of Silverton Bank) who were not themselves professional bankers. Directors with lending, accounting and CPA expertise may potentially be held by FDIC to higher standards, which could make them more visible targets. Often the FDIC’s demand letter is sent to trigger a claim under the bank’s director and officer liability policy and as part of an attempt to settle with the responsible parties. If a settlement cannot be reached, however, a complaint will be filed, typically in federal court. Thus, in many of the upcoming lawsuits, the FDIC may pursue claims against individuals but will also focus on the insurance proceeds that could be available in connection with many failures especially those that occurred prior to 2011 (when regulatory exclusions were not as widespread).
It is crucial that officers and directors of a troubled or failed bank retain knowledgeable insurance coverage and bank regulatory counsel to assert rights to coverage under the bank’s liability policies and to determine whether the facts and circumstances raise unique or special legal defenses. Officers and directors of all distressed banks should attempt to retain experienced outside counsel prior to a bank’s failure as the bank’s existing counsel will usually be conflicted out upon failure. Notice of circumstances that could give rise to coverage under a policy should be filed with insurers on a timely basis (usually pre-failure) and written follow-up by coverage counsel with insurers post-failure is often be necessary. If a director or bank officer hasn’t done so prior to failure, they should always retain experienced counsel at the first hint of an investigation or demand arising out of the bank failure.
In many of cases, the FDIC’s ultimate objective will be the recovery of D&O insurance proceeds. For this reason, it is often advisable to retain a combined legal team that has the capability to address insurance issues, liability and damage claims, regulatory enforcement actions (such as banking industry bans and civil money penalties) and, in rarer cases, criminal probes and indictments.
*About the Author: For over thirty-two years, Jonathan Joseph has focused on the representation of community and regional banks and officers and directors of distressed and failed banking organizations in connection with regulatory, transactional and corporate matters. He is a member of the Financial Institutions Committee of the California State Bar and a leading banking industry lawyer in California. Mr. Joseph founded the firm of Joseph & Cohen, Professional Corporation, in 2006 and is its Chief Executive Officer. Joseph & Cohen currently represents financial institutions and officers and directors of troubled and failed banks from its office in San Francisco, CA.
For additional information, please email the author: Jon@JosephandCohen.com.
© Joseph & Cohen, Professional Corporation. 2011. All Rights Reserved.
In a victory for consumer privacy rights, the California Supreme Court recently ruled that Jessica Pineda’s rights under the Song-Beverly Credit Card Act were violated when a clerk at specialty retailer Williams-Sonoma asked for and recorded her ZIP code in connection with an in-store purchase with her credit card. The unanimous opinion, written by Justice Moreno, concluded that an individual’s ZIP code is protected “personal identification information” that businesses in California cannot request for in-store purchases with a credit card, and then record that information for purposes unrelated to approving the credit transaction. In the longer term, it is likely that information collected by retailers for authentication purposes will need to be separate and distinct from personal information collected for marketing purposes.
The Court’s well-reasoned opinion slapped two California lower courts which had ruled squarely for Williams-Sonoma. Citing Webster’s New International Dictionary, among other sources, the Supreme Court held that a consumer’s ZIP code is certainly personal identification information (“PII”) protected by the Credit Card Act. The rationale of the lower courts, including an analysis based on the obscure doctrine of ejusdem generis, was roundly rejected. The Appeals Court had argued a ZIP code is not protected PII because it pertains to a group of individuals compared to a home address and phone number, both of which are protected. Justice Moreno wasn’t impressed, pointing out that a group of individuals may well live in the same household and a home phone number may be used by multiple persons.
The Court’s analysis was premised on a sounder grasp of how technological and search engine advances in recent years allow business enterprises to invade the privacy of consumers. The Court noted that the purpose of the Song-Beverly Act was to prevent retailers’ misuse of a consumer’s personal information for their own business purposes such as in-house marketing efforts, or to sell to direct mail or telemarketers. The Court’s ruling blocks retailers from “end-running” the law since readily accessible technology allows a cardholder’s ZIP code to be combined with the cardholder’s name to locate his or her full address. This accumulated information is then used by the retailer for its own purposes without the consumer’s consent, as alleged in the Williams-Sonoma case.
Retail and other businesses have a legitimate right to safeguard against fraud in connection with purchases by consumers. They still have the right to require positive identification as a condition to accepting a credit card such as a driver’s license or a state issued identification card. The store may match the name on the ID to the name on the credit card and visually compare the photo image on the ID to the presenting cardholder, provided that none of the information may be written or recorded, including the ZIP code.
The decision, entitled Pineda v. Williams-Sonoma Stores, Inc., is limited to card present transactions where the cardholder physically presents his or her card to the retailer. Some businesses may still legitimately request a ZIP code if the information is needed to complete the transaction. For instance, gas stations that require the customer to enter a zip code at the pump should still be able to do so assuming the oil company does not record the information and credit card processor requires the information to authorize the charge. ZIP code or other address information may still be collected if it is needed to complete the delivery of merchandise purchased at a store or via online transactions.
The decision was delivered on February 10, 2011. Since then, more than 100 class action suits have been filed against other major retailers including Big 5 Sporting Goods, Bed Bath & Beyond, JC Penney, Kohl’s, Office Depot and WalMart. The circumstances related to some of these businesses may be different than the Williams-Sonoma decision. Consequently, we expect that the outcomes in some of the new cases will vary. Many of the suits were filed in San Francisco County Superior Court in early March including cases against Pier 1 Imports, Sephora, T.J. Maxx, Marshalls, Urban Outfitters, Coach, Pottery Barn, Sur La Table and West Elm.
Questions regarding the business implications of Pineda v. Williams-Sonoma should be directed to Jonathan D. Joseph at Joseph & Cohen, Professional Corporation.
© Joseph & Cohen, Professional Corporation. All Rights Reserved.
Joseph Law Announces Monthly Fixed Fee Model for Employment and Corporate Law Matters as Alternative to Traditional Hourly Billing
SAN FRANCISCO, CA – Joseph 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 firstname.lastname@example.org or at 415.817.9200, ext 8.
Jonathan D. Joseph can be reached at email@example.com or at 415.817.9200, ext 9.
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 Corporation Adds Litigation and Employment Law Specialties with Addition of Jonathan M. Cohen
San Francisco, CA — April 27, 2010. Joseph Law Corporation announced today that it has expanded its complex litigation and employment law expertise through the addition of Jonathan M. Cohen as Of Counsel to the firm.
“We are extremely pleased that Jonathan Cohen is teaming up with Joseph Law Corporation. With his extensive state and federal court litigation expertise as well as his experience providing pre-dispute advice in the areas of complex commercial transactions, executive compensation and employment law, we have rounded out our ability to offer complete legal solutions to public companies and private businesses,” said Jonathan Joseph, the firm’s chief executive officer.
Jonathan Cohen brings many years of trial experience to Joseph Law Corporation. He concentrates his practice on complex litigation as well as pre-dispute counseling. His practice includes executive compensation negotiations and employment law, including wrongful termination litigation, harassment, retaliation and discrimination. His trial experience includes class actions, complex commercial disputes, insurance coverage, real estate, product liability, securities, commodities and derivative litigation. He has represented clients in state and federal court in addition to domestic and international arbitrations and mediations. Prior to joining the Joseph Law Corporation, Mr. Cohen was a partner in the San Francisco office of Winston & Strawn LLP. Jon Joseph and Jonathan Cohen initially met eight years ago when they were partners in the San Francisco office of K & L Gates (previously known as Kirkpatrick & Lockhart Nicholson Graham LLP).
Joseph Law Corporation is an AV® rated firm based in California that emphasizes complex banking, corporate, regulatory, securities and transactional 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.