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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.

Feds Target Payday Lenders: The New Enforcement Reality

By Marie Hogan and Jonathan Joseph

The President of the United States sent a wake-up call to the payday lending industry in his 2012 State of the Union speech that they are a target of federal enforcement action by the new Consumer Protection Financial Bureau or CFPB.   President Obama exclaimed:

“If you’re a mortgage lender or payday lender or a credit card company, the days of signing people up for products they can’t afford with confusing forms and deceptive practices—those days are over.”

Almost a week before the speech, the Consumer Financial Protection Bureau, the newest federal agency whose name describes its mission, published its guidelines for examinations of short-term, small-dollar lenders (aka “payday lenders”). See www.consumerfinance.gov/guidance.  Payday lenders and other non-bank financial service providers that have never been subject to direct federal regulation will now be under the jurisdiction of the CFPB.

The CFPB’s guidelines and the President’s call out indicate the payday lending industry has clearly been targeted due to perceived abuses. The initial guidelines for the payday lending industry consist of 17 pages and are a supplement to the CFBB’s 802 page examination handbook.  The management and boards of directors of payday lenders that desire to comply with the CFPB’s regulations should familiarize themselves with the guidelines and implement expanded compliance systems.

WHAT is the CFPB’s purpose?

The CFPB will implement and enforce Federal consumer financial law consistently for the purpose of ensuring that all consumers have access to markets for consumer financial products and services and that the market for consumer financial products and services are fair, transparent, and competitive. They will especially target lenders engaging in unfair, deceptive or abusive acts or practices.

WHY payday lending?

Payday loans are supposed to be short term: 14 days. As the name implies, they’re supposed to provide emergency cash to enable consumers to cover short term necessities until the next pay day, when they theoretically should be able to repay the loan.  Critics say this is typically not the case.  Customers often roll-over their debt when they can’t repay it. They wind up living off that borrowed money at an annual interest rate of 400 to 600 percent or more.

Here’s how it works. Let’s say an individual needs $100 and the interest rate for that two week period is 15 percent. The customer writes a postdated check made out to the lender for $115. If the customer can’t pay that amount when the two weeks is up, the lender keeps $15, the loan is extended and another $15 fee is added on.

The CFPB is still in the fact gathering mode regarding the payday industry, holding hearings earlier this year in Birmingham, Alabama.  However, the industry is number two in its list of priorities (see www.consumerfinance.gov/regulations/fall-2011-statement-of-regulatory-priorities).  Richard Cordray, the CFPB’s executive director, said the agency will examine bank and non-bank institutions offering these short-term, small-dollar loans. At the Birmingham hearing, Cordray expressed this sentiment:

“We recognize that there is a need and a demand in the country for emergency credit. At the same time, it’s important that these products actually help consumers and not harm them. We know that some payday lenders are engaged in practices that present immediate risks to consumers and are illegal. Where we find these practices, we will take immediate steps to eliminate them.”

WHAT is the scope of CFPB’s responsibility?

CFPB has responsibility for specified federal consumer financial laws, such as Truth in Lending and the Fair Credit Reporting Act and certain Federal Trade Commission rules, such as the Credit Practices rule.  The CFPB may also issue rules, and even without a rule, it may examine for unfair, deceptive or abusive acts or practices that cause significant financial injury to consumers, erode consumer confidence, and undermine the financial marketplace.

WHICH payday lenders can the CFPB examine?

Any payday lender, in any state, whether regulated or not, can be examined.  The CFPB has the power to take enforcement actions against any payday lender. The first step for the CFPB is an examination of the company for compliance with federal consumer financial laws and unfair, deceptive or abusive acts or practices.   An important point is that the examination guidelines merely provide a roadmap for what a company needs to do.  The CFBP’s guidelines don’t provide detailed direction to a payday lender but the CFBP will provide notice through the examination process regarding the company’s demerits and legal violations.  The CFPB has a scale of 1-5 (one being the best) that will be awarded in an examination.  In general, all payday lenders should strive to earn 1 or 2 ratings in all sub-categories that are reviewed.

The CFPB may investigate and bring administrative enforcement proceedings or civil actions in Federal district court for violations of federal consumer financial laws.  The CFPB additionally may obtain “any appropriate legal or equitable relief with respect to a violation of Federal consumer financial law” including: 1) rescission or reformation of contracts; 2) refund of money or return of real property; 3)  restitution, disgorgement or compensation for unjust enrichment; 4) payment of damages or other monetary relief; 5) public notification regarding the violation; 6) limits on the activities or functions of the person against whom the action is brought; and 7) civil money penalties (which can go either to victims or to financial education).

The CFPB has no criminal enforcement authority; however, it may refer matters it believes may constitute criminal activity to the Department of Justice.

Payday Lender Examinations:   What should management know?

The examination procedures are very much based on bank/financial institution formats.  Here is our list of how this system works based on years of experience and working with the regulatory agencies:

First, policies and procedures must be in writing.  That means the payday lender’s Board of Directors should establish detailed written procedures covering all significant compliance risks and processes.

Second, procedures must address compliance with federal consumer financial laws, as well as addressing other risks.

Third, the Board must be intimately involved in establishing policy, overseeing management and insisting that management comply with its policies.

Fourth, companies must train and monitor their employees.

Fifth, monitor audit procedures and processes and address all criticisms from internal and external auditors, state regulators and the CFPB.

Sixth, compliance must cover “soup to nuts”, meaning from product development to end of customer relationship and every significant step in between.

Seventh, appoint a compliance officer with real authority and responsibility.  For smaller companies, this may be an employee who has other responsibilities, but take steps to assure that the compliance officer is qualified.

Eighth, the company must monitor any third party service providers for compliance with the above.

The CFBP examination objectives are:

1.            To assess the quality of compliance risk management systems, including internal controls and policies;

2.            To identify acts or practices that materially increases the risk of violations of federal consumer financial laws;

3.            To gather facts that help determine whether the lender is engaged in acts or practices that violate the requirements of federal consumer financial laws;

4.            To determine if a violation of a federal consumer financial law has occurred and whether enforcement actions are appropriate.

Which Federal Laws Are Applicable to Payday Lenders?

  • TILA and Regulation Z—TILA is the Truth in Lending Act and Regulation Z require lenders to disclose loan terms and annual percentage rates.  Regulation Z also covers advertising disclosures, proper crediting of payment, proper crediting of credit balances and periodic disclosures.
  • EFTA and Regulation E—EFTA is the Electronic Funds Transfer Act which protects consumers engaging in electronic transfers, including that lenders may not require, as a condition of loan approval, the customer’s authorization for loan repayment through recurring electronic funds transfers.
  • FDCPA—This is the Fair Debt Collection Practices Act which governs collection activities conducted by (a) third party collection agencies and (b) lenders collecting their own debt under an assumed name.
  • FCRA— This is the Fair Credit Reporting Act which, with its regulations, governs furnishing information to credit agencies and the use of credit reports.
  • GLBA – This is the Gramm-Leach-Bliley Act which, together with implementing regulations, requires that furnishers of information to consumer reporting agencies ensure the accuracy of data furnished to the consumer reporting system.
  • ECOA—This is the Equal Credit Opportunity Act which, together with implementing Regulation B, sets requirements for accepting credit applications and providing notice of any adverse action.  Discrimination against a borrower is prohibited, plus discrimination based on public assistance income or because the applicant has exercised any right under the Consumer Credit Protection Act is prohibited.

Some payday lenders do attempt to comply with applicable law.  However, bad actors in the industry have contributed to the perception that widespread abuses exist.   Companies in the “short term small dollar” lending business that desire to avoid potential CFPB enforcement sanctions should implement compliance systems and procedures modeled after those used in the banking industry designed specifically to comply with the laws listed above.  This may entail adding risk and compliance officers to existing management teams, robust internal controls and better policies and procedures.

For additional information contact:

Jonathan Joseph at jon@josephandcohen.com; or

Marie Hogan at mhogan@josephandcohen.com.

Joseph Law Expands its Banking Industry Expertise with Addition of Marie Hogan

SAN FRANCISCO, CA – September 30, 2010. Joseph Law Corporation announced today that it has expanded its banking law expertise through the addition of Marie F. Hogan as Of Counsel to the firm.   Ms. Hogan brings more than thirty years of high level banking experience to the  firm with a core emphasis on representing commercial banks and financial service companies in connection with mortgage lending, bank operations, loan workouts, consumer law and compliance, credit and debit cards as well as bankruptcy and insolvency matters.

“We are extremely pleased that Marie Hogan is teaming up with Joseph Law. Her depth of industry knowledge as well as her hands-on experience in consumer compliance, loan workouts, regulatory and mortgage lending will benefit our clients in this post Dodd-Frank era.  Marie really rounds out our ability to offer complete legal solutions to financial institutions,” said Jonathan Joseph, the firm’s chief executive officer.

Marie Hogan brings to Joseph Law Corporation many years of working hand in hand with the business people who develop necessary and useful financial products for their customers.  In a regulated industry, Marie Hogan has the skills to navigate the many new regulations that will be  enacted pursuant to the Dodd-Frank Act.  The firm will now offer Ms. Hogan’s services to our banking clients  to enable them to bring cutting edge products to the market and to help them comply with numerous new consumer, lending and other regulatory requirements.

Marie Hogan’s experience has included senior positions at Bank of America, World Savings and Schwab Bank. Ms. Hogan also served as chair of the Executive Committee of the Business Law Section of the California State Bar 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.

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.

For additional information, please visit the firm’s website at www.josephlawcorp.com or call Jon Joseph at 415.817.9200.

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.

Jonathan Joseph to Present “Dodd-Frank Executive Compensation and Corporate Governance” Webinar for CalBar

SAN FRANCISCO, CA – August 12, 2010. Joseph Law Corporation announced today that its Managing Partner, Jonathan D. Joseph, will present “Dodd-Frank’s Corporate Governance and Executive Compensation Requirements For Public Companies:  Why Planning Now For 2011 is Essential”  via a live 60 minute webinar on August 18, 2010.  The Calbar’s description of Mr. Joseph’s webinar presentation states:

“The Dodd-Frank Wall Street Reform and Consumer Protection Act or “Dodd-Frank” was enacted on July 21, 2010.  Commencing in 2011, a non-binding shareholder “Say on Pay” vote to approve executive compensation may be the most profound executive pay provision in Dodd-Frank. Each public company must also ask its shareholders whether future Say on Pay votes should take place every one, two or three years (Say When on Pay).  When mergers or other acquisitions are submitted to shareholders, public companies will also be required to submit golden parachutes to shareholders for approval (Say on Golden Parachutes). Other notable provisions require enhanced independence for board compensation committees and their advisers and claw backs of erroneously awarded executive compensation as well as new descriptions of pay versus performance and internal pay equity metrics.  Dodd-Frank also explicitly authorized the SEC to adopt “proxy access,” a procedure where shareholder submitted board nominees will be included in the company’s proxy solicitation materials.   Say on Pay, Say When on Pay and Say on Golden Parachutes are far from meaningless.  These new corporate governance requirements will impact as many as 10,000 companies. Learn What is Required, What Isn’t Clear and Pragmatic Steps to Consider Now from a corporate securities practitioner with more than three decades of experience. This webinar is appropriate for inside and outside corporate legal advisers, board members, Board and Compensation Committee Chairman, CEOs, CFOs and investor relations personnel.”

The 60 minute webinar will be presented by Jonathan Joseph live online at 1:00 pm on August 18, 2010 via the CalBar’s website and will be retained in the Calbar’s CLE online archives ensuring that the program  will be available in the future to interested persons including California lawyers seeking participatory continuing legal education credit.  The archived webinar will be available after August 18 at www.calbar.org/online-cle and then clicking on “Tele-Seminars and Webinars”.

Jonathan Joseph is the Managing Partner of Joseph Law Corporation. His practice is devoted largely to complex banking, corporate, mergers and acquisitions, venture capital and bank regulatory matters. Mr. Joseph is a current member of the Financial Institutions Committee of the State Bar of California’s Business Law Section. He has been a frequent lecturer and writer on subjects relating to banking, financial institutions, corporate and securities law, mergers and acquisitions and venture capital.  Mr. Joseph is also a member of the New York and DC Bar.

For more information contact Jonathan  Joseph at jon@josephlawcorp.com or 415 817 9200.

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 NEWSBRIEF — “Say On Pay”: Lessons From Keycorp’s 2010 “No On Pay” Vote

By Jonathan D. Joseph*

President Obama is expected to sign the Dodd-Frank Bill in July.  Upon signing, a   mandatory shareholder vote requirement related to executive compensation known as “Say on Pay” will become applicable to about 10,000 public companies. During the 2010 proxy season, just over 600 public companies included “say on pay” votes in their proxy statements, but only three failed to obtain “say on pay” approval from their shareholders.

One of the three companies whose shareholders rejected executive pay practices in 2010 was Keycorp, an Ohio based regional bank holding company. At its recent annual meeting, 55 percent of the Keycorp shareholders voted against the company’s executive pay practices and it became the first (and only) U.S. banking organization to have a majority of shareholders reject its compensation practices.  The other two U.S. issuers that received “no on pay” votes in 2010 were Motorola and Occidental Petroleum.

Why did Keycorp become the only U.S. banking organization to generate majority opposition to its pay practices while its regional bank peer group and all of the largest U.S. banking organizations did not receive such a rebuke? Prudent senior management teams and public company directors should try to understand the answer to this question well in advance of the 2011 proxy season. Independent compensation committees and management teams that reasonably address existing “red flags” this year should have little trouble obtaining majority say on pay approvals in 2011.

Did Major Proxy Advisory Services Rebel Against Keycorp in 2010?

Published reports suggest that the large dissent appears to have been motivated by a disconnect between large CEO pay increases and KeyCorp’s lagging financial performance. In deed, Keycorp posted losses of $1.34 billion and $1.47 billion for 2009 and 2008, respectively.  This suggestion, while undoubtedly accurate, glosses over some critical blunders by Keycorp’s compensation committee related to executive pay disclosures and 2009 compensation decisions.  Numerous other banking organizations posted losses and other regional bank peers increased executive compensation in 2009 (e.g., Fifth Third Bancorp, Regions Financial and PNC Financial), but all received overwhelming “say on pay” approvals.

It is important to note that “say on pay” votes are nonbinding advisory votes and that the boards of public companies are under no fiduciary obligation to follow or consider the votes.  However, shareholder rejection of executive compensation practices sends a strong message to management and directors to revisit and revise problematic pay policies since compensation committee members and other directors that don’t respond adequately may be on the hot seat the following year.  Additionally, unlike prior years, the Dodd-Frank Bill prohibits discretionary broker voting, also known as  broker non-votes, in connection with executive compensation proposals. This will set the bar higher for say on pay votes in future years.

The 2009 base salary of KeyCorp’s CEO rose to $1.6 million from $1 million, according to SEC disclosures, and the compensation committee increased his annual base salary by $2.3 million in September 2009.  Overall, the CEO’s pay package was reported to be worth about $5.1 million in 2009 compared to $4.5 million in 2008.  His restricted stock and option awards were $3.4 million as of the date they were granted, up from $3.3 million in 2008.  The CEO, who has been an employee for 37 years, also had an accumulated supplemental pension benefit totaling more than $21 million.

It isn’t easy to tease out the factors that motivate shareholders to disapprove compensation practices. Increasingly, however, a number of proxy advisory services such as Institutional Shareholder Services (ISS), Glass, Lewis & Co. (Glass Lewis) and Proxy Governance, Inc. (PGI) influence the outcome of many public company proposals – including say on pay.  Thus, boards and executives should be especially mindful of the proxy voting policies of the major shareholder advisory services on management say on pay proposals.  Keycorp’s shares are mostly held by institutional holders – recent figures indicate about 83%.  Since the final no vote tally equaled 55 percent, well over half of Keycorp’s institutional investors must have voted against the proposal.

It is reasonable to conclude that the major reason many of Keycorp’s institutional investors dissented was because one or more of the major proxy advisory services recommended against Keycorp’s say on pay proposal.

Problematic Pay Practices Trigger No on Pay Votes

The likelihood that shareholder advisory services, large institutional shareholders and other sophisticated shareholders will vote against management say on pay proposals is directly related to the level of problematic pay practices that are identified for a company. No single problematic practice or red flag will necessarily cause a significant vote shift, but when the compensation problems accumulate, the likelihood of a shareholder revolt or proxy advisory dissent recommendation increases exponentially.

Keycorp’s 2010 proxy statement revealed numerous red flags including, among others, the following: (i) Keycorp did not achieve the 2009 overall profitability or credit quality performance measures that had been set by the compensation committee; (ii) in September 2009, the CEO was awarded a $2.3 million annualized  base salary increase, which upped his 2009 base by over $600,000 in the fourth quarter and locked in a significant base compensation increase for the subsequent year; (iii)  the CEO and three other named executive officers received “time-lapse” option grants that were significantly larger than any other option grants in recent company history and which contained no performance vesting criteria; (iv) the comp committee only considered  peer group benchmarks for total pay rather than separately benchmarking each significant compensatory element; (v) the comp committee didn’t freeze the company’s supplemental pension plans until January 2010, allowing the CEOs accumulated retirement benefit to increase during 2009 by almost $3 million to over $21 million; (vi) the compensation committee lowered its executive stock ownership requirements from  2008 levels; and (vii) the compensation discussion and analysis (CD&A) was vague, confusing and failed to adequately offer the “why” as to many of the company’s compensation decisions.

The above described pay practices, while not exhaustive, are indicative of the types of factors that can be catalysts for careful scrutiny and dissent by investors.  Practices that are inconsistent with a performance-based compensation philosophy, poorly designed incentives that promote excessive risk-taking or that don’t encourage long-term value creation and conflicts of interest should be frowned upon as they could contribute to a rejection of a company’s executive compensation by shareholders.  More than ever, compensation committees will need to take a fresh look at executive compensation with the assistance, whenever appropriate, of independent consultants and legal advisers.

Say On Pay Outcomes in 2011 Will Be Determined Based on 2010 Decisions

Compensation disclosures in the 2011 annual meeting proxy statements of all public companies will be based on compensation practices and decisions made in 2010.  To achieve a successful say on pay vote in 2011, it is important for boards and management to understand that the “say on pay” proposal will be based on a resolution that asks shareholders to approve the 2010 compensation of executive officers as set forth in the proxy statement.  This means that potential problematic pay practices and concerns of key shareholders (and proxy advisory services) should be identified as soon as possible so that appropriate mitigation procedures and policies can thoughtfully be implemented in advance of the next annual meeting. Companies should not underestimate the fact that broker non-votes will not be permissible in connection with executive compensation proposals commencing in 2011.

______________________________

For more information contact:

Jonathan D. Joseph at 415.817.9200, ext 9 or Jonathan Cohen at 415.817.9200, ext 8.

*Jonathan D. Joseph is the founder and Chief Executive Officer of Joseph Law Corporation,  San Francisco, CA. His practice is devoted largely to complex corporate, banking, securities, venture capital and bank regulatory matters. The firm also has an executive compensation, labor and employment and litigation practice. Mr. Joseph has been a frequent lecturer and writer on subjects relating to banking, financial institutions, corporate and securities law, mergers and acquisitions and venture capital. Mr. Joseph is a member of the California, New York and DC Bar.

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 herein do not guarantee similar outcomes.  © 2010 Joseph Law Corporation.  All Rights Reserved.