Unprecedented FCPA Wake-Up Call for U.S. Broker-Dealers and Foreign Banks: Has the Perfect FCPA Storm Finally Arrived for U.S. Financial Markets?

On May 7, 2013, the U.S. Attorney’s Office for the Southern District of New York (SDNY) unsealed extraordinary criminal charges against two registered representatives of a U.S. broker-dealer and a high-level Venezuelan government official for engaging in a “Massive International Bribery Scheme.” What makes this fraud scheme remarkable is that it involves the activities of a U.S. broker-dealer, its client, a foreign-owned and controlled bank, the Foreign Corrupt Practices Act (FCPA) and several suspicious transactions that potentially should have raised concerns—a perfect storm. This case may be the catalyst that jump-starts a government FCPA sweep of Wall Street that has been predicted since 2011, but not realized.

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District Court Clarifies Distinction Between Burdens of Proof on Stay Relief and Adequate Protection in American Airlines Bankruptcy

In AMR Corporation, et al., Debtors, Case No. 12-3967, 2013 WL 1339123 (S.D.N.Y. April 3, 2013), the United States District Court for the Southern District of New York acknowledged that to be granted relief from the automatic stay under 11 U.S.C. § 362(d), a secured creditor has the initial burden to show that there has been a decline—or at least a risk of decline—in the value of its collateral.
Only then will the burden shift to the debtor to prove that the value of the collateral is not, in fact, declining. On the other hand, for purposes of adequate protection under 11 U.S.C. § 363(e), the secured creditor need only establish the validity, priority or extent of its interest in the collateral. At that point, the debtor bears the burden of proof under § 363(e). The distinction between the respective burdens of proof in §§ 362(d) and 363(e) can be a significant consideration for the formulation of a secured creditor’s strategy at the outset of a chapter 11 case.

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A New Legal Perspective on ACH Fraud

A Missouri court recently handed down a judgement in an ACH/wire fraud dispute between Choice Escrow and BancorpSouth, and in a change from rulings in similar cases, this judgment favored the bank. The judge’s findings may well impact how other cases are decided in the future.

Partner Joseph Burton comments in Bank Info Security on the case and what the decision may mean going forward. Click here to read the article and listen to the interview.

Chapter 11 Single Asset Real Estate Cases Dismissed For Cause

The United States Bankruptcy Appellate Panel of the 6th Circuit affirmed the Bankruptcy Court dismissal of five single – asset real estate Debtors’ Jointly Administered Chapter 11 cases under the “For Cause” dismissal provisions of the United States Bankruptcy Code, 11 U.S.C.A. § 1112 (b). see In re Creekside Senior Apartments, LP, et al., 2013 WL 1188061 (6th Cir. BAP Ky.)

The Debtors appealed from the bankruptcy court determination which dismissed five single asset real estate cases. Each Debtor owned a parcel of real property on which it operated a low-income housing apartment complex. In order to demonstrate that cause exists to dismiss a case the moving party must demonstrate that there is both a (1) substantial or continuing loss or diminution of estate assets and (2) an absence of a reasonable likelihood of rehabilitation.

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Bankruptcy Dollar Amount and Form Changes that May Affect You

Adjustments to certain dollar amounts in the Bankruptcy Code may affect your decision and strategy to either file a bankruptcy or in defending certain actions filed against you or your company. The automatic adjustments to the dollar amounts in various provisions of the Bankruptcy Code, 11 U.S.C. 101 et seq. went into effect on April 1, 2013. You may access the official forms by clicking the following link to the United States Courts:

www.uscourts.gov/…/BankruptcyFormsPendingChanges.aspx

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First ADA ATM Accessibility Class Action Lawsuit Is Filed in Atlanta

Pittsburgh-based law firm, Carlson Lynch, responsible for the filing of over 100 nearly identical Americans with Disabilities Act (ADA) ATM class action lawsuits in federal district courts in Pennsylvania and Texas since March 2012, filed in federal district court in Atlanta last week the first of what are likely to be many ADA ATM accessibility class action lawsuits against Atlanta-area banks. If the plaintiff and plaintiff’s law firm follow the same strategy that was used in Pennsylvania and Texas, it is anticipated that a number of virtually identical class action lawsuits will be filed by against Atlanta-area banks, and banks throughout Georgia, over the course of the next several days and weeks.

Click here to read more about the more salient ADA ATM requirements.

CFPB Issues Warning to Mortgage Servicers

On February 11, 2013, in response to the increased volume of mortgage servicing transfers and the potential impact of these transfers on consumers, the Consumer Financial Protection Bureau (CFPB) issued a bulletin to mortgage servicers, both banks and nonbanks, advising them of their legal obligations to protect consumers during loan transfers. The bulletin indicates that the CFPB is particularly concerned about lost paperwork during transfers, service interruptions when loans are transferred during the loss mitigation process, and wrongful foreclosures.

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Revised Common Level Ratio for Philadelphia May Result in Tax Refund

Every year, the Commonwealth of Pennsylvania State Tax Equalization Board (“STEB”) establishes a common level ratio (“CLR”) of assessed value to market value of real estate for each of Pennsylvania’s 67 counties for the prior calendar year, which are to be issued by the July 1 effective date. In 2012, however, the CLR for Philadelphia was not established until December, and published in early January 2013- prior to that time, the previous year’s CLR of 25.2% was used. The recently published CLR for Philadelphia, effective July 1, 2012 through June 30, 2013, is 30.6%.

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CFPB Considers Regulating Retirement Investment Industry

Bloomberg has reported that the U.S. Consumer Financial Protection Bureau, which was established by the 2010 Dodd-Frank Act, is considering whether to assert itself into the regulation of the consumer retirement investment business. Its chairman, Richard Cordray, is quoted as saying “That’s one of the things we’ve been exploring and are interested in in terms of whether and what authority we have”. Institutions, including Fidelity Investments, the Vanguard Group, JPMorgan Chase & Co. and Charles Schwab Corp., hold more than $19 trillion in retirement assets, such as IRA and 401K accounts. The retirement investment industry is already heavily regulated by the S.E.C. and the Department of Labor. Since its establishment in 2011, the Bureau has focused its regulatory purview on consumer financial products like mortgages and credit cards.

ATM Accessibility Class Action Lawsuits In Pennsylvania Show No Signs of Slowing Down

Pittsburgh-based law firm Carlson Lynch has now filed sixty-eight Americans with Disability Act (“ADA”) ATM class action lawsuits in Pennsylvania Federal District Courts against banks operating in Pennsylvania and surrounding states, and it does not appear that the filings are going to stop anytime soon.

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