The financial services industry continues to experience rapid changes. Compliance requirements continue to grow in significant ways as regulatory changes and risk management issues become more complex and require greater resources and management attention. The CFPB, AML, BSA and OFAC are now as much a part of the financial services lexicon as notions of lending, product development and liability management. Traditionally, lending was driven by a lender’s unique plan to deploy assets to achieve a desired return in light of that lender’s liability mix and capital structure. However, lending is now impacted by intrusive regulations that limit certain regulated lenders’ ability to engage in highly leveraged transactions (HLTs), leaving those HLT transactions to unregulated lenders. Banks and non-bank lenders are finding that they often have to work together to ensure that borrowers are able to secure all of the credit they need to operate and grow their businesses.
Holland & Knight's Banking Group thoroughly understands the fundamental concepts and interrelationships of these complex laws and regulations as well as the nuances necessary to navigate through them both safely and favorably. With a wealth of experience, a strong technical understanding and a firm grasp of the issues that financial institutions face, our banking law attorneys formulate practical solutions to address our clients’ needs.
The Regulatory Framework
Our lawyers have substantial knowledge of and experience in the federal, state and international regulatory schemes within which banks and other financial institutions operate. We routinely represent banking clients before the Federal Reserve, the OCC, the OTS, the FDIC and state banking departments. We have represented numerous institutions in the filing and processing of applications for de novo bank charters, fiduciary powers, deposit insurance, changes in bank control and bank holding company formations. For clients with a focus on Florida, our Banking Group includes a former general counsel to the Florida Department of Banking and Finance (now the Office of Financial Regulation), the Florida regulatory agency responsible for the chartering and supervision of state banks, trust companies, thrifts and licensed operations of international banking corporations.
Our International Banking Practice is diverse, both in terms of the clients we serve and the range of legal services provided. We regularly represent foreign banks, building societies, holding companies and other financial institutions seeking to establish federal branches, Edge Act corporations, international agencies or representative offices in the United States. We have worked extensively with foreign banks in the conduct of their U.S. activities, and routinely represent them before the Federal Reserve, the OCC, the FDIC and state banking agencies. We also frequently represent foreign financial institutions and foreign nationals in cross-border transactions in which they seek to acquire controlling interests in domestic banks, thrifts and other financial institutions.
Bank Products and Services
Our team frequently provides legal advice and assistance to banks in structuring the sale and delivery of retail products and services to their customers, and in preparing the contractual documents necessary to effect the transactions. In this respect, we are knowledgeable of the privacy, licensing and consumer protection laws and regulations governing these services and products, including the Gramm-Leach-Bliley Act, the SAFE Act, the Electronic Funds Transfer Act, Check 21 and Truth in Savings. Our lawyers routinely assist financial institutions in the development of their treasury management products and services, including positive pay agreements, remote deposit capture agreements and ACH agreements. We also have drafted and advised banking clients on information sharing and joint marketing agreements with other financial institutions and on networking agreements with securities broker-dealers pursuant to the Interagency Statement on the Retail Sale of Nondepository Investment Products.
Our lawyers have substantial experience advising lenders and other credit parties in structuring, documenting and closing complex credit facilities. The types of credit facilities are as varied as the businesses that require them. We handle cash flow, asset-based, senior lien, junior lien, real estate secured, mezzanine and other types of structures, whether in single lender, club deals or syndicated scenarios. The asset classes used to secure the credits are as varied as the deal structures, including traditional inventory and accounts receivable, aircraft and vessels and even fine art. Equally as important, our lawyers are well-versed in the post-closing monitoring of credit facilities as well as related workouts and eventual enforcement of lender rights relating to facilities in default.
Our team has substantial knowledge of the laws and regulations pertaining to consumer lending, including the Truth in Lending Act and Regulation Z, the Fair Credit Reporting Act, the CARD Act and the Equal Credit Opportunity Act, and we regularly represent financial institutions in connection with consumer credit disclosures, privacy issues and a full range of other consumer compliance matters. We also represent banks with credit card lending and payment processing, and negotiate and draft agency agreements for POS transactions.
BSA and USA PATRIOT Act Compliance
Recognized for our knowledge and experience with Bank Secrecy Act (BSA) compliance, our Banking Group attorneys frequently lecture on the BSA at national anti-money laundering conferences and seminars, and have published nationally on the law and its provisions. Because of the depth of experience in these critical areas, we are well-suited to provide representation in matters relating to federal and state anti-money laundering and know-your-customer statutes and regulations, as well as in the development and implementation of effective anti-money laundering programs. Lawyers in our Banking Group have represented banks and other financial institutions before the U.S. Department of Justice, the Department of the Treasury, the Financial Crimes Enforcement Network (FinCEN), and state law enforcement agencies on BSA and money laundering issues.
Mergers and Acquisitions
Our attorneys have represented numerous financial institutions in connection with various corporate acquisitions, dispositions, consolidations, mergers, receiverships, reorganizations, re-capitalizations and cross-border M&A transactions. In fact, Holland & Knight lawyers have extensive experience representing foreign banks and individuals seeking to acquire U.S. financial institutions.
Troubled or Failed Banks
We frequently provide counsel to banks and thrifts that have been found by the bank regulatory agencies to be in a troubled condition. Our lawyers counsel banking clients on matters involving Capital Directives, Prompt Corrective Action (PCA) Directives, Cease and Desist Orders and Memoranda of Understanding. We also have substantial experience counseling boards of directors and executive management of financial institutions in appropriate corporate governance measures when facing imminent insolvency and seizure by the FDIC as receiver. Additionally, we also have represented former officers and directors of failed institutions in connection with claims of gross negligence, breach of fiduciary duty, and failure of loyalty asserted against them by the FDIC as receiver. Because many such claims are subject to the bank's director and officer liability insurance policy, we work closely with the issuer of the policy to ensure that coverage is extended to the former directors and officers.
Our team actively represents lenders who lend against the value of fine art. Typically these deals involve individuals who use their valuable art collections as security for loans. Some of these borrowers have art collections worth in excess of $1 billion, and are therefore able to secure relatively low-cost funding for myriad business ventures without restricting other assets that may already be used as security in other financings or are viewed as less desirable by the lenders. More and more often, extremely wealthy individuals are turning to private banks to borrow against their collections. Through the economic downturn, the value of art has had some volatility but such values have weathered the storm well and are seen by knowledgeable lenders as a stable form of collateral. Typical transactions are in the $20 million to $50 million range, but we have also acted for lenders on transactions in the $150 million to $400 million range.
Leading Lawyers on Your Side
Holland & Knight's Banking Group is consistently recognized among the leaders in the industry by national and international publications. The 2016 U.S. News – Best Lawyers® "Best Law Firms" guide placed our firm's Banking and Finance Litigation practice in its first tier nationally, as well as locally in Miami and Tampa. Holland & Knight's Banking and Finance Law practice was also placed in the first tier nationally, as well as locally in Jacksonville, Miami, Orlando and Tampa. Also, Holland & Knight is top-listed in Florida in Banking and Finance Law with nine lawyers in The Best Lawyers in America 2015 guide.