Director and Officer Liability

Sutherland has one of the most dynamic and experienced regulatory enforcement practices in the country. We represent directors and officers of financial institutions in investigations by the Department of Justice (DOJ), U.S. Securities and Exchange Commission (SEC), Federal Deposit Insurance Corporation (FDIC), Financial Industry Regulatory Authority (FINRA), U.S. Commodity Futures Trading Commission (CFTC) and other regulators.

The recent spate of bank failures, with more predicted to occur, has spawned civil and criminal investigations looking for “responsible” parties with “deep pockets.” With the FDIC insurance fund significantly reduced, each of the banking regulators, along with DOJ, has announced enforcement plans or brought actions against directors, officers, and other institution-affiliated parties (IAPs).

We regularly advise banks and savings institutions in federal and state regulatory matters and in enforcement, compliance and supervisory matters involving the FDIC, SEC, the Federal Reserve Board, the Office of the Comptroller of the Currency (OCC), the Office of Thrift Supervision (OTS), the National Credit Union Administration (NCUA) and state banking authorities. Because we are frequently involved in enforcement matters and have long-standing experience with all divisions of the various regulatory agencies, we are acutely aware of the safety and soundness issues at the heart of bank regulatory matters and the types of transactions that may raise concerns. We know the “hot issues” of the regulators, such as loan underwriting standards and controls; loan write-downs and loss reserves; insider and affiliate dealings; officer and board follow-up on deficiency findings by bank examiners and auditors, as well as the use of derivatives to hedge financial risks; and the fair value of assets such as collateralized mortgage obligations (CMOs), collateralized loan obligations (CLOs) and other asset-backed instruments. We know and understand what keeps bank officers up at night and where their concerns lay.

A core strength of our practice is our ability, experience and willingness to litigate with regulators when reasonable solutions are not possible. We provide clients a seamless transition from investigation to defense in state and federal courts and in administrative proceedings.

Our Team

In representing officers and directors, banks and other financial institutions, we bring together attorneys from our banking, directors and officers, and regulatory and enforcement practices. Our team includes former senior attorneys for the SEC, FINRA and the DOJ, as well as a former general counsel and executive vice president of a bank. The deep industry knowledge and regulatory experience of the team enables us to understand the dynamics within each regulatory agency and helps us devise strategies that lead to the defense of directors and officers and IAPs.

Our Experience

Our experience representing officers and members of boards of directors in enforcement actions includes:

Representing the CEO, CFO, general counsel and comptroller of a large commercial bank in connection with allegations of improper revenue recognition and inadequate loan loss reserves.
Representing FDIC and Resolution Trust Corporation (RTC) in a number of bank failure investigations and professional liability suits.
Representing a major banking association in a large multi-bank FDIC purchase and assumption transaction and advising a client in administering complex contractual provisions.
Leading investigations on behalf of the federal government in connection with troubled or failed banks and the investigation of audit practices involving those institutions.
Advising a major bank in connection with federal and state laws regulating premium financing.
Representing a bank president in an SEC insider trading investigation.

For more complete information, view our Director and Officer Liability Brochure.