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FDIC Enforcement Decisions and Orders |
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FDIC orders Respondent prohibited from further participation upon finding the violation of a law, the possibility of prejudice to the interests of depositors, and willful disregard for the safety or soundness of the Bank. Respondent violated the Change in Bank Control Act by accepting proxies constituting 84.9 percent of the Bank's stock, after his notice of acquisition of control had been denied by the FDIC on the grounds of his lack of competence and integrity. [This order was reserved by the 8th Circuit Court of Appeals, 987 F.2d 494 (
[.1] ProhibitionFactors Determining Liability
[.2] Change in Bank Control ActDefinition"Control"
[.3] Change in Bank Control ActProxy Exemption
[.4] Change in Bank Control ActNotice of DisapprovalEffect
[.5] Change in Bank Control ActLiabilityUnsafe or Unsound Practice
[.6] ProhibitionLiabilityPrejudice to Depositors
[.7] ProhibitionLiabilityBenefit to Violator of CBCA
[.8] ProhibitionLiabilityWillful Disregard
This proceeding arises out of a Notice of Intention to Prohibit from Further Participation ("Notice") in the affairs of any federally insured financial institution pursuant to 12 U.S.C. § 1818(e), issued on March 6, 1991, against Paul E. Oberstar ("Respondent"). The Notice alleges that Respondent violated the Change in Bank Control Act ("CBCA"), 12 U.S.C. § 1817(j), by accepting proxies constituting 84.9 percent of the stock of Boundary Waters State Bank, Ely, Minnesota ("Bank"), which he voted at the annual stockholders' meeting of the Bank of August 6, 1990, after his Notice of Acquisition of Control of the Bank ("Notice of Acquisition") had been denied by the Federal Deposit Insurance Corporation ("FDIC"). The Administrative Law Judge ("ALJ") issued his Recommended Decision ("R.D.") on August 2, 1991, that the FDIC's Notice be dismissed. Both the FDIC and the Respondent filed exceptions to the ALJ's Recommended Decision.
{{1-31-92 p.A-1831}}the ALJ's seventh and eighth conclusions of law and the ALJ's proposed Order. Thus, the Board effectively grants the FDIC Enforcement Counsel's motion for summary disposition and finds a violation of law on uncontested facts.
A. Change in Bank Control Application
The Bank had 65,000 shares of voting stock, of which 55,199 were owned jointly by Craig and Marcia Kronholm. R.D. at 16. On December 22, 1988, the Respondent and James H. Peterson entered into an agreement with the Kronholms to purchase their stock. Id. The Respondent submitted a Notice of Acquisition of Control of the Bank pursuant to section 1817(j)(1), on April 28, 1989. Id. On August 11, 1989, the FDIC issued a Notice of Disapproval of Acquisition of Control and Notice of Hearing ("Notice of Disapproval"), FDIC-89-161j, on grounds that Respondent lacked the requisite competence, experience, or integrity, Id. Respondent requested and received a hearing on the matter which was held December 18-21, 1989.
B. The ALJ's Recommended Decision
After considering the testimony and documentary evidence presented by Enforcement Counsel and the Respondent, the ALJ made the following significant conclusions of law:
C. FDIC's Exceptions
The FDIC filed exceptions to the ALJ's findings and conclusions that:
D. Respondent's Objections
Respondent concurred with the result reached in the ALJ's recommended decision but filed exceptions to the ALJ's conclusions that:
Based upon a through review of the testimony, the documentary evidence, the briefs and arguments of the parties, the ALJ's Recommended Decision, and the Exceptions, the Board adopts the ALJ's findings of fact and adopts the first through sixth conclusions of law, but rejects the ALJ's seventh and eighth conclusions of law and therefore holds that the Notice of Intention to Prohibit the Respondent from Further Participation is reinstated and the Enforcement Counsel's request for summary judgment is granted.
[.1] To justify an order of prohibition against the Respondent, the FDIC has the burden of establishing each of three elements under section 1818(e): 1) misconduct under section 1818(e)(1)(A); 2) by reason of such misconduct, an effect or potential effect under section 1818(e)(1)(B); and 3) that the misconduct involves culpability under section 1818(e)(1)(C). The FDIC's contention is that Respondent's acquisition of the proxy constitutes acquisition of control of the Bank under the CBCA without prior notice and after disapproval of application by the FDIC. Therefore, 1) the acquisition constitutes a violation of "any law" within the meaning of section 1818(e)(1)(A)(i), or alternatively was an "unsafe or unsound practice" as used in section 1818(e)(1)(A)(ii); 2) by reason of the acquisition, the interests of the Bank's depositors "have been or could be prejudiced" under section 1818(e)(1)(B)(ii), or alternatively, Respondent's control entailed "other benefit" within the meaning of section 1818(e)(1)(B)(ii); and 3) such acquisition demonstrated a "willful disregard" for the safety or soundness of the Bank. See FDIC's Motion for Recommended Decision, FDIC-91-19e.
A. Misconduct Under Section
1. Violation of "Any Law"
[.2] The CBCA defines "control" as "the power, directly or indirectly, to direct the management or policies of an insured depository institution or to vote 25 per centum or more of any class of voting securities of an insured depository institution." 12 U.S.C. § 1817(j)(8)(B). Therefore, when Respondent obtained proxies to vote 84.9 percent of the Bank's stock, he had "control" for purposes of the CBCA.
2. Applicability of the Exception Under 12
[.3] The Respondent contends that these proxies constitute an exempt transaction under 12 C.F.R. § 303.4(c)(6), allegedly because they were obtained for the one time purpose of providing a quorum at the upcoming annual shareholders' meeting. Respondent's Memorandum in Opposition to the FDIC's Motion for Recommended Decision, FDIC-91-19e, at 18; Respondent's Exceptions at 2 and 7. Respondent further alleges that the proxies were made effective for one year because "no date had yet been scheduled for the annual shareholders' meeting," and "the bank contemplated calling only one shareholders' meeting with (sic) the next year." Respondent's Exceptions at 7.
[.4] Therefore, the Board concludes that the Respondent had control of the Bank within the meaning of the CBCA. The CBCA does not permit the acquisition of control of an institution, unless notice is given to the FDIC, and unless the FDIC has not issued a notice of disapproval. Thus, the Respondent's violation was in acquiring control of the Bank in spite of the FDIC's Notice of Disapproval. While the FDIC's Notice of Disapproval was not a final order, the statute prevents acquisition of control regardless of whether the Notice had become a final order.5
3. Unsafe or Unsound Practice
[.5] The Board also finds that the first element of a removal and prohibition action under section 8(e) is satisfied by FDIC's showing that Respondent's acquisition of control of the Bank was an "unsafe or unsound practice." See 12 U.S.C. § 1818(e)(1)(A)(ii). An unsafe or unsound practice is generally understood to mean:
B. Effect or Potential Effect Under 12
The FDIC has demonstrated the second element of section 1818(e)(1)(B) in two ways: by showing that the interests of the insured depository institution's depositors could have been prejudiced within the meaning of section 1818(e)(1)(B)(ii); and that Re-
1. Depositors Could Have Been
The purpose of the CBCA is to protect depositors and public by giving the FDIC an opportunity to approve those who seek to acquire control, based on a review of their competence, experience, honesty, and integrity. See 12 U.S.C. § 1817(j). If the FDIC denies an application based on lack of competence and integrity such that the proposed acquisition would not be in the best interest of the depositors, then the actual acquisition of control by that person, despite such denial, is potential prejudice to the depositors per se.
[.6] Enforcement Counsel argued that offensive collateral estoppel could be used to prevent relitigation of the issue of whether the Respondent's control threatened the safety and soundness of the Bank, even though the final order of the FDIC had not yet been rendered in the FDIC's Notice of Disapproval of Respondent's Notice of Acquisition of Control. FDIC's Exceptions at 13. The Board finds that collateral estoppel is not necessary to decide this matter since the CBCA is violated even if one acquires control before a final order is issued, and the FDIC's Notice and the ALJ's decision are sufficient to prevent Respondent from acquiring control of the Bank and therefore to find that the Respondent's acquisition could prejudice the depositors at the time of the acquisition. To find otherwise would obviate the CBCA, the FDIC's Notice of Disapproval, and the ALJ's conclusions which were based on a full administrative hearing.
2. Other Benefit
Respondent maintains that the acceptance and voting of the proxies was gratuitous, solely to achieve a quorum at the stockholders' meeting, and that he received no compensation or any other benefit. See Respondent's Exceptions at 10. The ALJ concluded that the FDIC made no factual showing that the Respondent received "other benefit" from his violation of the CBCA. R.D. at 13. The FDIC contends that Respondent received "other benefit" from his violation of the CBCA in that he sought to acquire control of the Bank and obtained it. FDIC's Exceptions at 12. The FDIC has not argued that the Respondent received any financial gain. See R.D. at 13.
[.7] Congress reduced the regulatory agencies' burden of establishing the element of "effect" in FIRREA by adding the language "other benefit" to section 8(e)(1)(B)(iii). This section now permits the FDIC to prove the
{{5-31-92 p.A-1837}}element of effect by showing that "such party received financial gain or other benefit by reason of such misconduct." 12 U.S.C. § 1818(e)(1)(B)(iii). Personal control is an effect that came about by reason of Respondent's acquisition of the proxies in violation of the CBCA. It matters not what the Respondent did with his control of the institution. Therefore, the Board concludes that Respondent's control of the Bank is, in itself, "other benefit" within the meaning of section 8(e)(1)(B)(iii).
C. Willful Disregard Under Section
The third element for establishing a removal and prohibition action is a showing that Respondent's misconduct "demonstrates willful or continuing disregard by [Respondent] for the safety or soundness of" the Bank. 12 U.S.C. § 1818(e)(1)(C)(ii). The ALJ found that "[t]o establish willful disregard, the FDIC must demonstrate that Respondent accepted and voted the proxies with at least constructive knowledge that by doing so the safety and soundness of the Bank would be adversely affected." R.D. at 15. The ALJ concluded that the FDIC did not establish that the Respondent's action constituted a willful disregard for the Bank's safety and soundness since the Respondent's voting for the four incumbent directors could not have harmed the Bank which was already unsound and on the verge of failure. R.D. at 15. The FDIC argues that it need only show that Respondent acquired control of the Bank with knowledge or constructive knowledge that such acquisition might present a risk to the safety or soundness of the Bank.
[.8] Respondent knew his acquisition of control of the Bank was denied by both the FDIC and the ALJ on grounds that he lacked the competence and integrity such that his acquisition would not be in the best interest of the bank or the depositors. Thus, Respondent acquired control in disregard of both the FDIC's and the ALJ's determination that he posed an abnormal risk of loss. Further, Respondent knew, or had constructive knowledge, that acquiring control of the Bank after the FDIC and an ALJ denied such control was contrary to prudent banking practices. See 12 U.S.C. § 1817(j). Therefore, the Board holds that Respondent acquired control of the Bank in willful disregard for its safety or soundness.
The Board finds that by acquiring control of the Bank, Respondent violated the CBCA and engaged in an unsafe or unsound act which had a potentially prejudicial effect on the Bank and which benefitted the Respondent, and Respondent acquired such control in willful disregard to the safety and soundness of the Bank. Accordingly, the Board holds that the Respondent should be prohibited from participating in the conduct of the affairs of any insured depository institution.
The Board of Directors of the Federal Deposit Insurance Corporation, having considered the entire record in this proceeding, hereby finds that, by acquiring control of the Bank, Respondent violated the CBCA and engaged in an unsafe or unsound act which had a potentially prejudicial effect on the Bank and which benefitted the Respondent, and Respondent acquired such control in willful disregard to the safety and soundness of the Bank.
In the Matter of
This matter is before me upon the FDIC's motion for a recommended decision upon its Notice of Intention to Prohibit the Respondent from Further Participation in the affairs of any federally insured financial institution pursuant to 12 U.S.C. § 1818(e)(1).
This is one of several matters before the FDIC involving the Bank, one of which also involved the Respondent when he and another individual sought to acquire control of the Bank. Following an administrative hearing, I concluded that the Respondent's proposed application for control was appropriately denied because, in brief, he lacked the requisite competence and integrity. My recommended decision was issued on April 20, 1990. It was affirmed by the FDIC Board on August 28, 1990 — after the events in issue here. Case FDIC 89-161j.
B. CONTENTIONS OF THE PARTIES
The FDIC alleges that the Respondent is an institution affiliated party and that he violated 12 U.S.C. § 1817(j) by acquiring the Kronholm proxy (Craig and Marcia each gave a proxy for the same shares which will together be referred to as "the proxy"). It is alleged that acquiring the proxy gave the Respondent control of 85 percent of the Bank's stock but his application for change in control of the Bank had been denied. Acquiring the proxy was therefore violative of the Change in Bank Control Act.
1. Institution-Affiliated Party
The Financial Institutions Reform, Recovery, and Enforcement Act of 1989 broadened the scope of 12 U.S.C. § 1818(e)(1) to include "any institution-affiliated party", which is defined in 12 U.S.C. § 1813(u)(2) to include "any person who has filed or is required to file a change-in-control notice with the appropriate Federal banking agency under section 1818(j) of this title." Since the Respondent had filed an application for change in control of the Bank, he clearly comes within the definition of an "insitution-affiliated" party and an action under Section 1818(e)(1) can be brought against him.
2. Prohibition Under Section 1818(e)(1)
Though somewhat different in format, Section 1818(e)(1) is in substance the same under FIRREA as it was previously. To support an order of prohibition against an insti-
{{1-31-92 p.A-1841}}tution-affiliated party, the FDIC must establish each of three tiers: a) misconduct which has a particular b) effect and which demonstrates the individual's c) culpability. The FDIC has the burden to prove each element by a preponderance of the credible evidence. Steadman v. SEC, 450 U.S. 91 (1981).
a. Misconduct
i. Violation of Law
b. Effect
Though I conclude that the record offered
{{1-31-92 p.A-1843}}by the FDIC does suggest a finding of misconduct under Section 1818, I further conclude that this record does not establish the effect or culpability tiers.
c. Culpability.
In order to establish the third tier the FDIC must prove by a preponderance of the credible evidence that the Respondent's action:
1. At all material times the Bank was a corporation existing and doing business under the laws of the State of Minnesota, with its principal place of business at Ely, Minnesota.
1. At all material times, the Bank was a state nonmember bank within the meaning of 12 U.S.C. § 1813(e)(2) and was a depository institution within the meaning of 12 U.S.C. § 1813(c)(2).
The FDIC's Motion for Recommended Decision is denied and the Notice of Intention to Prohibit From Further Participation in Case No. FDIC-91-19e is dismissed in its entirety. |
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Last Updated 6/6/2003 | legal@fdic.gov |