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FDIC Enforcement Decisions and Orders |
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FDIC Board exercises its discretion and dismisses a civil money penalty proceeding against respondent charged with violating an order of prohibition. The Board agrees with the ALJ that respondent violated the order but that he acted in good faith reliance on confusing language in written advice from the FDIC Regional Director when he executed proxies for the voting of his personal stock at two annual meetings.
[.1] Civil Money Penalties Defenses Reliance on FDIC Advice
[.2] Prohibition Voting Rights Proxies
{{9-30-93 p.A-2259}}
This proceeding arises out of a Notice of Assessment of Civil Money Penalty, Findings of Fact and Conclusions of Law, Order to Pay, and Notice of Hearing, dated January 24, 1992 ("Notice"), against Dell L. Pooler ("Respondent") for $25,000.
[.1] The Board is electing to exercise its discretion in this proceeding to dismiss the notice because the record contains, among other evidence, correspondence from the FDIC which the Board concludes reasonably could have misled the Respondent about the meaning and import of the Order and section 8(e)(6) of the FDI Act.
[.2] The Board does not wish to be misunderstood. It is plain that section 8(e)(6)(B) of the FDI Act represents a broad restriction on the exercise of bank stock voting rights by anyone subject to an order issued pursuant to section 8(e).4 The statute clearly prohibits, among other actions, any exercise of any bank stock voting rights, by proxy or otherwise, by any such person, absent the prior consent of the FDIC. The FDIC has reached that conclusion before, and the Board elects to restate it here. See, In the Matter of Ronald J. Grubb, FDIC-88-282k and FDIC-89-111e, 2 P-H Enf. Dec. ¶8021 (1992).
/s/ Robert E. Feldman
Based upon its review of the entire record in this case, the Board adopts all of the ALJ's Findings of Fact except Nos. 15 and 22 through 24. The Board adopts all of the ALJ's Conclusions of Law except Nos. 14, 17, 19, and 20, which are moot in view of the Board's decision to dismiss the Notice, and Conclusions of Law Nos. 12 and 15, which are modified to read as follows: "By appointing Director Steven M. Gibbs to act and serve as his proxy at the 1990 [1991, as to No. 15] annual meeting of stockholders, the Respondent violated the clear provisions of paragraph 1 of the Order and section 8(e)(6) of the FDI Act."
In the Matter of
This letter was directed personally to Mr. Pooler and his counsel, a copy of which was likewise provided to the Board of Directors of the Bellevue State Bank.
1. At all times pertinent to this proceeding, the Bank was an insured depository institution within the meaning of Section 3(c)(2) of the Act, 12 U.S.C. §1813(c)(2).
The Board of Directors of the Federal Deposit Insurance Corporation, having considered the entire record in this proceeding, including the Recommended Decision of Administrative Law Judge Arthur L. Shipe, and the exceptions filed thereto, hereby adopts the recommendation of the ALJ.
/s/ Arthur L. Shipe |
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Last Updated 6/6/2003 | legal@fdic.gov |