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Monthly Archives: May 2009

News Roundup — May 18, 2009 to May 29, 2009

Interchange Fees

Adam Levitin blogs about how interchange fees rank as one of the more significant factors in operating costs for retailers. He makes the argument that a reduction in such fees would result in savings for consumers and bring additional jobs into the economy.

Digital Transactions has a pair of followup articles on this issue. The first article discusses the difficulties that retailers have in recouping the costs of interchange while the second explores the possibility of an amendment backed by Sens. Durbin (D-IL) and Bond (R-MO) that would allow merchants the option to discount prices for customers who pay in cash, checks or debit cards.

Although the credit card bill passed the House of Representatives by a final vote of more than 350 in favor, the bill lacked any retailer-backed regulation of interchange fees, according to an article published by Digital Transactions, dated May 20, 2009. The bill includes language which mandates a Congressional study on interchange and could open the door to additional controls on gift cards.

Credit Cards

Suki Kim, a Korean author, presented an editorial in the New York Times on Monday, May 18, 2009 regarding the explosion of credit card debt that occurred in South Korea in the aftermath of the Asian financial crisis of 1999.

Senator Dodd issued a press release and summary pertaining to the bill that was passed on May 19, 2009.

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FDIC Adopts a Final Rule Regarding Special Assessments

On May 22, 2009, the FDIC adopted a final rule imposing a 5 basis point special assessment and authorizing the FDIC to impose additional special assessments of 5 basis points, if necessary.  The initial special assessment and any additional special assessment will be based on an institution’s assets minus Tier 1 capital as of June 30, 2009.  This final rule differs significantly from the interim rule that FDIC issued on March 2, 2009.

The interim rule contemplated a 20 basis point special assessment, based on an institution’s deposits, which is the assessment base used for the regular quarterly risk-based assessments.  The interim rule also contemplated imposing additional special assessments of up to 10 basis points at the end of each remaining calendar quarter of 2009.

The final rule lowered the initial special assessment from 20 to 5 basis points, and any additional special assessment from 10 to 5 basis points, but changed the assessment base from deposits to assets minus Tier 1 capital.  The memorandum from the FDIC’s director of the insurance and research division indicates that the “departure from the regular risk-based assessment base is appropriate in the current circumstances because it better balances the burden of the special assessment.”

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Round 27 of TARP Capital Infusions – TARP Map and List of Recipients Updated

On May 19, 2009, the Treasury announced the completion of the twenty-seventh round of TARP Capital infusions.  The Treasury purchased a total of approximately $108 million in securities from 14 financial institutions on Friday, May 15, 2009, and has now invested in 594 institutions, totaling approximately $199.2 billion.

Mercantile Bank Corporation, Grand Rapids, Michigan, received the largest infusion, $21.0 million.  Riverside Bancshares, Inc., Little Rock, Arkansas, received the smallest infusion, $1.1 million.

On May 13, 2009, Alliance Financial Corp. and Texas Capital Bancshares, Inc. redeemed their securities from the Treasury for $125 million and $75 million, respectively.  To date, fourteen institutions have re-paid approximately $1.3 billion, and Treasury’s outstanding investment equals approximately $197.9 billion.

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Client Alerts Update — May 5, 2009 to May 21, 2009

SEC Announces Proposed Rules Allowing Shareholder Access to Company Proxy Materials

On May 20, 2009, the Securities and Exchange Commission announced proposed new rules that would, under certain circumstances, require companies to include in their proxy materials nominations for election as directors submitted by eligible shareholders.

For more information, read the client alert published by Bryan Cave LLP’s Corporate Finance and Securities Client Service Group on May 21, 2009.

Supreme Court Narrows Federal Superfund Liability

In a very recent two-part CERCLA decision favorable to the industry, the U.S. Supreme Court on May 4, 2009: (1) narrowed the category of companies who are liable as “arrangers” for disposal under CERCLA; and (2) broadened a liable company’s “divisibility” defense to CERCLA’s presumptive “joint and several” liability.

For more information, read the client alert published by Bryan Cave LLP’s Environmental Client Service Group on May 7, 2009.

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TALF Investments (May update)

As we have previously discussed, the Term Asset-backed-securities Loan Facility (“TALF”) program of the Federal Reserve and US Treasury has piqued the interest of investors world-wide.  We are receiving multiple inquiries every week about how best to position our clients to benefit from the government program.  If you’re reading this, you likely already know that the TALF program was intended to create an artificial market to replace the “shadow market” of securitized loans that had fueled the US economy for the past decade, and which was largely responsible for its crash.

Since the other similar, and more recently announced PPIP program, has yet to gain any traction and which still raises far more questions than answers, investors seem more ready and willing to test the TALF waters.  It has been reported that the six TALF-eligible transactions announced for the May auction have been six to twelve times oversubscribed — roughly double the rate reported for the previous month’s auction.

As we have seen with TARP, the federal government has not been shy in changing the rules of its games in mid-play.  The potential benefits of the TALF program, namely risk limited leverage in the form of non-recourse 88%-95% financing, and attractive potential returns, which many estimate to be in the 15%-30% range, are seen by many to outweigh the risks that the uncertain parameters of the program pose.

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News Roundup — May 11, 2009 to May 15, 2009

Anti-Money Laundering — (United States)

The Miami Herald has an in-depth article on the challenges that the U.S. government faces, particularly when it comes to enforcement of money laundering crimes.

Another article at the Miami Herald discusses a January 2009 agreement between Lloyds TSB Bank, an international bank based in the United Kingdom, and the Department of Justice, with respect to violations of federal and New York state laws.

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Making Home Affordable – Program Updates

On May 14, 2009, the Treasury and the Department of Housing and Urban Development announced updates to the Making Home Affordable Program.  These updates detail Foreclosure Alternatives Incentives and Home Price Decline Protection Incentives.

Foreclosure Alternative Program.  The Foreclosure Alternative Program provides incentives to mortgage servicers to pursue short sales of homes or deeds in lieu of foreclosure.  In either case, the incentives are aimed at helping homeowners who can no longer afford to stay in their homes by allowing them to avoid foreclosure and relocate to a home that they can afford.

The updates indicate that homeowners who satisfied the minimum eligibility requirements for a modification under the Program but who could not qualify for a modification will be eligible for the Foreclosure Alternative Program.  For example, a homeowner may meet all eligibility requirements yet the servicer determined that the borrower would not be able make payments on a loan as modified under the Program; in this case, the homeowner may be eligible for the foreclosure alternative.  Further, homeowners who received a modification but who were unable to sustain payments under that modification will be eligible for the Foreclosure Alternative Program.

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Commentary: NYTimes Recognizes Community Banks

The front cover of the May 17, 2009 issue of the New York Times Magazine asked “Are Small Banks the Future?“  As noted in the article, lending may have slowed at the largest banks, but at the other end of the financial system, there are 8,500 community banks, and most remain very strong.

In the midst of the worst banking crisis since the Great Depression, community banks have generally fared well. That’s because they typically shunned the lending practices that led to high default rates. They rarely participated in the securitization of loans, credit-default swaps and other overvalued financial products that put the global financial system in crisis. Instead, they stuck to the fundamentals. They considered the character and history of their borrowers. They required collateral. Without community banks, the current financial crisis would be a lot worse.

The focus of the mainstreet press, and the Treasury Department, continues to be on the largest institutions, whether it be the initial nine TARP Capital recipients, or the nineteen that underwent the stress test.  There is some rationality for this focus, the majority of assets, deposits and loans are held by these institutions.  But just like small businesses generally, community banks play a critical role in the American economy.

Community banks may have weathered the current crisis better than larger banks, but they remain an American oddity. Most other countries have 5 or 10 na­tional banks, and when they get in trouble, as they did in Iceland, it can be devastating. The balance in this country is tipped toward big institutions (the four largest control half the assets held by American banks and 40 percent of all deposits), but community banks still make 43 percent of all small business loans under $1 million. Since January 2008, fewer than 1 percent of all community banks have failed.

Round 26 of TARP Capital Infusions – TARP Map and List of Recipients Updated

On May 12, 2009, the Treasury announced the completion of the twenty-sixth round of TARP Capital infusions.  The Treasury purchased a total of approximately $42 million in securities from 7 financial institutions on Friday, May 8, 2009, and has now invested in 580 institutions, totaling approximately $199.1 billion.

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