Bank Lawyer's Blog

More Depth On Legal Issues Surrounding Marijuana Banking

University of Alabama Law Professor Julie Anderson Hill has posted a draft of a work-in-progress, an article for an upcoming Case Western Law Review Symposium Issue, entitled "Banks, Marijuana, and Federalism." In it, she explores the legal issues surrounding banks providing banking services to state-legal marijuana-related businesses in more depth than you'll see on the pages of this rag. While it requires some polishing (including the addition of a specific discussion of Fourth Corner, the Colorado cannabis co-op, in a section in the later portion of the article that she discusses in passing earlier in the article), I found it to be a valuable addition to the analysis of the risks to banks that want to provide services to such businesses.

Here's a portion of the "abstract" of the article provided by Professor Hill, which summarizes her approach and conclusions:

This article explores the root of the marijuana banking problem as well as possible solutions. It explains that although the United States has a dual banking system comprised of both federal- and state-chartered institutions, when it comes to marijuana banking, federal regulation is pervasive and controlling. Marijuana banking access cannot be solved by the states acting alone for two reasons. First, marijuana is illegal under federal law. Second, federal law enforcement and federal financial regulators have significant power to punish institutions that do not com-ply with federal law. Unless Congress acts to remove one or both of these barriers, most financial institutions will not provide services to the marijuana industry. But marijuana banking requires more than just Congressional action. It requires that federal financial regulators set clear and achievable due diligence requirements for institutions with marijuana business customers. As long as financial institutions risk federal punishment for any marijuana business customer’s misstep, institutions will not provide marijuana banking.

Among the many fascinating (to a nerd like me, at any rate) observations made by Professor Hill was the following potential problem with the Federal Reserve approving Fourth Corner's access to the federal reserve payments system:

If the Federal Reserve provided payment services to a cannabis credit co-op, the Federal Reserve and its employees would be engaging in money laundering. They might also be conspiring to manufacture and distribute marijuana, aiding and abetting the manufacture and distribution of marijuana, and acting as accessories after the fact for the manufacture and distribution of marijuana. 

As long as they don't process payments for payday lenders, online dating services, or Smith & Wesson, they should be safe from prosecution under the "prosecutorial discretion" mantra chanted by the present executive branch monks until the current administration vacates the White House. The problem with that approach is that the statutes of limitation will not have expired by the time new Attorney General Ted Cruz decides to wage a little MJ jihad on every Justice Department and federal bank regulatory agency official who looked the other way when some bankers in Colorado or Washington lit up a fat boy and followed the money.

I also agree with her conclusion that, while action by the U.S. Congress is necessary, it's not enough. A change in attitude by federal bank regulators will also be required, whether of not we get a federal legislative fix. If due diligence requirements make it too risky and expensive to bank these businesses, then marijuana businesses are going to find themselves continuing to face problems that only a third-party payment processor or payday lender could truly appreciate.

We Won't Tell What To Do Until After We Punish You For Not Doing It

The CFPB isn't the only federal government agency that is promulgating new "regulations" by enforcement action. According to yesterday's American Banker (paid subscription required), the OCC's been playing the same game, especially with the BSA.

Few dare talk about their concerns publicly, for fear of alienating regulators. Privately, they say that BSA exams have become more rigorous and focused in recent years, digging deeper into the weeds of processes, systems and controls. Foot-dragging and shortcomings are being met with stiffer monetary penalties and lengthy lists of demands for systems improvements and additional personnel.

Yet it's not clear that even the regulators know exactly what they want from bank BSA programs. Instead, critics say, they're looking to the private sector for the latest in best practices and then seeking to transmit those ideas to the rest of the industry through regulatory decree.

BSA officers report combing through consent orders and regulatory pronouncements with urgency, looking for clues of subtle changes and what's coming next. "We are now in an era of 'regulation by enforcement action,'" says Teresa Pesce, head of the Americas AML practice at consulting firm KPMG.

"Banks feel that they can no longer look at the statutes and regulations to know what to do," Pesce says. "They have to look at the most-recent regulatory guidance or enforcement action against their peers, and then try to plug those holes, as opposed to creating more thoughtful and sustainable programs."

"Thoughtful and sustainable programs?" What's that got to do with covering your backside, avoiding second-guessing from your "superiors" and your "peers," and protecting your government retirement benefits? Let's get with the program here, Teresa.

According to the American Banker's sources, the causes for the uptick in scrutiny on BSA is open to debate.

Some point to the lingering anger of Congress and the public over Wall Street's role in the financial crisis, and the failure of regulators to catch it. Others note that with banks having largely cleaned up their credit problems, quieting the safety and soundness risks that had dominated regulators' concerns in recent years, all those examiners hired at the peak of the crisis now have more time on their hands.

Idle hands are the devil's workshop.

One former OCC official even said much of this may have to do with career advancement by small bank examiners who want to earn notches in their gun by taking down some too-small-to-fight-me community banks, and thereby be promoted to examining the plutocrats of commercial banking. I guess it's every examiner's dream to make yourself such a pest to Bank of America that it hires you just to get you out of harm's way.

FinCEN's Director Jennifer Shasky Calvery claims it's because FinCEN is getting better at using the billions of bits of information that banks feed into its maw every day via various reporting avenues. She even talks about a bank that included a phone number in a SAR that matched a number found in Osama Bin Laden's file cabinet found by Seal Team Six in the follow-up to ventilating the former terrorist-in-chief. Jennifer won't tell us what the people who parse these nuances did with the number. Maybe the NSA used it to order a truck load of peperoni and italian sausage pizzas to be delivered to a kabob house in Kandahar, demoralizing a phalanx of jihadists. Whatever, she wants banks to know that she and her fellow "sheriffs" are cracking down on banks because all of those SARs they're defensively filing are no longer fed to FinCEN's pet goat.

So, bankers, buckle up and get ready for more _regulating-by-enforcement. What's good for FinCEN's good for the country, and the bad guys are moving too fast to bother with that irksome Administrative Procedures Act. The regulators will tell you what you did wrong after you've done it, not before. If you don't like that, well, that's tough nuggies. In this brave new world, the ends justify the means.

Hank Paulson Lets His Hair Down

Former Secretary of the Treasury Hank Paulson (known to the Hip-Hop community as "P. Hankie") sat down recently for an interview with Dallas Business Journal reporter Nicholas Sakelaris, and gave us the low down on the bail out of the Big Banks in 2008. As you might have expected, Hank the P claims that he had no choice. It was bailout the big boys or The Apocalypse. There was no middle ground.

We had some difficult decisions. We did some things that were unpleasant, even to us. But I felt then and looking back at it now, I think we got the big things right and made a big difference. We staved off disaster.

To those who claim that the capitalist system works only when those businesses that make bad decisions are allowed to suffer "creative destruction," Hank's response seems to me to be that all that theory is fine in the ivory tower, but down on The Street (Wall Street, that is), when the rubber meets the road, the tough get going, or something along those mixed metaphorical lines.

Many, many Americans were unhappy because they wanted to hear that the people who made the mistakes were being held accountable. But if I had to decide between that and stability, I erred on the side of stability. All Americans would have been hurt if the system had collapse. Those that had been responsible and those who had been irresponsible. Those who had made mistakes and those who didn’t make mistakes.

Our first priority was to prevent catastrophe to protect the American people.

That’s hard to explain and that’s hard for the American people to really understand a catastrophe that never occurred. What they see is a very serious problem that did occur. I can say, we took steps and it would have been much worse if we hadn’t taken them and guess what, the money we put out in the TARP and the capital to banks and insurance companies came back plus $32 billion.

Hard to explain? No, I think you just explained it, Hankster, and I also think most of us catch your drift.

When asked if he, personally, could have done more to prevent the problems that led to the economic crisis that required such a massive bank bail out, Hank claims that the underlying factors were pretty well "baked" into the system by the time he was appointed in 2006. He also says something to which the FDIC might give at least a head nod when it decides whether or not to sue officers and directors of a failed bank: nobody saw anything this bad coming down the pike.

...I didn’t see something of that magnitude. I had witnessed crisis every eight to 10 years. But this is a once in a 75-year crisis. In this one, the excesses had been building for decades.

[...]

This is one that was unprecedented. People hadn’t taken a look at our regulatory system in a long time. The financial markets had outgrown the regulatory system and it didn’t fit so we didn’t have the powers we need.

A guy with Hank's pedigree and access to information didn't see this train wreck coming, but the board of directors of a half-billion dollar community bank should have anticipated it. You see the absolute logical consistency of these positions, don't you? Don't you?

[crickets chirping]

I happen to think that Hank Paulson is right on the money. The bailout prevented a catastrophe. I realize that Libertarians who read this blog get shooting pains in their lower abdomen when they read such opinions in this sector of cyberspace, but that's why the drug companies spit out analgesics.

As Hank says, it's tough to defend the position that you prevented a catastrophe that never occurred. At least, it's tough in a society where many often stake out positions and marshal the facts to support them. Following the facts wherever they actually lead takes a different mind set.

Where's Snowden When You Really Need Him?

In a performance worthy of Dean Wormer's Double Secret Probation, the US Treasury Department gave a classic runaround to St. Louis Business Journal reporter Greg Edwards when he had the temerity to ask Treasury why it is keeping the names of bidders in its auction sales of "TARP stock" a big fat secret.

Originally the Treasury spokesman, who identified himself as Adam, said he would get the answer from the department’s lawyers. Having received no response by Thursday, we called again. The inquiry was duly noted, I was told.

Today I made another effort, aware of the three-day weekend’s approach. The line rang and rang before I got a voicemail recording that told me public affairs was “not available.” Perhaps the weekend already has begun for taxpayer-funded government workers.

Edwards relates an email from a reader (I assume a banker) who was also being stonewalled.

“I have called and emailed the U.S. Treasury several times to try to find out when certain auctions would occur and who had won auctions I read about after they took place. I have never heard back from anyone.”

As one outraged St. Louis banker reminds us, this is taxpayer money we're talking about.

Yes, well, so it is. As if that ever meant a thing to the people who play with it. File a FOIA request, Greg. Then pull out a pillow, a blanket, and a quart of Ripple, and settle in for a long and peaceful slumber while you wait for denials, the redaction of all critical information, and a Westminster Abbey-sized load of smoke to be blown up your nether regions. After all, this is your federal government at work, and accountability to the taxpayer is definitely NOT its long suit.

The Incredible Sinking Deficit

The word from the Treasury confirms something we've believed for a long time: the cost of TARP to the American tax payers will end up being small potatoes.

The Congressional Budget Office says TARP’s subsidy cost to the government – including grants for mortgage aid initiatives – currently stands at $21 billion, down $3 billion from the last estimate of $24
billion.

Remember when everyone was moaning about a price tag that appeared to be 700 billion dollars? That was when many of us thought that the sky was falling. Of course, it might have, and if it had, the free market purists would have felt vindicated, while battling their fellow citizens for crusts of bread and potable water. The intervention was unusual, made only because the prognosis was dire and the geniuses in D.C. were tying to ward off a complete meltdown. In retrospect, I think it was necessary to avert a lot of pain and suffering.

Not that we didn't experience a lot of pain and suffering in any event.

Among the most interesting facts cited in the latest disclosures is the portion of the bailout funds that was intended to help hapless homeowners. HAMP helped 1.1 million homeowners receive a loan modification, which sounds like a god thing at first blush. However, the report also indicates that 300,000 of those modifications later went into default. That's a nearly 30% re-default rate, which is, no matter how you look at it, an arguably bad investment. On the other hand, it also means that over 70% o the borrowers were "saved," so there's "the glass is half-full" view of the matter.

Consumer activists would likely say that even more should have been done for more homeowners. Others would say that with that default rate, throwing more money down that rabbit hole would have been a bad idea.

I feel strongly both ways.

[REVISED 07.12.13 TO CHANGE "30,000" TO "300,000" AND TO MAKE OTHER MINOR CORRECTIONS]

 

TARP Paybacks Continue To Roll In

Although I’ve beaten this drum for the last four years, I’m going to continue to rip flamadiddles on the same theme until my hinged wrists get tired. TARP, when it stuck to its intended purpose (before it became a slush fund to bail out the auto unions), not only saved many deserving community banks, it has ended up making a net profit for the US government. One more example is a recent auction of TARP preferred stock of a "saved" Texas community bank.

The U.S. Treasury said Friday it expects to recoup $19.8 million in proceeds from the public auction of FC Holdings Inc.’s Troubled Asset Relief Program debt.

The Treasury priced 21,042 TARP shares of the Sugar Land-based bank holding company’s TARP at $897 per share, which would ring up at $18.8 million. Another 1,052 TARP shares are expected to be sold for $955 per share, totaling $1 million, according to the Treasury.

FC Holdings, the bank holding company for Sugar Land-based First Community Bank, originally received $21 million in TARP in 2009. The Treasury said it has gotten back about $268 billion from its TARP investment in the U.S. banking industry, which was $245 billion.

Unfortunately, the hard-core critics of TARP will never admit that there might have been some good done for some banks, along with all the evil visited upon pure free market principles. The facts keep rolling in like waves onto the shore, and many refuse to acknowledge the error of their ideological ways. It's tough to prove a negative, namely, the proposition that if TARP had not been created, the economy would have tanked a lot worse than it did in 2008-2009.

It's a question of judgment. On this matter, I choose to trust my own. Of course, I'm leaving AIG out of the calculations. That organization wasn't among the "banks" TARP was originally designed to bail out. Nor, for that matter, was Chrysler.

A Deal Is A Deal

AIG's moment of temporary insanity has passed. It's decided not to join a shareholder lawsuit filed by a company controlled by former AIG CEO Hank Greenberg against the US Government for bailing AIG out in 2008. Actually, Hank's company didn't allege that fact of the bailout was itself wrongful, just that the bailout terms set by the government were wrongful. Everyone understands that when you're going down like a torpedoed garbage scow, you always sue the guys who threw you a life preserver because they didn't reel you in quickly enough and you caught a nasty cold.

AIG's board of directors was apparently worried about reputational risk. Given the bad taste left in the collective mouth of the American public by the Wall Street bailouts, that's probably a justified worry. Politicians of all stripes were publicly uttering variations on the theme of "WTF?" on a daily basis. On the other hand, David Boies (yes, THAT David Boies), the attorney for Greenberg's company (which is the plaintiff in the litigation), thinks that the board's decision was not in the best interests of the shareholders. I assume that's a vague threat of a lawsuit against the directors of AIG. It seems to me that if Greenberg goes that route, he'll first have to win the lawsuit against the government in order to prevail against the directors. I'd think he'd have his hands full on with the suit against the government, without taking on the additional defendants. Then again, I don't swim in that specific shark tank, so I assume my rube-like perceptions and opinions are of little interest to the masters of the universe.

There were some other interesting, and even amusing, observations on AIG's board's decision. The Cato Institute's Mark Calabria astutely observed that big financial institutions rarely sue the federal government "because if they did, the government might not bail them out next time." Rim Shot!

On the other hand, AIG's CEO Robert Benmosche told CNCB that AIG believed that "a deal is a deal." Really, Bob? You danced with the bear and you still said that to a reporter without cracking yourself up? "A deal is a deal" as long as you're not the US government, which believes in honoring its deals unless it's politically expedient to renege on them, in which case it just litigates the resulting lawsuits for a decade or more until the public's interest in the outcome has been long since diverted to one or more other shiny baubles.

I understand the public relations downside as a reason to back off suing the US government. However, the "a deal's a deal" rationale simply doesn't hold water, based upon the nature of the devil with whom the deal was made.

TARP Profits Continue To Grow

Back in February, I noted that TARP had yielded a profit for the US Treasury of $20 billion. Notwithstanding the fact that the program is now down to the "harder-to-exit" smaller banks that might not be as attractive to potential purchasers of the preferred stock that the Treasury still holds, the profit figure is now up to $23 billion. While that's a drop in an ocean of federal debt, it's nothing to sneeze at. What I said earlier, I'll say again:

Opponents of the original TARP will never admit that they might have been wrong about the need for the program to save the economy from ruin. The fact that the Treasury has already made a profit on its original TARP investments ($20 billion so far, according to the linked article) is meaningless to them. I guess they wanted to let the "creative destructive" forces of a "pure market system" work their magic on all of us, and if we ended up standing in bread lines, they'd say that was a hard lesson learned and that we're all the better for it. I don't have the energy to tell them that not only is God dead, but so is Ayn Rand.

Even if the remaining $8 billion is written off (it won't be), the program still ends up in the black. Not bad for a much-maligned "bailout."

Of course, the Treasury may have a problem getting potential investors to pay as much as they might have in future TARP stock auctions now that one bank has stiffed an investor on TARP stock dividends (paid subscription required). The fact that those dividends are noncumulative makes it risky when small banks decide that, while it was their patriotic to pay the US Treasury, it's perfectly fine not to pay investors who bought their TARP stock from the Treasury Department.

"This is a good lesson as to what risks buyers need to be aware of with small banks," said Doug Faucette, a lawyer at Locke Lord. "That's why they call it stock."

I think that's an astute observation. However, I wish that bank the best of luck if it ever finds itself in need of capital from private equity investors in the future. PE hates it when Main Street starts acting just like Wall Street.

No Longer Troubled Waters

Late last week, Maine Waters beat the rap, to the surprise of none of us who consistently smell the rancid atmosphere permeating the the hallowed halls of Congress.

California Democratic Rep. Maxine Waters won't be charged with ethics violations following allegations she steered a $12 million federal bailout to a bank where her husband owns stock.

House Ethics Committee members said Friday at a hearing their investigation found no violation by Waters, a senior member of the House Financial Services Committee. She could become the panel's senior Democrat next year, or the chairwoman, if Democrats win control of the House.

A well-connected D.C. based lawyer emailed me late Friday, "This decision proves that morality and ethics do not exist in the nation's capitol." To me, that was always a self-evident truth, but I'll accept his assertion that it's further "proof" of the lack of both qualities in Congress.

Last year, when I last looked seriously into this "investigation," I discounted the assertions of some observers that the hiring of Billy Martin might be bad news for Maxine.

I doubt Maxine is losing any sleep over Mr. Martin's investigation. After all, even if he finds that the process hasn't been so soiled that the investigation should be dismissed, the House Ethics Committee still has to proceed forward. They haven't been able to do that so far and there's no reason to suspect that Mr. Martin's scrutiny will prod them to overcome their bitter partisan gridlock.

Martin determined that the process did not violate due process, but then went on to determine that he could not conclude that Ms. Waters violated House ethics rules. Technically, gridlock was eventually broken, but it still appears that a member of the House who sits on a financial services panel can intervene with bank regulatory officials to benefit a bank in which her husband has invested, and walk away without a scratch.

On matters like this one, I hate being right. There's a smidgen of an optimist that remains buried in me, eternally hoping that the cynical me is wrong.

As a silver lining in this dark cloud, Waters' Chief of Staff was recommended for a tap on the wrist.

However, the ethics panel said that Waters' chief of staff, Mikael Moore, did take actions in Congress in an attempt to help the bank and that he violated House standards of conduct. Moore, who is also Waters' grandson, likely will receive a letter admonishing him for his conduct but will not face more severe punishment, such as a reprimand, by the full House.

Moore complained that Martin and the Ethics Committee were holding him to an "impossible standard." When you have moral vision akin to Stevie Wonder's ocular vision, I guess you can never set the ethic's bar high enough to be able to limbo under.

So, the final version of the "truth" is that when Waters set up a meeting between the Treasury Department and officials of OneUnited, a savings bank in which her husband had a material investment, she thought she was helping a coalition of minority-owned institutions, not OneUnited, even though the only bank officials who showed up at that meeting were OneUnited officials and the only matter discussed was OneUnited getting a healthy portion of that yummy TARP pie (which it subsequently obtained). However, her grandson and Chief of Staff helped OneUnited specifically, without Waters knowledge or approval, and, therefore, he gets a letter or reprimand in his personnel file, or something like that. 

This is all very believable, don't you think?

"Congressional ethics" is as much of an oxymoron as "honest lawyer."

There's one more perversely nice aspect of this turn of events. With the retirement of Barney Frank, Waters will be the ranking Democrat on the House Financial Services Committee. If the Democrats manage to retake control of the House, she'll be chair of the committee. Either way, every time she opens her mouth and spews forth her inanities, she'll be providing reams of blog fodder.

Schooling The Novices

Several blog readers have "bugged" me about the recent articles concerning the eyebrow-raising expenditures of the CFPB that were recently lambasted by the conservative watchdog group Judicial Watch. MarketWatch ran a story last week on the group's findings and CNNMoney (and some of the trade press) picked up on the kerfuffle this week. When I say "bugged," I mean asked me to engage in grave and heinous snarkbaggery on the CFPB, in a fashion they've come to expect. However, after carefully considering the matter and giving the CFPB the benefit of the doubt, I've decided to be not only judicious in my comments, but generous, as well.

Who am I kidding?

Among the more amusing findings was the expenditure by the CFPB of $4,500 in tuition to send six CFPB lawyers to a basic banking law class. While the CFPB claimed that these expenses were merely to pay for ongoing continuing legal education requirements imposed by the various state (and DC) bars in order to retain a license to practice law, the choice of the basic course overflows with irony.

In pursuing the invitation to enroll, Enforcement Attorney Christina Coll emailed Acting Litigation Deputy Deborah Morris on May 4, 2011, saying: "This looks like an awesome agenda for a banking world novice like me." While Ms. Coll's salary is unknown, according to records previously uncovered by Judicial Watch, other Enforcement Attorneys received starting salaries as high as $173,000 per year.

The fact that CFPB paid to train its attorneys in banking law fundamentals at taxpayer expense appears to contradict congressional testimony from then-interim CFPB head, and current Massachusetts Senate candidate, Elizabeth Warren in 2011 regarding the experience level of the agency's highly paid attorneys.

During a May 24, 2011 hearing, U.S. Rep. Ann Marie Buerkle asked why starting salaries at the agency exceeded Office of Personnel Management (OPM) standards by up to 90%: "How do you justify that kind of a disparity in salaries between a government worker and the folks that are going to be hired by your regulatory agency?" asked Rep. Buerkle. Warren defended the salaries, saying the consumer bureau is competing with the financial services industry for talent and "we'll never be able to pay like the financial services industry pays."

I, too, have to obtain CLE credits each year. I do so by teaching, writing, and speaking on an area of the law related to "banking." That's one of the reasons that this blog title contains the words "bank lawyer." I'm living proof of the theory that if you sit a monkey at a typewriter for decades, he'll eventually bang out something readable. On the other hand, to claim that you need to pay high salaries to attract hired guns with the necessary banking law expertise who then need to attend a basic course on banking law that's taught buy outside "experts" because the hired guns are "novices" on the law of the industry they're supposed to be experts on, strikes some as odd, others as downright laughable.

Warren might have a point regarding the private sector salaries if we were discussing people possessed of the degree of expertise that Ms. Warren implied the Bureau was seeking. If you're hiring a banking novice for $173,000 a year, you're overpaying, whether you're comparing the CFPB to the private sector or to a government agency. Moreover, twenty-one starting salaries of $225,000 and more does seem a bit steep, even for the most powerful, lightly supervised federal bureaucracy ever created.

The criticism of $465,000 in expenditures for sign language services might have an explanation. I expect that this contract originated when Cherokee Princess Liz ("Fauxcahontas") Warren was expected to lead the charge. She likely wanted to ensure that she could fully protect her "peeps" from the depredations of predatory lenders and the lawyers who love them. I get that. In addition, the CFPB has only used $54,000 of the $465,000 thus far. Unfortunately, an anonymous source claims that this amount was not used to assist an actual person with disabilities, but to train the CFPB's pet orangutan Koko to sign "I Love Liz," "Banks Are Bad," and "Workers Of The World Unite! You Have Nothing To Lose But Your Chains!" Unfortunately, I cannot verify that claim.

One of my correspondents claimed that their favorite part of the CNNMoney article was the "clarification" at the end.

Clarification: While Judicial Watch criticized the CFPB for using taxpayer dollars on these expenses, the CFPB says it does not use taxpayer money since it is funded by the Federal Reserve.

Yes, the CFPB is funded by the Federal Reserve, which is required by law to turn over its annual net income, after paying dividends to its member banks and making certain other deductions, to the US Treasury. Therefore, every dollar wasted by the CFPB is one less dollar saved for the US taxpayer. That makes the "clarification" contention by the CFPB disingenuous, at best. However, let's give the CFPB the benefit of the doubt. They wouldn't know that the Federal Reserve pays tens of billions of dollars a year into the US Treasury unless they had a basic understanding of the way the US banking system works, and, as we've seen, their employees are "novices" when it comes to such matters.

CFPB delenda est!