• Coblentz is the Proud Host of INTA’s 2023 Pre-Annual Meeting Reception in San Francisco

    Coblentz is the proud host of INTA’s 2023 Pre-Annual Meeting Reception in San Francisco on Thursday, April 20. Attorneys, colleagues, and prospective International Trademark Association members are welcome to connect and learn more about this year’s educational program, business development opportunities, and the benefits of becoming an INTA member.

    Why you should attend:

    • Catch up and network with colleagues and professionals with common interests
    • Meet the members of Coblentz’s trademark practice
    • Enjoy Singapore street food with us!

    Date: Thursday, April 20, 2023

    Time: 5:30 pm-7:30 pm Pacific Daylight Time (PDT)

    Location: One Montgomery Street, Suite 3000 (Building entrance can be found at 120 Kearny Street)

    Registration: Register here by April 13, 2023 at 5:00 pm PDT

    Categories: Events
  • UPDATE: Impact of Recent Bank Failures on Borrowers, Landlords, and Other Stakeholders

    By Kyle Recker

    Additional developments relating to the Silicon Valley Bank and Signature Bank failures have occurred, and the situation continues to evolve. Upon the closure of Silicon Valley Bank the FDIC initially created the Deposit Insurance National Bank of Santa Clara, into which it immediately transferred all insured deposits. The FDIC has subsequently established Silicon Valley Bridge Bank, N.A. (SVBB), a temporary national bank that will continue operations as a full-service bank. This is the same form of bridge bank that the FDIC utilized at the outset for Signature Bank when it formed Signature Bridge Bank N.A. (SBB). The FDIC has now transferred all insured and uninsured deposits at Silicon Valley Bank, as well as substantially all of the bank’s other assets and obligations, to SVBB.

    Both SVBB and SBB are continuing to perform their obligations under all contracts, which are backed by the FDIC and the full faith and credit of the United States, and all counterparties are likewise expected to continue fulfilling their contractual obligations to each bank.[1] Earlier this week, the FDIC appointed Tim Mayopoulos as CEO of SVBB. Mr. Mayopoulos subsequently released a statement assuring customers that the bank is open for business, opening new accounts, making new loans, and fully honoring existing credit facilities.[2] A statement on the Signature Bank website also states that SBB is still “providing a full suite of loan, deposit, and banking services.”[3]

    At this time, it seems that the FDIC’s strategy is to keep operations at both banks as intact as possible so that the banks can either be recapitalized or sold whole. During a call with Silicon Valley Bank clients on Wednesday, Mr. Mayopoulos reportedly implored them to move deposits to SVBB, and indicated that if they keep their deposits with other institutions then “that clearly limits the range of options.”[4] If a recapitalization or sale does not materialize with respect to either bank, liquidation remains a possibility. As covered in our previous alert, the FDIC retains the authority to halt lending operations and repudiate contracts and leases, as it determines to be in the best interests of the receivership, and may dispose of the bank’s assets in a piecemeal fashion. Those with ties to either bank should continue to monitor the situation.

    Also on the horizon is a potential bankruptcy or other liquidation or restructuring event for Silicon Valley Bank’s parent company, SVB Financial Group, in which the parent company’s non-bank businesses and assets may be sold or otherwise administered.

    For questions regarding any potential claims, or assistance evaluating existing credit facilities, leases, and other contracts to determine whether any actions may be appropriate in connection with recent events, please contact Kyle Recker at krecker@coblentzlaw.com or another member of the Coblentz team.

    To view a PDF version of this article, please click here.

     

    [1] See FDIC Financial Institutions Letter FIL-10-2023.

    [2] A copy of this statement is available here.

    [3] See https://www.signatureny.com/home.

    [4] See this article at CNBC.

  • Coblentz Files Amicus Brief to California Supreme Court in Support of Enforcing Employer Arbitration Agreements

    “California courts must interpret arbitration agreements to give them their intended purpose and lawful effect to the fullest extent possible . . . . This is especially true when the agreement itself contains a severance clause, further demonstrating the parties’ intent to proceed with arbitration as their desired forum.”

    On March 6, 2023, Coblentz submitted an amicus curiae brief on behalf of Employers Group in the Supreme Court of California in Charter Communications, Inc. v. Ramirez, Case No. S273802.

    Employers Group is the nation’s oldest and largest human resources management organization for employers. Employers Group represents nearly 3,800 California employers of all sizes and in every industry, which collectively employ nearly three million employees. In the amicus brief, Employers Group advocates for a clear rule on the severability of provisions of arbitration agreements that do not affect the heart of the agreement. It also argues that such agreements should be examined under contract interpretation principles applicable to every other type of contract in California.

    Ramirez involves an appeal of a 2022 Second District Court of Appeal decision holding that Charter Communications’ standard arbitration agreement was permeated by unconscionability, could not be severed, and was therefore unenforceable. The Ramirez holding directly contradicted a 2021 decision from the same appellate district: Patterson v. Superior Court (2021) 70 Cal.App.5th 473. In contrast to Ramirez, the Patterson court found the exact same arbitration agreement enforceable (as has many other state and federal trial courts), by interpreting an attorneys’ fee provision in the agreement to impliedly incorporate the Fair Employment and Housing Act’s “asymmetric” rule on awarding attorneys’ fees. In other words, Patterson used well-established contract principles to enforce the agreement, while Ramirez found that the agreement was unsalvageable.

    Lower courts frequently come to differing conclusions under the current legal framework surrounding arbitration agreement enforceability, leaving employers with little certainty on whether a court will actually enforce their agreements. “The Court should,” the brief states, “issue an opinion that provides a robust rule on severability that offers certainty for the thousands of California employers and millions of employees who seek to enjoy the benefits of the arbitral forum as their chosen method of resolving common workplace disputes.”

    Labor and Employment attorneys Fred Alvarez and Anthony Risucci prepared the brief. Other supporting amici included the U.S. Chamber of Commerce, which argued the Federal Arbitration Act preempts the Ramirez opinion. A copy of the amicus brief can be found here.

    Categories: News
  • Impact of Recent Bank Failures on Borrowers, Landlords, and Other Stakeholders

    By Kyle Recker

    By now, most will have heard the news that all deposits at Silicon Valley Bank have been made available to depositors. The Federal Deposit Insurance Corporation (FDIC), in a series of joint statements issued with the U.S. Department of the Treasury and the Board of Governors of the Federal Reserve System, announced that all deposits at Silicon Valley Bank – both FDIC-insured and uninsured deposits – have now been transferred to the Deposit Insurance National Bank of Santa Clara, a newly-created bank established by the FDIC.

    New York regulators also shut down Signature Bank on Sunday, March 12, 2023, and appointed the FDIC as receiver. Similar to Silicon Valley Bank, both FDIC-insured and uninsured deposits have been transferred to Signature Bridge Bank, N.A., which will be operated by the FDIC as a full-service bank while it is marketed for sale to potential buyers.

    The Systemic Risk Exception

    The protection of all deposits at Silicon Valley Bank and Signature Bank, rather than only FDIC-insured deposits, was made possible by the so-called “systemic risk exception” (SRE). The SRE was created by the Federal Deposit Insurance Corporation Improvement Act of 1991 (FDIC Improvement Act), which prohibited the protection of uninsured deposits if the cost of the resolution of a failed bank to taxpayers would be increased as a result.2 The SRE allows the FDIC to bypass this limitation by invoking the SRE if the Secretary of the Treasury, with the recommendation of the boards of the FDIC and the Federal Reserve System, determines that there would otherwise be “serious adverse effects on economic conditions or financial stability.” On Sunday, the FDIC invoked the SRE for Silicon Valley Bank and Signature Bank.

    Bank Term Funding Program

    The recent invocations of the SRE specifically apply to Silicon Valley Bank and Signature Bank; it does not mean that uninsured deposits at other financial institutions would be fully protected in the future (unless similar actions are taken). To restore confidence in the liquidity of the U.S. banking industry, the Federal Reserve Board also announced that it is establishing a new program known as the Bank Term Funding Program.3 Any FDIC-insured deposit institution may borrow funds under the program by depositing certain eligible securities with the Federal Reserve Banks as collateral, which will be valued at par rather than current market value. Advances are available for terms of up to one year, in amounts equal to the par value of the collateral. This will allow financial institutions to temporarily access liquidity equal to the par value of their securities which have lost market value, and currently represent unrealized losses a bank would be forced to realize now if it needed to sell the securities on the market (which essentially is what caused the run on Silicon Valley Bank).

    Implications for Non-Depositor Stakeholders

    The invocation of the SRE provides relief to impacted depositors, but borrowers, landlords, and other stakeholders of these institutions remain in uncertain positions. Prior to passage of the FDIC Improvement Act in 1991, the typical practice of the FDIC was to retain and manage troubled assets of failed financial institutions itself. But this approach proved to be too costly and complex. Now, the FDIC strategy is to seek a buyer of a failed bank’s assets and liabilities as soon as possible, and before a bank actually fails, allowing a different financial institution to continue operations relatively seamlessly from the perspective of depositors and most other stakeholders.

    In situations where an acquisition is not immediately possible, there are two key alternatives available to the FDIC. One option is to create a temporary national bank known as a “bridge bank” that can continue normal operations under the FDIC’s control while the FDIC markets the bank to potential bidders. The other option is to form a Deposit Insurance National Bank, which is a bridge bank but with more limited operations than a temporary national bank.4 The FDIC recently utilized both of these options in creating the Deposit Insurance National Bank of Santa Clara (in connection with Silicon Valley Bank) and Signature Bridge Bank, N.A. (in connection with Signature Bank).

    It remains possible that the FDIC will find buyers of substantially all of the assets and liabilities of each bank, including their loan portfolios, in the coming days and weeks. As of the date of this publication, HSBC has already been lined up to acquire the operations of Silicon Valley Bank in the United Kingdom (for only £1). But what will it mean for non-depositor stakeholders if no buyers step up soon?

    FDIC Servicing of Assets; Contract & Lease Repudiation

    It is the FDIC’s responsibility to service the assets of a failed financial institution while under receivership until the assets are sold, and it has a number of operational mandates that apply to servicing those assets, such as maximizing the return from their sale, minimizing the amount of realized losses, and preserving availability and affordability of housing for those with low and moderate incomes.5 It also has broad latitude in determining liquidation strategies, and the power to repudiate contracts and leases entered into by the failed institution before entering receivership.6 This means the FDIC has the flexibility, within its operational mandates, to elect to terminate outstanding loan commitments, to dishonor letters of credit, and to terminate branch and office leases, among other things.

    Borrower Concerns

    As noted above, the FDIC is responsible for servicing the assets under receivership until those assets are sold. This includes servicing existing loans and outstanding loan commitments. It is FDIC policy to transfer day-to-day servicing of any retained loans to national servicers within 90 days of the financial institution’s failure while the FDIC continues efforts to fully liquidate the institution’s loan portfolio. A number of disposition strategies may be used by the FDIC in the liquidation process, including bulk sales and securitization.

    To be clear, borrowers should not expect any relief from fulfilling their contractual obligations owed under their credit facilities with a failed financial institution. But on the flipside, given the flexibility the FDIC has to cancel outstanding loan commitments, borrowers should also understand that advances may not be available under lines of credit or construction and development loans. The FDIC will analyze funding requests to determine if a requested advance is in the best interests of the receivership. For example, the FDIC may determine that it is necessary to fund all or a portion of the requested advance in order to preserve the value of collateral or maximize recovery. However, the FDIC’s role as receiver generally precludes it from continuing lending operations.

    Borrowers also should be aware that Signature Bank provided cash management services in connection with commercial real estate loans as the clearing bank and cash management bank. Lenders may soon be seeking a replacement to Signature Bank if a sufficiently creditworthy buyer does not assume the bank’s obligations under the relevant account control and cash management agreements. Some borrowers also may have selected Silicon Valley Bank as a clearing bank, and should also expect that replacement may be required.

    Landlord Concerns

    While the FDIC has the power to repudiate leases, that does not necessarily mean it will do so for all leases or that it will do so immediately. For example, all Silicon Valley Bank and Signature Bank branch locations are now open for business and operating as branches of the applicable bridge bank under the FDIC’s control and, so long as those branches remain open to the public, landlords remain entitled to contractual rent until such time as notice of repudiation is given. To the extent leases are actually repudiated, landlords will have a claim against the receivership estate for any unpaid rent due as of the date the FDIC was appointed receiver.9 The extent of recovery for claims for unpaid rent will depend on the extent of funds ultimately recovered by the FDIC from liquidation and made available to various classes of creditors.

    Some landlords also may hold letters of credit delivered by tenants in lieu of cash security deposits. As with outstanding loan commitments, the FDIC has the ability to repudiate funding obligations under issued letters of credit. Unless the issuer’s obligations are assumed by a purchaser, landlords should not expect that attempts to draw on such letters of credit will be honored and should consider demanding replacements from tenants. Even if the issuer’s obligations are assumed, landlords should consider whether the buyer is of adequate credit quality before determining not to require a replacement letter of credit.

    Other Stakeholders

    Borrowers and landlords are not the only stakeholders aside from depositors that may be impacted by receivership of a failed bank. Other stakeholders include counterparties to swaps and other derivatives transactions, parties to purchase contracts (real property or otherwise), service providers, suppliers, and various other secured and unsecured creditors, as well as investors. But note that the actions being taken by the FDIC and the Federal Reserve in connection with the Silicon Valley Bank and Signature Bank failures are expressly not designed with the protection of investors and unsecured creditors in mind.

    The FDIC will establish a process for submitting proofs of claims in the receivership proceedings sometime in the near future, and potential claimants should consult with counsel to preserve their positions within the receivership proceedings as they progress. FDIC receiverships typically are administered in ways that are similar to state court receiverships or bankruptcy cases, but they are not governed by state law or the bankruptcy code.

    For questions regarding any potential claims, or assistance evaluating existing credit facilities, leases, and other contracts to determine whether any actions may be appropriate in connection with recent events, please contact Kyle Recker at krecker@coblentzlaw.com or another member of the Coblentz team.

    To view a PDF version of this article, please click here.

     

    [1] FDIC press releases may be accessed here.
    [2] To read more about the history behind the passage of the Federal Deposit Insurance Corporation Improvement Act of 1991, refer to this 2013 article by Noelle Richards of the Federal Reserve Bank of Philadelphia.
    [3] A copy of the term sheet for the program is available here.
    [4] For a more complete discussion of the FDIC strategies, refer to Chapter 6 of Crisis and Response: An FDIC History, 2008-2013.
    [5] See 12 USC §§ 1821(d)(13)(E) and 1823(d)(3)(D).
    [6] See 12 USC § 1821(e).
    [7] See Crisis and Response, linked in footnote 4, above.
    [8] See A Borrower’s Guide to an FDIC Insured Bank Failure.
    [9] See 12 USC § 1821(e)(4)(B).

  • What We’re Reading, Watching, and Listening to: March 3, 2023

    A roundup of news and multimedia from the Unfamiliar Terrain team:

    San Francisco

    California

    National Real Estate

    Construction

    Urban Planning

    Categories: Blogs