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Back to the Future: A New Wave of FDIC Litigation

Back to the Future: A New Wave of FDIC Litigation. The Round-Up…. Moderator : Diane Parker Esq. , Assistant Vice President, Professional Liability Claims, Allied World Assurance Company Panelists : Gary V. Dixon, Esq. , Partner, Troutman Sanders LLC

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Back to the Future: A New Wave of FDIC Litigation

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  1. Back to the Future: A New Wave of FDIC Litigation

  2. The Round-Up… Moderator: • Diane Parker Esq., Assistant Vice President, Professional Liability Claims, Allied World Assurance Company Panelists: • Gary V. Dixon, Esq., Partner, Troutman Sanders LLC • Susan N.K. Gummow, Esq., Partner, Butler Pappas Weihmuller KatzCraig LLP • Jennifer Nierenberg Metzger, Esq., Complex Claims Director, CNA Corporate and Financial Claims • Floyd “Rob” Robinson, Esq., Senior Counsel, Professional Liability and Financial Crimes Unit, Federal Deposit Insurance Corporation

  3. “Temporal displacement has occurred…” • Destination Time: The Banking Crisis of the 1980s • Present Time: The Financial Crisis of 2008 - ? • “Not That There’s Any Danger”: Litigating with the FDIC • “Who’s Gonna Pay for THIS?” D&O Coverage, Then & Now

  4. “I gave you explicit instructions not to come here, but to go directly back to 1985!”

  5. The Banking Crisis of the 1980s • Profile of Bank and S&L Failures • Causes of Bank and S&L Failures • RTC and FDIC Professional Liability Claims • Observations About the 1980s Crisis

  6. “I had to wait 30 years to catch up to you.”

  7. The Financial Crisis of 2008 - ? Profile of Bank Failures Causes of Bank Failures FDIC Professional Liability Claims Observations About the Current Crisis

  8. Bank and Thrift Failures, 2007 to Date

  9. Bank and Thrift Failures, 2008 – 2010

  10. Bank and Thrift Failures, 2007 – 2010, by State

  11. Bank and Thrift Failures, 2007 – 2010, by Assets

  12. “Not that there’s any danger . . . but it never hurts to take precautions.”

  13. Litigating with the FDIC • Pre-Suit Investigations and Demands • Dual Role of FDIC (conservator/receiver) • Special Statutory Powers of the FDIC • FDIC as Intervener: Impact on Third Parties

  14. “Can I assume that your insurance will pay for this?”

  15. D&O Insurance Issues Common coverage issues in FDIC D&O litigation (then and now) • Definition of Claim • Notice of Claim / Circumstance • Exclusions • Regulatory • Insured v. Insured • Specific Claim / Litigation / Event • Prior Notice / Interrelated Wrongful Acts • Prior or Pending / Prior Act

  16. “Where you’re going, there are no roads.”

  17. Questions&Answers

  18. Many Thanks To… • Diane Parker • Gary Dixon • Susan Gummow • Jennifer Nierenberg Metzger • Floyd “Rob” Robinson

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