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UWBKQ 4-30-2013 NOTICE OF APPEAL

UWBKQ 4-30-2013 NOTICE OF APPEAL

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United western bank 4-30-2013 NOTICE OF APPEAL
United western bank 4-30-2013 NOTICE OF APPEAL

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USCA Case #13-5126

Document #1433411

Filed: 04/30/2013 Page 1 of 76 APPEAL,CLOSED,TYPE−C

U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:11−cv−00408−ABJ
UNITED WESTERN BANK v. OFFICE OF THE COMPTROLLER OF THE CURRENCY, et al Assigned to: Judge Amy Berman Jackson Cause: 05:551 Administrative Procedure Act Date Filed: 02/18/2011 Date Terminated: 03/06/2013 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

Plaintiff UNITED WESTERN BANK represented by Andrew L. Sandler BUCKLEYSANDLER LLP 1250 24th Street, NW Suite 700 Washington, DC 20037 (202) 349−8001 Fax: (202) 349−8080 Email: asandler@buckleysandler.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Kirby D. Behre PAUL HASTINGS LLP 875 15th Street, NW Washington, DC 20005 (202) 551−1719 Fax: (202) 551−1705 Email: kirbybehre@paulhastings.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Lawrence Kaplan PAUL HASTINGS LLP 875 15th Street, NW Washington, DC 20005 (202) 551−1829 Fax: (202) 551−0229 Email: lawrencekaplan@paulhastings.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Michael R. Williams BUCKLEYSANDLER LLP 1250 24th Street, NW Suite 700 Washington, DC 20037 (202) 349−8065

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USCA Case #13-5126

Document #1433411

Filed: 04/30/2013 Fax: (202) 349−8080 Page 2 of 76
Email: michaelwilliams@buckleysandler.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Samuel John Buffone BUCKLEYSANDLER LLP 1250 24th Street, NW Suite 700 Washington, DC 20037 (202) 349−7940 Fax: (202) 349−8080 Email: sbuffone@buckleysandler.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Liana R. Prieto BUCKLEYSANDLER LLP 1250 24th Street, NW Suite 700 Washington, DC 20037 (202) 461−2948 Fax: (202) 349−8080 Email: lprieto@buckleysandler.com PRO HAC VICE ATTORNEY TO BE NOTICED Theodore J. Abariotes UNITED WESTERN BANCORP, INC. 700 17th Street Suite 750 Denver, CO 80202 (720) 932−4216 Fax: (720) 946−1218 Email: tabariotes@uwbancorp.com PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff UNITED WESTERN BANCORP, INC. Individually and on behalf of United Western Bank as sole shareholder of United Western Bank TERMINATED: 06/24/2011 represented by Andrew L. Sandler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Theodore J. Abariotes (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff GUY A. GIBSON represented by Andrew L. Sandler

2

USCA Caseand #13-5126 Document #1433411 Individually on behalf of United
Western Bank and United Western Bankcorp, Inc. TERMINATED: 06/24/2011

Filed: 04/30/2013 (See above for address)Page 3 of 76
LEAD ATTORNEY ATTORNEY TO BE NOTICED Samuel John Buffone (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Liana R. Prieto (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff MICHAEL J. MCCLOSKEY Individually and on behalf of United Western Bancorp, Inc. TERMINATED: 06/24/2011 represented by Andrew L. Sandler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Samuel John Buffone (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Liana R. Prieto (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Plaintiff JAMES H. BULLOCK Individually and on behalf of United Western Bank and United Western Bankcorp, Inc. TERMINATED: 06/24/2011 represented by Andrew L. Sandler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Kirby D. Behre (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Lawrence Kaplan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Plaintiff CHARLES J. BERLING Individually and on behalf of United Western Bank TERMINATED: 06/24/2011 represented by Andrew L. Sandler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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USCA Case #13-5126

Document #1433411

Filed: 04/30/2013

Page 4 of 76

Kirby D. Behre (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Lawrence Kaplan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Plaintiff ROBERT T. SLEZAK Individually and on behalf of United Western Bankcorp, Inc. TERMINATED: 06/24/2011 represented by Andrew L. Sandler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Kirby D. Behre (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Lawrence Kaplan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant OFFICE OF THRIFT SUPERVISION TERMINATED: 07/25/2011 represented by Dirk S. Roberts OFFICE OF THE COMPTROLLER OF THE CURRENCY 250 E Street, SW Washington, DC 20219 (202) 874−6051 Fax: (202) 874−5279 Email: dirk.roberts@occ.treas.gov TERMINATED: 12/28/2011 Sarah J. Auchterlonie OFFICE OF THRIFT SUPERVISION 1700 G Street, N.W. Washington, DC 20552 (202) 906−6482 Fax: (202) 906−6353 Email: sarah.auchterlonie@ots.treas.gov TERMINATED: 07/07/2011 Defendant

4

USCA #13-5126 JOHNCase E. BOWMAN

Document #1433411 Filed: represented by Dirk 04/30/2013 S. Roberts

Page 5 of 76

in his capacity as Acting Director of the Office of Thrift Supervision TERMINATED: 07/25/2011

(See above for address) TERMINATED: 12/28/2011 Sarah J. Auchterlonie (See above for address) TERMINATED: 07/07/2011

Defendant FEDERAL DEPOSIT INSURANCE CORPORATION in its Corporate Capacity and in its capacity as Receiver for United Western Bank TERMINATED: 06/24/2011 represented by Duncan Norman Stevens FEDERAL DEPOSIT INSURANCE CORPORATION Legal Division, Professional Liability Unit 3501 Fairfax Drive Arlington, VA 22226−3500 (703) 562−2402 Fax: (703) 562−2477 Email: dstevens@fdic.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Merritt Albert Pardini FEDERAL DEPOSIT INSURANCE CORPORATION Legal Division, Professional Liability Unit 3501 Fairfax Drive Arlington, VA 22226−3500 (703) 562−6079 Fax: (703) 562−2475 Email: mpardini@fdic.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant OFFICE OF THE COMPTROLLER OF THE CURRENCY represented by Christopher A. Sterbenz OFFICE OF THE COMPTROLLER OF THE CURRENCY 250 E Street, SW Washington, DC 20219 (202) 927−9124 Fax: (202) 874−5279 Email: christopher.sterbenz@occ.treas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Gregory F. Taylor OFFICE OF THE COMPTROLLER OF THE CURRENCY CHIEF COUNSEL'S OFFICE 400 7th Street, SW Washington, DC 20219

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USCA Case #13-5126

Document #1433411

Filed: (202)04/30/2013 649−6306

Page 6 of 76

Email: gregory.taylor@occ.treas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Dirk S. Roberts (See above for address) TERMINATED: 12/28/2011 Defendant JOHN G. WALSH Acting Comptroller of the Currency TERMINATED: 04/18/2012 represented by Christopher A. Sterbenz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Gregory F. Taylor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Dirk S. Roberts (See above for address) TERMINATED: 12/28/2011 Defendant THOMAS J. CURRY Comptroller of the Currency represented by Christopher A. Sterbenz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Gregory F. Taylor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Intervenor Defendant FEDERAL DEPOSIT INSURANCE CORPORATION in it's corporate capacity represented by Duncan Norman Stevens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor LEGENT CLEARING, LLC represented by Stephen A. Metz SHULMAN, ROGERS, GANDAL, PORDY &ECKER, P.A. 12505 Park Potomac Avenue Sixth Floor Potomac, MD 20854−6803

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USCA Case #13-5126

Document #1433411

Filed: (301)04/30/2013 230−6564

Page 7 of 76

Fax: (301) 230−2891 Email: smetz@shulmanrogers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Jeffrey Carter Andersen BUSH ROSS, P.A. 1801 North Highland Avenue Tampa, FL 33602 (813) 204−6405 Fax: (813) 223−9620 Email: candersen@bushross.com PRO HAC VICE ATTORNEY TO BE NOTICED Traci L Koster BUSH ROSS, P.A. 1801 North Highland Avenue Tampa, FL 33602 (813) 204−6496 Fax: (813) 223−9620 Email: tkoster@bushross.com PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 02/18/2011

# 1

Page

Docket Text COMPLAINT against JOHN E. BOWMAN, FEDERAL DEPOSIT INSURANCE CORPORATION, OFFICE OF THRIFT SUPERVISION ( Filing fee $ 350, receipt number 4616036632) filed by MICHAEL J. MCCLOSKEY, JAMES H. BULLOCK, ROBERT T. SLEZAK, CHARLES J. BERLING, UNITED WESTERN BANCORP, INC., UNITED WESTERN BANK, GUY A. GIBSON. (Attachments: # 1 Civil Cover Sheet)(jf, ) (Entered: 02/18/2011) SUMMONS (6) Issued as to (1) JOHN E. BOWMAN, (2) FEDERAL DEPOSIT INSURANCE CORPORATION, (1) OFFICE OF THRIFT SUPERVISION, U.S. Attorney and U.S. Attorney General. (jf, ) (Entered: 02/18/2011)

02/18/2011

02/18/2011

2

LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests NONE by UNITED WESTERN BANCORP, INC., UNITED WESTERN BANK. (jf, ) (Entered: 02/18/2011)

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USCA Case #13-5126 02/23/2011

3

Document #1433411 Filed: 04/30/2013 Page 8 of 76 RETURN OF SERVICE/AFFIDAVIT of
Summons and Complaint Executed on Attorney General. Date of Service Upon Attorney General 02/18/2011., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. All Defendants served on 2/18/2011, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the US Attorney. Date of Service Upon U.S. Attorney 2/18/2011. ( Answer due for ALL FEDERAL DEFENDANTS by 4/19/2011.) (Sandler, Andrew) Modified on 2/24/2011 to add served date (jf, ). (Entered: 02/23/2011)

02/23/2011

4

MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Liana R. Prieto, :Firm− BuckleySandler LLP, :Address− 1250 24th Street NW, Suite 700. Phone No. − 202 461 2948. Fax No. − 202 349 8080 by UNITED WESTERN BANK (Attachments: # 1 Text of Proposed Order)(Sandler, Andrew) (Entered: 02/23/2011) MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Theodore J. Abariotes, :Firm− United Western Bancorp, Inc., :Address− 700 17th Street, Suite 750; Denver Colorado 80202. Phone No. − 720 932 4216. Fax No. − 720 946 1218 by UNITED WESTERN BANK (Attachments: # 1 Text of Proposed Order)(Sandler, Andrew) (Entered: 02/23/2011) MINUTE ORDER granting 5 Motion for Leave to Appear Pro Hac Vice: Upon consideration of the Motion for Pro Hac Vice Admission, and the record inthis case, it is hereby ORDERED that the Court grants permission for Theodore J. Abariotes to appear pro hac vice in this action. Signed by Judge Ellen S. Huvelle on February 24, 2011. (AG) (Entered: 02/24/2011) MINUTE ORDER granting 4 Motion for Leave to Appear Pro Hac Vice: Upon consideration of the Motion for Pro Hac Vice Admission, and the record inthis case, it is hereby ORDERED, that the Court grants permission for Liana R. Prieto to appear pro hac vice in this action pending her admission to the bar of this Court. Signed by Judge Ellen S. Huvelle on February 24, 2011. (AG) (Entered: 02/24/2011)

02/23/2011

5

02/24/2011

02/24/2011

02/28/2011

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NOTICE of Appearance by Christopher A. Sterbenz on behalf of JOHN E. BOWMAN, OFFICE OF THRIFT SUPERVISION (Sterbenz,

8

USCA Case #13-5126
02/28/2011

Document #1433411 Filed: 04/30/2013 Christopher) (Entered: 02/28/2011)
7

Page 9 of 76

NOTICE Appearance of Dirk S. Roberts on behalf of John E. Bowman and Office of Thrift Supervision by JOHN E. BOWMAN, OFFICE OF THRIFT SUPERVISION (Sterbenz, Christopher) (Entered: 02/28/2011) NOTICE of Appearance by Duncan Norman Stevens on behalf of FEDERAL DEPOSIT INSURANCE CORPORATION (Stevens, Duncan) (Entered: 02/28/2011) NOTICE of Appearance by Sarah J. Auchterlonie on behalf of OFFICE OF THRIFT SUPERVISION, JOHN E. BOWMAN. (Auchterlonie, Sarah) Modified filer on 3/1/2011 (znmw, ). (Entered: 02/28/2011) MOTION to Compel Production of the Administrative Record by CHARLES J. BERLING, JAMES H. BULLOCK, GUY A. GIBSON, MICHAEL J. MCCLOSKEY, ROBERT T. SLEZAK, UNITED WESTERN BANCORP, INC., UNITED WESTERN BANK (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Sandler, Andrew) (Entered: 03/01/2011) NOTICE of Appearance by Samuel John Buffone on behalf of GUY A. GIBSON, MICHAEL J. MCCLOSKEY, UNITED WESTERN BANK (Buffone, Samuel) (Entered: 03/02/2011) Memorandum in opposition to re 10 MOTION to Compel Production of the Administrative Record filed by JOHN E. BOWMAN, OFFICE OF THRIFT SUPERVISION. (Attachments: # 1 Text of Proposed Order)(Sterbenz, Christopher) (Entered: 03/04/2011) MOTION to Dismiss by JOHN E. BOWMAN, OFFICE OF THRIFT SUPERVISION (Attachments: # 1 Memorandum in Support, # 2 Declaration, # 3 Exhibit Exhibit 1, # 4 Exhibit Exhibit 2, # 5 Exhibit Exhibit 3, # 6 Exhibit Exhibit 4, # 7 Exhibit Exhibit 5, # 8 Exhibit Exhibit 6, # 9 Text of Proposed Order)(Sterbenz, Christopher) (Entered: 03/04/2011) NOTICE of Appearance by Merritt Albert Pardini on behalf of FEDERAL DEPOSIT INSURANCE CORPORATION (Pardini, Merritt) (Entered: 03/07/2011)

02/28/2011

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02/28/2011

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03/01/2011

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03/02/2011

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03/04/2011

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03/04/2011

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03/07/2011

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03/11/2011

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9

USCA Case #13-5126

Document #1433411 Filed: 04/30/2013 Page 10 of 76 REPLY to opposition to motion re 10 MOTION to
Compel Production of the Administrative Record filed by CHARLES J. BERLING, JAMES H. BULLOCK, GUY A. GIBSON, MICHAEL J. MCCLOSKEY, ROBERT T. SLEZAK, UNITED WESTERN BANCORP, INC., UNITED WESTERN BANK. (Sandler, Andrew) (Entered: 03/11/2011)

03/18/2011

16

Memorandum in opposition to re 13 MOTION to Dismiss filed by CHARLES J. BERLING, JAMES H. BULLOCK, GUY A. GIBSON, MICHAEL J. MCCLOSKEY, ROBERT T. SLEZAK, UNITED WESTERN BANCORP, INC., UNITED WESTERN BANK. (Attachments: # 1 Exhibit Declaration of Theodore J. Abariotes, # 2 Text of Proposed Order)(Sandler, Andrew) (Entered: 03/18/2011) REPLY to opposition to motion re 13 MOTION to Dismiss filed by JOHN E. BOWMAN, OFFICE OF THRIFT SUPERVISION. (Sterbenz, Christopher) (Entered: 03/25/2011) NOTICE of Filing of Declarations in Opposition to Defendants' Motion to Dismiss by CHARLES J. BERLING, JAMES H. BULLOCK, GUY A. GIBSON, MICHAEL J. MCCLOSKEY, ROBERT T. SLEZAK, UNITED WESTERN BANCORP, INC., UNITED WESTERN BANK (Attachments: # 1 Declaration of C. Berling, # 2 Declaration of J. Bullock, # 3 Declaration of B. Darre, # 4 Declaration of G. Gibson, # 5 Declaration of B. Hirsh, # 6 Declaration of J. Peoples)(Sandler, Andrew) (Entered: 03/30/2011) Case randomly reassigned to U.S. District Judge Amy Berman Jackson. Judge Ellen S. Huvelle no longer assigned to the case. (gt, ) (Entered: 03/30/2011)

03/25/2011

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03/30/2011

18

03/30/2011

04/19/2011

19

MOTION to Expedite Consideration of Pending Motions by CHARLES J. BERLING, JAMES H. BULLOCK, GUY A. GIBSON, MICHAEL J. MCCLOSKEY, ROBERT T. SLEZAK, UNITED WESTERN BANCORP, INC., UNITED WESTERN BANK (Attachments: # 1 Text of Proposed Order)(Sandler, Andrew) (Entered: 04/19/2011) Consent MOTION to Amend/Correct Docket and Caption by FEDERAL DEPOSIT INSURANCE CORPORATION (Attachments: # 1 Text of Proposed Order)(Stevens, Duncan) (Entered:

04/19/2011

20

10

USCA Case #13-5126
04/19/2011

Document #1433411 04/19/2011)
21

Filed: 04/30/2013

Page 11 of 76

Joint MOTION to Dismiss for Lack of Subject Matter Jurisdiction Or, in the Alternative, for Failure to State a Claim by FEDERAL DEPOSIT INSURANCE CORPORATION (Attachments: # 1 Memorandum in Support, # 2 Exhibit A: January 21, 2011 OTS Order, # 3 Text of Proposed Order)(Stevens, Duncan) (Entered: 04/19/2011) Memorandum in opposition to re 21 Joint MOTION to Dismiss for Lack of Subject Matter Jurisdiction Or, in the Alternative, for Failure to State a Claim filed by CHARLES J. BERLING, JAMES H. BULLOCK, GUY A. GIBSON, MICHAEL J. MCCLOSKEY, ROBERT T. SLEZAK, UNITED WESTERN BANCORP, INC., UNITED WESTERN BANK. (Attachments: # 1 Memorandum in Support, # 2 Certificate of Service)(Sandler, Andrew) (Entered: 05/02/2011) ENTERED IN ERROR.....NOTICE of Appearance by Dirk S. Roberts on behalf of JOHN E. BOWMAN, OFFICE OF THRIFT SUPERVISION (znmw, ) Modified on 5/2/2011 (znmw, ). (Entered: 05/02/2011) ENTERED IN ERROR.....NOTICE of Appearance by Martin Jefferson Davis on behalf of JOHN E. BOWMAN, OFFICE OF THRIFT SUPERVISION (znmw, ) Modified on 5/5/2011 (znmw, ). (Entered: 05/02/2011) NOTICE OF CORRECTED DOCKET ENTRY: Docket Entries 23 Notice of Appearance, and 24 Notice of Appearance were entered in error and will not be refiled. (znmw, ) (Entered: 05/02/2011)

05/02/2011

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05/02/2011

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05/02/2011

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05/02/2011

05/03/2011

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Memorandum in opposition to re 19 MOTION to Expedite Consideration of Pending Motions filed by OFFICE OF THRIFT SUPERVISION, JOHN E. BOWMAN. (Auchterlonie, Sarah) Modified to add filer on 5/4/2011 (znmw, ). (Entered: 05/03/2011) Memorandum in opposition to re 19 MOTION to Expedite Consideration of Pending Motions filed by FEDERAL DEPOSIT INSURANCE CORPORATION. (Pardini, Merritt) (Entered: 05/03/2011) REPLY to opposition to motion re 21 Joint MOTION to Dismiss for Lack of Subject Matter Jurisdiction Or, in the Alternative, for Failure to State a Claim filed by FEDERAL DEPOSIT

05/03/2011

26

05/09/2011

27

11

USCA Case #13-5126

Document #1433411 Filed: 04/30/2013 Page 12 of 76 INSURANCE CORPORATION. (Stevens,
Duncan) (Entered: 05/09/2011) NOTICE of Hearing: Status Conference/Motions Hearing is set for 5/20/2011 at 10:00 AM in Courtroom 2 before Judge Amy Berman Jackson. (jth) (Entered: 05/16/2011) 28 NOTICE of Appearance by Lawrence Kaplan on behalf of CHARLES J. BERLING, JAMES H. BULLOCK, ROBERT T. SLEZAK, UNITED WESTERN BANK (Kaplan, Lawrence) (Entered: 05/17/2011) Minute Entry for proceedings held before Judge Amy Berman Jackson: Motions Hearing held on 5/20/2011: re 10 MOTION to Compel Production of the Administrative Record, and 19 MOTION to Expedite Consideration of Pending Motions filed by Plaintiffs UNITED WESTERN BANK, et al.; motions heard and taken under advisement. (Court Reporter Lisa Schwam) (jth) (Entered: 05/20/2011) 29 NOTICE of Filing of Supplemental Exhibits in Support of Motion to Dismiss by JOHN E. BOWMAN, OFFICE OF THRIFT SUPERVISION re 13 MOTION to Dismiss (Attachments: # 1 Exhibit Supplemental Exhibit 1 in Support of OTS Motion to Dismiss, # 2 Exhibit Supplemental Exhibit 2 in Support of OTS Motion to Dismiss)(Sterbenz, Christopher) (Entered: 05/20/2011) TRANSCRIPT OF PROCEEDINGS before Judge Amy Berman Jackson held on 05/20/2011; Page Numbers: 1−45. Court Reporter/Transcriber Lisa Schwam, Telephone number 202−354−3238, Court Reporter Email Address : LisaSchwam@aol.com. For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via

05/16/2011

05/17/2011

05/20/2011

05/20/2011

05/25/2011

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12

USCA Case #13-5126

Document #1433411 Filed: 04/30/2013 Page 13 of 76 PACER without redaction after 90 days. The
policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov. Redaction Request due 6/15/2011. Redacted Transcript Deadline set for 6/25/2011. Release of Transcript Restriction set for 8/23/2011.(Schwam, Lisa) (Entered: 05/25/2011)

06/08/2011

MINUTE ORDER granting 10 Motion to Compel. The Court has preliminarily determined for purposes of this motion that there are likely to be at least one proper plaintiff and one proper defendant in this action, and therefore, discovery may proceed pending the issuance of the Court's memorandum opinion and order on the motions to dismiss (Dkt. #'s 13 and 21). Defendant is directed to produce the administrative record −− which it advised the Court at the status hearing on May 25, 2011 is already ready −− on or before June 17, 2011. Counsel for Plaintiff United Western Bank and for defendant John E. Bowman and the Office of Thrift Supervision are hereby directed to meet and confer − and assume for purposes of the meet and confer that they will be parties to the action −− and submit an agreed scheduling order to the Court on or before July 5, 2011. If agreement cannot be achieved, and initial Scheduling Conference will be held on July 13, 2011 at 10:00 a.m. Signed by Judge Amy Berman Jackson on 6/8/2011. (jth) (Entered: 06/08/2011) 31 TRANSCRIPT OF PROCEEDINGS before Judge Amy Berman Jackson held on 05−20−2011; Page Numbers: 1−45. Court Reporter/Transcriber Lisa Schwam, Telephone number 202−354−3238, Court Reporter Email Address : LisaSchwam@aol.com. For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the

06/23/2011

13

USCA Case #13-5126

Document #1433411 Filed: 04/30/2013 Page 14 of 76 transcript will be made available to the public via
PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov. Redaction Request due 7/14/2011. Redacted Transcript Deadline set for 7/24/2011. Release of Transcript Restriction set for 9/21/2011.(Schwam, Lisa) (Entered: 06/23/2011)

06/24/2011

32

ORDER granting 21 Defendant FDIC's Motion to Dismiss and granting in part and denying in part 13 Defendants John E. Bowman and the Office of Thrift Supervision's Motion to Dismiss. Signed by Judge Amy Berman Jackson on 6/24/2011. (lcabj2, ) (Entered: 06/24/2011) MEMORANDUM OPINION. Signed by Judge Amy Berman Jackson on 6/24/2011. (lcabj2, ) (Entered: 06/24/2011) MINUTE ORDER dismissing 19 Motion to Expedite as moot. Signed by Judge Amy Berman Jackson on 6/24/2011. (lcabj2, ) (Entered: 06/24/2011) MINUTE ORDER dismissing 20 Motion to Amend/Correct as moot. Signed by Judge Amy Berman Jackson on 6/24/2011. (lcabj2, ) (Entered: 06/24/2011)

06/24/2011

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06/24/2011

06/24/2011

07/05/2011

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MEET AND CONFER STATEMENT. (Attachments: # 1 Text of Proposed Order Joint Proposed Scheduling Order)(Sandler, Andrew) (Entered: 07/05/2011) MINUTE ORDER: The Initial Scheduling Conference set for 7/13/2011 at 10:00 a.m. has been taken off the Court's calendar. Signed by Judge Amy Berman Jackson on 7/6/2011. (MT) (Entered: 07/06/2011)

07/06/2011

07/06/2011

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SCHEDULING ORDER: Plaintiff's motion to compel supplementation of the administrative record will be due 7/11/2011, the opposition will be due 8/1/2011, and the reply will be due 8/8/2011. Signed by Judge Amy Berman Jackson on 7/6/2011. (MT) (Entered: 07/06/2011) Set/Reset Deadlines: Motion to Compel due by 7/11/2011. Response due by 8/1/2011 Replys due by 8/8/2011. (tb, ) (Entered: 07/06/2011)

07/06/2011

07/07/2011

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USCA Case #13-5126

Document #1433411 Filed: 04/30/2013 NOTICE OF WITHDRAWAL OF

Page 15 of 76

APPEARANCE as to JOHN E. BOWMAN, OFFICE OF THRIFT SUPERVISION. Attorney Sarah J. Auchterlonie terminated. (Auchterlonie, Sarah) (Entered: 07/07/2011) 07/07/2011 40 MOTION to Intervene by LEGENT CLEARING, LLC (Attachments: # 1 Text of Proposed Order for Motion to Intervene, # 2 Exhibit Motion for Protective Order, # 3 Memorandum in Support, # 4 Exhibit A, # 5 Exhibit B, # 6 Text of Proposed Order for Motion for Protective Order)(jf, ) (Entered: 07/15/2011) ANSWER to 1 Complaint, by JOHN E. BOWMAN, OFFICE OF THRIFT SUPERVISION.(Sterbenz, Christopher) (Entered: 07/08/2011) ENTERED IN ERROR PER COUNSEL. . . . .Second MOTION to Compel Production of the Complete Administrative Record by UNITED WESTERN BANK (Sandler, Andrew) Modified on 7/12/2011 (td, ). (Entered: 07/11/2011) Second MOTION to Compel Production of the Complete Administrative Record by UNITED WESTERN BANK (Attachments: # 1 Memorandum in Support of Second Motion to Compel Production of Administrative Record, # 2 Exhibit, # 3 Text of Proposed Order)(Sandler, Andrew) (Entered: 07/11/2011) NOTICE of Hearing on Motion: 39 Second MOTION to Compel Production of the Complete Administrative Record: Motion Hearing set for 8/11/2011 10:00 AM in Courtroom 3 before Judge Amy Berman Jackson. (jth) (Entered: 07/12/2011) 41 Consent MOTION Consent Motion for Entry of a Scheduling Order re 40 MOTION to Intervene by JOHN E. BOWMAN, OFFICE OF THRIFT SUPERVISION (Attachments: # 1 Text of Proposed Order)(Sterbenz, Christopher) (Entered: 07/18/2011) MOTION for Leave to Appear Pro Hac Vice :Attorney Name− J. Carter Anderson, :Firm− Bush Ross, P.A., :Address− 1801 N. Highland Avenue, Tampa, FL 33602. Phone No. − 813−224−9255. Fax No. − 813−223−9620 by LEGENT CLEARING, LLC (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Metz, Stephen) (Entered: 07/18/2011)

07/08/2011

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07/11/2011

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07/11/2011

39

07/12/2011

07/18/2011

07/18/2011

42

15

USCA Case #13-5126 07/18/2011

43

Document #1433411 Filed: 04/30/2013 Page 16 of 76 MOTION for Leave to Appear Pro Hac Vice
:Attorney Name− Traci L. Koster, :Firm− Bush Ross, P.A., :Address− 1801 N. Highland Avenue, Tampa, FL 33602. Phone No. − 813−224−9255. Fax No. − 813−223−9620 by LEGENT CLEARING, LLC (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Metz, Stephen) (Entered: 07/18/2011)

07/21/2011

MINUTE ORDER. Telephone Conference scheduled for 7/25/2011 at 10:30 AM in Courtroom 3 before Judge Amy Berman Jackson. Signed by Judge Amy Berman Jackson on 7/21/2011. (jth) (Entered: 07/21/2011) Minute Order. Telephone Conference held on 7/25/2011 before Judge Amy Berman Jackson. Granting 40 Motion of Legent Clearing, LLC to Intervene for the limited purpose of the motion for protective order. The Clerk is directed to file the motion for protective order that was attached as an exhibit to the motion to intervene. The parties are directed to file a Joint Status Report by 8/26/2011 regarding material to be redacted in the protective order. (Court Reporter Wendy Ricard) (jth) (Entered: 07/25/2011) 44 Consent MOTION to Substitute Party Office of the Comptroller of the Currency and Acting Comptroller John G. Walsh, vice Office of Thrift Supervision and Acting Director John E. Bowman by JOHN E. BOWMAN, OFFICE OF THRIFT SUPERVISION (Attachments: # 1 Text of Proposed Order)(Sterbenz, Christopher) (Entered: 07/25/2011) NOTICE of Change of Address by Christopher A. Sterbenz (Sterbenz, Christopher) (Entered: 07/25/2011) MINUTE ORDER granting 42 Motion for Leave to Appear Pro Hac Vice. Signed by Judge Amy Berman Jackson on 7/25/2011. (lcabj2) (Entered: 07/25/2011) MINUTE ORDER granting 43 Motion for Leave to Appear Pro Hac Vice. Signed by Judge Amy Berman Jackson on 7/25/2011. (lcabj2) (Entered: 07/25/2011) 46 NOTICE of Change of Address by Dirk S. Roberts (Roberts, Dirk) (Entered: 07/25/2011) MINUTE ORDER granting 44 Consent Motion to Substitute Parties. The Office of the Comptroller of

07/25/2011

07/25/2011

07/25/2011

45

07/25/2011

07/25/2011

07/25/2011 07/25/2011

16

USCA Case #13-5126

Document #1433411 Filed: 04/30/2013 Page 17 of 76 the Currency and Acting Comptroller of the
Currency, John G. Walsh are substituted for former defendants Office of Thrift Supervision and its Acting Director, John E. Bowman. Signed by Judge Amy Berman Jackson on 7/25/2011. (MT) (Entered: 07/25/2011)

07/25/2011

47

MOTION for Protective Order by LEGENT CLEARING, LLC (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, # 3 Exhibit B, # 4 Text of Proposed Order)(jf, ) (Entered: 07/26/2011) Memorandum in opposition to re 39 Second MOTION to Compel Production of the Complete Administrative Record filed by OFFICE OF THE COMPTROLLER OF THE CURRENCY, JOHN G. WALSH. (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Sterbenz, Christopher) (Entered: 08/01/2011) NOTICE of Firm Name Change by UNITED WESTERN BANK (Behre, Kirby) (Entered: 08/08/2011) REPLY to opposition to motion re 39 Second MOTION to Compel Production of the Complete Administrative Record filed by UNITED WESTERN BANK. (Sandler, Andrew) (Entered: 08/08/2011) STRICKEN PURSUANT TO MINUTE ORDER FILED 08/10/2011.....Memorandum in opposition to re 47 MOTION for Protective Order filed by FEDERAL DEPOSIT INSURANCE CORPORATION. (Pardini, Merritt) Modified on 8/10/2011 (jth). (Entered: 08/09/2011) MINUTE ORDER striking 51 Memorandum in opposition to re 47 MOTION for Protective Order filed by FEDERAL DEPOSIT INSURANCE CORPORATION because it was filed by entities that are no longer parties to the litigation, see Dkt. #32 &33. Further, in light of the Court's order on July 25, 2011, directing the parties to confer and provide the Court with a more narrowly tailored protective order, it is moot. Signed by Judge Amy Berman Jackson on 8/10/2011. (lcabj2) (Entered: 08/10/2011) Minute Entry for Proceedings that were held before Judge Amy Berman Jackson. Motions Hearing held on 8/11/2011 re: 39 Second MOTION to Compel Production of the Complete Administrative

08/01/2011

48

08/08/2011

49

08/08/2011

50

08/09/2011

51

08/10/2011

08/11/2011

17

USCA Case #13-5126

Document #1433411 Filed: 04/30/2013 Page 18 of 76 Record filed by UNITED WESTERN BANK.
Motion was Heard and Taken Under Advisement. (Court Reporter Lisa Schwam) (jth) (Entered: 08/11/2011)

08/11/2011

MINUTE ORDER In connection with the Court's consideration of Plaintiff's Second Motion to Compel Production of the Complete Administrative Record, taken under advisement after the hearing on the motion on August 11, 2011, it is hereby ORDERED that on or before August 31, 2011: 1) The defendant John G. Walsh, Acting Comptroller of the Currency, shall certify that the administrative record produced to the plaintiff, or the record as supplemented by any additional materials produced on or before the date of the certification, is the accurate and complete record of all of the information which the then Acting Director of the Office of Thrift Supervision considered, directly or indirectly, or upon which he relied, in making the January 21, 2011 decision to appoint a receiver for United Western Bank pursuant to 12 USC 1464 (d)(2)(A); and 2) Plaintiff United Western Bank shall submit to the Court a proposal detailing the scope of the limited discovery it seeks to conduct to enable it to uncover evidence relevant to the Court's determination of whether grounds exist for an order that the record be supplemented in this case, ie, whether documents that are properly part of the administrative record have been withheld. Any proposed discovery must be limited to requests for production of documents and interrogatories and should be narrowly tailored to serve the rare and limited circumstances under which discovery may be granted in an Administrative Procedure Act case in this Circuit. Signed by Judge Amy Berman Jackson on 8/11/2011. (lcabj2) (Entered: 08/11/2011) Set/Reset Deadline: On or before 8/31/2011: 1) The defendant John G. Walsh, Acting Comptroller of the Currency, shall certify that the administrative record produced to the plaintiff, or the record as supplemented by any additional materials produced on or before the date of the certification, is the accurate and complete record of all of the information which the then Acting Director of the Office of Thrift Supervision considered, directly or indirectly, or upon which he relied, in making the January 21, 2011 decision to appoint a receiver for United Western Bank

08/12/2011

18

USCA Case #13-5126

Document #1433411 Filed: 04/30/2013 Page 19 of 76 pursuant to 12 USC 1464 (d)(2)(A); and 2)
Plaintiff United Western Bank shall submit to the Court a proposal detailing the scope of the limited discovery it seeks to conduct to enable it to uncover evidence relevant to the Court's determination of whether grounds exist for an order that the record be supplemented in this case, ie, whether documents that are properly part of the administrative record have been withheld. Any proposed discovery must be limited to requests for production of documents and interrogatories and should be narrowly tailored to serve the rare and limited circumstances under which discovery may be granted in an Administrative Procedure Act case in this Circuit. (jth) (Entered: 08/12/2011)

08/26/2011

52

STATUS REPORT by LEGENT CLEARING, LLC, OFFICE OF THE COMPTROLLER OF THE CURRENCY, JOHN G. WALSH. (Sterbenz, Christopher) (Entered: 08/26/2011) MINUTE ORDER The parties are directed to file another joint status report regarding the motion for protective order on or before September 12, 2011. Signed by Judge Amy Berman Jackson on 8/26/2011. (lcabj2) (Entered: 08/26/2011) Set/Reset Deadlines: The parties are directed to file another joint status report regarding the motion for protective order on or before 9/12/2011. (jth) (Entered: 08/31/2011)

08/26/2011

08/26/2011

08/30/2011

53

Consent MOTION for Extension of Time to File by OFFICE OF THE COMPTROLLER OF THE CURRENCY, JOHN G. WALSH (Attachments: # 1 Text of Proposed Order)(Sterbenz, Christopher) (Entered: 08/30/2011) MINUTE ORDER granting 53 Consent Motion for Extension of Time to 9/6/2011 to make the submissions required by the Court's order of 8/11/2011. Signed by Judge Amy Berman Jackson on 8/31/11. (MT) (Entered: 08/31/2011)

08/31/2011

09/01/2011

54

RESPONSE TO ORDER OF THE COURT re Order,,,,,, filed by OFFICE OF THE COMPTROLLER OF THE CURRENCY, JOHN G. WALSH. (Attachments: # 1 Declaration Declaration of John E. Bowman, # 2 Declaration Declaration of John G. Walsh)(Sterbenz, Christopher) (Entered: 09/01/2011) NOTICE of Filing of Plaintiff's Discovery Proposal by UNITED WESTERN BANK re

09/01/2011

55

19

USCA Case #13-5126

Document #1433411 Filed: 04/30/2013 Page 20 of 76 Order,,,,,, (Attachments: # 1 Appendix
Interrogatories and Requests for Production of Documents)(Sandler, Andrew) (Entered: 09/01/2011)

09/09/2011

56

ORDER on proposed discovery. Signed by Judge Amy Berman Jackson on 9/9/2011. (lcabj2) (Entered: 09/09/2011) STATUS REPORT by LEGENT CLEARING, LLC, OFFICE OF THE COMPTROLLER OF THE CURRENCY. (Sterbenz, Christopher) (Entered: 09/12/2011) MINUTE ORDER re 57 Status Report. In light of the joint status report, Legent shall notify the Court on or before 9/21/2011 whether its motion for protective order should be denied as moot. Signed by Judge Amy Berman Jackson on 9/13/2011. (MT) (Entered: 09/13/2011) Set/Reset Deadlines: Legent shall notify the Court on or before 9/21/2011 whether its motion for protective order should be denied as moot. (jth) (Entered: 09/13/2011)

09/12/2011

57

09/13/2011

09/13/2011

09/21/2011

58

STATUS REPORT Regarding Legent Clearing, LLC's 47 Motion for Protective Order by LEGENT CLEARING, LLC. (Metz, Stephen) (Entered: 09/21/2011) MINUTE ORDER denying 47 Motion for Protective Order as moot in light of the matters presented by the parties in the status report dated 9/21/2011. Defendant Office of Thrift Supervision is directed to file the public version of the administrative record on or before 10/5/2011. Signed by Judge Amy Berman Jackson on 9/21/2011. (lcabj2) (Entered: 09/21/2011) Set/Reset Deadlines: Defendant is directed to file the public version of the administrative record by 10/5/2011. (jth) (Entered: 09/21/2011)

09/21/2011

09/21/2011

10/05/2011

59

ADMINISTRATIVE RECORD Notice of Filing by OFFICE OF THE COMPTROLLER OF THE CURRENCY, JOHN G. WALSH. (Sterbenz, Christopher) (Entered: 10/05/2011) MINUTE ORDER Plaintiff is directed to supplement its second motion to compel production of the complete administrative record [Dkt. #39] on or before November 11, 2011, by identifying any particular material uncovered in accordance with the Court's order on September 9,

10/11/2011

20

USCA Case #13-5126

Document #1433411 Filed: 04/30/2013 Page 21 of 76 2011, regarding proposed discovery [Dkt. #56] that
should be included in the administrative record but currently is not. If no supplementation is required, the Court will deem the motion to compel to be moot. Signed by Judge Amy Berman Jackson on 10/11/2011. (lcabj2) (Entered: 10/11/2011)

10/11/2011

Set/Reset Deadlines: Plaintiff is directed to supplement its second motion to compel production of the complete administrative record [Docket #39], by identifying any particular material uncovered in accordance with the Court's order on September 9, 2011, regarding proposed discovery [Docket #56] that should be included in the administrative record but currently is not. If no supplementation is required, the Court will deem the motion to compel to be moot. Supplement due by 11/11/2011. (jth) (Entered: 10/11/2011) 60 Second MOTION to Compel Production of the Complete Administrative Record − Renewed by UNITED WESTERN BANK (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1−5)(Sandler, Andrew) (Entered: 11/02/2011) SUPPLEMENTAL MEMORANDUM to re 60 Second MOTION to Compel Production of the Complete Administrative Record − Renewed filed by UNITED WESTERN BANK. (Sandler, Andrew) Modified on 11/3/2011 to correct docket text (jf, ). (Entered: 11/02/2011) LARGE ADDITIONAL ATTACHMENT(S) by UNITED WESTERN BANK 61 Supplemental Memorandum filed by UNITED WESTERN BANK. (Attachments: # 1 Exhibit)(Sandler, Andrew) (Entered: 11/02/2011) LARGE ADDITIONAL ATTACHMENT(S) by UNITED WESTERN BANK 61 Supplemental Memorandum filed by UNITED WESTERN BANK. (Attachments: # 1 Exhibit)(Sandler, Andrew) (Entered: 11/02/2011) LARGE ADDITIONAL ATTACHMENT(S) by UNITED WESTERN BANK 61 Supplemental Memorandum filed by UNITED WESTERN BANK. (Attachments: # 1 Exhibit)(Sandler, Andrew) (Entered: 11/02/2011) MINUTE ORDER granting 39 Motion to Compel in part and denying in part as moot since it has been superseded by [Dkt. #60]. Signed by Judge Amy Berman Jackson on 11/3/2011. (lcabj2)

11/02/2011

11/02/2011

61

11/02/2011

62

11/02/2011

63

11/02/2011

64

11/03/2011

21

USCA Case #13-5126
11/16/2011

Document #1433411 Filed: 04/30/2013 (Entered: 11/03/2011)
65

Page 22 of 76

Memorandum in opposition to re 60 Second MOTION to Compel Production of the Complete Administrative Record − Renewed filed by OFFICE OF THE COMPTROLLER OF THE CURRENCY, JOHN G. WALSH. (Sterbenz, Christopher) (Entered: 11/16/2011) REPLY to opposition to motion re 60 Second MOTION to Compel Production of the Complete Administrative Record − Renewed filed by UNITED WESTERN BANK. (Sandler, Andrew) (Entered: 11/23/2011) TRANSCRIPT OF PROCEEDINGS before Judge Amy Berman Jackson held on 8−11−2011; Page Numbers: 1−66. Court Reporter/Transcriber Lisa Schwam, Telephone number 202−354−3238, Court Reporter Email Address : LisaSchwam@aol.com. For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov. Redaction Request due 1/17/2012. Redacted Transcript Deadline set for 1/27/2012. Release of Transcript Restriction set for 3/26/2012.(Schwam, Lisa) (Entered: 12/27/2011)

11/23/2011

66

12/27/2011

67

12/28/2011

68

NOTICE OF WITHDRAWAL OF APPEARANCE as to OFFICE OF THE COMPTROLLER OF THE CURRENCY, JOHN G. WALSH. Attorney Dirk S. Roberts terminated. (Roberts, Dirk) (Entered: 12/28/2011) NOTICE of Appearance by Gregory F. Taylor on behalf of OFFICE OF THE COMPTROLLER OF

01/17/2012

69

22

USCA Case #13-5126

Document #1433411 Filed: 04/30/2013 Page 23 of 76 THE CURRENCY, JOHN G. WALSH (Taylor,
Gregory) (Entered: 01/17/2012) 70 MOTION to Expedite Consideration of Pending Motion to Compel by UNITED WESTERN BANK (Attachments: # 1 Memorandum in Support)(Sandler, Andrew) (Entered: 01/19/2012) ENTERED IN ERROR.....NOTICE Response by OFFICE OF THE COMPTROLLER OF THE CURRENCY, JOHN G. WALSH re 70 MOTION to Expedite Consideration of Pending Motion to Compel (Sterbenz, Christopher) Modified on 1/25/2012 (jf, ). (Entered: 01/25/2012) NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 71 Notice (Other) was entered in error and counsel was instructed to refile said pleading under the correct event. (jf, ) (Entered: 01/25/2012) 72 RESPONSE re 70 MOTION to Expedite Consideration of Pending Motion to Compel filed by OFFICE OF THE COMPTROLLER OF THE CURRENCY, JOHN G. WALSH. (Sterbenz, Christopher) (Entered: 01/25/2012) NOTICE of Hearing: Telephone Conference scheduled for 2/7/2012 at 10:00 AM in Courtroom 3 before Judge Amy Berman Jackson. (jth) (Entered: 02/01/2012) Minute Entry for proceedings held before Judge Amy Berman Jackson: Telephone Conference held on 2/7/2012. For the reasons stated on the record 60 Motion to Compel is granted in part and denied in part. Document production period to conclude by 3/7/2012; Joint Proposed briefing schedule due by 3/9/2012. (Court Reporter Pat Kaneshiro−Miller) (jth) (Entered: 02/07/2012) MINUTE ORDER denying 70 Motion to Expedite as moot in light of the Court's ruling on Dkt. #60 on February 7, 2012. Signed by Judge Amy Berman Jackson on 2/7/2012. (lcabj2) (Entered: 02/07/2012) 73 NOTICE of Proposed Order by UNITED WESTERN BANK (Sandler, Andrew) (Entered: 02/09/2012) ORDER re 60 Second MOTION to Compel Production of the Complete Administrative Record − Renewed. The motion is granted in part and denied in part. Counsel for the parties shall meet

01/19/2012

01/25/2012

71

01/25/2012

01/25/2012

02/01/2012

02/07/2012

02/07/2012

02/09/2012

02/09/2012

74

23

USCA Case #13-5126

Document #1433411 Filed: 04/30/2013 Page 24 of 76 and confer and submit an agreed scheduling order
for dispositive motions to the Court on or before 3/9/2012. SEE ORDER FOR COMPLETE DETAILS. Signed by Judge Amy Berman Jackson on 2/9/2012. (MT) (Entered: 02/09/2012)

02/10/2012

75

MOTION to Intervene on a Limited Basis to Address Production of FDIC Documents by FEDERAL DEPOSIT INSURANCE CORPORATION (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Text of Proposed Order)(Stevens, Duncan) (Entered: 02/10/2012) MINUTE ORDER granting 75 the motion to intervene for the limited purpose of addressing production of FDIC documents. The Court deems plaintiff's motion to compel as a request for a waiver pursuant to the regulations and orders FDIC to either authorize defendant OCC to produce the documents to plaintiff or submit them in camera itself to the Court by February 15, 2012. The Court suspends defendant OCC's obligation to produce those documents pursuant to the order issued on February 7, 2012, until the Court has ruled on the FDIC's assertion of privilege. Signed by Judge Amy Berman Jackson on 2/10/2012. (lcabj2) (Entered: 02/10/2012) Set/Reset Deadlines: FDIC is ordered to either authorize defendant OCC to produce the documents to plaintiff or itself to submit them in camera to the Court by 2/15/2012. (jth) (Entered: 02/10/2012)

02/10/2012

02/10/2012

02/15/2012

76

NOTICE of In Camera Production by FEDERAL DEPOSIT INSURANCE CORPORATION re Order on Motion to Intervene,, (Stevens, Duncan) (Entered: 02/15/2012) MOTION for Protective Order by FEDERAL DEPOSIT INSURANCE CORPORATION (Attachments: # 1 Text of Proposed Order)(Stevens, Duncan) (Entered: 02/15/2012) MINUTE ORDER While the Court is prepared otherwise to approve the proposed order to [Dkt. # 77] MOTION for Protective Order, it will not sign an order that provides, as in paragraphs 3 and 5, that any matters "shall" be filed under seal. Any protective order must be in accordance with the presumption against sealed proceedings that applies in this Circuit and with LCvR 5.1(j). The parties may submit another proposed order that complies with these rules for the Court's approval.

02/15/2012

77

02/15/2012

24

USCA Case #13-5126

Document #1433411 Filed: 04/30/2013 Page 25 of 76 Signed by Judge Amy Berman Jackson on
2/15/2012. (lcabj2) Modified on 2/15/2012 to reflect that the motion for proctective order was not a consent motion (jth). (Entered: 02/15/2012)

02/16/2012

78

RESPONSE re 76 Notice (Other) of in Camera Production by Intervenor FDIC filed by UNITED WESTERN BANK. (Sandler, Andrew) (Entered: 02/16/2012) REPLY re 78 Response to Document Regarding In Camera Production of Documents filed by FEDERAL DEPOSIT INSURANCE CORPORATION. (Attachments: # 1 Exhibit A: 2−15−12 Letter to Court, # 2 Exhibit B: Defendants' Responses to Interrogatories)(Stevens, Duncan) (Entered: 02/17/2012) NOTICE Regarding Redacted Documents by FEDERAL DEPOSIT INSURANCE CORPORATION (Stevens, Duncan) (Entered: 02/24/2012) MEMORANDUM OPINION &ORDER regarding production of documents by defendant OCC. FDIC is directed to submit a revised protective order for the Court's signature on or before March 2, 2012. OCC is directed to notify the Court by March 2, 2012 regarding whether it "directly or indirectly considered, or relied upon" on the October 25, 2010 Case Memorandum or whether it was simply "provided" to the Acting Director. See Order for complete details, including the Court's rulings on the other documents at issue. Signed by Judge Amy Berman Jackson on 2/24/2012. (lcabj2) Modified on 2/27/2012 to reflect the correct date of October 25, 2010 (jth). (Entered: 02/24/2012) Set/Reset Deadlines: FDIC's Revised Protective Order and OCC's answer/response to the Court's Memorandum Opinion and Order of 2/24/2012 are due by 3/2/2012. (jth) (Entered: 02/27/2012)

02/17/2012

79

02/24/2012

80

02/24/2012

81

02/27/2012

03/01/2012

82

RESPONSE TO ORDER OF THE COURT re 81 Memorandum &Opinion,, filed by OFFICE OF THE COMPTROLLER OF THE CURRENCY, JOHN G. WALSH. (Sterbenz, Christopher) (Entered: 03/01/2012) Amended MOTION for Protective Order and Motion for Clarification by FEDERAL DEPOSIT INSURANCE CORPORATION (Attachments: # 1 Appendix Proposed Protective Order)(Stevens, Duncan). Added MOTION to Clarify on 3/5/2012

03/02/2012

83

25

USCA Case #13-5126
03/05/2012

Document #1433411 Filed: 04/30/2013 (znmw, ). (Entered: 03/02/2012)
84

Page 26 of 76

RESPONSE re 82 Response to Order of the Court filed by UNITED WESTERN BANK. (Sandler, Andrew) (Entered: 03/05/2012) ENTERED IN ERROR.....MOTION for Reconsideration re 81 Memorandum &Opinion,, by FEDERAL DEPOSIT INSURANCE CORPORATION (Attachments: # 1 Text of Proposed Order)(Stevens, Duncan) Modified on 3/7/2012 (jf, ). (Entered: 03/06/2012) Amended MOTION for Reconsideration re 81 Memorandum &Opinion,, by FEDERAL DEPOSIT INSURANCE CORPORATION (Attachments: # 1 Text of Proposed Order)(Stevens, Duncan) (Entered: 03/06/2012) Memorandum in opposition to re 83 Amended MOTION for Protective Order and Motion for Clarification MOTION to Clarify filed by UNITED WESTERN BANK. (Attachments: # 1 Text of Proposed Order)(Sandler, Andrew) (Entered: 03/06/2012) REPLY to opposition to motion re 83 Amended MOTION for Protective Order and Motion for Clarification MOTION to Clarify filed by FEDERAL DEPOSIT INSURANCE CORPORATION. (Stevens, Duncan) (Entered: 03/07/2012) NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 85 MOTION for Reconsideration re 81 Memorandum &Opinion,, was entered in error and refiled by counsel. (See Docket Entry 86 to view document)(jf, ) (Entered: 03/07/2012)

03/06/2012

85

03/06/2012

86

03/06/2012

87

03/07/2012

88

03/07/2012

03/07/2012

89

PROTECTIVE ORDER (SEE ORDER FOR COMPLETE DETAILS). Signed by Judge Amy Berman Jackson on 3/6/2012. (jth) (Entered: 03/07/2012) RESPONSE TO ORDER OF THE COURT re 74 Order, Regarding Scheduling of Dispositive Motions filed by OFFICE OF THE COMPTROLLER OF THE CURRENCY, JOHN G. WALSH. (Attachments: # 1 Text of Proposed Order)(Sterbenz, Christopher) (Entered: 03/09/2012) RESPONSE TO ORDER OF THE COURT re 74 Order, Regarding Scheduling of Dispositive Motions filed by UNITED WESTERN BANK.

03/09/2012

90

03/09/2012

91

26

USCA Case #13-5126
03/09/2012

Document #1433411 Filed: 04/30/2013 Page 27 of 76 (Sandler, Andrew) (Entered: 03/09/2012)
92 RESPONSE re 91 Response to Order of the Court filed by OFFICE OF THE COMPTROLLER OF THE CURRENCY, JOHN G. WALSH. (Sterbenz, Christopher) (Entered: 03/09/2012) Memorandum in opposition to re 86 Amended MOTION for Reconsideration re 81 Memorandum &Opinion,, filed by UNITED WESTERN BANK. (Sandler, Andrew) (Entered: 03/13/2012) REPLY to opposition to motion re 86 Amended MOTION for Reconsideration re 81 Memorandum &Opinion,, filed by FEDERAL DEPOSIT INSURANCE CORPORATION. (Stevens, Duncan) (Entered: 03/14/2012) AMENDED SCHEDULING ORDER: Plaintiff's motion for summary judgment will be due 4/20/2012. Defendants' opposition and cross motion for summary judgment will be due 5/18/2012. Plaintiff's combined reply and opposition to the cross motion for summary judgment will be due 6/8/2012. Defendants' reply to the opposition to the cross motion for summary judgment will be due 6/15/2012. SEE ORDER FOR COMPLETE DETAILS. Signed by Judge Amy Berman Jackson on 3/14/2012. (MT) (Entered: 03/14/2012) MEMORANDUM OPINION AND ORDER granting 86 Motion for Reconsideration. It is ordered that defendant need not produce the Cost Test Summary. It is further ordered that defendant need not produce the Case Memorandum to the FDIC Board dated October 25, 2010. See order for details. Signed by Judge Amy Berman Jackson on 4/4/2012. (lcabj2) (Entered: 04/04/2012) NOTICE of Appearance by Michael Ray Williams on behalf of UNITED WESTERN BANK (Williams, Michael) (Entered: 04/05/2012) Consent MOTION to Substitute Party by OFFICE OF THE COMPTROLLER OF THE CURRENCY, JOHN G. WALSH (Attachments: # 1 Text of Proposed Order)(Sterbenz, Christopher) (Entered: 04/17/2012) MINUTE ORDER granting 98 Consent Motion to Substitute Parties. THOMAS J. CURRY, Comptroller of the Currency, is substituted as a party defendant for JOHN G. WALSH the former Acting Comptroller of the Currency. Signed by

03/13/2012

93

03/14/2012

94

03/14/2012

95

04/04/2012

96

04/05/2012

97

04/17/2012

98

04/18/2012

27

USCA Case #13-5126

Document #1433411 Filed: 04/30/2013 Page 28 of 76 Judge Amy Berman Jackson on 4/18/2012. (jth)
(Entered: 04/18/2012) 99 MOTION for Summary Judgment by UNITED WESTERN BANK (Attachments: # 1 Text of Proposed Order)(Sandler, Andrew) (Main Document 99 replaced on 12/6/2012) (zjth, ). (Entered: 04/20/2012) MOTION for Summary Judgment and Memorandum of Points and Authorities in Opposition to Plaintiff's Motion for Summary Judgment by THOMAS J. CURRY, OFFICE OF THE COMPTROLLER OF THE CURRENCY (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts)(Sterbenz, Christopher) (Entered: 05/18/2012) Memorandum in opposition to re 99 MOTION for Summary Judgment in duplicate of that filed in support of Defendant's May 18, 2012 motion for summary judgment filed by THOMAS J. CURRY, OFFICE OF THE COMPTROLLER OF THE CURRENCY. (Sterbenz, Christopher) (Entered: 05/21/2012) MOTION to Strike 100 MOTION for Summary Judgment and Memorandum of Points and Authorities in Opposition to Plaintiff's Motion for Summary Judgment (Particularly [100−2] Separate Statement of Facts) by UNITED WESTERN BANK (Attachments: # 1 Text of Proposed Order)(Sandler, Andrew) (Entered: 05/22/2012) Memorandum in opposition to re 102 MOTION to Strike 100 MOTION for Summary Judgment and Memorandum of Points and Authorities in Opposition to Plaintiff's Motion for Summary Judgment (Particularly [100−2] Separate Statement of Facts) MOTION to Strike 100 MOTION for Summary Judgment and Memorandum of Points and Authorities in Opposition to Plaintiff's Motion for Summary Judgment (Particularly [100−2] Separate Statement of Facts) filed by THOMAS J. CURRY, OFFICE OF THE COMPTROLLER OF THE CURRENCY. (Sterbenz, Christopher) (Entered: 05/29/2012) REPLY to opposition to motion re 102 MOTION to Strike 100 MOTION for Summary Judgment and Memorandum of Points and Authorities in Opposition to Plaintiff's Motion for Summary

04/20/2012

05/18/2012

100

05/21/2012

101

05/22/2012

102

05/29/2012

103

05/30/2012

104

28

USCA Case #13-5126

Document #1433411 Filed: 04/30/2013 Page 29 of 76 Judgment (Particularly [100−2] Separate
Statement of Facts filed by UNITED WESTERN BANK. (Williams, Michael) . (Entered: 05/30/2012)

06/08/2012

105

Memorandum in opposition to re 100 MOTION for Summary Judgment and Memorandum of Points and Authorities in Opposition to Plaintiff's Motion for Summary Judgment filed by UNITED WESTERN BANK. (Sandler, Andrew) (Main Document 105 replaced on 12/6/2012) (zjth, ). (Entered: 06/08/2012) REPLY to opposition to motion re 99 MOTION for Summary Judgment filed by UNITED WESTERN BANK. (Sandler, Andrew) (Main Document 106 replaced on 12/6/2012) (zjth, ). (Entered: 06/08/2012) REPLY to opposition to re 100 MOTION for Summary Judgment filed by THOMAS J. CURRY, OFFICE OF THE COMPTROLLER OF THE CURRENCY. (Sterbenz, Christopher) . (Entered: 06/15/2012) MOTION for Oral Argument in resolving pending motions by UNITED WESTERN BANK (Sandler, Andrew) Modified on 6/20/2012 (jf, ). (Entered: 06/19/2012) RESPONSE re 108 Notice (Other) filed by THOMAS J. CURRY, OFFICE OF THE COMPTROLLER OF THE CURRENCY. (Sterbenz, Christopher) (Entered: 06/20/2012) MINUTE ORDER denying as moot 108 Motion for Oral Argument. The Court is aware of the pendency of these motions as well as the many other motions on its docket, and it will schedule argument if and when it determines that it will be necessary to the resolution of the issues. The Court hopes that plaintiff's counsel will enjoy a complete recovery, and it wishes to assure him that any hearing will be set on a date that accommodates his schedule. Signed by Judge Amy Berman Jackson on 6/20/2012. (MT) (Entered: 06/20/2012) NOTICE OF ERROR re 108 Motion for Miscellaneous Relief; emailed to asandler@buckleysandler.com, cc'd 18 associated attorneys −− The PDF file you docketed contained errors: 1. FYI − Counsel should refrain from using All Caps to e−file (jf, ) (Entered: 06/20/2012)

06/08/2012

106

06/15/2012

107

06/19/2012

108

06/20/2012

109

06/20/2012

06/20/2012

06/29/2012

110

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Document #1433411 Filed: 04/30/2013 Page 30 of 76 NOTICE of Filing of Appendix by UNITED
WESTERN BANK re 59 Administrative Record (Attachments: # 1 Appendix 1, # 2 Appendix 2, # 3 Appendix 3, # 4 Appendix 4, # 5 Appendix 5, # 6 Appendix 6, # 7 Appendix 7, # 8 Appendix 8, # 9 Appendix 9, # 10 Appendix 10, # 11 Appendix 11, # 12 Appendix 12, # 13 Appendix 13, # 14 Appendix 14, # 15 Appendix 15, # 16 Appendix 16, # 17 Appendix 17, # 18 Appendix 18, # 19 Appendix 19, # 20 Appendix 20, # 21 Appendix 21, # 22 Appendix 22, # 23 Appendix 23, # 24 Appendix 24, # 25 Appendix 25, # 26 Appendix 26, # 27 Appendix 27, # 28 Appendix 28, # 29 Appendix 29, # 30 Appendix 30, # 31 Appendix 31, # 32 Appendix 32, # 33 Appendix 33, # 34 Appendix 34, # 35 Appendix 35, # 36 Appendix 36, # 37 Appendix 37, # 38 Appendix 38, # 39 Appendix 39, # 40 Appendix 40, # 41 Appendix 41, # 42 Appendix 42, # 43 Appendix 43, # 44 Appendix 44, # 45 Appendix 45, # 46 Appendix 46, # 47 Appendix 47, # 48 Appendix 48, # 49 Appendix 49, # 50 Appendix 50, # 51 Appendix 51, # 52 Appendix 52, # 53 Appendix 53, # 54 Appendix 54, # 55 Appendix 55, # 56 Appendix 56, # 57 Appendix 57, # 58 Appendix 58, # 59 Appendix 59, # 60 Appendix 60, # 61 Appendix 61, # 62 Appendix 62, # 63 Appendix 63, # 64 Appendix 64, # 65 Appendix 65, # 66 Appendix 66, # 67 Appendix 67, # 68 Appendix 68, # 69 Appendix 69)(Williams, Michael) (Entered: 06/29/2012)

09/28/2012

NOTICE of Hearing on Motions: 100 Defendants' MOTION for Summary Judgment; 99 Plaintiff's MOTION for Summary Judgment; and 102 Plaintiff's MOTION to Strike Defendants' Statement of Facts with References to the Administrative Record. Motions Hearing is scheduled for 11/14/2012 at 10:00 AM in Courtroom 3 before Judge Amy Berman Jackson. (jth) (Entered: 09/28/2012) MINUTE ORDER. In its opposition to plaintiff's motion for summary judgment, defendant repeatedly cites to its statement of facts ("OCC SOF") rather than to the relevant pages in the administrative record. So, before it can review any cited materials of interest, the Court must first undertake the exercise of locating the cited paragraph in the OCC SOF before it can then track down the reference in the record. To facilitate its consideration of this matter, and without

11/08/2012

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Document #1433411 Filed: 04/30/2013 Page 31 of 76 expressing any opinion on the ultimate outcome of
the motion to strike, the Court hereby ORDERS defendant to file, by 5:00 p.m. on Friday, November 9, a revised version of its opposition substituting record citations for the citations to the OCC SOF. Signed by Judge Amy Berman Jackson on 11/8/2012. (lcabj2) (Entered: 11/08/2012)

11/08/2012

MINUTE ORDER. Plaintiff has made the stylistic choice of placing all legal citations in footnotes, rather than in the body of its memoranda. Putting aside the question of whether the Court actually finds this to be helpful, for the Court's convenience, it would greatly appreciate receiving a PDF version of plaintiff's two summary judgment memoranda with the footnotes in 12 point font. Plaintiff should send the revised memoranda to the Court's ECF email inbox (abj_dcdecf@dcd.uscourts.gov) by 5:00 p.m. on Thursday, November 8. Signed by Judge Amy Berman Jackson on 11/8/2012. (lcabj2) (Entered: 11/08/2012) Set/Reset Hearings: The Motions Hearing that is presently scheduled for 11/14/2012 at 10:00 AM is rescheduled for 11/20/2012 at 10:00 AM in Courtroom 3 before Judge Amy Berman Jackson. (jth) (Entered: 11/08/2012) Set/Reset Deadlines: Plaintiff to file revised memoranda in 12 point font by 5:00 PM on Thursday, 11/8/2012. Defendant to file by 5:00 PM on Friday, 11/9/2012, a revised version of its opposition substituting record citations for the citations to the OCC SOF. (jth) (Entered: 11/08/2012) 111 NOTICE of Filing of Memorandum of Points and Authorities with References to Administrative Record by OFFICE OF THE COMPTROLLER OF THE CURRENCY re Order,,, (Sterbenz, Christopher) (Entered: 11/09/2012) Minute Entry for proceedings held before Judge Amy Berman Jackson: Motion Hearing held on 11/20/2012 re 99 MOTION for Summary Judgment filed by UNITED WESTERN BANK, 100 MOTION for Summary Judgment and Memorandum of Points and Authorities in Opposition to Plaintiff's Motion for Summary Judgment filed by THOMAS J. CURRY, OFFICE OF THE COMPTROLLER OF THE CURRENCY. Motions heard and taken under

11/08/2012

11/08/2012

11/09/2012

11/20/2012

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Document #1433411 Filed: 04/30/2013 Page 32 of 76 advisement. (Court Reporter Kellie M. Humiston.)
(ldc, ) (Entered: 11/20/2012) 112 TRANSCRIPT OF PROCEEDINGS before Judge Amy Berman Jackson held on 11−20−12; Page Numbers: 1 − 86. Court Reporter/Transcriber Kellie Humiston, Telephone number 202−354−3187, Court Reporter Email Address : kmhcourtreporter@msn.com.<P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov.<P></P> Redaction Request due 2/20/2013. Redacted Transcript Deadline set for 3/2/2013. Release of Transcript Restriction set for 4/30/2013.(Humiston, Kellie) (Entered: 01/30/2013) 36 ORDER denying 99 Motion for Summary Judgment; granting 100 Motion for Summary Judgment. See order for details. Signed by Judge Amy Berman Jackson on 3/5/2013. (lcabj2) (Entered: 03/05/2013) 37 MEMORANDUM OPINION. Signed by Judge Amy Berman Jackson on 3/5/2013. (lcabj2) (Entered: 03/05/2013) MINUTE ORDER denying as moot 102 Motion to Strike. In light of the Memorandum Opinion issued on this date, which relies solely on the administrative record, and the Court's November 8, 2012 minute order directing defendants to submit a revised version of their opposition substituting record citations for the citations to their statement of facts, the Court will deny plaintiff's motion to strike as moot. Signed by Judge Amy Berman Jackson on 3/5/2013. (lcabj2) (Entered: 03/05/2013)

01/30/2013

03/05/2013

113

03/05/2013

114

03/05/2013

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USCA Case #13-5126 115 Document #1433411 Filed: 04/30/2013 Page 33 of 76 04/26/2013 34 NOTICE OF APPEAL TO DC CIRCUIT COURT
as to 113 Order on Motion for Summary Judgment, by UNITED WESTERN BANK. Filing fee $ 455, receipt number 0090−3298444. Fee Status: Fee Paid. Parties have been notified. (Williams, Michael) (Entered: 04/26/2013)

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Document #1433411 Filed: 04/30/2013 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Page 34 of 76

_______________________________________ ) UNITED WESTERN BANK, ) ) Plaintiff, ) ) v. ) ) OFFICE OF THE COMPTROLLER ) OF THE CURRENCY, et al., ) ) Defendants. ) _______________________________________)

1:11-cv-00408 The Honorable Amy Berman Jackson

NOTICE OF APPEAL Notice is hereby given that Plaintiff United Western Bank appeals to the U.S. Court of Appeals for the District of Columbia from this Court’s judgment—entered March 5, 2013— denying Plaintiff’s motion for summary judgment and granting Defendants’ motion for summary judgment.

Respectfully submitted, /s/ Andrew L. Sandler . Andrew L. Sandler (DC Bar No. 387825) Samuel J. Buffone (DC Bar No. 161828) Liana R. Prieto (DC Bar No. 987287) Michael R. Williams (DC Bar No. 994953) BUCKLEYSANDLER LLP 1250 24th St., NW, Suite 700 Washington, DC 20037 (202) 349-8001 (Telephone) (202) 349-8080 (Facsimile) Attorneys for Plaintiff United Western Bank Dated: April 26, 2013

1

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Document #1433411 Filed: 04/30/2013 CERTIFICATE OF SERVICE

Page 35 of 76

I hereby certify that on this 26th day of April 2013 a true copy of the foregoing was filed electronically. Notice of this filing will be sent by email to all parties by operation of the Court’s electronic filing system. Parties may also access this filing through the Court’s electronic filing system.

/s/ Michael R. Williams Michael R. Williams

2

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Document #1433411 Filed: 04/30/2013 Page 36 of 76 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) UNITED WESTERN BANK, ) ) Plaintiff, ) ) v. ) Civil Action No. 11-0408 (ABJ) ) OFFICE OF THE COMPTROLLER OF ) THE CURRENCY, et al., ) ) ) Defendants. ) ____________________________________) ORDER Pursuant to Fed. R. Civ. P. 58 and for the reasons stated in the accompanying

Memorandum Opinion, it is hereby ORDERED that plaintiff’s motion for summary judgment [Dkt. # 99] is DENIED and defendants’ motion for summary judgment [Dkt. #100] is GRANTED. This is a final appealable order.

AMY BERMAN JACKSON United States District Judge DATE: March 5, 2013

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Document #1433411 Filed: 04/30/2013 Page 37 of 76 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) UNITED WESTERN BANK, ) ) Plaintiff, ) ) v. ) Civil Action No. 11-0408 (ABJ) ) OFFICE OF THE COMPTROLLER OF ) THE CURRENCY, et al., ) ) ) Defendants. ) ____________________________________) MEMORANDUM OPINION The Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”) grants the Director of the Office of Thrift Supervision (“OTS” or “the agency”) “exclusive power and jurisdiction” to appoint a receiver or conservator for a savings association “if the Director determines, in the Director’s discretion, that 1 or more of the grounds specified in section 1821(c)(5) of this title exists.” 12 U.S.C. § 1464(d)(2)(A)–(B) (2006) (amended July 21, 2011). Although the agency’s decision to appoint a receiver is highly discretionary, it is not immune from judicial review. In the event of the appointment of a receiver, “the association may, within 30 days thereafter, bring an action . . . in the United States District Court for the District of Columbia, for an order requiring the Director to remove such conservator or receiver.” Id. § 1464(d)(2)(B). In this case, plaintiff United Western Bank (“the Bank” or “the association”) asks the Court to set aside the January 21, 2011 decision by the Acting Director of OTS to appoint the Federal Deposit Insurance Corporation (“FDIC”) as receiver for the Bank. Compl. [Dkt. # 1] ¶ 1; see also United Western Bank’s Mot. for Summ. J. (“Pl.’s Mot.”) [Dkt. # 99] at 1. The Bank

37

USCA Case #13-5126 Document #1433411 Filed: 04/30/2013 Page 38 of 76 has moved for summary judgment contending that OTS’s appointment decision should be overturned because it “was arbitrary, capricious, an abuse of discretion, and not in accordance with FIRREA’s requirements.” See Mem. in Supp. of Pl.’s Mot. for Summ. J. (“Pl.’s Mem.”) [Dkt. # 99] at 2. Defendants – the Office of the Comptroller of the Currency (“OCC”) and Thomas Curry, Comptroller of the Currency – oppose the motion, and they have filed their own cross-motion for summary judgment. They assert that placing the Bank into receivership was a proper exercise of discretion under the FIRREA because the Acting Director’s decision was based on three independent statutory grounds and supported by the administrative record. Defs.’ Mem. in Supp. of their Mot. for Summ. J. and in Opp. to Pl.’s Mot. for Summ. J. (“Defs.’ Mem.”) [Dkt. # 111] at 1, 9. Because the Court finds that the Bank has failed to show that OTS’s decision was arbitrary or capricious, the Court will deny the Bank’s motion and grant defendants’ crossmotion. The Bank contends that it was not “necessary” for the agency to take the drastic step of placing the Bank into receivership on the date that the Acting Director issued his decision. Tr. [Dkt. # 112] 26:8–12. But that is not the proper inquiry. The law does not invite the Court to make its own judgment about whether it would have been feasible, appropriate, or even preferable, for the agency to wait; the sole question presented by this case is whether the agency action was unreasonable. In forcefully worded pleadings, the Bank passionately insists that the agency’s attitude took a “sudden” and inexplicable turn in December of 2011, and that the regulators surprised the bank with unrealistic deadlines and unnecessary requirements. Pl.’s Mem. at 36–37; Reply in Supp. of Pl.’s Mot. for Summ. J. (“Pl.’s Reply”) [Dkt. # 106] at 5. But any change in the

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USCA Case #13-5126 Document #1433411 Filed: 04/30/2013 Page 39 of 76 regulators’ approach was prompted by the seismic changes in the nation’s economy, and more particularly, by the ongoing and significant deterioration of the Bank’s financial condition. The review of the administrative record in its entirety reveals that the agency’s decision was the culmination of a steady progression and not, as the Bank would have the Court conclude, a sudden wrenching of gears. In early to mid-2009, the Bank had begun to suffer substantial losses, and the agency began voicing concerns about the adequacy of the Bank’s capitalization, its reliance on institutional investors, its liquidity, and its investment in mortgage-backed securities. The same concerns that led to the receivership were the focus of a 2009 Report of Examination, a Memorandum of Understanding between the Bank and the agency entered into in December of 2009, a January 2010 examination, and even a cease and desist order agreed to by the Bank in June of 2010. The Bank emphasizes that the record is devoid of evidence of criminal activity or malfeasance on the part of the Bank’s managers, and the Court has little doubt that they sincerely believed in their ability to save the institution until the moment the door was closed. But the absence of those factors cannot alter the result compelled by the review of the record under the deferential standard the Court is required to apply. BACKGROUND United Western Bank is a federally chartered savings association under 12 U.S.C. § 1464(a)(2) that was wholly owned by United Western Bancorp, Inc. (“the holding company”) at all times relevant to this case. Administrative Record (“AR”) 11. With primary operations in Colorado, the Bank originated construction, land, commercial real estate, and non-mortgage commercial loans, maintained a large portfolio of non-agency mortgage-backed securities, and

3 39

USCA Case #13-5126 Document #1433411 Filed: 04/30/2013 Page 40 of 76 1 relied on institutional custodial deposits as its primary source of funding. AR 11, 23. The Bank’s largest institutional depositors were: Equity Trust Company (“ETC”), Matrix Settlement and Clearing Services, LLC (“MSCS”), Legent Clearing, and Lincoln Trust Company (“LTC”). AR 32. During the relevant period, the Office of Thrift Supervision was the primary regulator for savings associations, and as such, was responsible for their “examination, safe and sound operation, and regulation.” 12 U.S.C. § 1463(a)(1) (2006) (amended July 21, 2011);2 see also 12 C.F.R. § 563.170(a) (requiring OTS to periodically examine savings associations). During its examinations, OTS evaluated the financial health of savings associations using a variety of metrics. The agency rated the associations’ Capital, Asset Quality, Management, Earnings, Liquidity, and Sensitivity to Market Risk (“CAMELS”) on a scale of one to five with one being the best rating. See AR 22 n.1, 100. Banks received a separate rating for each of the CAMELS categories as well as a composite CAMELS rating reflecting the bank’s overall condition. See, e.g., United Western Bank 2007 Report of Examination, AR 55. In addition to the CAMELS rating, OTS also classified the adequacy of a bank’s capital according to the Federal Deposit Insurance Corporation Improvement Act of 1991 (the “FDICIA”), a portion of which was later codified at 12 U.S.C. § 1831o, and is commonly known as the Prompt Corrective Action (“PCA”) statute. The PCA divides bank capital levels into five different categories, ranging 1 According to the Bank, these institutional depositors “are trust companies and settlement companies that provide significant and regulated trust or brokerage services to millions of customers. As a byproduct of their primary business activities, the Institutional Depositors regularly handle idle customer funds that are in transit to or from external investments or are awaiting distribution. The Institutional Depositors place these funds on deposit at omnibus deposit accounts at the Bank during these transitory periods.” United Western Bank Request for Review of Material Supervisory Determination, AR 1760. 2 On July 21, 2011, OTS became part of OCC. OCC currently regulates both national banks and federal savings associations. 12 U.S.C. § 5412. 4 40

USCA Case #13-5126 Document #1433411 Filed: 04/30/2013 Page 41 of 76 from “well capitalized” to “critically undercapitalized.” 12 U.S.C. § 1831o(b)(1). Negative ratings under these metrics can expose a bank to certain statutorily mandated regulatory responses. The administrative record in this case confirms that prior to early 2009, the Bank enjoyed “an unbroken 16 years of profitability” and correspondingly high CAMELS and PCA capital ratings. AR 1474. As a result of the global financial crisis, the Bank’s earnings, asset quality, and capital ratios deteriorated, and one of its largest sources of liquidity began withdrawing its funds. AR 11–12, 2475. The Bank based its hope for survival on the consummation of a highly contingent private sector recapitalization plan. AR 972–1091. The plan depended upon the agency’s agreement to lift certain requirements it had previously imposed, AR 1185–90, but the agency declined to do so, AR 4. Ultimately, the agency determined that there were three statutory grounds supporting placing the Bank into receivership. AR 5–7; see also

Recommendation for Appointment of the Federal Deposit Insurance Corporation (FDIC) as Receiver for United Western Bank, (“S-Memo”), AR 21–44. Based on this recommendation, on January 21, 2011, the Acting Director of OTS appointed the FDIC as a receiver for the Bank pursuant to 12 U.S.C. § 1464(d)(2)(A). AR 2–8. The chronology of the events that led to the imposition of the receivership is as follows: I. October 2007 OTS Examination Between October 2007 and January 2008, OTS conducted a comprehensive risk-focused examination of the Bank’s operations during the fifteen-month period ending on June 30, 2007. AR 51–52, 55. The 2007 Report of Examination (“2007 ROE”) was overall positive. In the report, the OTS examiners concluded that the Bank’s asset quality, earnings, and liquidity sources were satisfactory, and they gave the Bank a CAMELS composite rating of 2, which

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USCA Case #13-5126 Document #1433411 Filed: 04/30/2013 Page 42 of 76 meant that the Bank was “fundamentally sound[,] . . . stable and . . . capable of withstanding business fluctuations.” AR 56–57, 60, 100. The report also noted that as of June 30, 2007, approximately 73% of the Bank’s total deposits were attributable to four institutional depositors. AR 81. Although the agency cautioned that the Bank “continue[d] to face risk from its

concentration in institutional deposits,” it tempered this statement by concluding that the Bank’s continued efforts to increase its retail deposits and its “contractual agreements with some of the largest of these depositors help[ed] protect the institution’s liquidity position.” AR 57.

Additionally, the OTS examiners stated that although the Bank was “well capitalized” under PCA standards, it had to “remain cognizant” of its concentration in institutional deposits and “continue to maintain a prudent level of capital above the ‘well capitalized’ standards.”3 AR 56. II. March 2009 OTS Examination OTS’s next examination of the Bank occurred during the financial crisis; it began on March 30, 2009, and covered the twenty-six month period ending in mid-September 2009. AR 130–31, 134. As the 2009 Report of Examination explained, “the review period saw

unprecedented declines in real estate markets, a changing economic environment, and dislocation in capital markets.” AR 135. These poor and uncertain market conditions adversely impacted certain aspects of the Bank’s operations. AR 135. The report specified that the Bank’s “asset quality ha[d] deteriorated” due, in part, to losses on its mortgage-backed securities, and its earnings had declined due to a $4.1 million write-down on two mortgage-backed securities. AR

3 On June 30, 2007, the Bank had a 14.38% Total Risk-Based capital ratio and a 13.69% Tier 1 (Core) Risk-Based capital ratio. AR 60. Under the PCA, an institution is “well capitalized” if it has a total risk-based capital ratio of 10.0% or higher, has a Tier 1 risk-based capital ratio of 6.0% or higher, a leverage ratio of 5.0% or higher, and is not subject to an OTS directive to meet and maintain a specific capital level. 12 C.F.R. § 565.4(b). 6 42

USCA Case #13-5126 Document #1433411 Filed: 04/30/2013 Page 43 of 76 135–36. The OTS examiners added that any further deterioration of the Bank’s mortgagebacked securities portfolio presented additional risks to its earnings. AR 136. The examiners also noted that their concerns about the Bank’s liquidity sources and capital levels had escalated due to the Bank’s deteriorating condition. x Capital: The report concluded that the Bank’s capital – which had declined to just above the “well capitalized” PCA level – was “less than satisfactory” because it did not fully support the Bank’s risk profile. AR 141. Specifically, the OTS examiners warned that “capital levels remain a concern due to risks posed by the bank’s remaining non-agency MBS portfolio and negative asset quality trends.” AR 142–43. According to the report, the Bank’s management was aware of the need to bolster the capital position and was pursuing various options to maintain a prudent level of capital above the PCA “well capitalized” standard. AR 135, 143. Liquidity: The report also stated that the agency’s “[l]iquidity risk concerns ha[d] been elevated” due to the Bank’s continued overreliance on institutional deposits. AR 136. As of March 31, 2009, institutional deposits represented 86.9% of the Bank’s total deposits. AR 160. A third of these depositors could withdraw their deposits at any time because they had no contractual agreements with the Bank. AR 161. The remaining two-thirds had contractual agreements with the Bank that allowed them to withdraw their funds in a variety of circumstances, including a decline of the Bank’s capital to below “well capitalized” levels. AR 161. OTS then concluded that the “termination of one or more of the larger institutional deposit relationships could place UWB in a precarious liquidity position, as it may not be able to find replacement funding on reasonable terms.” AR 161.

x

In light of the problems and risks uncovered in the examination, OTS downgraded the Bank to a CAMELS composite rating of 3, which meant that the Bank had “a combination of weaknesses that may range from moderate to severe” and required “more than normal supervision.” AR 100, 134. As part of the 2009 ROE, the agency also required the Bank to take remedial actions: (1) to increase core and total risk-based capital ratios from 9.07% and 10.17% to at least 8.0 and 12.0% by December 31, 2009; (2) to “[d]evelop a revised comprehensive concentration policy that sets limits . . . for the bank’s funding sources, including exposures to institutional depositors”; and (3) to “[p]rovide a Liquidity Contingency Plan that contains specific board

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USCA Case #13-5126 Document #1433411 Filed: 04/30/2013 Page 44 of 76 strategies for ensuring that the Bank maintains adequate short-term and long-term liquidity to withstand any anticipated or extraordinary demand against its funding base.” AR 139–40. After the issuance of the March 2009 ROE, the Bank’s financial condition worsened; it lost a total of over $69 million during the year, and its capital ratios continued to decline. AR 865–66, 2475–76. As a result of the Bank’s losses and declining capital, on December 10, 2009, OTS and the Bank signed a Memorandum of Understanding (“MOU”) in which the Bank again pledged to fulfill the remedial measures set forth in the 2009 ROE. AR 220–34. Specifically, the Bank agreed to raise its capital ratio levels to 12% and 8% by June 30, 2010, AR 220, and to develop a liquidity contingency plan that “specifically address[ed] deposit concentrations and plans to reduce or manage such concentrations,” AR 223–24. III. January 2010 OTS Examination As the financial crisis raged on, the Bank reported a loss of $21.02 million for the quarter ending on March 31, 2010. AR 865–66. In April of 2010, OTS sent a letter to the Bank summarizing the results of the agency’s January 2010 limited examination of the Bank. AR 267–69. In the letter, the agency expressed serious concerns about the Bank’s capital levels and its continued concentration in institutional deposits. AR 267–69.4 x Capital: In the letter, the agency explained that the Bank’s capital rating had “been downgraded given current risks to capital posed by the bank’s worsening asset quality trends, the potential impact of future [write-downs] from the bank’s remaining relatively large portfolio of below investment grade MBS, and deteriorating earnings.” AR 267. Additionally, the agency explained that revised calculations performed by the Bank during the January 2010 field visit required the Bank to take an $18 million write-down for the 2009 year-end, which reduced the Bank’s total risk-based and core capital ratios to 10.07% and 7.68% respectively. AR 267–68. Although these capital levels were still above the “well capitalized” PCA standard,

4 The Court will refrain from summarizing or quoting language from the January 2010 Report of Examination because OTS has been unable to confirm whether the report was mailed to the Bank. Defs.’ Opp. to Pl.’s Mot. to Supplement the Admin. R. at 7 [Dkt. # 48]. However, the Bank does not dispute that it received the April 2010 letter. Id. 8 44

USCA Case #13-5126 Document #1433411 Filed: 04/30/2013 Page 45 of 76 they were below the levels required by the MOU and the agency expressed concern that the Bank may not be able to meet and maintain the capital levels required by the MOU by the June 30, 2010 deadline. AR 268. x Liquidity: The agency also stated that “liquidity risk at UWB ha[d] increased and [was] of heightened concern” because of the “Bank’s significant concentration in institutional deposits.” AR 267. The letter explained that this concentration was particularly problematic because the FDIC was reviewing whether these deposits were “brokered.”5 If the FDIC concluded that the institutional deposits were all brokered, the Bank would not be able to accept or renew any such brokered deposits without a waiver from the FDIC once the Bank was officially deemed “Adequately Capitalized.” AR 267. The letter then noted that the agency had already informed the Bank that it would be deemed “adequately capitalized” in the near term,6 and directed the Bank to “consider all strategic alternatives available, including the possible sale, merger, or self-liquidation of United Western, to prevent the potential failure of the institution due to insufficient liquidity.” AR 267, 269.

OTS’s concerns about the “brokered” status of the institutional deposits materialized on May 24, 2010. On that day, the FDIC notified the Bank that it had concluded that seven of the Bank’s institutional depositors, including ETC – the Bank’s largest depositor – were “deposit brokers” and that the Bank’s “adequately capitalized” status precluded it from accepting, renewing, or rolling over any brokered deposits without a waiver from the FDIC. AR 369–80. In response, the Bank filed a request for a waiver from the FDIC on June 10, 2010, AR 690, and it modified its depositor contracts in an attempt to place them within an exception to the “brokered deposit” designation, AR 1558. On June 22, 2010, OTS sent a letter to the Bank stating that in light of the uncertainty as to whether the FDIC would grant a waiver and the Bank’s failure to demonstrate its ability to replace the institutional deposits in the near future, the Bank could “face a severe liquidity crisis in the near future that would threaten the viability of

5 A brokered deposit is “any deposit that is obtained, directly or indirectly, from or through the mediation or assistance of a deposit broker.” 12 C.F.R. § 337.6(a)(2). 6 In a February 11, 2010 meeting, the agency told Bank management that the Bank would be deemed “Adequately Capitalized” and its CAMELS composite rating would be downgraded to a 4. AR 269. This downgrade meant that the Bank was “in troubled condition” pursuant to 12 C.F.R. § 563.555 and would be subject to various operating restrictions. AR 269. 9 45

USCA Case #13-5126 Document #1433411 Filed: 04/30/2013 Page 46 of 76 the institution.” AR 549. Based on this determination, the agency informed the Bank that its liquidity rating had been downgraded to 5, the lowest possible rating. AR 549. IV. June 2010 Cease and Desist Order Three days later on June 25, 2010, the Bank and its holding company consented to the issuance of a formal Cease and Desist Order from OTS. AR 553–94. The order set forth OTS’s determination that the Bank had “engaged in unsafe or unsound banking practices that resulted in deteriorating asset quality, ineffective risk management practices, inadequate oversight and supervision of the lending function, and inadequate liquidity planning at the [Bank].” AR 569. The Bank did not admit or deny OTS’s findings, but it agreed to comply with a number of legally binding requirements: to “meet and maintain” total risk-based and core capital ratios of 12% and 8% by June 30, 2010; and to refrain from increasing its total assets beyond a certain level without prior approval from the OTS Regional Director. AR 554, 562, 569. Although the capital ratio requirements had been in place since the March 2009 OTS Report of Examination, the Bank made several requests for an extension of time to meet the requirements. OTS denied all of these requests. AR 671. V. The Bank Attempts to Recapitalize A. Legent Purchase and Recapitalization Transaction In mid- to late 2010, the Bank and its holding company proposed two transactions in an attempt to alleviate OTS’s concerns about the stability of the Bank’s institutional deposits and its capital ratios. First, on July 27, 2010, the Bank formally notified OTS of its intent to acquire Legent, one of its institutional depositors. AR 2551. By absorbing Legent as an operating subsidiary, the Bank hoped to obviate any concerns regarding the stability or status of Legent’s deposits. AR 2552. After determining that the proposed transaction raised “significant issues of

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USCA Case #13-5126 Document #1433411 Filed: 04/30/2013 Page 47 of 76 policy,” OTS transferred the acquisition application to its office in D.C. for additional review on November 4, 2010. AR 3008. Second, the Bank’s holding company developed a plan to raise approximately $200 million from private investors, $102.5 million of which would be contributed as capital to the Bank (“Recapitalization Transaction”). AR 972–1091, 1111. On October 28, 2010, the holding company entered into an investment agreement (“Investment Agreement”) with Oak Hill Anchor Investor, Lovell Minnick Anchor Investor, and Legent/Duques Anchor Investor (together “Anchor Investors”). AR 980. Pursuant to the Investment Agreement, the Anchor Investors agreed to contribute $103 million to the Recapitalization Transaction if, prior to or contemporaneous with the closing of the proposed investment transaction: (1) the holding company raised an additional $97 to $102 million from other private investors; (2) OTS waived certain conditions of the Bank’s June 2010 Cease and Desist Order including the “meet and maintain” requirement; (3) OTS approved the Bank’s application to acquire Legent; and (4) OTS approved the Bank’s business plan. AR 980–85. In a November 29, 2010 letter, the Bank informed OTS that the Anchor Investors were willing to waive a number of the closing conditions but that they still insisted on these four requirements. AR 1185–90. The first nail in the Recapitalization Transaction’s coffin came on December 3, 2010, when OTS notified the Bank of its refusal to remove the “meet and maintain” requirement. AR 1192–93. To make matters worse, in another letter on the same day, OTS also directed the Bank to take an additional write-down on certain mortgage-backed securities for the quarter ending September 30, 2010. AR 2092–93. This additional loss reduced the Bank’s total risk-based capital ratio to 7.8%, which meant that the Bank had become “undercapitalized.” AR 1441. Things continued to worsen for the Bank on December 13, 2010 when OTS explained that since

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USCA Case #13-5126 Document #1433411 Filed: 04/30/2013 Page 48 of 76 the Bank was “undercapitalized,” it was no longer permitted to accept brokered deposits or employee benefit plan deposits, including any such funds from its institutional depositors. AR 1451. In yet another letter on the same day, the agency directed the Bank to submit a capital restoration plan (“CRP”) by December 20 and to restore its capital position to “adequat ely capitalized” no later than December 31, 2010. AR 1441–42. B. Capital Restoration Plan On December 20, 2010, the Bank submitted its CRP, which largely recapitulated the Recapitalization Transaction and projected an infusion of approximately $102.5 million of new capital into the Bank following the consummation of the transaction. AR 1473–79. The Bank recognized that OTS’s refusal to waive the “meet and maintain” requirement – one of the closing conditions of the Investment Agreement – affected the viability of its recapitalization plan. AR 1476–77. Nonetheless, the Bank continued to argue in favor of the waiver and asserted that OTS’s unwillingness to waive the requirement was “not a proper exercise of the agency’s fiduciary duties to the Deposit Insurance Fund.” AR 1476–77. The Revised Business Plan that the Bank submitted as part of the CRP was also premised on the assumption that OTS would approve the Legent transaction. AR 1485. In late December 2010 and early January 2011, the Bank told OTS that a variety of investors had expressed interest in investing a total of up to $130 million in the Recapitalization Transaction. AR 1748, 2468–69. According to the Bank, some of these investors had confirmed their intent to invest and were in the process of reviewing proposed investment agreements, while others had offered “strong expression[s] of interest” but had not confirmed their intent to invest. AR 1800. All the potential additional investments were subject to the same conditions precedent included in the October 2010 Anchor Investment Agreement. AR 1748, 2470.

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USCA Case #13-5126 Document #1433411 Filed: 04/30/2013 C. OTS Rejection of the Legent Application and Capital Restoration Plan

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On January 18, 2011, OTS rejected the Bank’s proposal to acquire Legent on the grounds that: (1) Legent had an unsatisfactory enforcement record due to its multiple, serious, and recent FINRA disciplinary violations; (2) Legent was an unprofitable business that had been losing money for three consecutive years and had lost 68% of its accounts in spring 2010; and (3) the purchase of Legent and placement of its institutional deposits in the Bank would exacerbate, rather than alleviate, the already high concentration of institutional deposits that was posing severe liquidity risks. AR 4190; see also AR 2540–41 (discussing Legent’s FINRA violations). On the same day, OTS also rejected the Bank’s CRP on the grounds that it was premised upon a series of assumptions that the agency found to be unrealistic. OTS noted that the CRP assumed that: 1. The Bank would be able to secure the additional $100 million in funding necessary to complete the Recapitalization Transaction. AR 4124. The rejection letter explained that although the Bank had identified several potential additional investors, none of these investors had signed a letter of intent or executed an investment agreement. AR 4124. 2. OTS would remove the growth restriction provision of the Cease and Desist Order. The agency explained the asset growth projected in the CRP was unacceptable in light of the Bank’s financial condition. AR 4124. 3. OTS would approve an increase in institutional deposits from $1.2 billion to $1.8 billion, a growth that the agency considered to be an unacceptable increase in risk for the Bank. AR 4124. 4. OTS would approve the Bank’s revised business plan, which according to the agency relied on “excessive concentration in institutional deposits” and an “excessive level of asset growth.” AR 4124–25, 4127. 5. OTS would approve the Bank’s purchase of Legent, which the agency had rejected earlier that day. AR 4125. 6. The Anchor Investors would amend or waive several unsatisfied closing conditions although the Bank had failed to explicitly state in the CRP that the Anchor Investors had agreed to amend or waive any closing conditions, and had failed to provide a draft or executed amendments to the Investment Agreement or communication from the Anchor Investors of their intent to waive the conditions. AR 4125.

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USCA Case #13-5126 Document #1433411 Filed: 04/30/2013 Page 50 of 76 OTS also faulted the Bank for submitting a guarantee that was different from the agency’s standard-form guarantee. AR 4125. VI. Liquidity and Institutional Investors While the Bank was attempting to restore its capital, it was simultaneously addressing some liquidity issues. Under the Federal Deposit Insurance Act, 12 U.S.C. § 1821(a)(1)(D)((ii), the Bank could no longer accept employee benefit plan (ERISA) deposits because of its “undercapitalized” status. Therefore, on December 20, 2010, MSCS, and its client CPI, began withdrawing their ERISA deposits from the Bank. AR 2242–43. MSCS withdrew its deposits on demand without adhering to the 60 day notice requirement contained in its depositor agreement. AR 2242–43. In a letter to OTS, the Bank explained that it did not expect MSCS and CPI’s withdrawals to impact the Bank’s operations because it had “sufficient liquidity to address these withdrawals,” and the Bank’s business plan did not assume that any material portion of the MSCS or CPI deposits would remain on deposit beyond 2011. AR 2243. The day after MSCS began withdrawing its funds, OTS directed the Bank to submit a revised liquidity contingency plan that “address[ed] the current acute liquidity risks” at the Bank. AR 1534. Specifically, OTS was concerned that the Bank’s “interpretation of its contractual agreements with Institutional Depositors . . . underestimate[d] the risk that certain Institutional Depositors [would] seek to terminate or withdraw deposits pursuant to their respective Depositor Agreement.” AR 1536. For example, two of the remaining institutional depositors, ETC and LTC, had the right to withdraw their deposits since the Bank ’s capital had fallen below the PCA “well capitalized” level. AR 1945, 1952. So the agency asked the Bank to explain what steps it would take in a worst case scenario if other large institutional depositors, such as LTC and ETC, either voluntarily withdrew their funds or were required to withdraw their deposits in the event

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USCA Case #13-5126 Document #1433411 Filed: 04/30/2013 Page 51 of 76 the FDIC determined that the funds were “brokered deposits,” despite modifications to the depositor agreements aimed at avoiding that designation. AR 1536. On December 28, 2010, the Bank submitted its revised liquidity contingency plan. Like everything else the Bank had submitted to OTS, this plan was dependent on the consummation of the Investment Agreement with the Anchor Investors. With respect to the first scenario – voluntary withdrawal – the Bank noted that unlike MSCS, which was statutorily required to withdraw its ERISA deposits, the other institutional investors had few if any ERISA deposits. AR 1555–57. The Bank added that the depositors had remained loyal to the Bank during “significant and material challenges,” so it was “confident that in contemplation of the pending private-sector Recapitalization Transaction, none of the remaining Institutional Depositors [would] seek to withdraw their funds.” AR 1554 (footnote omitted). Specifically, the Bank stated that LTC had indicated that it would not terminate its deposit relationship “while the Recapitalization Transaction [was] still a viable transaction for the Bank’s parent company.” AR 1556. This assertion was supported by a December 22, 2010 letter, in which LTC pledged to refrain from withdrawing its funds until January 31, 2011, subject to the condition that the Bank return to “well capitalized” status by then. AR 1947. Additionally, on December 29, 2010, ETC pledged to refrain from withdrawing its funds until February 15, 2011 but added that February 15 was an “absolute outside date” for recapitalization. AR 1944–45. Both ETC and LTC reserved their rights to withdraw their funds before the end of the forbearance period if the Bank’s capital position worsened. AR 1944, 1947. With respect to the second scenario – a determination from the FDIC that the institutional deposits were brokered despite modifications to the deposit agreements – the Bank explained that if the Recapitalization Transaction was not completed, and the FDIC maintained its position

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USCA Case #13-5126 Document #1433411 Filed: 04/30/2013 Page 52 of 76 that the institutional deposits were “brokered,” the Bank would be required to gradually eliminate the deposits in a safe and sound manner. AR 1559. It added that a “prompt reduction of 76% of the Bank’s deposits [all of its institutional deposits] would constitute a ‘worst case’ scenario, likely requiring an unsustainable fire-sale of unencumbered assets of the Bank, which likely could not be accomplished without significant adverse changes to the Bank’s capital ratios.” AR 1559. In a December 29, 2010 letter to the Bank, the agency explained that after an off-site review of the Bank, the OTS examiners had concluded that the Bank’s undercapitalized status: greatly increased the risk that institutional depositors would withdraw their funds; precluded the Bank from continuing to accept ERISA deposits; and prevented the FDIC from considering a waiver of its brokered deposit regulations. AR 1729. Based on this conclusion and the Bank’s decline in earnings, OTS downgraded the Bank to a CAMEL composite rating of 5, the lowest possible rating. AR 1727, 1729–30. This rating meant that the institution had an extremely high probability of failure and an immediate infusion of capital was required. AR 1729. VII. OTS Appoints FDIC as Receiver for the Bank On January 19, 2011, OTS field staff submitted a memorandum (“S-Memo”) to the agency’s Deputy Director, recommending that the Bank be placed into receivership. AR 21–49. The following day, the Bank informed OTS during a conference call that it was successfully recruiting investors for its Recapitalization Plan, but it still did not provide any legally binding investment agreement or letters of intent from any of them. AR 4192, 4229. On the same day, the OTS Deputy Director endorsed the S-Memo, AR 21, and the OTS Acting Chief Counsel signed a legal memorandum recommending that the Acting Director appoint FDIC as receiver for the Bank (“L-Memo”). AR 10–19.

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USCA Case #13-5126 Document #1433411 Filed: 04/30/2013 Page 53 of 76 On January 21, 2011, the OTS Acting Director appointed FDIC as a receiver for United Western Bank pursuant to 12 U.S.C. § 1464(d)(2)(A) (“Appointment Order”). AR 2–8. The SMemo, L-Memo, and Appointment Order all identified the same three statutory grounds for the decision: (1) the association was in an unsafe and unsound condition to transact business, see 12 U.S.C. § 1821(c)(5)(C); (2) the association was “likely to be unable to pay its obligations or meet its depositors’ demands in the normal course of business,” see 12 U.S.C. § 1821(c)(5)(F); and (3) the association was undercapitalized, as defined by 12 U.S.C. § 1831o(b), and had “fail[ed] to submit a capital restoration plan acceptable” to OTS within the appropriate amount of time, see 12 U.S.C. § 1821(c)(5)(K)(iii). AR 2, 10–11, 21. On February 18, 2011, the Bank brought this action under 12 U.S.C. § 1464(d)(2)(B) seeking the removal of the FDIC as its receiver and the restoration of the Bank to its prior owner. Compl. ¶ 1. The original defendants of that action included OTS, its Acting Director, and the FDIC. Compl. ¶¶ 26–28. On March 4, 2011, defendants OTS and its Acting Director moved under Fed. R. Civ. Proc. 12(b)(1) to dismiss the complaint for lack of subject matter jurisdiction. Defs. Bowman and OTS Mot. to Dismiss [Dkt. # 13]. On April 19, 2011, the FDIC also moved to dismiss the claims brought against it in its corporate capacity and in its capacity as receiver for the bank. Def. FDIC Mot. to Dismiss [Dkt. # 21]. On June 24, 2011, the Court dismissed the FDIC as a defendant in this action, but it allowed the Bank’s claims to proceed against OTS and its Acting Director. Order [Dkt. # 32]; see also Mem. Op. [Dkt. # 33]. On July 21, 2011, OTS became part of OCC and on July 25, 2011, the Court granted OCC’s motion to substitute itself and the Acting Comptroller of the Currency for defendants OTS and its Acting Director. Minute Order (July 25, 2011). On February 9, 2012, the Court also granted the Bank’s motion to compel production of the

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USCA Case #13-5126 Document #1433411 Filed: 04/30/2013 Page 54 of 76 complete administrative record and permitted it to obtain information beyond what defendants had designated as the administrative record. Order [Dkt. # 74]. On April 20, 2012, the Bank moved for summary judgment arguing that OTS’s decision to place the Bank into receivership was “arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with the law” because the three statutory grounds the agency relied on were “unsupported and conclusory.” Pl.’s Mot. at 1; Pl.’s Mem. at 27. Defendants dispute these assertions in their cross-motion for summary judgment and contend that OTS’s decision was proper and reasonable and should be upheld. Defs.’ Mem. at 1–2, 26. STANDARD OF REVIEW Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party seeking summary judgment bears the “initial responsibility of i nforming the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat summary judgment, the non-moving party must “designate specific facts showing that there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). The existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A dispute is “genuine” only if a reasonable fact-finder could find for the non-moving party; a fact is only “material” if it is capable of affecting the outcome of the litigation. Id. at 248; see Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987).

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USCA Case #13-5126 Document #1433411 Filed: 04/30/2013 Page 55 of 76 “‘The rule governing cross-motions for summary judgment . . . is that neither party waives the right to a full trial on the merits by filing its own motion; each side concedes that no material facts are at issue only for the purposes of its own motion.’” Sherwood v. Washington Post, 871 F.2d 1144, 1147 n.4 (D.C. Cir. 1989), quoting McKenzie v. Sawyer, 684 F.2d 62, 68 n.3 (D.C. Cir. 1982). In assessing a party’s motion, “[a]ll underlying facts and inferences are analyzed in the light most favorable to the non-moving party.” N.S. ex rel. Stein v. District of Columbia, 709 F. Supp. 2d 57, 65 (D.D.C. 2010), citing Anderson, 477 U.S. at 247. ANALYSIS In the January 21, 2011 order, the Acting Director of OTS identified three statutory grounds for appointing the FDIC as receiver for United Western Bank. In its motion, the Bank asserts that OTS’s appointment order should be set aside because the Acting Director’s determination that these three statutory grounds existed was conclusory and unsupported by the administrative record and the decision was therefore “arbitrary, capricious, an abuse of discretion, and not in accordance with FIRREA’s requirements.”7 Pl.’s Mot. at 2. Arbitrary and capricious review “focuses on the reasonableness of the agency’s decisionmaking processes.” Rural Cellular Ass’n v. FCC, 588 F.3d 1095, 1105 (D.C. Cir. 2009). The standard is highly deferential. Nat’l Ass’n of Clean Air Agencies v. EPA, 489 F.3d 1221, 1228 (D.C. Cir. 2007). “An agency need only articulate a rational connection between the facts found and the choice made, and the court will not intervene unless the [agency] failed to consider

7 The weight of authority indicates – and both parties agree – that the judicial review provision of the FIRREA allows a federal court to set aside an appointment decision if it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1093 (D.C. Cir. 1996); Franklin Sav. Ass’n v. Dir. Office of Thrift Supervision, 934 F.2d 1127, 1142 (10th Cir. 1991); Woods v. Fed. Home Loan Bank Bd., 826 F.2d 1400, 1406 n.3 (5th Cir. 1987); see also Pl.’s Mem. at 26 & n.46; Defs.’ Mem. at 8. 19 55

USCA Case #13-5126 Document #1433411 Filed: 04/30/2013 Page 56 of 76 relevant factors or made a manifest error in judgment.” Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227, 233 (D.C. Cir. 2008), citing Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). “Where a highly technical question is involved, courts necessarily must show considerable deference to an agency’s expertise.” Id. (internal quotation marks omitted). Although the court must conduct “a thorough, probing, indepth review” of the agency’s decision, it may not “substitute its judgment for that of the agency.” Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 415–16 (1971), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 105 (1977). The party challenging the agency action as arbitrary and capricious bears the burden of proof. San Luis Obispo Mothers for Peace v. U.S. Nuclear Regulatory Comm’n, 789 F.2d 26, 37 (D.C. Cir. 1986). Judicial review of OTS’s appointment decision must be based upon the administrative record. See Franklin Sav. Ass’n v. Dir. Office of Thrift Supervision, 934 F.2d 1127, 1137 (10th Cir. 1991); Guar. Sav. & Loan Ass’n v. Fed. Home Loan Bank Bd., 794 F.2d 1339, 1342 (8th Cir. 1986). Since the Bank fails to overcome this high threshold, the Court will deny its motion for summary judgment and grant defendants’ cross-motion.

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USCA Case #13-5126 Document #1433411 Filed: 04/30/2013 Page 57 of 76 I. The Administrative Record Supports OTS’s Conclusion That The Bank Failed To Submit An Acceptable Capital Restoration Plan One of the statutory grounds for the agency’s decision to appoint a receiver for the Bank was that the Bank was undercapitalized and had failed to submit an acceptable capital restoration plan to OTS within the time prescribed by 12 U.S.C. § 1831o(e)(2)(D). AR 7. In its motion, the Bank argues that the Court should overturn the agency’s rejection of the CRP because: (1) the agency imposed a deadline for the submission of the plan that was shorter than the statutorily prescribed time period, and (2) “there was no basis for the OTS to reject the Bank’s CRP.” Pl.’s Mem. at 28–36. These arguments are unpersuasive. A. The Bank Had Reasonable Time To Submit Its CRP The Bank’s first challenge is procedural: it contends that OTS failed to give the Bank a reasonable time to file its CRP as required by statute. Pursuant to 12 U.S.C. § 1831o(e)(2)(D)(i), OTS is required to “establish deadlines that . . . provide insured depository institutions with reasonable time to submit capital restoration plans, and generally require an institution to submit a plan not later than 45 days after the institution becomes undercapitalized.” Contrary to the Bank’s pleadings, this statutory language does not “entitle[]” it to forty-five days to file its CRP. Pl.’s Mem. at 28. Rather, the word “generally” means that under normal circumstances, OTS should give an undercapitalized bank a period of up to forty-five days to submit a CRP. But the “not later than” wording also gives the agency discretion to impose a shorter deadline as long as that deadline is “reasonable.”8 According to the Bank, “[w]hat constitutes a reasonable time is a question of law for this Court [to review de novo] and an issue for which the agency receives no

8 OTS’s regulations also allow the agency to impose a deadline shorter than forty-five days if it “notifies the savings association in writing that the plan is to be filed within a different period.” See 12 C.F.R. § 565.5(a)(1). 21 57

USCA Case #13-5126 Document #1433411 Filed: 04/30/2013 Page 58 of 76 deference.” Pl.’s Mem. 28–29. Even if the Court accepts that legal proposition, it concludes that the date for the submission of the CRP was reasonable under the circumstances in this case. On December 13, 2010, OTS directed the Bank to submit a CRP by December 20. 9 AR 1441. The Bank asserts that developing a CRP is a significant task and “seven short days . . . did not give the Bank ‘reasonable time’” to conduct the necessary preliminary financial analysis and projections, and create a plan that was acceptable to customers, shareholders, and regulators. Pl.’s Mem. at 28–30. But December 13 was not the first time OTS asked the Bank to restore its capital. OTS directed the Bank to increase its capital levels more than a year earlier in the March 2009 Report of Examination, and the Bank agreed to do so in the December 2009 Memorandum of Understanding and June 2010 Cease and Desist Order. AR 139, 220, 554. In carrying out these obligations, the Bank conducted the necessary analysis and negotiations and developed a plan for a private sector recapitalization, which was formalized in the October 2010 Investment Agreement. AR 972–1091. Since the basis for the Bank’s CRP was already in place in October 2010, the seven-day deadline gave the Bank reasonable time to transform its recapitalization plan into a CRP. And in fact, the Bank met this deadline and submitted a CRP that largely

recapitulated the October 2010 Investment Agreement. As the Bank admits in its own pleadings, OTS accepted additional submissions from the Bank concerning the Recapitalization Transaction “right up until its final hours of existence” – about thirty more days after the submission of the CRP. See Pl.’s Reply at 17. So while a seven day deadline could be viewed as unduly harsh when viewed in isolation, it is not as if OTS

9 The Bank became undercapitalized on December 8, 2010 and was required to submit its CRP twelve days later on December 20, 2010. See AR 1441. Under 12 U.S.C. § 1831o(e)(2)(D)(i), the forty-five day statutory maximum starts running from the date the institution becomes undercapitalized, not from the date the institution is required to submit a CRP. But since the pleadings of both parties focus on the seven day deadline imposed by the December 13 letter, the Court will evaluate whether this deadline was reasonable. 22 58

USCA Case #13-5126 Document #1433411 Filed: 04/30/2013 Page 59 of 76 suddenly gave the Bank only seven days to restore its capital position. The seven days came after months of waiting for the promised investors to materialize, and in any event, the deadline did not operate as a bar to later supplementation while the plan was under consideration. The Bank’s argument that the deadline was not “reasonable” under the circumstances because OTS “failed to provide a reasoned explanation” for its imposition also fails. Pl.’s Mem. at 30. In the December 13 letter, OTS explained that the imposition of the shorter deadline was based on the Bank’s “unsafe and unsound condition.” AR 1441. This explanation is supported by the administrative record because at the time, the Bank was undercapitalized, its capital was continuing to decline, its asset quality and earnings were deteriorating, and the agency had been expressing serious concerns about the Bank’s liquidity for years. AR 865–66. The “unsafe and unsound” designation in December should not have come as a surprise to the Bank because it echoed the finding in the June 2010 Cease and Desist Order, which stated that the Bank had “engaged in unsafe or unsound banking practices,” AR 569, and OTS’s March 4, 2010 letter designating the Bank as being “in troubled condition,” AR 275–77. Thus, the CRP submission deadline was “reasonable.” B. OTS’s Rejection of the CRP Was Not Arbitrary and Capricious Recognizing that OTS rejected the CRP on its merits and not because the Bank failed to meet the submission deadline, the Bank next argues that “there was no basis for the OTS to reject the Bank’s CRP.” Pl.’s Mem. at 36. According to the Bank, the CRP projected an infusion of capital into the Bank in excess of the levels required by the agency. AR 1476. The Bank acknowledges, though, that OTS cannot accept a CRP unless: (1) it is based on “realistic assumptions,” and is likely to succeed in restoring the institution’s capital; and (2) it would not “appreciably increase” the risk (including credit risk, interest-rate risk, and other types of risk) to which the institution is exposed. Pl.’s Mem. at 28, citing 12 U.S.C. § 1831o(e)(2)(C). 23 59

USCA Case #13-5126 Document #1433411 Filed: 04/30/2013 Page 60 of 76 In its January 2011 letter rejecting the CRP, the agency presented six grounds for its determination that the CRP failed to meet both statutory requirements. AR 4123–26. The Bank contends that none of these grounds “passes muster.” Pl.’s Mem. at 30. The Court disagrees. 1. Additional Investors OTS’s first ground for rejecting the CRP was that it unreasonably assumed that the Bank would obtain the additional $100 million necessary to consummate the Investment Agreement. AR 4124. The agency noted that although the Bank had identified several potential additional investors, it had not executed letters of intent or investment agreements with any of them. Id. In challenging this determination, the Bank asserts that it had identified “serious and substantial” investors, and OTS’s desire for signed agreements was unreasonable because that “level of proof” is not required by statute or OTS’s regulations. Pl.’s Mem. at 31–32. This argument misses the mark. As the Bank notes in its own pleadings, the “statute only requires that a CRP be built on ‘realistic assumptions’”; it does not define what level of proof is required. Pl.’s Reply at 21. So the question before the Court is not whether the evidentiary standard that OTS employed was statutorily mandated but whether OTS’s determination that the CRP was based on unrealistic assumption was unreasonable or unsupported by the administrative record. In a January 10, 2011 letter, the Bank informed the agency that three potential investors had started reviewing proposed investment agreements and three others had expressed strong interest in the deal. AR 1801. However, none of these investors had legally committed to investing in the deal, and the Bank provided no timeline as to when it expected to obtain such commitments. AR 1800–02. In the absence of such commitments or a timeline, it was not unreasonable for the agency to conclude that the Bank had “fail[ed] to provide sufficient support for its optimistic assumption that Additional Investors will invest an additional $100 million into

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USCA Case #13-5126 Document #1433411 Filed: 04/30/2013 Page 61 of 76 UWBK in a timely manner or by January 31, 2011, the Association’s proposed date of recapitalization in the CRP.” AR 4124.10 2. Increase of the Bank’s Risks The second, third, and fourth grounds for OTS’s rejection of the CRP were all related to the agency’s determination that the asset growth projected in the CRP unreasonably increased the Bank’s level of risk. AR 4124–25. OTS explained that the projected asset growth was unacceptable for two reasons. First, the growth “rel[ied] upon an increase to the already

excessive concentration of institutional deposits at the Association.” AR 4124. Since the agency had been voicing concern about the liquidity risks associated with the Bank’s concentration in institutional deposits since at least March 2009, it is not surprising or unreasonable for OTS to determine that a plan that relied on an increase in that concentration was unacceptable. Second, the agency explained that the “asset growth described in the CRP [was] also unacceptable in light of the Association’s poor ratings, troubled condition, high level of existing problem assets, and poor earnings.” Id. Again, this explanation was not novel or irrational; rather OTS relied on very similar reasons when it imposed the asset growth restriction in the Cease and Desist Order. In light of this reasoned explanation, the Court cannot agree with the Bank’s contention that the agency’s “concern over the Bank’s anticipated growth in total assets” was based on its “unfounded” assumption that “asset growth is per se destructive,” Pl.’s Mem. at 33; the agency was concerned about a particular type of asset growth.

10 By the date of the appointment order, the Bank had still failed to submit any binding letters of intent or investment agreements with additional investors. AR 4192–4225. Although, the Bank submitted non-binding letters of intent from several investors, each expressly stated that the letter of intent “d[id] not constitute a legally binding offer or commitment on the part of the Investor or its affiliates to consummate any transaction with the Company or any of its members.” AR 4198–4201, 4207–10, 4221. 25 61

USCA Case #13-5126 Document #1433411 Filed: 04/30/2013 Page 62 of 76 Moreover, as defendants point out in their motion, the success of the CRP was dependent upon an agreement by OTS to waive the “meet and maintain” requirement contained in the Cease and Desist Order. AR 1476–77. But OTS had already informed the Bank that it would not waive this requirement seventeen days before the CRP was submitted. AR 1192–93.

Nonetheless, in the CRP and its pleadings the Bank argued that OTS’s unwillingness to waive the requirement was “not a proper exercise of the agency’s fiduciary duties to the Deposit Insurance Fund.” AR 1476–77; see also Pl.’s Reply at 23. In open court, the Bank added that it was unreasonable for the agency to insist on the requirement because after the consummation of the Recapitalization Transaction, the Bank would have been well capitalized, and the requirement would have been unnecessary. Tr. 30:9–18. Based on the administrative record, the Court cannot conclude that it was unreasonable for the agency to insist on a requirement that it had imposed since March of 2009 and that the Bank had specifically agreed to fulfill in a memorandum of understanding and a consent decree. Even if the Bank is correct in its assertion that the Recapitalization Transaction would have allowed it to meet or exceed the agency’s demands, it was not irrational for OTS to decide wait until the Bank met the requirement before removing it. 3. Legent Acquisition OTS’s fifth ground for rejecting the CRP was that “[t]he CRP’s assumption that the OTS will approve [the Legent] application is unreasonable.” AR 4125. The Bank argues that this determination was unfair because it was “forced to speculate about the prospects for the Legent application’s success” since the application was still pending when it submitted the CRP. Pl.’s Mem. at 34. But the Bank was not speculating in a vacuum. On November 4, 2010 – more than a month before the submission of the CRP – OTS informed the Bank that it had determined that the Legent application “raise[d] significant issues of policy.” AR 3008. This letter notified the 26 62

USCA Case #13-5126 Document #1433411 Filed: 04/30/2013 Page 63 of 76 Bank of the very real possibility that the Legent application could be denied. Therefore, it was not irrational for OTS to conclude that the Bank’s assumption that the Legent acquisition would be approved was unreasonable. The Bank also submits that it was unfair to deny the Legent application and the CRP on the same day because “[h]ad the OTS issued its decision regarding Legent even one day before the CRP denial, then the Bank could have revised its CRP to reflect new assumptions following the rejection.” Pl.’s Mem. at 34. This argument also fails. Since the Legent acquisition was a condition precedent of the Recapitalization Transaction, the onus was on the Bank to submit a CRP that addressed the viability of the Recapitalization Transaction and the CRP if the Legent application was denied. In open court, the Bank argued that OTS’s short deadline prevented it from developing and including this kind of information in the CRP. Tr. 35:17–23. But as the Court has already noted, the November 2010 letter gave the Bank more than a month to plan for the possibility of the denial of the Legent application and include a back-up plan in its CRP.11 4. Other Closing Conditions Lastly, the agency explained that the CRP was unacceptable because it “unreasonably and without support or explanation, assume[d] that the Anchor Investors [would] waive or amend [several] express closing conditions.” AR 4125. In its pleadings, the Bank contends that this determination was arbitrary and capricious because the agency ignored “the Bank’s representations [in a November 29, 2010 letter] that the Anchor Investors would waive [certain] 11 In its pleadings, the Bank also argues that the denial of the Bank’s application to acquire Legent did not doom the Recapitalization Transaction because the Bank was prepared to restructure the deal to have the holding company purchase Legent. Pl.’s Reply at 24. However, since the CRP did not present this alternative, the Court cannot conclude that OTS acted irrationally when it concluded that the denial of the Legent application – one of the conditions precedent of the Investment Agreement – doomed the Recapitalization Transaction and the CRP. Moreover, in the three days between the rejection of the CRP and the appointment of the receiver, the Bank did not propose an alternative plan that did not depend on the Legent acquisition. 27 63

USCA Case #13-5126 Document #1433411 Filed: 04/30/2013 Page 64 of 76 conditions.” Pl.’s Mem. at 32–33. But the agency expressly took the representations in the letter into consideration, saying: “the Association previously suggested that the Anchor Investors might be willing to provide new capital without satisfaction of some [of] these closing conditions.” AR 4125 n.2. The problem is that the November 29 letter was merely a list of “Proposed Revisions to Conditions to Closing,” AR 1185–90, and, as OTS pointed out in the CRP rejection letter, the Bank never provided the agency with any document stating “that the Anchor Investors ha[d] agreed to any of the proposed changes.” AR 4125. Without such documentation, OTS rationally concluded that the CRP’s assumption that investors who had protected themselves with conditions would waive or amend those conditions was unrealistic. AR 4125. In sum, the CRP was dependent upon a series of unlikely events, including predictions that the agency would be inclined to relax its position on the “meet and maintain” requirements even though it had just stated that it wouldn’t, and that the agency would bless the Legent transaction that it had just described as troubling. It was not unreasonable for the agency to find that the Bank’s assumptions – particularly its assumptions about what the agency itself was likely to do – were unduly optimistic, and it was not unreasonable for it to require confirmation beyond the Bank’s own say-so about what the investors were or were not willing to do. Since OTS has presented a reasoned explanation for its determination that the CRP was statutorily unacceptable, and the Bank has failed to demonstrate that these reasons were arbitrary or capricious, the Court will uphold the appointment decision based on this statutory ground.12

12 OTS also rejected the CRP because the Bank submitted a guarantee that was different from the agency’s standard-form guarantee. AR 4125. The Court will not address this ground because it finds that the agency provided sufficient grounds for upholding the rejection based its determination that the CRP did not meet the statutory requirements that it be realistic and not appreciably increase the Bank’s risks. 28 64

USCA Case #13-5126 Document #1433411 Filed: 04/30/2013 Page 65 of 76 II. OTS Reasonably Determined That The Bank Was Facing A Liquidity Crisis Another statutory basis for the appointment decision was that the Bank was “likely to be unable to . . . meet its depositors’ demands in the normal course of business” under 12 U.S.C. § 1821(c)(5)(F). AR 2. The Bank challenges this determination, asserting that OTS “wrongfully concluded that the Bank faced a liquidity crisis because of its relationships with the Institutional Depositors.” Pl.’s Mem. at 36. To support this assertion, the Bank argues that OTS: (1) arbitrarily reversed its prior policy concerning the institutional depositors; (2) wrongfully concluded that the institutional depositors were likely to withdraw their funds; and (3) erred in its determination that the Bank did not have sufficient funds to cover permissible withdrawals. Pl.’s Mem. at 36–44; Pl.’s Reply at 4–14. The Court will address these arguments in turn. A. OTS Did Not Unreasonably Reverse Its Prior Policy Concerning Institutional Deposits First, the Bank contends that the statement in the appointment order that “there [was] an unacceptable risk that institutional depositors may withdraw their deposits in the near term” was arbitrary and capricious because it constituted an unexplained and unsubstantiated reversal of the agency’s policy concerning the institutional depositors. Pl.’s Mem. at 36–37. The Bank points to the legal principle that an agency “may change its policy only if provides a reasoned analysis indicating that prior policies and standards are deliberately changed, not casually ignored.” Honeywell Int’l Inc. v. Nuclear Regulatory Comm’n, 628 F.3d 568, 579 (D.C. Cir. 2010), quoting Mich. Pub. Power Agency v. FERC, 405 F.3d 8, 12 (D.C. Cir. 2005) (internal quotation marks omitted). But that case has little bearing on the situation at hand. In Honeywell, a company requested exemptions from the Nuclear Regulatory Commission’s regulations in three consecutive years. 628 F.3d at 571. The Commission granted the company’s first two requests but denied the third. Id. In its pleadings, the Commission attempt to justify its actions by arguing that the denial was warranted because of the company’s 29 65

USCA Case #13-5126 Document #1433411 Filed: 04/30/2013 Page 66 of 76 declining financial condition. Id. at 581. The Court of Appeals rejected this explanation and stated that the company’s financial condition did not justify the Commission’s denial of the third exemption request because the company was already in decline when the Commission granted the two other exemptions. Id. The court then overturned the Commission’s denial of the third exemption request because the decision was “inconsistent with its precedent addressing [the company’s] exemption requests” and the Commission failed to provide a reasoned decision for changing its policy. Id. at 580–81. Here, the administrative record reflects a fundamental change in circumstances warranting a different approach to institutional deposits. Prior to the financial crisis, the agency did not object to the Bank’s concentration in institutional depositors. AR 6 n.9. But contrary to the Bank’s assertion, the agency did not suddenly express concern about this concentration just before the seizure, and there is no inconsistent precedent as in the Honeywell case. After the economy collapsed and the Bank’s fortunes declined along with it, the agency regularly voiced its concerns on this subject, and it provided a reasoned explanation for its worry.13

13 The Bank incorrectly argues that “the Court should look only to the Seizure Order to supply [the agency’s] reasoning” for concluding that the institutional depositors “presented a sudden liquidity danger.” Pl.’s Mem. at 37. In support of this argument, the Bank relies on the well-established rule that “[w]hen there is a contemporaneous explanation of the agency decision, the validity of that action must stand or fall on the propriety of that finding.” Id., citing Sierra Club v. Costle, 657 F.2d 298, 392 (D.C. Cir. 1981). The Bank takes that quotation out of context. When the Supreme Court announced this rule in Camp v. Pitts, 411 U.S. 138, 142–43 (1973), it was explaining that “the focal point for judicial review [under the arbitrary and capricious standard] should be the administrative record already in existence, not some new record made initially in the reviewing court.” Thus, this rule requires the Court to confine its review of the agency’s decision to the administrative record to the exclusion of any evidence outside of that record. It does not restrict the Court to specific parts of that record. Therefore, the Court will look at the entire administrative record to supply OTS’s reasons for developing concern regarding the institutional depositors during the financial crisis. 30 66

USCA Case #13-5126 Document #1433411 Filed: 04/30/2013 Page 67 of 76 OTS’s first clear warning about the Bank’s concentration in institutional deposits came during the global financial crisis.14 In the March 2009 Report of Examination, the agency cautioned that “termination of one or more of the larger institutional deposit relationships could place UWB in a precarious liquidity position.” AR 161. The Bank contends that “the [March 2009] ROE . . . lacked any useful analysis explaining the agency’s new hostility toward the historically-stable, long-standing Institutional Depositors.” Pl.’s Reply at 7. Contrary to this contention, the March 2009 ROE provided an adequate explanation for OTS’s determination that the Bank’s concentration in institutional deposits had become risky. The report explained that as a result of the financial crisis, the Bank’s asset quality had deteriorated, its earnings had decreased, and its capital had declined to levels that were barely above the threshold necessary for the Bank to qualify as “well capitalized.” AR 135–36. The report added that the contractual agreements with some of the institutional depositors allowed them to withdraw their funds if the Bank’s capital fell below the PCA “well capitalized” level, and a continued decline of capital could place the Bank into a precarious liquidity position. AR 161, 164. Notably, the agency did not immediately take action against the Bank in light of these concerns. Rather, it worked with the Bank to develop a Memorandum of Understanding, pursuant to which the Bank pledged to develop a concentration policy that “specifically address[ed] deposit concentrations and plans to reduce or manage such concentrations.” AR 223–24.

14 OTS argues that it first warned the Bank about this risk in the October 2007 ROE when it stated that the Bank “continue[d] to face risk from its concentration in institutional deposits.” AR 57; see also Defs.’ Mem. at 35. However, in the 2007 ROE, OTS tempered this warning by ultimately concluding that the Bank’s liquidity sources were “satisfactory” and that the Bank’s business strategy and contractual agreements with the institutional depositors “help[ed] protect the institution’s liquidity position.” AR 57. As the Bank notes, this muddled message “could hardly be said to have sounded the alarm” about the institutional deposits. Pl.’s Reply at 6. 31 67

USCA Case #13-5126 Document #1433411 Filed: 04/30/2013 Page 68 of 76 As the Bank’s condition worsened, the agency’s concerns about the risks associated with its concentration in institutional deposits escalated. In an April 2010 letter, the agency stated that the Bank’s “significant concentration in institutional deposits . . . pose[d] a threat to the viability of the Bank” and directed the Bank to consider a “possible sale, merger, or self-liquidation . . . to prevent the potential failure of the institution due to insufficient liquidity.” AR 267. Again, the agency provided a reasoned explanation for these alarming statements. It explained that the concentration in institutional deposits was problematic because the FDIC was reviewing whether the deposits were “brokered.” AR 267. If the FDIC concluded that the institutional deposits were brokered, the Bank would not be able to accept or renew the brokered deposits without a waiver from the FDIC because it would have become only adequately capitalized. AR 267; see also AR 317, 1110 (the Bank became “adequately capitalized” as of March 31, 2010). Again, the agency did not immediately seize the Bank; rather it worked with the Bank and developed the Consent Cease and Desist Order in which the Bank again agreed to create a liquidity contingency plan that “specifically address[ed] deposit concentrations and plans to reduce or manage such concentrations.” AR 560. The change in the Bank’s financial condition during the financial crisis justifies OTS’s concern about the concentration in institutional investors. Unlike in Honeywell, where the Commission granted the two prior exemptions while the company’s financial condition was already in decline, here OTS made it clear that it did not approve of the Bank’s reliance on institutional depositors as soon as the Bank’s condition began to decline, and it never wavered. It alerted the Bank to its concerns in the March 2009 ROE, the December 2009 MOU, the April 2010 letter, and the June 2010 Cease and Desist Order. In light of the changing economic environment, and the agency’s reasoned explanations for its concerns, the Court cannot agree

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USCA Case #13-5126 Document #1433411 Filed: 04/30/2013 Page 69 of 76 with the Bank’s contention that OTS “suddenly” and arbitrarily reversed its policy concerning institutional depositors shortly before the seizure. B. OTS’s Conclusion That There Was An Unacceptable Risk That Institutional Depositors May Withdraw Their Deposits In The Near Term Was Reasonable Second, the Bank’s contention that the agency “imagined” a liquidity crisis because “there was no likelihood whatsoever that the institutional depositors would withdraw,” Pl.’s Mem. at 39, is contradicted by the record. Approximately a month before the appointment decision, MSCS, the Bank’s second largest institutional depositor, began withdrawing its ERISA deposits because the Bank’s undercapitalized status prevented it from accepting such deposits.15 AR 1457–58. Further, the Bank’s undercapitalized status triggered the termination clauses in the deposit agreements with ETC and LTC, the association’s largest and fourth largest institutional depositors. AR 1945, 1952; see also Defs.’ Mem. at 30. The Bank correctly points out that these depositors had a “long and loyal history,” with the Bank and had consistently worked with the Bank during the financial crisis. Pl.’s Reply at 13. As the Bank noted at the hearing, the depositors removed their ERISA deposits from the Bank so that they would not be subject to the same rule that required MSCS to withdraw its funds, they modified their deposit agreements with

15 The Bank claims that MSCS and its client CPI were forced by OTS to withdraw their deposits because the agency “in its quest to set the Bank up for failure” forced “the Bank into undercapitalized status via an unnecessary” write-down on its mortgage portfolio. Pl.’s Reply at 8–9 & n.7. But “when reviewing an agency’s decision concerning matters lying within the agency’s field of expertise, a reviewing court should begin by acknowledging that a presumption of procedural and substantive regularity attaches.” James Madison, 868 F. Supp. at 8, citing Franklin Savs. Ass’n v. Dir. Office of Thrift Supervision, 934 F.2d 1127, 1147 (10th Cir. 1991). In its letter directing the Bank to take the write-down, the agency explained that it had “carefully reviewed” the Bank’s objections to the write-down and had found that the Bank’s “modeling approach and assumptions do not conform to regulatory reporting requirements.” AR 2092. Since the Bank provides no basis for its claim that the write-down was unnecessary or that the agency wanted the Bank to fail, the Court concludes that it has not met its burden to overcome the presumption of validity accorded to the agency’s decision. 33 69

USCA Case #13-5126 Document #1433411 Filed: 04/30/2013 Page 70 of 76 the Bank to avoid the “brokered deposit” designation, and they signed written agreements to refrain from withdrawing their funds from the Bank albeit with certain caveats. Tr. 40:1–13; 41:7–23; 42:2–13. But even if the Court agrees that the depositors might have been willing to weather the storm with the Bank, the arbitrary and capricious standard does not allow it to substitute its judgment for that of the agency. Overton Park, 401 U.S. at 415–16. The sole question before the Court is whether OTS’s conclusion that there was an “unacceptable risk that the institutional depositors may withdraw their deposits in the near term” was reasonable based on the administrative record. Pl.’s Mem. at 37. As the Bank has acknowledged, the institutional depositors were willing to maintain their deposits “so long as the recapitalization remained a viable option.” Tr. 41:15. Both ETC and LTC expressly conditioned their agreements to refrain from withdrawing their funds on the Bank restoring its capital by a set deadline: LTC specifically “reserve[d] its right to terminate the [deposit] Agreement” if the Bank did not achieve “well capitalized” status by January 31, 2011, AR 1947, and ETC agreed to refrain from exercising its right to withdraw its deposits until February 15, 2011 based on its understanding that the Bank was close to securing capital to remedy its situation. AR 1945, 1947. Since OTS had already refused to implement several conditions precedent of the Recapitalization Transaction, it was not unreasonable for it to determine that the plan was no longer viable, and that there was an unacceptable risk that the institutional depositors would withdraw their funds when it became “clear that the [Bank’s] present attempts to raise capital [would] be unsuccessful.” AR 34.16

16 The depositors ultimately agreed to extend their forbearance agreements to match the scheduled closing date of the Recapitalization Transaction. Pl.’s Reply at 11–12. But this fact does not alter the Court’s analysis because the agreements were still conditioned on the Bank consummating the Recapitalization Transaction, which OTS had reasonably determined was no longer viable. 34 70

USCA Case #13-5126 Document #1433411 Filed: 04/30/2013 Page 71 of 76 Indeed, the Bank’s holding company made public statements about the Bank’s liquidity position at the time that were consistent with OTS’s conclusions. In a December 2, 2010 letter to the Bank, the NASDAQ stock exchange explained that the holding company had informed it that: Due to its weakened financial status, the Bank has experienced a decline in deposits, and it believes that unless it resolves its difficulties in the nearterm, additional depositors may move their funds elsewhere, further weakening the financial condition of both the Company and the Bank. . . . Consequently, pursuant to Cease and Desist Orders (the “Orders”), the banking regulators have imposed stringent enforcement actions requiring the Company and the Bank to raise additional capital in the near term or face additional regulatory actions. Thus far the Company has been unable to raise the amount of capital required under the Orders. . . . The Company also expects that at the end of the current year, the Bank will fall below the level required to be adequately capitalized. . . . As a result, the Bank would be unable to hold certain deposits (that currently account for over 75% of its total deposits) and would face a liquidity crisis that it believes would lead to the regulator recommending the seizure of the Bank, resulting in the liquidation of the Company. AR 2457–58 (emphasis added). The letter also stated that the holding company had informed the exchange that the Recapitalization Transaction was “the only viable option” for restoring its capital and eliminating “the prospect of the Bank being seized or the Company being liquidated.” AR 2458. Again, since OTS had already rationally concluded that the Recapitalization

Transaction was not viable, it was not unreasonable for it to agree with the holding company’s conclusion that without such recapitalization, the Bank “would face a liquidity crisis.” C. OTS’s Determination That the Bank Had Insufficient Liquidity To Sustain Institutional Deposit Withdrawals Was Not Arbitrary Or Made In Bad Faith Third, the Bank argues that OTS erroneously concluded that the Bank had insufficient liquidity to cover mass institutional deposit withdrawals. Pl.’s Reply at 13. OTS’s appraisal of assets leading to an insolvency determination “is a matter of judgment and discretion,” and the Court will not substitute its judgment for that of the agency “unless it appears by convincing

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USCA Case #13-5126 Document #1433411 Filed: 04/30/2013 Page 72 of 76 proof that the Comptroller’s action is plainly arbitrary, and made in bad faith.” United States Savs. Bank v. Morgenthau, 85 F.2d 811, 814 (D.C. Cir. 1936).17 The “presumption of the correctness of an agency’s determination is even stronger where Congress has charged an agency with complex analytical responsibilities and the duty to make predictive judgments.” James Madison, 868 F. Supp. at 8, quoting Franklin Savs. Ass’n v. Dir., Office of Thrift Supervision, 934 F.2d 1127, 1147–48 (10th Cir. 1991). In its memorandum recommending placing the Bank into receivership, the OTS field staff provided a detailed analysis of the Bank’s liquidity situation. The memorandum explained that according to the Bank’s own liquidity analysis, as of January 13, 2011, the Bank had: $398.5 million in total cash, $17.8 million in unused borrowing capacity from FHLB-Topeka, and an additional $137 to $350 million that it could have obtained from Legent. AR 38–39; see also AR 39 n.30. This added up to a total of $553.3 to $766.3 million, which would have been insufficient to cover the potential withdrawal of a total of $848 million in deposits from ETC, LTC, and MSCS’s remaining funds. AR 39–40 n.30–31. The Bank disputes this conclusion by asserting that its on-hand liquidity increased to $426 million on January 20 and that it could have taken advances from the FHLB and accepted Qwikrate deposits to shore up its cash position. Pl.’s Reply at 13. However, as defendants point out, OTS’s calculations already accounted for the FHLB and Qwikrate funds, and the $27.5 million increase in liquidity would have increased the Bank’s total available liquidity to a maximum of $793.8 million, which still would have been insufficient to cover the withdrawal of institutional deposits. Defs.’ Reply at 13 n.14. Even if the institutional depositors withdrew their funds incrementally over several months, instead of all at once, the Bank has not explained 17 Although OTS did not actually declare the Bank to be insolvent, as the Bank points out, its “emphasis on liquidity and . . . capitalization was a close cousin.” Tr. 22:5. 36 72

USCA Case #13-5126 Document #1433411 Filed: 04/30/2013 Page 73 of 76 how it would have obtained additional resources to cover the withdrawals. The Bank has thus failed to overcome the presumption of correctness accorded to the agency’s detailed analysis of the Bank’s liquidity position because it has not submitted any facts to show that the agency’s determination was arbitrary or made in bad faith. Since the Bank has failed to show that OTS’s conclusion that the Bank was likely to be unable to pay its obligations or meet its depositors’ demands in the normal course of business was irrational, manifestly erroneous, or made without consideration of the relevant factors, the Court will also uphold the appointment order on that ground. III. OTS’s Determination That the Bank Was Unsafe And Unsound Was Not Irrational The third statutory ground for the appointment order was that the Bank was operating in an unsafe and unsound condition under 12 U.S.C. § 1821(c)(5)(C). AR 2. In challenging this ground, the Bank asserts that OTS “erred in applying the wrong standard for ‘an unsafe or unsound practice’ . . . [and that] even if the agency had applied the correct standard, the agency’s position would still be refuted by the facts before it.” Pl.’s Mem. at 42. The Bank’s argument that the agency should have used the “unsafe and unsound” standard of the D.C. Circuit instead of the “more permissive standard” of the Tenth Circuit, Pl.’s Reply at 26, fails on its face. An agency must follow the law of the circuit having jurisdiction over the action, see Johnson v. U.S. R.R. Ret. Bd., 969 F.2d 1082, 1090–91 (D.C. Cir. 1992), and as the Bank admits in its pleadings, both the Tenth and the D.C. Circuit could have exercised jurisdiction over this lawsuit. Pl.’s Mem. at 42 & n.97. Since the Bank’s home office is in Colorado, and at the time of the appointment decision, there was no lawsuit pending in either circuit, the agency’s decision to apply the Tenth Circuit standard was reasonable. The cases cited by the Bank to support its position are inapposite because none of them require an agency to anticipate that the Bank will ultimately file a case in the jurisdiction with the more stringent 37 73

USCA Case #13-5126 Document #1433411 Filed: 04/30/2013 Page 74 of 76 standard and apply the law of that circuit. See Pl.’s Mem. 42 n.97. Finally, the Bank’s argument that OTS routinely applies Tenth Circuit law even when there is no nexus with the Tenth Circuit is irrelevant because in this case, there was a strong nexus to the Tenth Circuit and the agency was legally allowed to apply its case law. More importantly, the factors that the agency considered in its appointment order support a conclusion that the Bank was unsafe and unsound even under the D.C. Circuit standard. In this circuit, a Bank operates in an unsafe and unsound condition if it is in a condition or engaged in practice that presents a reasonably foreseeable undue risk to the institution. See Kaplan v. OTS, 104 F.3d 417, 421 (D.C. Cir. 1997). The appointment order articulated several events that presented a reasonably foreseeable undue risk to the Bank. The order cited the Bank’s: x x “[C]ontinuing significant operating losses.” AR 6. The Bank had in fact lost at least $152 million between 2009 and the date of the receivership. AR 30, 1492. “[W]eak capital position.” AR 6. From 2009 to 2010, the Bank’s capital levels deteriorated significantly. AR 142, AR 25; see also Bank CRP, AR 1491 (projecting that capital ratios would continue to decline). “[S]ignificant asset problems.” AR 6. The Bank’s assets had been deteriorating since 2008. AR 135–36. “[R]eliance on a small number of institutional depositors” for the vast majority of its liquidity. AR 6. One of these depositors had already withdrawn most of its deposits and two others might have withdrawn their funds once they realized that the Bank’s recapitalization efforts were not viable. AR 5–6.

x x

The Bank argues that the agency’s “unsafe and unsound”’ determination does not meet this circuit’s standard because it was based on the “faulty premise that the Institutional Depositors posed a liquidity risk to the Bank” and the erroneous conclusion that the Bank had

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USCA Case #13-5126 Document #1433411 Filed: 04/30/2013 Page 75 of 76 “insufficient capital” and “no realistic prospects for raising capital in the short term.”18 Pl.’s Mem. at 45. However, as the Court has already decided, the agency had a reasonable basis for concluding that the Bank’s concentration in institutional deposits posed a liquidity risk to the Bank, and that the Bank had no viable plan for restoring its capital. Since the factors relied on by OTS in the appointment order also support a determination that the Bank was unsafe and unsound under the D.C. Circuit standard, the Court will uphold the appointment order on that ground. CONCLUSION At bottom, after one strips away all of the hyperbole about the agency’s “sudden” change of heart, the Bank’s fundamental grievance is that if only the agency had just given it a little more time, it would have been able to come up with the necessary capital to save the day. Maybe. There are reasons to be skeptical: the Bank’s plans were dependent upon regulatory changes that were unlikely to materialize, and the potential investors had carefully buffered their commitments with numerous contingencies. On the other hand, this was a Bank with a long history of profitability, it had longstanding institutional relationships, and there were at least some investors willing to take a closer look. There is no doubt that the officers and directors 18 The Bank takes issue with OTS’s conclusion that the Bank had “no realistic prospects for raising capital in the short term” contending that Congress did not demand immediate recapitalization and that OTS’s belief that the Bank’s recapitalization efforts “would necessarily rise and fall with the Recapitalization Transaction” was an “unduly narrow view of the Bank’s capital prospects.” Pl.’s Mem. at 45–46. But the agency did not demand immediate capitalization. It had been asking the Bank to recapitalize for more than one and a half years. See e.g., 2009 MOU, AR 220 (asking the Bank to “submit a written Capital Plan”). In that time period, the Bank presented only one recapitalization plan and the holding company stated that this plan was the Bank’s “only viable option” for restoring its capital. AR 2458. Further, the 2010 Investment Agreement prohibited the Bank from “enter[ing] into an y agreement to raise capital other than in connection with the transaction contemplated under the Investment Agreement.” AR 1189 (November 2010 letter to OTS stating that the investors were unwilling to waive this provision). Therefore, the agency reasonably concluded that the since the Recapitalization Transaction was not viable, the Bank had no realistic prospects for restoring capital. 39 75

USCA Case #13-5126 Document #1433411 Filed: 04/30/2013 Page 76 of 76 were seriously committed to the task, and one cannot simply dismiss their efforts, or their sincere belief that they would ultimately succeed, as frivolous. But in the end, whether the Court accepts the Bank’s assessment of its prospects wholeheartedly or with reservations is beside the point. Given the standard that must be applied in this proceeding, the Court cannot find that the agency’s decision was unreasonable under all of the circumstances at the time it was made, or that it was not supported by the administrative record. The Court will uphold OTS’s decision to appoint the FDIC as receiver for the Bank because the Bank has failed to demonstrate that the Acting Director failed to articulate a rational basis, failed to consider the relevant factors, or made a manifest error in judgment when he concluded that there were three statutory grounds that independently supported the decision.19 Accordingly, the Court will deny the Bank’s motion for summary judgment and grant the defendants’ cross-motion. A separate order will issue.

AMY BERMAN JACKSON United States District Judge DATE: March 5, 2013

19 “When an agency relies on multiple grounds for its decision, some of which are invalid, [courts] may only sustain the decision where one is valid and the agency would clearly have acted on that ground even if the other were unavailable.” Williams Gas Processing-Gulf Coast, Co., L.P. v. FERC, 475 F.3d 319, 321 (D.C. Cir. 2006). Since the Court has concluded that all three statutory grounds are valid, it need not address the Bank’s argument that “even if the Court determines that one ground of the seizure order was valid, none of the alleged grounds is sufficient – standing alone – to sustain the decision.” Pl.’s Reply at 29. 40 76

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