Financial Services and Banking

Financial institution operations are subjected to intense scrutiny by government regulators. From public attention under the Fair Housing Act and Equal Credit Opportunity Act and close antitrust and supervisory examination of acquisitions and mergers, to the behind-the-scenes compliance requirements of the Bank Secrecy and USA PATRIOT Acts and a host of technical lending and operations regulations, Manatt banking attorneys have the regulatory insight, skill and reputation to help you with any issue.

Our national practice brings us into frequent contact with financial institution agencies in many states, and we constantly interact on compliance and expansion matters with federal regulators at the:

• Comptroller of the Currency
• Federal Reserve Banks and Federal Reserve Board
• Federal Deposit Insurance Corporation
• Federal Credit Union Administration
• The former Office of Thrift Supervision
• Securities and Exchange Commission
• Department of Justice
• Federal Trade Commission
• Federal Home Loan Banks

Whether the issues involve federal or state jurisdiction, we work to advance your business goals and ensure that you receive full statutory protection in any issue involving regulatory oversight.

When bank examinations raise compliance issues about your day-to-day operations, we are effective advocates in dealing with potential informal or formal enforcement action. As examples, we:

• Develop responses to examiner comments over affiliate loans, lending limits, executive compensation, insider transactions and similar issues
• Address examiner concerns about asset quality and reserves
• Avoid or negotiate cease-and-desist orders
• Assist with revisions to Truth in Lending Act policies and procedures
• Answer concerns raised under the Real Estate Settlement Procedures Act (RESPA); including questions over controlled business arrangements

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We help our banking clients raise capital through SEC-registered public and private offerings of equity, debt, convertible and preferred securities. Our attorneys use excellent working relationships with national, regional, foreign, and boutique investment banking firms to raise capital and to represent lenders in traditional secured and unsecured credit transactions, interest rate swaps and other derivatives, major syndicated loan transactions, factoring, letters of credit and debt restructuring.

Manatt's lawyers have served as counsel in numerous mortgage- and asset-backed securities offerings in markets worldwide, as well as other secondary market activities. We represent financial institution issuers, as well as underwriters, servicers, sellers and trustees in transactions that securitize a wide range of financial assets. Among the investment vehicles we have worked on are:

• Credit card and auto loan portfolio sales and securitization
• Dealer paper securitizations
• Medical receivables sales and securitization
• Patent and music royalty securitizations
• Servicing portfolio sales and financing
• Single-asset commercial mortgage securitization

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Manatt banking attorneys fully understand the cash transactions by which you interact with your customers, and can help answer regulatory issues and help resolve litigation involving them. Our coverage includes wire transfers, deposit agreements and brokered deposits, ATMs and online banking, negotiable instrument laws and letters of credit. We are fully prepared to handle disputes over check fraud, privacy issues, legal processes and similar issues that may involve small monetary amounts but often turn on highly technical banking issues.

Back office operations are also an important part of cash management, and we help our clients with the many complexities involving the interrelationships of technology and regulation for electronic processing of payments, cash management, credit card processing, and electronic data interchange. We offer advice on the Uniform Commercial Code, federal and state laws and regulations, and Visa/MasterCard credit card association rules, and prepare effective contracts for data processing, servicing arrangements, hardware and software purchasing and licensing, and technology agreements and joint ventures. Activities on which we counsel include:

• Master cash management service applications and agreements
• Account analysis disclosures
• Account reconcilement
• Controlled disbursement
• Cash vault services
• Remittance banking (lockbox)
• Control agreements
• Positive pay
• Tax payment processing
• Vendor agreements

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In addition to our expertise in capital market transactions, we represent lenders and borrowers in virtually every aspect of commercial finance. Transactions that we can assist you with encompass:

• Traditional secured and unsecured credit
• Leveraged buy-out financing
• Interest rate swaps
• Major syndicated loan transactions
• Asset-based lending, factoring
• Letters of credit
• Debt restructuring

Manatt attorneys are adept at addressing complex subordination and intercreditor issues, and we represent creditors at all levels of the capital structure. We also have substantial experience in joint ventures, product and technology licensing, distributorship arrangements, and lease finance, including leveraged leasing and synthetic leasing.

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We help financial institutions and other lenders comply with the complex mix of state and federal laws governing credit extended to consumers, including RESPA, the Truth in Lending Act and Regulation Z, non-discrimination laws such as the Equal Credit Opportunity Act and Regulation B, the FCRA and other credit reporting laws, and privacy rules. Our lawyers can represent you before federal and state examiners, agency staff attorneys and other regulators that enforce consumer credit laws governing credit cards, mortgage loans, home equity loans, automobile loans and leases, installment loans, revolving facilities, retail installment credit, student loans and other types of credit and loans. We can:

• Help you respond to regulatory enforcement actions and restitution orders
• Advise you on state licensing laws that apply to mortgage lenders, mortgage brokers and finance lenders
• Defend you in consumer class actions alleging violations of law or unfair business practices
• Apply federal and state law to e-commerce transactions involving mortgage servicing, credit cards and other forms of consumer credit

We have a special focus on helping mortgage banking companies comply with consumer lending laws. We understand the state licensing options available to these companies and advise lenders (as well as builders and brokers) on FHA/VA, FNMA/FHLMC and RESPA requirements for mortgage loans and business arrangements. We are also well familiar with the host of state and local predatory lending regulations that apply to mortgage banks and other consumer finance operations.

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We advise publicly held banks and financial institutions on the full range of governance and disclosure issues. Our attorneys are well versed in the requirements of the Sarbanes-Oxley Act and we guide managements, boards of directors and independent board committees on their obligations involving:

• Compliance with federal and state securities laws governing reporting and public offerings
• Preparation of 10-Ks, 10-Qs, proxy statements, 8-Ks and other '34 Act filings.
• Preparation and solicitation of proxies and conduct of annual and special shareholder meetings
• Internet web site disclosure and other investor relations issues
• Establishment of insider trading policies and monitoring ongoing compliance with insider trading rules
• Creation of anti-takeover defenses
• Establishment of internal controls and procedures, policies, charters and ethics codes, training and continuing education, reflecting exchange listing requirements and best practices
• Mutual conversion and holding company formation
• Special purpose entity constraints

In light of today's heightened concern over ethical compliance, our team has extensive experience in handling civil and criminal government investigations, and can help you conduct internal investigations when allegations or suspicions of problems arise.

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Our partners are adept in handling the many issues concerning the issuing of credit cards and, conversely, the processing of credit cards. We represent issuers that are established in the market, and regularly counsel and assist such financial institutions on the regulatory matters concerning the issuance of consumer credit cards. For financial institutions interested in establishing a credit card issuing capability, we have assisted in all aspects of a credit card launch, from providing regulatory counsel to the negotiation of all necessary service provider agreements to the acquisition of credit card portfolios for such issuers.

On the credit card processing side, we have assisted our clients that wish to become settlement banks, negotiating their agreements with service providers, acquiring credit card portfolios for such clients, and assisting then with the regulatory matters impacting their industry. In addition, we represent credit card processors and independent service organizations/member service providers as well in their sale and purchase of companies and credit card portfolios, in negotiating agreements with other service providers and with respect to their daily operations and in the interpretation of the various regulations and rules impacting the industry.

Representative of the types of matters we have handled for our clients involved in the credit card industry are:

• Provide legal counsel and strategic advice for those financial institutions commencing credit card operations and assist in the negotiation of all aspects of the service provider agreements
• Provide legal counsel in the acquisition of credit card portfolios, and through our contacts in the industry, and provide valuable relationship introductions for future business amongst our clients
• Assist settlement banks in investments in other financial institutions, or credit card processors, dependent upon the clients' financial goals
• Provide legal counsel to settlement banks in their negotiations with potential credit card processors

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We frequently represent financial institutions and lenders as secured creditors in bankruptcies, liquidations and foreclosures. Our representation often begins at the start of a transaction, as we prepare the loan documentation and covenants to provide maximum creditor protection in the event of bankruptcy or foreclosure. Once a case is before the bankruptcy court, our focus is on whether a reorganization or liquidation of the debtor is the action best suited to recover our clients' investment. We counsel financial institutions in all matters involving nonperforming loans and loan workouts, including renegotiating and redocumenting credits, intercreditor matters, restructuring and workouts, and collection and foreclosure proceedings. We work with banks that become lenders to the debtor-in-possession, secure return of assets using deed in lieu of foreclosure transactions, and frequently advise on distressed asset sales. But we are also fully prepared to pursue adversary proceedings in litigation.

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Banks and financial institutions, like most other companies, face a growing volume of litigation alleging discrimination and wrongful termination in employment relationships. Our clients also face specialized employment issues, such as the use of commissioned loan brokers as independent contractors and defalcation-related matters. We believe that proactive employment law counsel is the key to helping you avoid employment and benefit disputes. Our lawyers work with your human resources personnel and in-house counsel to develop counseling and training policies and practices that preserve your competitive flexibility while keeping you in compliance with the laws governing:

• Corporate diversity
• Employment agreements and executive contracts
• Executive compensation, including incentive plans
• Stock options and employee ownership plans
• Overtime compensation and other wage and hour issues
• Health and welfare benefit issues, including ERISA compliance
• Immigration and visa issues
• Workplace policies and procedures, including employee handbooks and manuals
• Workplace security
• Training
• Employee investigations and audits
• Terminations and reductions-in-force
• Union organizing efforts
• Collective bargaining issues

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When litigation is unavoidable, we are effective advocates for you at trial and in administrative proceedings involving, among other subjects:

• Discrimination and harassment claims
• Wrongful discharge, breach of contract and related tort claims
• Whistleblower actions
• Wage and hour claims
• Trade secret and unfair competition disputes
• OSHA - related actions

Manatt litigators are also fully prepared to represent you in alternative dispute resolution forums, arbitration hearings and appellate proceedings.

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We frequently represent banks and financial institutions that serve as trustees and administrators of pension, profit sharing and employee stock ownership (ESOP) plans. Our attorneys regularly secure favorable IRS determination letters for these plans, and handle audits by the IRS and Department of Labor examinations. When necessary, we defend plan administrators and trustees in ERISA claims and lawsuits alleging breach of fiduciary duty or other violations of plan provisions and participants' rights, including claims of alleged prohibited transactions.

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We work regularly with the full range of insurance issues that you face in your daily operations, involving both insurance coverage concerns and the regulation of insurance-based investment products. Coverage-related issues that we can help with include:

• Losses from fraud, check kites and other criminal activity
• Lender liability for environmental issues, including recovery of environmental costs from insurance carriers and other responsible third parties
• Directors and officers liability insurance
• Evaluation of borrower insurance coverage, including proper title insurance, in real estate transactions
• Federally regulated deposit insurance and private mortgage insurance
• Litigation over coverage

We have experience with industry-specific insurance products, including GAP insurance, fidelity bonds and BOLI.

Insurance-based investment products are increasingly becoming part of bank product offerings in today's rapidly changing marketplace, and Manatt attorneys understand all the implications of the Investment Company and Investment Advisers Acts of 1940, the Securities Acts of 1933 and 1934, and other laws as they govern new financial products. We advise you on the structure and regulation of variable annuities, guaranteed investment contracts, modified guaranteed annuities, equity index annuities and other novel or complex investment vehicles.

We also represent insurance companies, which may become or be acquired by financial holding companies, in coverage and regulatory matters, including NASD arbitrations.

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With intellectual property and advertising law practices that are among the most dynamic and comprehensive in the country, Manatt is well positioned to advise banks and other financial institutions on regulation and litigation involving both of these complex areas of business. Our intellectual property counsel to banks includes:

• Protecting bank names, financial service innovations, and product and service marks
• Obtaining and perfecting security interests in patents, trademarks and other intellectual property
• Securing all intellectual property rights of bank e-commerce, from domain names to protection for mortgage and credit applications and other financial services provided on line
• Conducting audits of intellectual property portfolios, particularly with an eye to their valuation as loan collateral or as assets in mergers and acquisitions
• Preparing litigation risk analyses

Many intellectual property issues for banks are directly involved with state and federal laws regulating advertising and promotion, and our legal and strategic capabilities in advertising, marketing, media and promotion are second to none. Our experienced attorneys in the nation's financial and advertising centers help banking clients by:

• Identifying trademark, copyright, and other intellectual property issues raised by advertising material
• Conforming your advertising to the policies, standards and guidelines of all media, and answer any challenges by third parties
• Defending allegations of false advertising, product disparagement, unfair competition or trademark and copyright infringement
• Ensuring compliance with laws governing traditional and online promotional campaigns
• Reviewing privacy policies and data collection, including the host of issues raised by the Children's Online Privacy Protection Act

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As a national litigation powerhouse, Manatt helps banks and financial institutions with all the typical commercial litigation that arises in the course of doing business:

• Account claims involving disputes over check fraud, privacy issues, attachment and garnishment, wire transfer claims, letters of credit and retirement accounts;
• Lender liability claims in which our clients are sued by consumer or business borrowers that claim fraud, misrepresentation or breach of fiduciary duty involving their loans;
• Claims under mortgage and GAP insurance policies that protect lenders; and
• Statutory claims often made in the form of individual and class action lawsuits against our clients on claims involving allegations of lending discrimination, securities fraud and financial institution failure.

In addition, we have handled highly specialized controversies involving antitrust implications in bank mergers, grants and denials of permission to engage in nonbanking activities, administrative enforcement orders, and suits against the Federal Deposit Insurance Corporation for losses caused by changes in legislation that made so-called "supervisory goodwill" ineligible for treatment as regulatory capital.

Manatt attorneys have broad experience in litigating claims brought under federal and state unfair competition and consumer fraud laws. These are common tools used by plaintiffs' lawyers against financial services companies. We have defended unfair competition lawsuits over business practices in the mortgage lending, auto finance, retail banking, and commercial real estate finance and investment banking industries. Often these involve allegations of unlawful conduct based on claimed violations of federal and state banking laws and regulations. Our litigation professionals draw on the deep experience of Manatt's banking and regulatory attorneys for innovative defense strategies.

Unfair competition and consumer fraud lawsuits against our financial institution clients are often brought as class actions. We are skilled at all aspects of class action defense, from attacks on the pleadings and challenges to certification (either by opposing certification motions or to strike class allegations) through and including trial. Our record of success is impressive.

• We secured summary judgment in a putative class action against a wholesale mortgage lender that paid mortgage brokers for their services based on the interest rate of the loan.
• We obtained dismissal, based on Office of Thrift Supervision regulations, of a lawsuit challenging a savings and loan's practices in purchasing auto finance contracts from auto dealers.
• We served as lead state counsel and co-nationwide coordinating counsel on behalf of a credit card company facing a series of class action lawsuits alleging that its credit card solicitations offering consumer credit lines "up to" a specified credit limit, were false and deceptive. Our defense was designed to eliminate the class allegations and reduce the size of the potential class, and we achieved a nationwide settlement. Manatt coordinated the defense of multiple state lawsuits, oversaw settlement negotiations with six firms representing the plaintiff class, and successfully defended the nationwide settlement over numerous objections, including those by a prominent plaintiffs' class action counsel.
• We were co-counsel in defense of an auto finance company facing a certified class of 50,000 consumers in a lawsuit over the company's practice of paying auto dealers premiums for the purchase of auto finance contracts. We secured judgment in favor of our client and the plaintiffs' counsel abandoned the case in exchange for a waiver of costs.
• We successfully opposed class certification in a putative class action alleging tort and common law claims against a wholesale lender and eventually obtained summary judgment dismissing the entire action.

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Manatt professionals have extensive experience in mergers and acquisitions of entire financial institutions (both intrastate and interstate) and acquisitions of portions of such financial institutions. We consistently rank among the top firms for merger and acquisition transactions in the financial industry. We have handled many acquisition and roll up transactions for major banking clients, helped other clients sell, buy and merge with other banks, savings banks and holding companies, helped financial institutions acquire insurance agencies and leasing companies, and facilitated FDIC receivership acquisitions.

In any merger or acquisition that your institution undertakes, Manatt will provide comprehensive guidance that addresses business strategy as well as legal details:

If your institution undertakes the purchase or sale of an operation, or a merger or acquisition, we can handle all regulatory issues under the Bank Holding Company Act, Bank Merger Act, Change in Bank Control Act, and many other applicable federal and state statutes. In addition to standard antitrust clearances by the Department of Justice, Federal Trade Commission and state regulators, we handle required approvals by the Federal Reserve Board, the Comptroller of the Currency, the Federal Deposit Insurance Corporation and any other federal and state regulators.

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Manatt was founded to represent community banks and savings and loans. Over several decades, Manatt has been counsel to many new banks and savings banks. Most recently, we have assisted with the formation and new capital offerings of banks that target the business needs of communities affected by the consolidation in the banking industry, as well as the formation of banks that serve certain ethnic communities in the diverse California banking market.

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Banks and financial institutions conduct their daily operations in an environment of intense competition and regulatory scrutiny. We use extensive knowledge of industry practices and legal requirements to give our clients practical, hands-on insight for effective business operations, helping them to address such concerns as:

• Administration of Individual Retirement Accounts (IRAs) and other qualified retirement plan products
• Branching and branch acquisition issues
• BSA/AML/USA PATRIOT Act Compliance
• Codes of conduct
• Deposit issues (Regulations D and Q)
• Escheat rules
• Insider lending rules (Regulation O)
• Interaffiliate transactions (Regulation W)
• Internet promotion and sweepstakes, including compliance with the Gramm-Leach-Bliley and Children's Online Privacy Protection Acts
• Lending limits
• Nondeposit investment products
• OFAC restrictions
• Online banking, including compliance with the Gramm-Leach-Bliley Act
• Privacy policies and issues (Regulation P)
• Regulation E, CC and DD disclosures
• Safe deposit box claims
• Setoff rights
• Trust department activities
• Vendor agreements

A significant aspect of bank operations involves the many financial products subject to complex tax compliance questions. We make sure that you and your customers are in full compliance with the tax code regarding the structure and operation of:

• Tax-exempt retirement savings plans, including 401k, IRA (traditional and Roth) and Keogh vehicles
• Educational and medical expense savings plans
• Financial instruments involving U.S. government and federal agency securities, including their tax treatment by state authorities
• Tax issues involved in transfers of real estate and family business ownership

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We assist financial institutions in their compliance efforts with the state and federal laws relating to record retention, document destruction and privacy, including disclosures mandated by the Gramm-Leach-Bliley Act. Our attorneys have extensive experience working with banks, savings and loans, and other financial institutions to address data security breaches in accordance with the Interagency Guidelines for Safeguarding Customer Information and the requirements of state law.

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We represent the interests of financial institutions as legislative and administrative policies governing them are formed. With a major office in Washington, D.C. and offices in the state capitals of the nation's two most important financial marketplaces, we monitor legislative and regulatory developments that concern the industry, draft legislative and rulemaking proposals, and provide legal and technical support so that our clients can effectively comment on proposed legislation or regulations. Using this rule-making experience, we often propose changes to agency regulations and prepare comment letters on proposed agency rulemakings, including novel legal interpretations to enable our clients to offer new products and expand the geographic scope of operations. We also counsel clients on complex and novel issues arising under proposed and newly enacted statutes and regulations.

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Manatt has a long history of representing community banks and savings institutions with the "conforming loans" that they traditionally originated. We have actively participated in the growth of the nondepository mortgage industry as leading advisers to those companies. Our lawyers have counseled most of the major subprime residential mortgage lenders, as well as nondepository mortgage companies that originate prime and Alt-A loans.

• We actively negotiate and prepare all documents necessary for construction and permanent and other real property secured loans, including loans backed by credit leases, tax-exempt bonds and ground leases for domestic and foreign lenders, including investment banks, mortgage brokers and originators, commercial banks and savings and loans.
• We also handle due diligence investigation before loan closing. Manatt offers lenders, investors and borrowers a wide range of services to identify and quantify problem loans and pre- and post-bankruptcy matters. We review, analyze and restructure loan documents with an eye toward protecting our lenders in any possible bankruptcy, and often can recommend additional collateral opportunities and other workout agreements.

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Manatt has an active practice in structured finance and securitization. Manatt's practice covers all phases of asset-based finance, from the initial transactions, through ongoing operation of facilities, to workouts. Manatt's lawyers have served as counsel in many billions of dollars worth of mortgage-backed and asset-backed offerings in markets worldwide, representing issuers, underwriters, servicers, sellers and trustees in transactions involving a wide range of assets, from mortgages to music royalties to trade receivables. These include both SEC registered and privately placed securities. The following lists identify some of the many kinds of transactions in which Manatt's lawyers have been involved:

• Auto loan securitization
• Credit card portfolio sales and securitization
• Manufactured housing securitization and workout
• Timeshare loan workout and bankruptcy
• Consumer credit law compliance
• Commercial mortgage warehouse facilities
• CMBS securities issuances
• Single-asset securitizations
• Non-performing and underperforming pools
• "Hot" back-up servicing
• REMIC compliance
• Servicing through workout and bankruptcy
• REIT formation
• Restructuring, workout and bankruptcy
• Franchise loan securitization
• Vehicle dealership loan securitization
• Trade receivables
• Cross-border transactions
• Commercial paper conduits
• Equipment lease securitization
• Insurance premium receivables
• Franchise loan bankruptcy and workout
• Public and private RMBS insurance
• Mortgage warehouse lending
• Agency, jumbo and sub-prime securitizations
• Servicing
• Consumer credit compliance and correction
• REMIC compliance
• Whole loan sales
• Participations
• Public agency housing finance
• Agency issued and agency guaranteed securities
• Off-balance sheet warehouse facilities
• Workouts through bankruptcy
• Bank-up servicing
• Music royalties
• Pharmaceutical patent royalties

Manatt's approach to this area of practice is to coordinate legal services through the life of the transactions, serving the clients as they finance, structure, operate and ultimately resolve the transaction. The attorneys directly involved in the practice, moreover, coordinate with attorneys in allied practices, such as taxation, corporate and banking, as well as with accountants and investment bankers, to assure that the most current and thoughtful approaches to issues are brought to bear in every situation. Thus, the attorneys who structure securitizations are aware of the latest developments in bankruptcy, and the workout lawyers are aware of the current thinking in deal structure.

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A few examples of the representations by Manatt attorneys have participated in these ways, among are:

• Represented issuer in designing disclosure documents for ongoing issuances of single-family, multifamily and MBS-backed certificates.
• Represented seller/servicer in securitization of $300 million facility backed by motor vehicle dealer receivables.
• Represented originator/servicer in over $3 billion of so-called minisecuritizations of residential mortgage loans and servicing receivables.
• Represented a major university in the issuance of $79 million in senior and mezzanine notes backed by pharmaceutical patent royalty receivables.
• Represented a major commercial finance company in the structuring and purchase of subordinated certificates in various securitized pools of equipment leases.
• Represented several real estate funds in structuring and purchasing subordinated classes of multiple-property commercial mortgage REMIC certificates.

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Manatt attorneys are fully experienced with the complexities of the Internal Revenue Code and state tax codes that face banks and other financial institutions in their operations, services and products. We deal with all aspects of the tax laws as they relate to your ongoing business operations, including:

• Locating and structuring operations to minimize tax consequences, including the establishment of investment subsidiaries
• Structuring of tax-advantaged transactions
• Handling tax issues that involve property valuation, bad debt reserves, write-offs and tax liability in workouts or restructurings
• Complying with all the complex tax and regulatory provisions governing Real Estate Investment Trust (REIT) operations, including the purchase and sale of assets, mergers and acquisitions, public and private offerings of debt and equity securities, and various partnership structures
• Dealing with local and state tax matters, including taxation of operations, personal property and intangibles taxes, and property taxes and appeals
• Responding to tax audits by the IRS and state taxing authorities

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Banks turn to us for help with their roles as trustees and fiduciaries. We counsel bank fiduciaries engaged in the full range of trustee-related financial services, often helping them avoid conflict of interest and breech of fiduciary duty claims. A large part of our work involves corporate trust activities, related to retirement plan trusts and indenture trusts through which corporate securities or municipal bonds are issued.

We advise on trust fund operations, general fiduciary compliance and trust agreement obligations, and represent your interests in any trust administration disputes. Finally, we also represent banks and trust companies in will contests, estate tax matters, IRS disputes, estate and trust administration and related litigation involving families, heirs or third party claimants.

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