On November 1, 2012, in what is the first lawsuit the FDIC has filed as part of the current bank failure wave against a failed bank's accountants, the FDIC, as receiver for the failed Colonial Bank, has filed an action in the Middle District of Alabama against Pricewaterhouse Coopers and Crowe Horwath. PwC served as the bank's external auditor and Crowe provided internal audit services to the Bank. A copy of the FDIC's complaint can be found here. (Very special thanks to Francine McKenna of the re: The Auditors blog for providing me with a copy of the FDIC's complaint.).
When Colonial Bank failed in August 2009, it was the sixth largest U.S. bank failure of all time (as discussed here). In is complaint against the accountants, the FDIC alleges Colonial's failure was triggered by the massive, multi-year fraud against the bank by the bank's largest mortgage banking customer, Taylor Bean & Whitaker.
As I detailed in a prior post, here, In April 2011, Lee Farkas, Taylor Bean's ex-Chairman, was convicted of wire fraud and securities fraud. Prior to Farkas's conviction, two Colonial Bank employees pled guilty in connection with the Taylor Bean scheme. As reflected here, on March 2, 2011, Catherine Kissick, a former senior vice president of Colonial Bank and head of its Mortgage Warehouse Lending Division, pleaded guilty to conspiracy to commit bank, wire and securities fraud for participating in the Taylor Bean scheme. As reflected here, on March 16, 2011, Teresa Kelly, the bank's Operations Supervisor and Collateral Analyst, pled guilty on similar charges.
In the criminal cases against the bank employees, the government alleged that the two bank employees caused the bank to purchase from Taylor Bean and hold $400 million in mortgage assets that had no value. The employees also allegedly engaged in fraudulent actions to cover up overdrafts of Taylor Bean at the bank. The employees are also alleged to have had the bank engage in the fictitious trades with Taylor Bean that had no value.
The complaint alleges that while Taylor Bean was carrying out its "increasingly brazen" fraud, PwC "repeatedly issued unqualified opinions" for Colonial's financial statements, and Crowe "consistently overlooked serious internal control issues" - and, more the point, both failed to detect the fraud. The complaint alleges that if the firms had detected the fraud earlier, it would have prevented losses or additional losses that the bank suffered at the hands of Taylor Bean. The complaint asserts claims against the firms for professional negligence, breach of contract, and negligent misrepresentation. The complaint alleges that in the absence of the firm's wrongful acts, the Taylor Bean fraud would have been discovered by 2007 or early 2008, and "losses currently estimated to exceed $1 billion could have been avoided."
The FDIC does have one problem in asserting these claims. In its role as receiver, the FDIC stands in the shoes of the failed bank, and is subject to all of the defenses that could have been asserted against the bank. As Alison Frankel discusses in her On the Case blog (here), the accounting firms are likely to raise the in pari delicto defense, "which holds that one wrongdoer can't sue another for the proceeds of their joint misconduct" The FDIC has anticipated this defense in its complaint, alleging that the two bank employees that facilitated the Taylor Bean fraud were "rogue employees" who acted our of their own self-interest and not at the direction of or to the benefit of the bank, but rather to the detriment of the bank.
In the wake of the current bank failure wave, the FDIC has filed a number of lawsuits against the directors and officers of failed banks. As of my latest tally (refer here, scroll down to second item), the FDIC has filed 35 suits against failed bank directors and officers. However, until now, the FDIC has not filed any actions against the former auditors of a failed bank. The Colonial bank suit is particularly interesting because it not only names the failed bank's former outside auditor, but it also names the accounting firm that was performing the bank's internal audit functions. There may be more accounting malpractice actions to come; on its website, the FDIC reports that the agency has "authorized 46 other lawsuits for fidelity bond, insurance, attorney malpractice, appraiser malpractice, accounting malpractice, and RMBS claims."
Readers of this blog may recall that in August 2012, certain former Colonial Bank directors and officers agreed to settle the securities class action lawsuit that had been filed against them in connection with allegations surrounding the bank's collapse. The $10.5 million settlement was to be funded entirely by D&O insurance. The securities suit settlement is discussed here. Significantly, the settlement did not include the bank's offering underwriters or its outside auditors. Among the individual defendants party to the securities suit settlement was Colonial's colorful and controversial former Chairman and CEO, Bobby Lowder. In addition to Colonial, Lowder has long been associated with Auburn University. I discussed Lowder's Auburn connection in a prior post, which can be found here.
As I also noted in a prior post (here), in July 2012, the FDIC as receiver for Colonial Bank, as well as the bankrupt bank holding company on its own behalf, filed an action against the bank's bond insurer. Among other things, the complaint alleges that the losses caused by the misconduct "constitute recoverable losses under the Bonds up to the full aggregate limits of liability of the Bonds." The complaint states that the bond insurer "has neither accepted nor denied the Plaintiffs' claims under the Bonds." The complaint alleges that the insurer "has failed to investigate the claims and losses in a reasonable and appropriate manner." In September 2012, the parties jointly moved the court to revise the schedule in the case to permit them to engage in settlement discussion.
Speaking of Failed Banks: Shareholders of yet another failed bank holding company have now initiated a securities class action lawsuit. On November 2, 2012, the shareholders of Tennessee Commerce Bancorp filed a securities class action lawsuit in the Middle District of Tennessee against the holding company and certain of its directors and officers. A copy of the complaint can be found here.
Tennessee Commerce Bank failed on January 27, 2012. According to the plaintiff's lawyers' November 2 press release (here), the defendant directors and officers and the holding company violated the federal securities laws by "issuing false and misleading information to investors about the Company's financial and business condition." The lawsuit asserts that "defendants misrepresented and failed to disclose that the Company had serious internal control deficiencies causing it to be unable to monitor its loan portfolio; obtain up to date and current appraisals of collateral; follow bank rules of procedures relating to the Company's allowance for loan losses; and remediate internal control deficiencies.." The lawsuit is filed on behalf of investors who purchased shares in the holding company during the period from April 18, 2008 through September 13, 2012.
Read other items of interest from the world of directors & officers liability, with occasional commentary, at the D&O Diary, a blog by Kevin LaCroix.
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