Banking and Financial Services: Lending, Payments, and Compliance

Banks must maintain capital ratios above the minimums established by their primary regulator and the Basel framework, and banking laws counsel advising on capital adequacy must evaluate whether the institution's risk-weighted asset calculations accurately reflect the credit, market, and operational risk in its portfolio.

An effective banking internal control framework requires segregation of duties, dual controls over sensitive transactions, and board-level oversight of risk management. Banking and financial institutions counsel must evaluate whether the board's risk committee has adequate expertise and independence, and whether escalation procedures ensure material control failures reach senior management promptly.

A commercial loan agreement must include financial covenants that give the lender early warning of borrower distress, negative covenants that prevent the borrower from impairing the lender's collateral, and loan agreements and disputes counsel structuring a credit facility must ensure that the security agreement, financing statements, and any mortgage documents create a first-priority perfected security interest in all of the intended collateral.

When a borrower defaults on a commercial loan, the lender must evaluate whether to pursue immediate enforcement, negotiate a forbearance agreement, or support a consensual restructuring. Financial restructuring and insolvency counsel must evaluate the borrower's financial condition and collateral value to determine which approach maximizes net recovery after the time and cost of enforcement.

Payment system disputes between financial institutions arise from wire transfer errors, correspondent banking failures, and disputes about which institution bears the loss when a payment is misdirected or intercepted by fraud, and payment disputes counsel must evaluate the UCC Article 4A framework governing funds transfers, the SWIFT messaging rules governing correspondent banking, and any bilateral agreements that allocate liability for specific categories of payment failure.

Digital banking platforms that collect, store, and share consumer financial data must comply with the Gramm-Leach-Bliley Act's safeguards rule, applicable state data protection laws, and the CFPB's Section 1033 open banking framework, and cybersecurity governance counsel must evaluate whether the institution's data sharing agreements with fintech partners adequately limit the partner's use of consumer data to authorized purposes.

Consumer protection claims against banks typically allege that the institution failed to make required disclosures, imposed unauthorized fees, or reported inaccurate information to credit bureaus, and consumer financial services defense counsel must evaluate whether the institution's disclosure practices comply with applicable federal and state requirements and whether any complained-of fees were authorized by the account agreement and disclosed in accordance with applicable law.

A banking institution facing a class action must evaluate at the outset whether a motion to dismiss can defeat the claims, whether the class definition is vulnerable, and whether early settlement is preferable to litigating through trial. Class actions and consumer defense counsel must structure any settlement to obtain a broad release of all claims arising from the same nucleus of facts.