If the lawsuit filed on Monday is any indication, the long-anticipated FDIC litigation against failed banks may have arrived. On November 1, 2010, the FDIC filed a lawsuit in the Northern District of Illinois against eleven former directors and officers of Heritage Community Bank, a lending institution in Glenwood, Illinois that failed in February 2009. A copy of the FDIC’s complaint can be found here.


Because 304 banks have failed since January 1, 2008, there has been widespread speculation that the FDIC might pursue claims against the former directors and officers of the failed institutions. Until now, the FDIC has filed just one lawsuit against former executives of a failed bank, involving former officers of IndyMac bank (about which refer here). More recently, there had been reports that the FDIC’s board had authorized numerous lawsuits to proceed – and now the lawsuits apparently have begun.


The Heritage Community Bank lawsuit, filed by the FDIC in its capacity as the bank’s receiver, seeks to "recover losses of at least $20 million" that the FDIC alleges the bank suffered because the defendants "failed to properly manage and supervise Heritage and its commercial real estate lending program." The complaint alleges claims of negligence, gross negligence and breach of fiduciary duty.


Essentially, the complaint alleges that the defendants made imprudent or improper commercial loans while "making millions of dollars of dividend payments to Heritage’s holding company and paying generous incentive awards to senior management." The complaint also alleges that by December 2006, the defendants knew the bank was in trouble, but instead of curtailing lending, the defendants "tried to mask the Bank’s mounting problems" by lending troubled borrowers more to pay down earlier loans.


The defendants in the case include not only the bank’s CEO, CFO and various lending officers, but also five outside directors.


The defendants are alleged to have extended or approved commercial real estate without appropriate expertise, processes or supervision, allowing loans in excess of prudent loan to value rations. The bank allegedly also lacked appropriate loan monitoring processes. The bank allegedly failed to post appropriate loan loss reserves, and even inappropriately recognized income as subsequent loans were used to pay off interest on prior loans.


The inappropriately recognized income allowed the allegedly improper holding company dividends and incentive compensation payments. (The allegedly improper incentive compensation payments in 2007 totaled $825,000.) The FDIC alleges that the total amounts of the improper dividends and inventive compensation payments were over $11 million.


Counsel for the defendants issued a press release on the defendants’ behalf that stated among other things:


The FDIC has now filed a lawsuit against the Bank’s former officers and directors for failing to foresee the recent unprecedented collapse in real estate values. The FDIC’s action is both regrettable and wrong. With the advantage of 20-20 hindsight, the FDIC blames the former officers and directors of a small community bank for not anticipating the same market forces that also caught central bankers, national banks, economists, major Wall Street firms, and the regulators themselves by surprise.


From my perspective, this case seems like an unexpected place for the FDIC to have started. The allegedly improper compensation seems relatively modest and there are otherwise no allegations of self-dealing or other egregious conduct. Similarly, there are no allegations that the bank operated in violation of any regulatory orders or consents.


Even taking the FDIC’s complaint on its own terms, it looks as if this bank (like so many others) got caught up in the real estate bubble and then failed to recognize the collapse until it was too late. In the aftermath, it seems easy to say the bank should have been more prudent than it was. The bank has a lot of company in that regard, starting with the Federal Reserve and going from there.


I will say this (in quotation of a comment from one of my readers) this complaint is a hell of a lot more compact than the 300-page behemoth the FDIC filed in the Indy Mac case.


It is perhaps not much of a surprise that this suit involves an Illinois failed bank. There have been 38 bank failures in Illinois since January 1, 2008, the third highest number of any state, behind only Georgia (46) and Floriday (43).


Earlier news reports had suggested that the FDIC had authorized lawsuits against as many as 50 former directors and officers of failed banks, but news reports concerning the new Heritage Community Bank lawsuit report that the FDIC has now authorized lawsuits against "more than 70" former directors and officers. Reliable sources tell me that the FDIC has also filed a lawsuit against the former directors and officers of a specific failed bank in a Western state although I have been unable to independently verify that.


But in any event, it appears the FDIC failed bank D&O litigation has now begun. It seems probable that may more lawsuits will follow. Stay tuned.


Special thanks to John M. George, Jr. of the Katten & Temple law firm for providing copies of the complaint and of the defense counsel press release. George’s firm is of counsel in connection with the defense of one of the indidivudal defendants.