• Posts by Thomas K. Potter, III
    Tom Potter

    Tom Potter is a Partner in the firm's Nashville office, and his practice focuses on securities, corporate disputes, and appellate litigation. Tom has over 35 years of experience representing business interests.

    Tom represents ...

Congress voted this week to de-rail the Department of Labor's sweeping fiduciary-duty suite of rule-making, but doesn't have the votes to override the President's threatened veto.

The Rule (over a 1,000 pages in all) imposes a sweeping definition of who owes fiduciary duties to retirement investors in retail IRA, HSA, Roth, Coverdell and other "qualified money" situations and prohibits conflicted transactions (including differential compensation), unless they comply with a series of exceptions, carve-outs and exemptions. Industry groups say the compliance and paperwork ...

Posted in: Fiduciary Rule

It's hornbook law that a later intentional breach of contract, alone, doesn't equal promissory fraud.

Holding it therefore cannot establish mail or wire fraud, the Second Circuit reversed the Government's $1.2 Billion FIRREA judgment against Countrywide, Bank of America and others, with instructions to dismiss the case. The case started as a qui tam action alleging that Countrywide's "high-speed swim lane" process delivered substandard mortgage loans to GSEs (Fannie, Freddie) during performance of master mortgage-loan sales agreements ("MLSAs") executed earlier. The ...

In AML/BSA rule amendments published May 11, FinCEN will require "covered financial institutions" to implement new beneficial-owner identification and verification as part of their Customer Due Diligence ("CDD") and adopt risk-based supervisory procedures for their AML/BSA programs.

The Amendments require use of a prescribed Beneficial Owner reporting form, or its substantial equivalent. Though effective July 11, covered institutions have until May 11, 2018 to comply. See 31 C.F.R. § 1010.230 & App. A. FinCEN's AML/BSA requirements impose the "four pillars" of AML ...

In Bank of America, N.A. v. Kipps Colony II Condominium Association, Inc., the Second District Court of Appeal reversed a 2011 final judgment entered in favor of Kipps Colony II Condominium Association, Inc. ("Association"). See Nos. 2D14-858, 2D14-4436, 2015 WL 8321268 (Fla. 2d DCA Dec. 9, 2015). Though Bank of America had been defaulted in the Association's claim of lien foreclosure action, the appellate court found the trial court erred in denying Bank of America's Florida Rule of Civil Procedure 1.540(b) motion. Judge Black delivered the opinion of the court finding that the ...

Speaking to a November 16 Money Laundering conference jointly sponsored by the American Banking and Bar Associations, Deputy AG Sally Yates unveiled revisions to the Department of Justice's U.S. Attorneys' Manual ("USAM"). The revisions implement the new focus on individual wrongdoing in the corporate criminal context first announced September 9 in the "Yates Memo." The revisions principally involve (1) the Filip Factors, (2) extend the Yates Memo to civil investigations, and (3) address coordination in parallel proceedings.

  1. Filip Factor Revisions.
Chapter 9-28.000 ...
Posted in: DOJ
In a ruling that may signal the end to much of the litigation over mortgage-backed securities, New York's highest court held limitations for breach of warranty litigation over portfolio loans run from the MLSA closing date and not from breach of the contractual repurchase obligation. Many investors have argued that a sponsor's obligation to repurchase non-conforming loans constitutes a separate "springing" obligation 150 days after notice of a non-conforming loan (60 for cure, then 90 for repurchase). The Court rejected that notion, in favor of its long-standing preference ...
Posted in: Uncategorized

On June 5, the Tennessee Supreme Court rejected a per se rule of unconscionability for non-mutual arbitration clauses, holding them enforceable if not too-one-sided and commercially reasonable under the circumstances. Berent sued his mobile-home sellers in chancery court, arguing that foreclosure exceptions for the seller within a generally broad-form arbitration clause rendered it unconscionable and unenforceable. The trial and intermediate appellate courts agreed, under the Supreme Court's prior decision Taylor v. Butler, 142 S.W.2d 277 (TN 2004). The Sellers sought ...

Posted in: Tennessee
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