If you are using a screen reader or other auxiliary aid and are having problems using this website, please call 1-818-241-0103 for assistance.

skip to main content

Emerging Issues

SW&M Comments on Emergency Mergers - Chartering and Field of Membership

On September 28, 2017, our office responded to the NCUA's Notice of Proposed Rulemaking Regarding Emergency Mergers. Our comments can be found here. Our comments are provided from the perspective of attorneys representing hundreds of credit unions, both state and federal, nationwide. We are involved in a large proportion of the mergers between credit unions, and the lawyers at our firm have worked on hundreds of mergers involving credit union clients.

Learn more

Comments to Notice of Rulemaking Action Regarding Bylaw Amendments

On August 28, 2017, our office responded to the California Department of Business Oversight's Notice of Rulemaking Action Regarding Bylaw Amendments. Our comments can be found here.

Learn more

SW&M Comments on Voluntary Mergers of Federally Insured Credit Unions

On August 5, 2017, our office responded to the NCUA's Notice of Proposed Rulemaking Regarding the Voluntary Mergers of Federally Insured Credit Unions. Our comments can be found.

Learn more

Federal Multiple Common Bond Amendments

In the NCUA Field of Membership (FOM) rules, effective on February 6, 2017, multiple common bond federal credit unions (FCUs) were provided with the ability to serve employees of contractors to their Select Employee Groups (SEGs), provided the contractors have a strong dependency relationship with the SEG.

Learn more

Increase in ATM “Skimmer” Incidents

Several clients have recently contacted our office for assistance in relation to ATM “skimmer” devices that have been placed on their ATMs. These devices allow fraudsters to capture information when a consumer inserts his or her debit card into the ATM . . .

Learn more

Is Your Financial Institution's Information on a "Scraper Site" Without Your Permission?

We have been alerted that there is a sophisticated website, www.ccbank.us, that aggregates information regarding hundreds of financial institutions.

Learn more

Considering a Credit Union Merger in California? The California DBO has Changed the Rules (Again)!

As part of the continued restructuring process of mergers, the Department of Business Oversight is now changing processes to be in line with the banking side.

Learn more

Hands Off Phones While Driving, Effective January 1, 2017

Drivers in California should add a New Year’s resolution to their list to refrain from holding and operating their cell phones while driving. Effective January 1, 2017, a new distracted driving law . . .

Learn more

Limit Your Holiday Party Risks

As the holiday party season approaches, financial institutions should remain aware of some of the issues that can turn a festive, morale-boosting event into a potential liability. Some states’ liquor liability laws make it possible for a plaintiff to hold social hosts responsible . . .

Learn more

Wells Fargo Scandal's Effects on Incentive Compensation

The September 8, 2016 CFPB Consent Order with Wells Fargo will have far reaching and long lasting effects on financial institutions of all shapes and sizes.

Learn more

Passwords and Former Employees

We regularly see issues involving former employees and passwords – routine close out of passwords and access after separation (and regular password change protocol for current employees) is critical, of course.

Learn more

New Attestation Standard (SSAE 18) coming in 2017

As you know, as a part of vendor due diligence, the Credit Union typically asks for an attestation engagement in the form of an SSAE 16 from the vendor to assess various internal controls and security protocols. Effective May 1, 2017, SSAE 16 will be replaced by the new SSAE 18. While much of the previous SSAE 16 remains intact, SSAE 18 provides clarification to the previous standards and enhances the standards with respect to requests for information for areas of risk within the vendor’s organization.

Learn more

Waters v. City of Petaluma

Management and HR departments often turn to independent outside investigators when dealing with sensitive or complex personnel investigations. Because the timing, methodologies, and findings of such investigations may be subject to close scrutiny in subsequent litigation, it is appropriate to protect such investigations under the attorney-client privilege to the extent possible.

Learn more

SW&M Comments on NCUA's Notice of Proposed Rulemaking Regarding the Incentive-Based Compensation Arrangements

On July 21, 2016, our office responded to the NCUA’s Notice of Proposed Rulemaking Regarding the Incentive-Based Compensation Arrangements. Our comments can be found here.

Learn more

Member Unlawful Activity and its Effect on Collateral

There is a longstanding problem with respect to member use of loan proceeds and/or collateral for impermissible purposes.

Learn more

Interagency Proposed Rule on Incentive Compensation Arrangements

On Thursday, April 21, 2016, the NCUA Board was the first of the federal financial regulators to propose a new rule covering Incentive Compensation Arrangements as required under Dodd Frank. This Proposed Rule goes farther than the 2011 proposal on the same topic, and contains messages for financial institutions of all sizes.

Learn more

ADA Physical Facility Related Lawsuits Continue

As discussed at our 2016 Legal Update Seminar, two California based law firms (and their regular plaintiffs) make their living filing suits under the federal and state disabilities laws. These are NOT class actions, but rather are “quick strike/quick settlement” type filings—the plaintiffs’ “finders” cruise by business establishments looking for technical ADA violations involving handicapped parking, walkways, ramps, ATMs and night depository boxes.

Learn more

Is your FinTech Vendor Over Promising and Under Delivering?

Lately, we have encountered an alarming number of situations where vendors have failed to timely deliver essential products, promised certain functionality at signing that was actually not developed and related situations, causing substantial headaches for the affected credit unions.

Learn more

SW&M Comments on NCUA's Notice of Proposed Rulemaking Regarding the Chartering and Field of Membership Manual

On February 8, 2016, our office responded to the NCUA’s Notice of Proposed Rulemaking Regarding the Chartering and Field of Membership Manual (the “Proposed Rule”). Our comments can be found here.

Learn more

Class Action Witness Subpoena Served on Credit Unions

Many credit unions, particularly in the Pacific Northwest, have recently received a witness subpoena to provide information to a third party administrator (Epiq) as part of a class action settlement. No credit unions (that we know of) are defendants in the lawsuit; rather, it relates to consumer debit card use at BP/ Arco stations in Oregon between 2011 and 2013.

Learn more

Continued Trends in the Business Judgment Rule

We have previously written and updated an Emerging Issues article on the Business Judgment Rule and have continued to watch the law develop. This article provides an update to this ever-changing area of the law.

Learn more

When is a Pay on Death Beneficiary Designation Invalid?

Many of our financial institution clients build long term relationships with their account holders, and that of course is a good thing. However, the death of a long time accountholder, especially where old signature cards/ account records are involved and a divorce has occurred, can lead to some considerable confusion and competing family member claims.

Learn more

Penalty Assessments for Late Call Report Submissions

Increased attention has recently been paid to timely submissions of the quarterly Call Report by the NCUA. In January 2014, the NCUA issued NCUA Letter to Credit Unions 14‑CU‑03, in which it emphasized that late filings had become a serious problem and reminded credit unions that late filings, beginning in 2014, would subject the late filers to civil money penalties.

Learn more

SW&M Comments on NCUA's Associational Common Bond Rule

On June 17, 2014, our office responded to the NCUA’s request for comments concerning its Proposed Rule Regarding Associational Common Bond Field of Membership requirements for Federal Credit Unions. Our comments can be found on the NCUA's website here.

Learn more

SW&M Comments on the NCUA's Risk Based Capital Rule

On May 28, 2014, our office responded to the NCUA's request for comments concerning its Proposed Rule on Risk Based Capital. Our comments can be found here, or on the NCUA's website here. Our comments are provided from the perspective of attorneys representing more than 350 federal and state chartered credit unions nationwide.

Learn more

CFPB Leaves Definition of “Finance Charge” Unchanged . . . For Now

As anticipated, the Consumer Financial Protection Bureau (CFPB) recently issued final rules on November 20, 2013 that provide new forms and disclosure requirements applicable to most consumer, closed-end, real estate-secured loans.

Learn more

Fannie Mae Buyback Demands

Fannie Mae (and other GSEs) have been very aggressive in the last 2 years or so in making demands upon banks, credit unions and other lenders for losses caused by allegedly deficient loan underwriting practices performed by the selling institution.

Learn more

SW&M Comments on Washington DFI Proposed Rule on Frequency of Board Meetings

On November 27, 2013, our office responded to the WDFI's request for comments concerning the Proposed Rule on Frequency of Board Meetings.

Learn more

NCUA Issues New Guidance on Exam Report Drafting and the Exam Process

NCUA guidance in Letter to Credit Unions 13-CU-09 shows the need for credit unions to be active in the process of examinations.

Learn more

Health Care Law Reform Update - Exchange Notice Requirement is Approaching

One of the many health care reform changes directed under the Patient Protection and Affordable Care Act (“PPACA”) is the requirement for employers to provide their employees a notice of the availability of coverage through the federal and state health insurance exchanges, also known as the Health Insurance Marketplace

Learn more

Recent Alerts Regarding Associational Field of Membership Compliance

NCUA Letter to Federal Credit Unions 13-FCU-03 reminds credit unions about associational FOM rules, and introduces a new era in FOM management by credit union regulators.

Learn more

Challenging a Regulator's Actions - The ''Arbitrary and Capricious'' Standard

Before challenging a regulatory action, financial institutions should first consider the high legal standard that must be met to succeed.

Learn more

D.C. District Court Overturns Durbin Amendment Rule’s Debit Interchange Fee Limit

Raza Ali's Consumer Financial Services E-Bulletin for the Business Law Section of the State Bar of California highlights the new District Court ruling regarding interchange fees.

Learn more

SW&M Comments on NCUA Proposed Rule on Derivatives

On July 29, 2013, our office responded to the NCUA's request for comments concerning the NCUA Proposed Rule on Derivatives.

Learn more

CFPB Issues ''Ability to Repay'' Final Rule

CFPB recently issued its “ability to repay” final rule under the Dodd-Frank Act . . .

Learn more

Incentive Compensation Considerations

While the NCUA’s Incentive Compensation Rule under Dodd-Frank has not yet been finalized, other regulations, old and new, make Board-approved incentive compensation policies advisable.

Learn more

The Business Judgment Rule in California

In recent months, we have written and updated an Emerging Issues article on this subject, literally watching the law develop before our eyes.

Learn more

What 's Really in a ''Comprehensive'' Director and Officers Insurance Policy?

Financial Institutions insurers routinely market their D&O policies as providing “comprehensive” coverage. Sounds great to us . . . but does “comprehensive” mean it covers everything you would expect?

Learn more

Merger Related Financial Arrangements – Where Credit Union Compensation and Mergers Intersect

Per NCUA Regulations effective January 1, 2011 (Section 708b.106), “merger related financial arrangements” are now subject to regulatory scrutiny and disclosure.

Learn more

The Business Judgment Rule in California

In recent months, we have written and updated an Emerging Issues article on this subject, literally watching the law develop before our eyes. This article updates our previous observations in this ever- changing area of the law.

Learn more

Common Misconceptions About Unclaimed Property

Reporting unclaimed property properly has become an area of greater focus for credit unions in the wake of increased state scrutiny on the topic.

Learn more

Tax Treatment of Deposits for Foreign Members

Changes to IRS Regulations on tax reporting for nonresident aliens increase filing requirements for credit unions, but also clarify problematic reporting rules.

Learn more

Reminder – New Labor Poster Requirement Delayed to January 31, 2012

A recently-issued National Labor Relations Board (NLRB) final rule requires most private-sector employers—even those without union employees—to notify employees of their rights under the National Labor Relations Act (NLRA) by posting a form notice by January 31, 2012.

Learn more

Limits on the Credit Union’s Exposure to Liability

A key goal of any credit union is limiting its exposure to liability and lawsuits.

Learn more

Increase in Minimum Salary for Computer Software Employee Exemption

Recent amendment to statute increases the minimum rate of pay for exempt computer software employees.

Learn more

NCUA's Report on “Unresolved” DOR Items - What It Means for Your Credit Union

NCUA Office of Inspector General's report on the NCUA's Document of Resolution follow-up process signals increasing attention to supervisory actions.

Learn more

California Senate Bill (“SB”) 458 Prohibits Junior Lien Holders Collecting Post-Short Sale Deficiencies

SB 458 expands the protections available to borrowers by applying to all mortgages or deeds of trust, regardless of lien position, on a dwelling of four units or less.

Learn more

California DFI Assessing Penalties for Late Audit Reports

The California Department of Financial Institutions is assessing penalties of up to $1,000 per day for delays in concluding CPA year-end audits.

Learn more

Maxed Out Medical Leave: Does Your Policy Require Automatic Termination?

The EEOC has criticized leave policies that provide for automatic termination of disabled employees who request leave beyond the set periods.

Learn more

Final Debit Interchange Rule Issued by Federal Reserve

The Federal Reserve has issued final rules on debit interchange fees, effective October 1, 2011.

Learn more

SW&M Comments on NCUA Proposed Rule on Incentive Based Compensation Arrangements

On May 31, 2011, our office responded to the NCUA's request for comments concerning the Interagency Proposed Rule on Incentive Based Compensation Arrangements.

Learn more

CUNA Mutual’s Condition 9

Your Credit Union’s management team needs to keep Condition 9 of CUNA Mutual’s Bond in mind.

Learn more

Should Your Credit Union Prepay Its Corporate Bailout Assessment?

NCUA recently announced a proposed plan to permit credit unions to voluntarily prepay their annual assessments for the corporate credit union bailout, which the agency projects to be $2.94 billion for the next two years.

Learn more

Preventing FMLA Abuse: Why Call-In Policies Are a Good Idea

Written ''call-in'' policies can help control the potential abuse of FMLA leave in a number of ways. Does your credit union have one?

Learn more

California SB 94 – A Useful Tool to Combat Unscrupulous Loan Modification Providers

Although not directly applicable to credit unions, and not widely publicized, SB 94 should serve as a useful tool in protecting members from unscrupulous players in the cottage “loan modification” industry.

Learn more

Proposed Debit Interchange Rule’s Effect on Credit Union Relationships with Payment Card Networks

Recent changes proposed by the Board of Governors of the Federal Reserve System (the “Board”) affecting debit interchange fees and routing of debit transactions may potentially impact credit unions’ contractual relationships with payment card networks such as Visa or MasterCard.

Learn more