Judicial

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	TCH April 23, 2012 Brief

Mar 4, 2013  -- Act The Clearing House Association joined SIFMA in an amicus brief before the U.S. Court of Appeals for the Second Circuit in Retirement Board of the Policemen’s Annuity & Benefit Fund v. Bank of New York Mellon. The case involves the application of the Trust Indenture Act (“TIA”) to mortgage-backed securities (“MBS”) issued by N.Y. common-law trusts. Contrary to almost 40 years of SEC guidance, the district court held that TIA does apply but, agreeing with an earlier TCH amicus brief in this case, the court certified the issue for immediate appeal to the Second Circuit. The TCH-SIFMA brief argues that the court should allow the immediate appeal because of the adverse effects that the case could have on financial markets and the uncertainty that it would engender among participants in the MBS market.

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	Policy Guidance

Jan 30, 2013  -- The Clearing House Association submitted a comment letter to the Department of State on the department’s policy guidance on its sanctions authorities under various statutes and regulations, including the Iran Sanctions Act. The Clearing House requested that the Department provide additional guidance on how the restrictions on loans and other extensions of credit should be interpreted.

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	TCH April 4, 2012 Brief
	Order

Jan 4, 2013  -- The Clearing House filed an Amicus Brief to seek clarification of the applicability of the district court’s order to beneficiary’s banks, funds-transfer networks, and other parties to funds transfers and to discuss the inclusion of the indenture trustee in the injunction, after the 2nd Circuit Court of Appeals issued a stay of the November 21 district court order. The Brief argues that (i) the Amended Injunction improperly expands the scope of nonparties bound by its terms beyond aiders and abettors, (ii) the amended injunction is contrary to law because it interferes with property right of nonparties (iii) the amended injunction violates Federal and New York State law because it improperly interferes with the orderly functioning of payments systems, and (iv) extraterritorial application would violate due process by potentially imposing double liability on financial institutions outside New York.

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	Decision

Dec 7, 2012  -- The Clearing Association filed an amicus brief in CLS Bank International v. Alice Corp. In the original decision, the U.S. District Court for the District of Columbia held that computer-aided methods of avoiding settlement risk in financial transactions were patentable merely because it was not “manifestly evident” that claims were patent ineligible under Section 101, a ruling that is inconsistent with Supreme Court and Federal Circuit precedent. The brief requests that the U.S. Court of Appeals put an end to the uncertainty around the scope and application of Section 101 of the Patent Act to patent applications involving computers but otherwise known mental processes. The brief outlines that Section 101 establishes an essential threshold requirement for patent eligibility and that the addition of a computer to an otherwise unpatentable mental process does not transform that process into something patentable unless the integration of the computer is essential to the execution of the process.

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	Proposed Policy

Nov 6, 2012  -- The Clearing House Association submitted a comment letter on the Institutional Shareholder Services' proposed new policy stating that it would recommend voting against or abstain in the re-election of corporate directors if their board did not enact majority-supported shareholder proposals. TCH argued against the proposal stating that the change would make it more difficult for directors to evaluate shareholder proposals in an informed and considered manner and to determine an appropriate response.

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	Tiffany v. Forbse, et al.

Oct 26, 2012  -- The Clearing House Association and the Institute of International Bankers filed amicus briefs in Gucci America v. Li et al. and Tiffany v. Forbse, et al. In these cases, plaintiffs obtained judgments against several persons for counterfeiting plaintiffs’ products. They then filed subpoenas and restraining notices against the New York branches of several Chinese banks demanding information on any accounts held by the defendants at the banks’ offices in China and a freeze on all funds in those accounts in anticipation of an order to transfer those funds to New York so that they can be turned over to the plaintiffs. The banks sought review by the Second Circuit Court of Appeals, but the plaintiffs moved to dismiss those appeals on the grounds that the banks have no standing to appeal and the order is not appealable. The brief by TCH and IIB argues that because compliance with the subpoenas and restraining notices could cause the Chinese banks to violate local law and subject them to double liability, the banks are entitled to review by the Court of Appeals.

Oct 22, 2012  -- The Clearing House Association, along with five other trade associations, filed an amicus brief before the U.S. Supreme Court in Cummings v. Doughty. The brief asks the Court to clarify whether the safe harbor established by the Annunzio-Wylie Anti-Money Laundering Act provides the full immunity protection of the safe harbor provision from civil liability for claims arising out of the filing of a Suspicious Activity Report (SAR), or more qualified immunity from these claims. While most courts have held that the Act’s safe harbor provision grants a financial institution absolute immunity, the Louisiana court and some other courts decided to insert a good faith requirement to the safe harbor provision that would nullify the safe harbor. The brief argues that: (i) the Louisiana court decision conflicts with the plain language of the statute, (ii) the issue of whether the Act provides absolute immunity is unsettled and in need of review, and (iii) without absolute immunity banks will be hesitant to file SARs.

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	Order

Apr 23, 2012  -- The Clearing House Association filed an amicus brief in NY federal district court case Retirement Board of the Policemen’s Annuity Fund v. BNY Mellon asking the court to certify for immediate appeal to the U.S. Court of Appeals for the Second Circuit the district court’s decision that residential mortgage-backed securities certificates issued by certain New York common-law trusts are debt, not equity, and therefore are covered by the Trust Indenture Act (TIA). The federal agency charged with administering the TIA, the SEC, has consistently adhered to the view that the statute does not apply to pass-through certificates. In the amicus brief, TCH argues that (i) the application of the TIA to mortgage pass-through certificates unsettles a longstanding, reasonably held legal understanding of market participants, (ii) the potential application of the TIA will create widespread uncertainty and generate complex litigation regarding the rights and obligations of parties to pass-through securities, with potential adverse consequences for market participants, and (iii) the certification of the order for appeal will preserve judicial resources and materially advance resolution of this issue.

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	Supreme Court Decision
	TCH Brief

Apr 18, 2012  -- The Clearing House Association sent a letter to the Treasury urging it to recommend to the Solicitor General that the U.S Government file a brief in U.S. Supreme Court case Kiobel v. Royal Dutch Petroleum taking the position that the Alien Tort Statute does not provide a private cause of action for violations of international law that occur in foreign countries. On April 17, the U.S. Supreme Court decided the case of Kiobel v. Royal Dutch Petroleum, holding that the Alien Tort Statute does not provide authority for U.S. courts to entertain suits for violations of international law that occur in other countries.

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	Order

Apr 4, 2012  -- The Clearing House Association filed an amicus brief with the U.S. Court of Appeals for the Second Circuit in NML Capital v. Republic of Argentina. The brief argues that the trial court’s order to prohibit any payments on restructured debt unless ratable payments are also made on outstanding prior debt obligations is contrary to the expectations of the market, would make sovereign debt restructurings extremely difficult if not impossible, and would impermissibly burden the payments system by potentially requiring intermediary banks to screen for payments that violated the court’s order.

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	Complaint
	Collection of Articles by David Evans et al.

Mar 15, 2012  -- The Clearing House Association, along with its trade coalition partners representing every national bank and credit union trade association in the country, filed an amicus brief in NACS v. Board of Governors of the Federal Reserve System. This case, brought by a merchant coalition representing some of the largest retailers in the U.S., seeks to set aside the Board’s final rule on interchange fees and increase the windfall that merchants have already received in the form of interchange price caps. The TCH coalition brief provides a robust counterpoint to the merchants, demonstrating that the Board’s rule is fundamentally flawed, not for the reasons advanced by the merchants but because it contravenes the Durbin Amendment by imposing caps on interchange fees that fall far short of allowing debit card issuers to cover their costs and a reasonable rate of return on their investments. The brief further notes how both small and large financial institutions will be harmed and points out that the retailers have failed to show any evidence that they have lowered their prices to benefit consumers.

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	Supreme Court Opinion
	Opinion
	Sullivan & Cromwell Publication

Mar 9, 2012  -- The Clearing House Association, along with nine other trade associations, filed an amicus brief before the U.S. Supreme Court in RadLAX Gateway Hotel, Inc. v. Amalgamated Bank. The case involves the right of secured lender to “credit-bid” on collateral that is being sold by a bankruptcy trustee by using the outstanding balance on its loan to pay the purchase price of the collateral, arguing that this right applies in a reorganization plan under Chapter 11 of the Bankruptcy Code and that the debtors’ attempt to sell mortgaged property free and clear of the secured lender’s lien without allowing the lender to credit bid is inconsistent with the Bankruptcy Code. On May 29 the Supreme Court affirmed the judgment of the 7th U.S. Circuit Court of Appeals in RadLAX Gateway Hotel LLC et al. v. Amalgamated Bank. The Court confirmed that a secured creditor cannot be denied the right to “credit bid” on collateral that is being sold by a bankruptcy trustee by using the outstanding balance on the creditor’s loan to pay the purchase price of the collateral.

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	Supreme Court Decision

Feb 3, 2012  -- The Clearing House Association filed an amicus brief in the U.S. Supreme Court case Kiobel et al. v. Royal Dutch Petroleum Co., et al. arguing that corporations should not be subject to liability for aiding-and-abetting in a federal common law action under the Alien Tort Statute (ATS), or that if there is such liability, a plaintiff must prove both that the corporation intended to further the alleged primary violation and that the corporation’s actions substantially assisted the primary actor’s violation. TCH believes strongly that permitting aiding-and-abetting claims would lead to severe adverse practical consequences and that recognizing secondary liability under the ATS would both discourage investment in developing countries and put corporations that do business in the U.S. at a disadvantage by exposing them to liability under the ATS simply for investing resources in parts of the world where international-law violations may occur. On April 17, the U.S. Supreme Court decided the case of Kiobel v. Royal Dutch Petroleum, holding that the Alien Tort Statute does not provide authority for U.S. courts to entertain suits for violations of international law that occur in other countries.

Feb 3, 2012  -- The Clearing House Association and the Institute of International Bankers (IIB) filed an amicus brief in U.S. District Court for the Southern District of New York case Amaprop Ltd. v. Indiabulls Financial Services Ltd., et al. in support of Respondent, ICICI Bank Limited, arguing that the Court should deny Petitioner Amaprop Limited‘s request for an order compelling ICICI to restrain, transfer and turn over non-U.S. assets to Amaprop. TCH and IIB maintain that New York‘s well-established separate entity rule was not abrogated by Koehler v. Bank of Bermuda Ltd. The associations argue that an extraterritorial order compelling ICICI to transfer non-U.S. funds to ICICI‘s New York branch and then requiring ICICI to turn those assets over to Amaprop would significantly and adversely affect international banks doing business in New York and their affiliates outside the jurisdiction, because it would render them answerable in New York for any bank account or property entrusted to them anywhere in the world by their customers. Such an order, the associations argue, would also create serious problems for major international banks solely because of their New York presence and threaten New York‘s position as the world‘s preeminent financial center. On February 16 SDNY Judge Gardephe ordered ICICI Bank to transfer any funds or other property that the bank is holding for judgment debtor—wherever located —to the bank’s New York branch so that it can be turned over to the judgment creditor.

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	New York Court of Appeals Decision
	Debevoise & Plimpton Update
	Appellate Division Decision

Oct 7, 2011  -- The Clearing House Association, together with other trade associations, filed an amicus brief with the New York Court of Appeals in Assured Guaranty (UK) Ltd. v. J.P. Morgan Investment Management. In this case, the Appellate Division, with the support of the N.Y. A.G., ruled that the Martin Act does not preempt common-law negligence claims against investment advisors, while in the past courts have ruled that such claims are preempted. TCH’s brief argues that the court should not depart from decades of prior judicial decisions and that allowing the Martin Act to preempt private non-fraud common-law tort claims in the securities context reflects sensible policy. On December 20, the New York Court of Appeals issued a decision in this case upholding the plaintiff’s right to sue an investment advisor for breach of fiduciary duty, gross negligence, and breach of contract.

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	Order
	Bond Plaintiffs' Memorandum of Law
	Nelles-Saltzman Paper

Jun 9, 2011  -- The Clearing House Association filed an amicus brief with the U.S. District Court for the Southern District of New York In Re Citigroup Inc. Bond Litigation, opposing the plaintiffs’ unprecedented attempt to obtain confidential communications between Citigroup and its regulators that are covered by the bank examination privilege. The brief points out that these records are the confidential property of the regulatory agencies and that no court has ever allowed litigants to have access to confidential bank examination records without first obtaining the agency’s permission or at least allowing the agency to object in court to the release of the records. In a ruling issued on December 5, Judge Stein found that the plaintiffs failed to demonstrate “good cause” necessary to overcome the privilege and denied their motion to compel the disclosure of the documents in question. A smaller set of documents were not found to be privileged and are to be produced either in whole or with certain specified redactions.

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	Government Brief
	Addendum to Government Brief
	TCH March 11, 2011 Brief

May 13, 2011  -- The Clearing House Association led a coalition of every major bank and credit union trade association in the U.S., in filing an amicus brief with the 8th Circuit Court of Appeals supporting an appeal taken by TCF National Bank from the District Court’s denial of TCF’s motion for a preliminary injunction. The issue on appeal is whether TCF National Bank’s constitutional challenge to the regulation of debit card interchange fees must be analyzed under the confiscatory-rate doctrine, as TCF argues, or instead, under only the deferential rational-basis standard as the District Court concluded. On May 19, 2011 the Government filed its brief in the appeal taken by TCF National Bank to the 8th Circuit. TCF seeks to have the 8th Circuit overturn the district court’s denial of TCF’s motion for a preliminary injunction.

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	Respondent's Brief

May 5, 2011  -- The Clearing House Association filed an amicus brief in Parks v. MNBA America Bank, N.A. This is a national bank preemption case before the California Supreme Court in which the defendant (now FIA Card Services, N.A., a subsidiary of Bank of America Corp.) was charged with violating a California law that requires credit-card lenders to make certain disclosures when offering convenience checks to their customers. TCH’s brief addresses the question of whether a California statute requiring disclosures in connection with bank offerings of convenience checks is preempted under the National Bank Act and an OCC regulation.

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	Summary Order
	TCH Jan. 6, 2011 Brief
	District Court Decision
	SBI Notice of Appeal
	Eitzen Petition
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	Arbitration Award
	Judgment
	Order

Apr 11, 2011  -- The Clearing House Association and the IIB filed a joint amicus brief with the U.S. Court of Appeals for the Second Circuit in Eitzen Bulk v. State Bank of India, a case involving an attempt to force a NY branch of a foreign bank to identify and restrain a defendant’s assets wherever located so that a court can order the bank to bring the assets to NY to satisfy a judgment against a defendant with no ties to NY. TCH and IIB had filed a brief in this case in January, but the plaintiff has sought to have the appeal dismissed as moot because State Bank of India has reported that it is holding no accounts or other property of the judgment debtor. TCH and IIB filed a short brief stating that the case is not moot and that it is important the constitutional issues raised by the case should be heard by the court of appeals. On May 12, the Court of Appeals issued a summary order granting Eitzen Bulk’s motion to dismiss but also vacated the District Court’s order directing Eitzen Bulk to engage in turnover litigation.

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	TCF National Bank Complaint

Mar 11, 2011  -- The Clearing House Association, together with seven other trade associations, filed an amicus brief with the U.S. District Court for the District of South Dakota in TCF National Bank v. Bernanke. The brief argues that the FRB’s interpretation of the Durbin Amendment and its proposed rule to cap debit interchange rates are unconstitutional. The brief requests that, if the Board’s final rule precludes issuers from recovering their costs for debit card services plus a reasonable rate of return, the court preliminarily enjoin the effective date of the Durbin Amendment pending conclusion of the litigation.

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	Supreme Court Order
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	Justice Dept. Brief in Fox
	Bloomberg's Brief
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	Davis Polk Article

Mar 2, 2011  -- The Clearing House Association filed a reply brief in the Supreme Court in support of its petitions for a writ of certiorari to review the rulings of the Court of Appeals for the Second Circuit in Bloomberg L.P. v. Board of Governors of the Federal Reserve System and Fox News Network, LLC v. Board of Governors of the Federal Reserve System. The reply brief responded to the opposition papers filed by Bloomberg and Fox News, as well as to the brief submitted by the Solicitor General, in which the Solicitor General – while agreeing with TCH Association on the merits – recommended that the Court deny certiorari to await a future case that would allow the Court to correct the Second Circuit’s errors. On March 21 the Supreme Court denied TCH's petition for certiorari in these cases.

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	Supreme Court Decision
	Federal Circuit Opinion
	TCH Brief in Support of Microsoft Petition for Writ of Certiorari, September 2010

Feb 2, 2011  -- The Clearing House Association, along with SIFMA, filed an amicus brief with the U.S. Supreme Court in support of Microsoft’s position that the Supreme Court should overturn the Federal Circuit’s “clear and convincing” evidentiary standard, which applies when a defense of patent invalidity rests on documentary evidence that was not considered by the PTO, in favor of a more flexible and practical rule that would permit evidence not previously considered in order to more easily weed out “junk” patents. The brief argues that the financial-services industry is disparately impacted by the Federal Circuit’s evidence standard because patents are still new to the industry and that many patents are thus granted despite the existence of invalidating evidence that was either not brought before, or not considered by, the PTO during examination. On June 9, the Supreme Court affirmed the Federal Circuit’s decision in Microsoft v. i4i in holding that “clear and convincing” evidence is required to prove invalidity of a patent, but allowed that patent case juries can be instructed that they have heard evidence that was never seen by the patent examiner and that juries may take such evidence into consideration when deciding patent validity, thereby making it easier to meet the “clear and convincing” standard.

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	District Court Decision
	SBI Notice of Appeal

Jan 6, 2011  -- The Clearing House and the Institute of International Bankers filed a joint brief in the U.S. Court of Appeals for the Second Circuit in New York asking the court to reverse the decision of the district court in Eitzen Bulk A/S v. State Bank of India (SBI). This is a case in which a Danish shipping company attempts to collect on a maritime arbitration award against an Indian mining company by seeking to use the SBI’s New York branch to seize the mining company’s assets held anywhere in the world by SBI. The Clearing House brief argues that the U.S. Constitution limits a court’s authority to require banks to turn over property that is located outside the court’s jurisdiction, as the enforcement of such an order could expose banks to double liability here and in the other country, and the district court’s decision could have serious adverse effects for banks and for New York’s position as a banking center.

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	Supreme Court Decision
	Petitioner's Brief
	Petition for Certiorari
	Federal Circuit Decision
	Sullivan & Cromwell Publication

Dec 6, 2010  -- The Clearing House Association filed with the U.S. Supreme Court an amicus brief in Global-Tech Appliances, Inc., and Pentalpha Enterprises, Ltd., v. SEB S.A., Inc., a patent-infringement case that will review the level of knowledge of a patent that must be shown to establish a claim for inducement of infringement. SIFMA signed on to TCH’s brief, which supports the petitioners’ position that not merely deliberate indifference to a known risk but actual knowledge should be the standard. In a May 31 Supreme Court opinion, the majority rejected the Federal Circuit's intent standard, which was that a patent owner needed to show only that the alleged inducer of infringement “deliberately disregarded a known risk that [the patentee] had a protective patent.” The Court adopted a new standard, in which induced infringement “requires knowledge that the induced acts constitute patent infringement” and specifically requires knowledge of the patent. While rejecting the Federal Circuit’s “deliberate indifference to a known risk” test for constructive knowledge of the patent, the Court held that a showing of willful blindness is sufficient to meet the knowledge requirement. The decision heightens the intent requirement for induced-infringement liability by explicitly precluding liability based on lower standards of “deliberate indifference,” recklessness or negligence.

Nov 16, 2010  -- The Clearing House Association filed a petition for a writ of certiorari in the U.S. Supreme Court seeking review of the decision of the U.S. Court of Appeals for the Second Circuit. The petition argues that the court erroneously interpreted the Freedom of Information Act in finding that information regarding banks’ borrowings from the Fed’s discount window is not protected from disclosure as confidential financial information.

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	Fox News Complaint

Nov 5, 2010  -- The Clearing House Association filed with the U.S. Court of Appeals for the Second Circuit a motion to intervene in this case, which is a companion case to Bloomberg, L.P., v. Board of Governors of the Federal Reserve System. TCH is also seeking a stay in Fox News in order to preserve the status quo while the Supreme Court considers the issues in Bloomberg.

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	Order Granting Motion to Dismiss
	Apellants' Opening Brief

Nov 1, 2010  -- The Clearing House Association, ABA and CBA filed an amicus brief in the Court of Appeals for the Ninth Circuit, in Kilgore v. KeyBank, N.A., et al., arguing that plaintiffs' claims to use a general California unfair-competition law to alter the terms of loans they entered into with KeyBank is meritless because the California law is preempted by the National Bank Act.

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	NY Supreme Court Decision
	Notice of Removal

Oct 29, 2010  -- The Clearing House Association joined with the Institute of International Bankers in filing an amicus brief with the New York Supreme Court in Samsun Logix v. Bank of China. In the case, a South Korean company seeks to require banks with offices in New York to search their records to see if they hold any property of defendants and if so, to turn over that property to the plaintiff in satisfaction of an arbitration award. The brief supports the respondent banks’ motion to dismiss the South Korean company’s petition. On May 13 the New York Supreme Court issued a decision in this case agreeing with the amicus brief jointly filed by TCH and the IIB and strongly upholding New York’s separate-entity rule as applied to banks in attachment and garnishment actions.

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	Second Circuit Opinion

Oct 26, 2010  -- The Clearing House Association filed a petition for a writ of certiorari in the U.S. Supreme Court seeking review of the decision of the U.S. Court of Appeals for the Second Circuit. The petition argues that the court erroneously interpreted the Freedom of Information Act in finding that information regarding banks’ borrowings from the Fed’s discount window is not protected from disclosure as confidential financial information.

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	U.S. Tax Court Decision

Oct 20, 2010  -- The Clearing House Association submitted an amicus curiae brief in Capital One Financial Corporation v. Commissioner of Internal Revenue in support of Capital One’s appeal to the Fourth Circuit relating to the tax treatment of its Rewards Miles program. TCH supports the position that service providers such as Capital One that issue “coupons” (i.e., reward miles) are eligible to benefit from a Treasury tax regulation promulgated to encourage customers to purchase goods or services by issuing coupons to those customers as part of the purchase transaction, and that the regulation should be interpreted in a nondiscriminatory manner.

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	Federal Circuit Opinion
	Petition for Certiorari

Sep 29, 2010  -- The Clearing House Association, along with SIFMA, filed an amicus brief with the U.S. Supreme Court in support of Microsoft’s petition for a writ of certiorari. Microsoft is asking the Supreme Court to overturn the Federal Circuit’s “clear and convincing” evidentiary standard. The brief argues that the financial services industry is disparately impacted by the Federal Circuit’s evidence standard because patents are still new to the industry, and therefore many patents are granted despite the existence of invalidating evidence that was either not brought before, or not considered by the PTO during examination.

Related Documents

	Notice of Motion to Dismiss Turnover Petition

Jul 29, 2010  -- The Clearing House Association filed an amicus brief with the U.S. District Court for the Southern District of New York, in support of a motion filed by several of its member banks to dismiss the plaintiffs’ request under the Terrorism Risk Insurance Act that the banks turn over to the plaintiffs certain funds that were blocked by the banks under the Cuban assets control regulations. The brief argues that the amounts of a funds transfer at an intermediary bank are not the property of the originator or beneficiary of the funds transfer under applicable Second Circuit precedent.

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	Second Circuit Decision

Jul 2, 2010  -- The U.S. Court of Appeals for the Second Circuit invited The Clearing House Association to file an amicus brief and participate in oral argument in this case. The plaintiff is appealing the District Court’s order to release a maritime attachment in light of the Second Circuit’s decision in Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., in which TCH successfully argued that maritime attachments of funds transfers at intermediary banks should not be permitted. The court asked TCH for information on procedures that banks had used when they had to respond to maritime attachment orders and what the status of maritime attachment cases is in the wake of Jaldhi.

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	Supreme Court Docket
	Petition for Ceritorari

Apr 26, 2010  -- The Clearing House Association, along with other banking associations, filed a brief with the Supreme Court in support of certiorari in US Bank v. Thomas. This case involves claims by Missouri homeowners who filed a lawsuit in state court alleging that the fees charged by FirstPlus violated Missouri law. The banks moved the case to federal court, which held that the federal statute did not apply to the facts of the case, so there could be no complete preemption. In the brief TCH and trade groups argue that the Eighth Circuit decision deprives state banks of complete preemption and narrows the scope of ordinary preemption to periodic interest rates. On June 28 2010, the Supreme Court denied certiorari in this case.

Related Documents

	Motion to Dismiss Appeal

Mar 10, 2010  -- The Clearing House Association, joined by The Financial Services Roundtable and SIFMA, filed an amicus curiae brief in support of Hancock’s appeal to the U.S. Court of Appeals for Fifth Circuit from an order of the U.S. District Court in Louisiana. The district court granted summary judgment to the government on Hancock’s claim that the Internal Revenue Service had wrongfully levied on an account at Capital One, N.A., which secured loans made to the taxpayer by Hancock. The district court held that Hancock, as lender, did not hold a security interest entitled to protection against subsequent federal tax liens because Capital One, as indenture trustee, was the sole holder of a security interest in respect to the borrower. The amicus curiae brief stresses the ubiquity and importance of trust indentures in the nation’s credit markets and that the district court’s holding undermines this well-settled arrangement. On September 8, 2010, John Hancock Life Insurance Company filed a voluntary motion to dismiss the appeal in this case.

Related Documents

	Supreme Court Docket

Feb 17, 2010  -- The Clearing House Association filed this amicus brief with the U.S. Supreme Court after the plaintiffs filed a petition for certiorari in a maritime attachments case that TCH won at the Second Circuit. The defendants have not opposed granting the petition, but TCH filed this brief opposing the petition. On March 22, 2010, the Supreme Court denied certiorari in this case.

Related Documents

	Advisory Committee Memorandum

Feb 12, 2010  -- In a letter to the Administrative Office of the United States Courts, The Clearing House Association addressed certain issues with respect to a proposed rule that are of particular importance and concern to large, multi-faceted banking institutions, particularly in their role as administrative agent under a credit facility in which the borrower has become a debtor under the Bankruptcy Code.

Related Documents

	Fox News Complaint
	Second Circuit Court Order

Dec 10, 2009  -- In this companion case to Bloomberg L.P. v. Board of Governors of the Federal Reserve System, both Fox News and Bloomberg sued the Fed under the Freedom of Information Act for the release of documents that would identify the banks that participated in the various emergency-funding programs. Bloomberg’s FOIA request was denied by the Fed due to the potential for competitive harm, as the information being sought is of a financial nature. In the brief filed in the U.S. Court of Appeals for the Second Circuit, The Clearing House Association argued that the District Court correctly held that disclosure of the reports likely would cause substantial competitive harm to borrowing institutions and that the District Court correctly held that FOIA Exemption 4 protects the Board’s interest in effectuating the purposes of its lending program.

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	NY Court of Appeals Opinion

Nov 25, 2009  -- The Clearing House Association joined the Loan Syndications and Trading Association and the Commercial Finance Association in an amicus brief filed with the New York Court of Appeals in support of the plaintiffs-appellants, DDJ Capital Management, LLC, et al. TCH recommended the Court rule that it is not per se unreasonable for a commercial lender entering into a financing transaction to accept and rely upon a representation and warranty by a prospective borrower as to the accuracy of the borrower’s unaudited financial statements and other books and records. As representations and warranties are bargained for in sophisticated business transactions, reliance on such representations and warranties is justifiable without further investigation—a legal principle long recognized by settled precedents of New York law.

Related Documents

	USDC SDNY Opinion and Order

Nov 6, 2009  -- In this case Bloomberg L.P. sued the Fed under the Freedom of Information Act for the release of documents that would identify the banks that participated in various FRB emergency-funding programs. Bloomberg’s FOIA request was denied by the Fed due to the potential for competitive harm, as the information being sought is of a financial nature. Filing an amicus brief with the U.S. Courth of Appeals for the Second Circuit as intervenor-appellant, The Clearing House Association argued that the Board established that disclosure of the reports likely would cause substantial competitive harm to borrowers, the Court should adopt the “Program Effectiveness” Test, and that the District Court erred in finding that information in the reports, except for borrowers’ names, was not “obtained from a person.”

Related Documents

	Supreme Court Decision

Oct 2, 2009  -- The Clearing House Association joined Bank of America Corp.; Barclays Capital, Inc.; The Financial Services Roundtable; Google, Inc.; MetLife; Inc.; and Morgan Stanley in an amicus brief in support of the respondent, USPTO. The amicus brief argued that the U.S. Supreme Court should reaffirm long-settled principles of patent law that exclude abstract ideas and mental processes from patent eligibility and that allowing abstract ideas to be patented would threaten innovation. In a June 28, 2010 decision the Supreme Court held that “the machine-or-transformation test is not the sole test for determining the patent eligibility of a process, but rather a useful tool. Bilski's application, seeking a patent on a method for hedging risk in the commodities market, did not draw to patent eligible subject matter.”

Related Documents

	PEB Commentary

May 11, 2009  -- In a letter to the American Law Institute, The Clearing House Association approves the Permanent Editorial Board’s proposed Commentary. The Editorial Board clarified that credits at an intermediary bank are not property of either the originator or the beneficiary. This clarification will help in resolving the Winter Storm type of maritime disputes. The practice of invoking Rule B to obtain a writ of attachment targeting funds-transfer credits received by banks in the Southern District of New York have resulted in a staggering number of maritime writs of garnishment that New York banks are required to process on a daily basis.

Apr 24, 2009  -- The Clearing House Association joined SIFMA and The Financial Services Roundtable in filing a brief in this case, which involves a petition by defendants UBS AG and UBS Securities LLC to have the 11th Circuit overturn the district court’s certification of a class in this litigation. The district court found that in acting as an initial purchaser in four Rule 144A private placements of HealthSouth bonds, UBS had lent its good name to HealthSouth’s private placement and implicitly made a “‘statement’ . . . that ‘these bonds are good enough for UBS, so they must be good enough for you,” and that these statements were “false because they failed to disclose information necessary to prevent them from becoming misleading, and were intended to deceive the purchasers of the bonds.” The court held that these actions are sufficient to allow the class of stockholders to invoke the fraud-on-the-market presumption of class-wide reliance. The trades filed an amicus brief supporting UBS’s petition to have the 11th Circuit review the certification of the class.

Apr 17, 2009  -- The Clearing House Association, joined by other banking associations, filed an amicus curiae brief with the U.S. Supreme Court in support of the petitioners in Capital One Bank (USA), N.A. v. Commissioner of Revenue of Massachusetts. The Massachusetts Supreme Judicial Court held that the state could enforce an income tax against two out-of-state entities, Capital One Bank and Capital One FSB, even though neither (i) has a physical presence in the state, (ii) holds physical property in the state, or (iii) employs sales representatives in the state. In the brief, the trade associations take the position that the imposition of state income or excise taxes on a corporation with no physical presence in that state threatens to damage U.S. international economic relations and that the “economic nexus” standard (as opposed to physical presence) as a basis for extraterritorial taxation conflicts with international tax policy. On June 22, 2009 the Supreme Court declined to review the court decisions in Capital One Bank v. Commissioner of Revenue of Massachusetts.

Mar 25, 2009  -- On January 16, 2009, the U.S. Supreme Court granted the request of the New York Attorney General’s office to review the decision in TCH v. Cuomo, formerly referred to as the Spitzer case. The Clearing House Association filed a brief on March 25, 2009, and, in late April 2009, the U.S. Supreme Court heard arguments on whether states have the authority to regulate national banks. TCH successfully obtained an injunction that will prohibit states from issuing subpoenas of bank records without filing a specific lawsuit in court.

Mar 24, 2009  -- The Clearing House Association filed a brief in Ex-Im Bank v. Asia Pulp & Paper, in which the Export-Import Bank of the United States, through the U.S. Attorney’s office, served a post-judgment writ of garnishment on several New York banks pursuant to the Federal Debt Collection Procedure Act (FDCPA), seeking the debtor’s property. Two N.Y. banks restrained funds transfers involving the debtor, and the debtor sought to have the funds released. The U.S. Attorney filed a reply that cited Winter Storm for the proposition that funds transfers in the hands of an intermediary bank are the property of the originator and thus subject to attachment under the FDCPA. In the brief TCH argued that the FDCPA does not preempt any relevant provision of Article 4A of the U.C.C., that property interests are defined by state law, and that under applicable state law originators and beneficiaries of funds transfers have no property interest in funds in the hands of intermediary banks.

Mar 17, 2009  -- The Court of Appeals has been asked, by certified question, to decide whether courts located in New York have the power to order financial institutions to bring assets entrusted to their care overseas into the state so that the assets can be garnished to satisfy a judgment. The Clearing House Association filed a brief in support of respondent, the Bank of Bermuda arguing that tangible assets held outside New York may not be levied upon unless the court has personal jurisdiction over the judgment debtor.

Feb 24, 2009  -- The Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd, is a maritime attachment case in which the issue is whether the amount of a funds transfer in the hands of an intermediary bank is property of a maritime defendant where the defendant is the beneficiary of the funds transfer. The Clearing House Association’s amicus brief supports the position of the defendant, Jaldhi Overseas Pte Ltd. in the appeal by The Shipping Corporation of India Ltd. The Clearing House takes position that an electronic funds transfer (EFT) was not property attachable under a maritime attachment order in the district courts of New York pursuant to Rule B of the Admiralty Rules.

Jan 23, 2009  -- The Clearing House Association joined the California Bankers Association and the ABA in filing a motion to request depublication of the Court of Appeal of the State of California Second Appellate District's opinion on the ground that it addresses questions prematurely that the court of appeal recognized require further factual development.

Dec 8, 2008  -- The Clearing House Association filed a brief with the U.S. Supreme Court in opposition to the NY Attorney General’s petition for certiorari.

Jun 9, 2008  -- Plaintiffs in Peterson v. Islamic Republic of Iran are representatives of Marines killed in the 1983 bombing of the Beirut Marine barracks who obtained a default judgment against the Islamic Republic of Iran asserting that Iran was responsible for the terrorist act. Plaintiffs served notices of levy on the San Francisco branches of several internationally active banks seeking assignment of bank accounts and other sources of funds maintained outside the United States. The Clearing House Association joined several other trade associations in filing an amicus brief opposing the relief requested by judgment creditors.

May 22, 2008  -- The Clearing House Association joined other industry associations in filing an amicus brief with the Los Angeles County Superior Court in Brown Family Trust v. Wells Fargo Bank, N.A., which involves the enforceability of an arbitration provision in a stock brokerage agreement signed by a bank customer with an affiliated broker-dealer. A joint amicus brief was filed by TCH, SIFMA, The Chamber of Commerce, the ABA, ABASA, and the Financial Services Roundtable.

Apr 7, 2008  -- TCH joined trade and other industry groups in a brief in a patent case, In re Bilski, pending before the Federal Circuit, in which that court will reconsider its decisions holding that business methods are eligible for patent protection in the United States.

Mar 26, 2008  -- The Clearing House and the OCC filed briefs with the U.S. Court of Appeals in TCH v. Spitzer in response to a petition for a rehearing en banc that was filed by the NY Attorney General’s office.

Feb 11, 2008  -- The Clearing House, joined by eight trade associations filed a brief seeking review by the U.S. Supreme Court in American Isuzu Motors Inc., v. Ntsebeza, a case involving four Clearing House member banks and other major international businesses that have been charged with aiding and abetting violations of international law committed by the South African government under the system of apartheid.