FDIC Receivership: Legal Considerations for Banks and Their Stakeholders

Dealing With the FDIC's Special Powers in Claims Processing and Litigation

Recording of a 90-minute premium CLE webinar with Q&A

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Conducted on Thursday, December 6, 2012

Recorded event now available

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Course Materials

This CLE course will prepare counsel involved in litigation with an FDIC receivership on the FDIC's special powers when acting as a receiver or conservator of a failed bank. The panel will examine the unique issues that arise in FDIC litigation and outline approaches for litigating on behalf of, or against, the FDIC.


The continuing bank failures have broad implications for entities that deal with distressed banks—depositors, creditors, borrowers, guarantors, contractors, vendors and other banks. Parties anticipating claims against a distressed bank must understand the FDIC receivership role and its special powers.

For example, the FDIC has broad discretion to disregard unenforceable agreements and repudiate contracts that it deems to be too burdensome.

The unique issues that arise in FDIC litigation include the automatic stay, jurisdictional issues, removal to federal court, and tolling of the statute of limitations. There are also recent developments regarding FDIC investigations and suits filed against officers and directors of failed banks.

Listen as our authoritative panel of attorneys guides you through the process of an FDIC receivership or conservatorship. The panel will explain how the FDIC's special powers work and the unique issues that arise in FDIC litigation. The panelists will discuss both the claims against directors and officers and the defenses being asserted.



  1. FDIC's role in liquidation of failed banks
    1. Receiver v. conservator
      1. The claims process
      2. Priority of claims and the depositor preference rule
      3. Contingent claims or obligations (lines of credit, letters of credit and guarantees)
    2. Special powers
      1. Disregarding unenforceable agreements
      2. Contract enforcement and effect of ipso facto clauses
      3. Contract repudiation and damages
    3. Special rules for qualified financial contracts
    4. Safe harbor for bank-sponsored securitizations
  2. Litigation issues
    1. Mandatory stay of litigation
    2. Jurisdiction and removal
    3. Extension of statute of limitations
    4. Limitation on claims and defenses
    5. Applicable law
    6. Actions against directors and officers of failed bank


The panel will review these and other key questions:

  • What remedy does a counterparty have when its claim is disallowed by the FDIC?
  • What protections exist for qualified financial contracts like securities contracts, commodities contracts, forward contracts and swap agreements?
  • How does the FDIC's rule for safe harbor treatment of securitizations and participations change the standards for the safe harbor protection?
  • What effect does the automatic stay have on existing litigation against the failed institution?
  • What are the most recent developments in Federal Deposit Insurance Corporation litigation against directors and officers of failed banks?   Recent rulings on standard of care and affirmative defenses.  Discovery issues.  Settlements and personal liability.

Following the speaker presentations, you'll have an opportunity to get answers to your specific questions during the interactive Q&A.


Dennis S. Klein
Dennis S. Klein

Hughes Hubbard & Reed

Mr. Klein specializes in handling complex commercial litigation, including officer and director liability lawsuits;...  |  Read More

Ronald Glancz
Ronald Glancz


Mr. Glancz represents financial institutions of every type and represents companies and investors seeking to...  |  Read More

De Ghenghi, Luigi
Luigi L. De Ghenghi

Davis Polk & Wardwell

Mr. De Ghenghi focuses on bank regulatory advice, including Dodd-Frank Act implementation, M&A and capital markets...  |  Read More

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