2010 PLUS International Conference Back to the Future: A New Wave of FDIC Litigation

2010 PLUS International Conference The Round-Up… Moderator: Diane Parker Esq., Assistant Vice President, Professional Liability Claims, Allied World Assurance Company Panelists: Gary V. Dixon, Esq., Partner, Troutman Sanders LLC Susan N.K. Gummow, Esq., Partner, Butler Pappas Weihmuller Katz Craig LLP Jennifer Nierenberg Metzger, Esq., Complex Claims Director, CNA Corporate and Financial Claims Floyd “Rob” Robinson, Esq., Senior Counsel, Professional Liability and Financial Crimes Unit, Federal Deposit Insurance Corporation

2010 PLUS International Conference “Temporal displacement has occurred…” Destination Time: The Banking Crisis of the 1980s Present Time: The Financial Crisis of ? “Not That There’s Any Danger”: Litigating with the FDIC “Who’s Gonna Pay for THIS?” D&O Coverage, Then & Now

2010 PLUS International Conference “I gave you explicit instructions not to come here, but to go directly back to 1985!”

2010 PLUS International Conference The Banking Crisis of the 1980s Profile of Bank and S&L Failures Causes of Bank and S&L Failures RTC and FDIC Professional Liability Claims Observations About the 1980s Crisis

2010 PLUS International Conference “I had to wait 30 years to catch up to you.”

2010 PLUS International Conference The Financial Crisis of ? Profile of Bank Failures Causes of Bank Failures FDIC Professional Liability Claims Observations About the Current Crisis

2010 PLUS International Conference Bank and Thrift Failures, 2007 to Date YearNumber of Institutions ( as of Oct. 22 ) 139

2010 PLUS International Conference Bank and Thrift Failures, 2008 – 2010 Years Number of Failed Institutions Assets Assets - Inflation Adjusted ,341$657.1 B$1.12 T Jul – Jan – Oct. 22, $630.1 B$638.2 B

2010 PLUS International Conference Bank and Thrift Failures, 2007 – 2010, by State State Number of Failures Assets Georgia47$25.6 B Florida43$32.4 B Illinois38$30.5 B California32$102.4 B

2010 PLUS International Conference Bank and Thrift Failures, 2007 – 2010, by Assets State Number of Failures Assets Nevada10$315.4 B California32$102.4 B Florida43$32.4 B Illinois38$30.5 B

2010 PLUS International Conference “Not that there’s any danger... but it never hurts to take precautions.”

2010 PLUS International Conference Litigating with the FDIC Pre-Suit Investigations and Demands Dual Role of FDIC (conservator/receiver) Special Statutory Powers of the FDIC FDIC as Intervener: Impact on Third Parties

2010 PLUS International Conference “Can I assume that your insurance will pay for this?”

2010 PLUS International Conference D&O Insurance Issues Common coverage issues in FDIC D&O litigation (then and now) Definition of Claim Notice of Claim / Circumstance Exclusions  Regulatory  Insured v. Insured  Specific Claim / Litigation / Event  Prior Notice / Interrelated Wrongful Acts  Prior or Pending / Prior Act

2010 PLUS International Conference “Where you’re going, there are no roads.”

2010 PLUS International Conference Questions & Answers

2010 PLUS International Conference Many Thanks To… Diane Parker Gary Dixon Susan Gummow Jennifer Nierenberg Metzger Floyd “Rob” Robinson