Experienced Federal Defense Counsel for OCC Subpoena Response
The Enforcement Division of the Office of the Comptroller of the Currency (OCC) is responsible for enforcing the federal laws, rules, regulations, and orders governing the financial services industry in the United States. To meet its enforcement mandate, the OCC’s Enforcement Division investigates domestic and foreign banks, savings associations, bank officers and directors, and other institution-affiliated parties (IAPs)—and it does so using the substantial resources at its disposal.
When conducting investigations, the Enforcement Division also relies heavily on the OCC’s subpoena power. The OCC can issue subpoenas to executives, directors, record custodians, and others in both their corporate and individual capacities. Upon receiving an OCC subpoena, a response is mandatory, although what this response entails will depend heavily on the specific circumstances presented.
Federal Defense Lawyers for Financial Institutions and Individuals Facing OCC Investigations
At Oberheiden P.C., we represent financial institutions, their executives and directors, and other entities and individuals in OCC enforcement matters. Our team of career federal defense lawyers, former federal prosecutors, and former federal investigative agents brings their notable experience to the table. Whether the OCC is seeking to impose a capital directive, restitution and civil monetary penalties (CMP), or other penalties for a statutory or regulatory violation, we can execute a strategic defense. In many cases, this starts with taking a strategic approach to OCC subpoena response.
OCC Subpoena Response: Preparation, Preservation, and Motions to Quash
Once the OCC’s Enforcement Division issues a subpoena, the clock starts ticking. Not only must the subpoena recipient immediately begin preparations to comply with the subpoena’s response deadline, but it must also quickly make a decision regarding whether to file a motion to quash. Under the OCC’s Rules for Investigative Proceedings and Formal Examination Proceedings, OCC subpoena recipients only have 10 days from the date of service to file a motion to quash; and, if they miss this deadline, they may be left with little choice but to submit a fully compliant response—no matter how unreasonable or costly the response burden may be.
When clients engage us to represent them in responding to subpoenas from the OCC’s Enforcement Division, we provide services including:
1. Evaluation of the OCC Subpoena
As with all subpoenas issued by federal agencies, the first step to take after service of an OCC subpoena is to review the subpoena in detail. Along with discerning the key details (i.e., what the subpoena is requesting and when the response is due), it is important to determine what other information can be gleaned from the subpoena as well.
In many cases, service of a subpoena will serve as a financial institution’s or IAP’s first notice of the OCC’s investigation. As a result, there is often a lot of information that needs to be gathered at this stage. But, whether the OCC’s subpoena came as a surprise or you saw it coming, formulating a strategic response and preserving your financial institution’s (or your personal) defenses starts with understanding what information the OCC is seeking and why.
2. Evaluation of Grounds for a Motion to Quash
The OCC’s Rules for Investigative Proceedings and Formal Examination Proceedings specifically contemplate the possibility of a motion to quash. Section 112.7(b) provides:
“Any person to whom a subpoena is directed may, prior to the time specified therein for compliance, but in no event more than 10 days after the date of service of such subpoena, apply to the Deputy Chief Counsel or his designee to quash or modify such subpoena, accompanying such application with a statement of the reasons therefor.”
There are several potential grounds for filing a motion to quash an OCC subpoena, whether in whole or in part. These include invalid service, overbreadth, undue burden, and seeking information already in the OCC’s possession, among others. After considering a subpoena recipient’s motion to quash, the OCC’s Deputy Chief Counsel will either:
- Deny the motion to quash;
- Grant the motion to quash and revoke or modify the subpoena; or,
- Grant the motion subject to certain conditions that the Deputy Chief Counsel considers “just, reasonable, and proper.”
In addition to filing a motion to quash, OCC subpoena recipients also have the option of attempting to negotiate the scope of the subpoena with the Enforcement Division. This approach will prove to be more favorable in some, but not all, cases. When we represent financial institutions and IAPs during OCC investigations, we rely on our experience to assess all of the relevant circumstances and advise our clients regarding how to move forward.
3. Communication with the OCC’s Enforcement Division
We also communicate with the OCC’s Enforcement Division on behalf of our clients. As noted above, working with, rather than against, the OCC will prove to be the most effective strategy in many cases. Our defense lawyers can engage with the Enforcement Division’s staff attorneys and personnel regarding all matters related to an OCC subpoena. This includes negotiating the scope of the subpoena, negotiating the response deadline, addressing matters related to privileges and statutory protections, and ultimately working to minimize our client’s burden as much as possible while simultaneously steering the OCC’s inquiry toward a favorable resolution.
4. Document Preservation, Review, and Privilege Protection
When facing an OCC investigation and a looming subpoena response deadline, financial institutions and IAPs must work quickly to protect themselves. This requires a multi-faceted approach, and it involves striking a careful balance between cooperation, vigorous defense, and risk management.
For example, upon receiving an OCC subpoena, it will typically be necessary to initiate a legal hold. This legal hold should ensure the preservation of all relevant documents, and this is important for two equally compelling reasons: (i) failing to preserve relevant records during an OCC investigation can lead to charges for obstruction or spoliation; and, (ii) building an effective defense requires a comprehensive understanding of the circumstances at hand.
With all relevant documents preserved, our defense attorneys can undertake to review the relevant documents and assemble an appropriate response (depending on both the substance of the OCC’s subpoena and the outcome of any negotiations or motions to quash). We will also ensure the preservation of the attorney-client and Fifth Amendment privileges, as warranted, and we will use our review to identify all viable defense strategies.
5. Response Submission and Next Steps
As and when appropriate, we work with the OCC to submit our client’s subpoena response, whether in the form of document production or testimony. At this stage, we also consult with our client regarding next steps. Depending on the focus and current status of the OCC’s investigation, as well as our client’s risk, these next steps may range from resuming business as usual to building a comprehensive defense to any civil or criminal charges that may be on the table.
FAQs: Responding to an OCC Subpoena
Is an OCC Subpoena Response Mandatory?
Yes. Upon receiving a subpoena from the OCC, it is necessary to respond to the subpoena in some form. Even if a subpoena recipient decides to file a motion to quash, the recipient should begin assembling its response in parallel, as filing a motion to quash does not automatically toll the response deadline.
If a motion to quash (or negotiations with the OCC’s Enforcement Division) is successful in limiting the scope of the subpoena, then the recipient can tailor its response accordingly. Otherwise, failure to fully comply with an OCC subpoena as issued can potentially lead to judicial enforcement, an order compelling compliance, and then a finding of contempt if the subpoena recipient still fails to comply.
Why Did the OCC Issue a Subpoena to My Bank?
The OCC issues subpoenas in connection with investigations targeting all types of statutory and regulatory violations. It is important to note, however, that receiving a subpoena does not necessarily mean that your financial institution is the target of the OCC’s investigation. Upon receiving an OCC subpoena, it is imperative to quickly discern the focus of the Office’s inquiry and then tailor the institution’s response efforts appropriately.
Is It Possible to Challenge an OCC Subpoena?
Yes. It is possible to challenge an OCC subpoena on various grounds. The formal process for challenging an OCC subpoena involves filing a motion to quash with the OCC’s Deputy Chief Counsel, though subpoena recipients can seek to negotiate their subpoenas with the OCC’s Enforcement Division personnel as well. Whether it makes more sense to file a motion to quash or attempt to negotiate depends on all of the facts and circumstances surrounding the OCC’s investigation.
Do I Need Defense Counsel if I Received an OCC Subpoena?
Yes. Whether you received an OCC subpoena in your personal capacity or as a financial institution’s representative or records custodian, you will need to engage experienced defense counsel to guide you forward. At Oberheiden P.C., our attorneys have notable relevant experience, and we can help you make informed decisions while dealing with the OCC on your behalf.
Speak with an OCC Subpoena Defense Lawyer at Oberheiden P.C.
If you need to speak with a lawyer about an OCC subpoena, we encourage you to contact us promptly. To speak with a senior OCC subpoena defense lawyer at Oberheiden P.C. in confidence, please call 888-680-1745 or request a complimentary consultation online today.