Suing your Regulators: A Case Study from a General Counsel’s Perspective

Elliot Ganz, General Counsel, The Loan Syndications and Trading Association Inc, USA

On February 9, 2018, the United States Court of Appeals for the District of Columbia Circuit (the Circuit Court) reversed a decision by the District Court and ruled in favor of my organization, the Loan Syndications and Trading Association (“LSTA), a financial trade association, in its lawsuit against the Securities and Exchange Commission (“SEC”) and Federal Reserve Board (the “Fed”; and collectively, the “agencies”). The decision voided the agencies’ aggressive interpretation of the “risk retention rule” that they had imposed on many of the LSTA’s members in 2014 and brought to an end an eight year saga on an issue of critical importance. As the LSTA’s general counsel, I was charged with navigating the association through this difficult, but ultimately successful, chapter. Litigating against one’s primary regulators is not a tactic to be taken lightly or used frequently but sometimes it is the best, or only, option. For a general counsel, the decision to litigate, and the implementation and conduct of the litigation, is fraught with risks and challenges. This article will examine some of the difficult issues I faced as general counsel in (i) deciding to sue the very regulatory agencies that supervise our members, (ii) convincing our board to support the litigation, (iii) hiring the right counsel, (iv) managing the litigation, (v) dealing with interim setbacks, (vi) maintaining good relations with the regulators while litigating, and (vii) winning with grace. I hope that my experience can serve as a road map for those faced with similar situations.

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USA Regulation Association September 2018 Vol.11, No. 44, Summer 2018

Elliot Ganz

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Elliot Ganz is the General Counsel and Chief Administrative Officer of the Loan Syndications and Trading Association (LSTA), a 440-member financial trade association representing the interests of the stakeholders in the US syndicated commercial loan market. Since 2005 he has managed all legal issues and co-headed its government policy and advocacy efforts. In 2018 Mr. Ganz was appointed the additional role of CAO, responsible for managing the LSTA’s staff and leading its strategic initiatives. He is a 1980 graduate of New York University School of Law and a 1977 graduate of Queens College, City University of New York. Before joining the LSTA Mr. Ganz worked for three years at a Wall Street law firm and for 22 years in senior positions at four major US and international banks. He is a member of the bar of the Supreme Court of the United States, a fellow of the American College of Commercial Finance Lawyers and served as a member of the Committee on Financing Chapter 11 of the American Bankruptcy Institute's Commission to Study the Reform of Chapter 11. Mr. Ganz has supervised the filing of over 20 amicus briefs on important loan and bankruptcy related cases, including three briefs supporting successful appeals to each of the New York Court of Appeals and Supreme Court of the United States. He most recently supervised a successful lawsuit under the Administrative Procedure Act against the Securities and Exchange Commission and the Federal Reserve Board on the critical issue of risk retention under the 2010 Dodd-Frank Act.

The Loan Syndications and Trading Association Inc

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The LSTA (www.lsta.org) is the trade association for the US corporate loan market. With over 435 members, the LSTA promotes a fair, orderly, efficient, and growing corporate loan market and provides leadership in advancing and balancing the interests of all market participants. The LSTA meets its objectives through education, advocacy, and promotion of the asset class.

USA Regulation Association September 2018 Vol.11, No. 44, Summer 2018