A case being litigated in Maine could have widespread repercussions for overcapitalized community banks.
Three longtime depositors have sued Gorham Savings Bank, demanding that the $417 million-asset mutual return its excess capital to depositors.
Robert Guitard of Westbrook, Maine, his wife, Geraldine, and brother, Edward, claim in the lawsuit that Gorhams total risk-based capital ratio of 23.43% far exceeds the 10% regulators require for a bank to be considered well capitalized. The Guitards want the bank to distribute annual dividends to all its depositors until at least 2004, in amounts equaling net earnings each year above minimum capital levels set by regulators.
The case is scheduled to go to trial in June.
If the Guitards prevail, all banks operating with extra capital could be vulnerable, said Mark Walker, vice president and counsel for the Maine Bankers Association.
It would primarily spread to mutuals that are overcapitalized, but it could extend to banks that have stockholders, he said. If they win, it would encourage banks to not hold as much money in reserves, which could definitely affect their ability to withstand a recession.
Jim Murch, a lawyer in Portland, Ore., who works with the Oregon Bankers Association, agreed.
It could be a trend once overzealous plaintiff lawyer groups find out about this, Mr. Murch said. If the court concludes that Gorham is depriving shareholders of legitimate dividends, plaintiff groups will be energized by this.
He added that it could have some impact on commercial banks if they are over-reserving, particularly if their shareholders are mainly local depositors with fixed incomes.
Lori Champion, Gorhams lawyer, declined to discuss any broader significance the case might have. She did say, however: There really arent any regulations which restrict reserves above the well-capitalized figures. In our opinion, the Guitards are trying to create what we think is an arbitrary trigger.
The lawsuit claims that Gorham had refused to pay cash dividends to the depositors in any calendar year since at least 1992, during which time the bank was very profitable. Since then Gorhams liquid assets have ranged from $125 million to $230 million and its excess capital has totaled $25 million to $35 million, three to five times more than the minimum capital amounts required under the state and federal banking regulations, the suit claims.
Robert Guitard declined to discuss the case, and referred a reporter to his attorney, William Robitzek. Efforts to arrange an interview with Mr. Robitzek by press time were unsuccessful.Ms. Champion would not say whether Gorham had paid any dividends to depositors since 1992. As for the lawsuits claims about capital levels and cash on hand, she said that she had no idea how they came up with those numbers, what data those figures included so I cannot say whether those numbers are right or wrong.
According to the Federal Deposit Insurance Corp., as of Sept. 30 Gorhams total risk-based capital ratio was 20.21%, with Tier 1 capital at 19.64%. The average risk-based capital ratio is 17.61% at banks with less than $100 million of assets and 14.21% at banks with $100 million to $1 billion of assets, according to FDIC statistics.
Mr. Walker predicted that the FDIC and Maine regulators may weigh in when the case goes to trial. This lawsuit will be opposed pretty rigorously by state and federal regulators, he said. These depositors are challenging capital ratios that have already been approved, and regulators would probably not want depositors undermining their authority, he said.
Howard R. Gray, the Maine banking superintendent, said he could not discuss the case because the state may become a party to the lawsuit. An FDIC spokesman also declined to discuss the case.
