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Legal
9 Months Ended
Sep. 30, 2017
Legal [Abstract]  
Legal

Note 13.  Legal



The Company received a subpoena from the SEC, dated March 22, 2016, relating to an investigation by the SEC of the Company's restatement of its financial statements for the years ended December 31, 2010 through December 31, 2013 and the interim periods ended March 31, 2014, September 30, 2014 and September 30, 2014, which restatement was filed with the SEC on September 28, 2015, and the facts and circumstances underlying the restatement.  The Company is cooperating fully with the SEC's investigation.  The costs to respond to the subpoena and cooperate with the SEC's investigation have been material, and we expect such costs to continue to be material at least through the completion of the SEC’s investigation.



On September 30, 2016, the Company received written notice from the Internal Revenue Service that it will be conducting an audit of the Company's tax returns for the tax years 2012, 2013 and 2014.  The audit is in process.



The Company received a letter dated August 1, 2016, demanding inspection of its books and records pursuant to Section 220 of the Delaware General Corporation Law, or DCGL, from legal counsel representing a shareholder (the "Demand Letter"). The Company, through outside legal counsel, responded to the Demand Letter by permitting the shareholder to inspect certain of the Company’s books and records and by objecting to other requests.  On January 30, 2017, the shareholder filed a complaint in the Court of Chancery of the State of Delaware seeking an order from the court, pursuant to Section 220 of the DGCL, compelling the Company to permit the shareholder to inspect additional books and records of the Company.  The Company believes that its original response to the Demand Letter was appropriate in all respects and continues to defend against the complaint.  On July 27, 2017, the Court of Chancery ruled in favor of the Company and granted an Order of Final Judgment Denying Plaintiff’s Demand To Inspect The Books And Records of Defendant.  The court’s Order was subject to an appeal right which has now expired; no appeal was filed.  Both the Demand Letter and the complaint threaten the commencement of a shareholder’s derivative suit against certain officers and directors of the Company seeking damages and other remedies on behalf of the Company.  We have been advised by our counsel in the matter that reasonably possible losses cannot be estimated, but we and our counsel continue to believe the claim is without merit.

 

On October 17, 2017, the Federal Deposit Insurance Corporation (the “FDIC”) informed The Bancorp Bank (the “Bank”), a wholly owned subsidiary of The Bancorp, Inc. (the “Company”), that it intends to pursue an Order For Restitution (“Restitution Order”) and Order to Pay Civil Money Penalty (“CMP Order”) in an amount up to $2,576,000.  The FDIC’s action principally emanates from one of the Bank’s third-party payment processors (“Third Party Processor”) suffering an internal system programming glitch.  This inadvertently resulted in consumers that engaged in signature-based point of sale transactions during the period from December 2010 to November 2014 being charged a greater fee than what was disclosed by the Bank.  Impacted consumers are being reimbursed by the Third Party Processor at  its own expense.  The Restitution Order would require the Bank to make such reimbursements if not otherwise made by the Third Party Processor, however, the Bank is indemnified by the Third Party Processor for such reimbursements.  Although the Bank is still evaluating its position with regard to the Restitution Order and the CMP Order, the Company accrued $2,500,000 of related expense in its financial statements for the quarter ended September 30, 2017 in connection with the CMP Order.   Any amounts owed from the CMP Order would not be subject to any indemnification or recovery from any third party. 



The independent investor in Walnut Street, the securitization into which the Bank sold certain loans when it discontinued its Philadelphia commercial loan operations, has taken actions which may result in litigation.  Specifically, counsel for the independent investor has requested that the Note Administrator hold monthly distribution payments in escrow until the independent investor’s alternative interpretation of the order of payments, as compared to the interpretation of the Bank and the Note Administrator, is resolved.  Based on the independent investor’s request, the Note Administrator withheld the September 2017 payment to the independent investor and the Bank and indicated that it would continue to do so until this issue was resolved.  Management of the Company, based on advice of its counsel, believes it is unlikely that the Bank and Note Administrator’s interpretation will be overturned.  However, if such interpretation is overturned, based upon the current model used to value Walnut Street, an estimated $8 million loss may be recognized, based on currently estimated cash flows which would be redirected from the Bank to the independent investor.



In addition, we are a party to various routine legal proceedings arising out of the ordinary course of our business.  Management believes that none of these actions, individually or in the aggregate, will have a material adverse effect on our financial condition or operations.