2010AP729 M&I Marshall & Ilsley Bank v. Guaranty Financial

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Banking
Preemption

Where a federal directive ordered the exchange of stock, the exchange can’t be challenged as a fraudulent transfer.

“We do not agree with M&I that the OTS guidance materials provide a basis for concluding that OTS selected an improperly formatted or procedurally defective vehicle to accomplish its unambiguous objective. OTS gave unambiguous direction, which was mandatory on its face, to parties who were ‘unconditionally obligated,’ under the terms of Section 4.1(d) of the REIT certificate of incorporation, to follow that direction. There can be no doubt that OTS intended to, and did, use the directives to give precise directions constituting an ‘Exchange Event’ under the terms of § 4.1(d)(2), which requires only that the agency ‘directs in writing’ for the exchange to occur. Section 4.1(d)(4) provides that upon such an ‘Exchange Event,’ the exchange ‘shall occur as of 8:00 a.m. Eastern Time on the date for such exchange set forth in the Directive.’ M&I does not provide us with legal authority suggesting that, in the preemption context, we should not follow the general rule that courts defer to administrative agency decisions properly delegated to the agency and made based on the agency’s expertise in the interests of uniformity and consistency. See Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 660-62, 539 N.W.2d 98 (1995).”

Affirmed.

Recommended for publication in the official reports.

2010AP729 M&I Marshall & Ilsley Bank v. Guaranty Financial

Dist. I, Milwaukee County, Flanagan, J., Blanchard, J.

Attorneys: For Appellant: Lucey, Paul A., Milwaukee; Vaccaro, Daniel J., Milwaukee; Olson, Joseph Louis, Milwaukee; For Respondent: Keeler, Kevin L., Milwaukee; Vignali, Matthew S., Milwaukee

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