Item 1. Legal Proceedings
Item 1.
Legal Proceedings
The
Company
previously
disclosed
that
litigation
(the
“Litigation”)
had
been
commenced
on
July
13,
2023
by
three
individuals
who
were
shareholders
of
the
Bank
prior
to
the
Bank’s
reorganization
into
the
holding
company
form
of
organization in 2021
(the “Plaintiffs”)
against six
persons, all
of whom were
directors of
the Bank at
the relevant
time (the
“Defendants”), in the Circuit Court, Eleventh Judicial Circuit for Miami-Dade County, Florida (the “Court”) (Benes et al. v. de
la
Aguilera
et
al.)
alleging
the
Defendants
(i) caused
the
Bank,
as
directors
thereof,
to
engage
in ultra
vires
conduct by
devising
and
approving
the
exchange
transaction
effected
in
July
2021
pursuant
to
which
the
Bank’s
then
outstanding
shares of Class C and Class D preferred stock was exchanged for shares of Class A voting common stock in the
Bank (the
“Exchange Transaction”),
which action
the Plaintiffs
allege was
not permitted
by the
Bank’s Articles
of Incorporation,
and
(ii) breached
their
fiduciary
duty as
directors
of the
Bank
by
approving
and
engaging
in
the
Exchange
Transaction.
The
Plaintiffs sought the
Court to certify the
action as a class
action and to award
damages in an
amount to be
proven at trial.
The Plaintiffs sought damages exceeding $750,000
plus attorney’s fees and costs
as well as such other relief as the Court
determined to award.
The Defendants filed a motion to dismiss the Litigation with
prejudice (the “Motion”). On December 27, 2023, the Court,
after reviewing
the Motion,
the Plaintiff’s response
thereto and
the Defendant’s reply
as well
as the
oral arguments presented
by
the
parties
on
December
14,
2023,
granted
the
Motion,
dismissing
the
Litigation
with
prejudice
and
rendering
final
judgment in favor
of the Defendants
(the “Order”). The Court
reserved jurisdiction to award
costs or grant
any post-judgment
relief.
On May 1,
2024, the
Plaintiffs filed
in the Third
District Court
of Appeal for
the State of
Florida (the “Appellate
Court”)
an appeal (the “Appeal”),
appealing the issuance
of the Order and
seeking a reversal
of the Order.
The Plaintiffs claimed
the Court erred by
concluding (i) the Exchange Transaction was not
ultra vires, and (ii)
that the Legacy Shareholders (which
includes the Plaintiffs)
lacked direct standing.
The Plaintiffs
filed their initial
brief and the
Defendants filed
on July 1,
2024
their answer brief
(“Answer Brief”) responding
to the allegations
contained in the
Appeal.
The Plaintiffs
have the ability
to
file a
Reply Brief
responding to
the Defendant’s
Answer Brief
but have
not done
so as
of the
date hereof.
The Plaintiff’s
have requested oral argument.
The Company believes
that the positions
in the Appeal
are legally
and factually without
merit, and it
intends to vigorously
defend
against
the
Appeal,
pursue
any
potential
counterclaims
against
the
Plaintiffs
as
it
deems
appropriate,
and
seek
coverage
from
its
insurance
carriers.
However,
there
can
be
no
assurance
that
the
Appeal
will
be
resolved
favorably.
Furthermore, there
is also
no assurance
that we
will be
able to
secure coverage
from our
insurance carriers
for any
expenses
incurred by
us in
connection with
defending against
the Appeal.
The Appellate
Court could
grant the
Plaintiff’s motion
to
reverse the Order and remand the case to the Court.
At
this
time,
in
the
opinion
of
management,
the
likelihood
is
remote
that
the
impact
of
such
proceedings,
either
individually or
in the
aggregate, would
have a
material adverse
effect
on our
consolidated results
of operations,
financial
condition
or cash
flows. However,
one
or more
unfavorable
outcomes
in any
claim or
litigation
against
us, including
the
aforementioned Appeal
regarding the
Exchange Transaction,
could have
a material
adverse effect
on the period
in which
such claims
or litigation
are resolved.
In addition,
regardless of
their merits
or their
ultimate outcomes,
such matters
are
costly, divert management’s
attention and may materially adversely affect our
reputation, even if resolved in our favor.
In addition
to the
foregoing, we
are from
time to
time subject
to claims
and litigation
arising in
the ordinary
course of
business.
These
claims
and
litigation
may
include,
among
other
things,
allegations
of
violation
of
banking
and
other
applicable regulations, competition
law, labor
laws and consumer
protection laws, as
well as claims or
litigation relating to
intellectual property,
securities, breach of contract
and tort. We intend
to defend ourselves vigorously
against any pending
or future claims and litigation.
There can be no
assurance that any
future legal proceedings
to which we are
a party will not
be decided adversely
to
our interests and have a material adverse effect
on our financial condition and operations.
Item 1A. Risk Factors
For detailed information about certain risk factors that could materially affect our business, financial
condition, or future
results, see “Part I, Item 1A – Risk Factors” of the
2023 Form 10-K.
Text extracted from the filing as submitted to EDGAR. Formatting, tables and exhibits are simplified for reading; the original document is authoritative for anything you rely on.