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FDIC Blocks $1 Million Settlement with Ocean Bank

Jun 9 2011

Pelayo Duran and Roderick Hannah represent Paul B Harrison against Ocean Bank, Miami.
Pelayo M. Duran & Roderick V. Hannah
Photo by J. Albert Diaz

Paul B. Harrison ended up in South Florida in October 2007, hired by Miami-based Ocean Bank to help make sure the institution complied with a cease-and-desist order from regulators at the Federal Deposit Insurance Corp. The Charlotte, North Carolina man was fired a year later and filed a whistle-blower lawsuit, saying he was forced out as senior vice president and chief appraiser for doing his job as the collapsing housing market hurt the bank's books. Harrison claimed he was constantly mocked by co-workers for his Southern heritage and was called "Bubba."


"He was sort of brought in to the bank as a white knight," said Miami attorney Pelayo M. Duran, who is representing Harrison along with Davie attorney Rod Hannah. Harrison's job was to go back and revalue nonperforming loans after the housing market peaked, but every time Harrison came back with a lower appraisal, the bank had to make up the difference by putting hundreds of thousands of dollars in loan loss reserves. "The better he did his job, the more money it cost the bank," Duran said. "So everywhere he turned there was roadblock. He eventually was costing them so much money that they fired him."

Another lawsuit by Duran's firm claims the bank, whose parent is in Venezuela, favors employees of Venezuelan descent. Harrison's claims include reverse discrimination.

During a two-day confidential mediation, the bank was confronted with evidence of "harassment, discrimination and retaliation" and agreed to settle the case for $1 million. Duran's firm is in line to receive $166,500 for attorney fees and costs. The bank summarized the agreement in a March 2009 letter to the FDIC, saying it "did not believe there was any merit to Harrison's claims," but it reached the deal splitting settlement costs between the bank and its insurance carrier. The bank also said it did not believe the settlement constituted a golden parachute but was reached "at a time when it needs to focus its time and resources on other more critical issues." The agreement itself said the bank denied any liability.

Golden Parachute?

State regulators took no position on the payment. But the FDIC, which must approve it, balked last August, and a federal lawsuit was filed to enforce the mediated settlement. Thomas J. Dujenski, FDIC regional director of supervision and consumer protection in Atlanta, wrote in January, "The FDIC denied the request of Ocean Bank to make a golden parachute payment." Golden parachutes normally are big-dollar awards to departing executives. The agency considered the amount excessive based on Harrison's salary and tenure and in relation to the bank's sagging finances.


A 2009 FDIC summary filed in federal court papers said the settlement would be "a significant charge to the bank's already battered earnings and sets a dangerous precedent should the bank wish to terminate other employees who have not performed to their expectations." Ocean Bank, with 21 offices in Miami-Dade and Broward counties, returned to profitability in the first quarter of this year after being hammered by the real estate crisis. The bank, which listed $3.59 billion in assets as of March 31, has lost more than $500 million in the past four years. The bank signed the cease-and-desist order with the FDIC and state banking regulators agreeing to improve its compliance with anti-money laundering laws in March 2007.


Harrison's attorneys are dumbfounded by the FDIC's position. "I cant imagine this is a golden parachute," Duran said. "This is Mr. Harrison settling lawful claims for discrimination and whistle-blowing activity under state and federal whistle-blower statutes."
Harrison said he had no comment. The same FDIC summary said Harrison was fired for showing a lack of judgment in internal and external communications, using "offensive language to subordinates orally and by email," showing "harsh and disrespectful
behavior" to co-workers and failing to document performance issues with his employees.

Alternative: Scorched Earth

Hannah said Harrison was blackballed in the banking industry because of his dismissal. The FDIC noted he had never
worked in banking or "a corporate environment" before. "We sometimes wonder if there's a collusion between Ocean Bank and the FDIC," Hannah said. "Why is it that the FDIC is going to such great lengths to protect the interest of Ocean Bank on this issue in light of the fact Harrison was originally hired because of the cease-and-desist order that it imposed?"


Ocean Bank asked the FDIC to reconsider its denial in December 2009, saying the alternative would be scorched-earth litigation that would preoccupy senior management and generate more legal fees. Both sides have moved for summary judgment in the case before U.S. District Judge Federico Moreno in Miami. Responses were filed late last month. The judge has not indicated when he would rule. A call to FDIC attorney Dina L. Biblin was referred to the public affairs office, which said the agency does not comment on active litigation.


The FDIC maintained in court papers filed in April that its decisions are consistent with its regulatory authority and regulations, and its interpretation is reasonable and entitled to deference by the courts. Asked about the dispute, the bank released a statement Monday saying, "Ocean Bank and Mr. Harrison reached a confidential settlement to his claims in order to avoid the disruptions and costs of a lawsuit. The bank's position has not changed since reaching that settlement." Susan Nadler Eisenberg, a partner with Akerman Senterfitt in Miami who represents Ocean Bank, declined to comment.


Harrison isn't the only former Ocean Bank employee represented by Duran and Hannah. Niurka Sanchez, a former private banking officer at Ocean Bank, has sued the company alleging she was fired after


This article originally appeared on the web site on 9th of June, 2011.



Pelayo Duran featured in Hit Magazine

Spring 2011
Hit Magazine

miami-civil-litigation-attorneyMiami Attorney Pelayo Duran is well known, not only in the Miami Legal fraternity, but throughout the general community. His willingness to fight for the rights of ordinary citizens when they have been unfairly and unlawfully dealt with has made him the first lawyer that many people think of when faced with a difficult legal situation.


Pelayo's visibility in the Miami community was recently recognized with a full page feature in the Spring edition of the popular magazine Hit.


Hit is a contemporary magazine which covers Latino entertainment, Miami local and national news in media, music, beauty, fashion and lifestyle.


The Spring edition, released in March 2011 saw Hit become bilingual after 12 highly succesful Spanish language issues.


To read the Hit magazine feature article on Pelayo Duran pictured here, click the photograph or this link to download the pdf.




Trial Date Set in Harassment and Discrimination Case Against Caterpillar Logistic Services

MIAMI, FL, May 12, 2011
Management PR News  

miami-civil-litigation-attorneyAttorneys Pelayo Duran of The Law Office of Pelayo Duran and Roderick Hannah of Roderick V. Hannah, Esq., P.A. have filed a lawsuit in Miami-Dade Circuit Court on behalf of a former Caterpillar Logistic Services employee who claims he suffered severe workplace harassment and discrimination after he filed a workman's compensation claim Attorneys say the case, which is set for trial August 22, 2011 before the Honorable Mark Schumaker, seeks damages for violation of Florida's Whistleblower's Act, unlawful retaliation, and intentional infliction of emotional distress a verdict could total several millions of dollars between the actual damages Punitive Damages, which are potentially unlimited (Case #09-89750CA05).

The plaintiff, Rudolf Amaya of Miami, said the incident took place at the Caterpillar warehouse facility in Miami Lakes, Fla. The complaint lists Amaya's immediate supervisor Luis A. Gaston and Caterpillar's human resources officer Carol McCartney as individual defendants.

"The defendants were fully aware that Rudolf Amaya was extremely weak and vulnerable - psychologically, emotionally, physically, and economically," said Duran. "They knew he was suffering from severe physical injuries and ailments, all directly as a result of the injury and his continuous and severe harassment, discrimination, and retaliation."

According to the lawsuit, Amaya suffered an on-the-job injury, specifically to the lumbar region of his back, right elbow, right forearm, fingers on his left hand, and right knee about three years ago. Amaya's lawyers said he obtained worker's compensation benefits after seeking medical attention.

"When he returned to work, Caterpillar asked him to sign certain paperwork that included a document requesting him to waive his rights to make a claim against the company and to accept full responsibility for his injuries," said Hannah. "He refused to sign the paperwork, notwithstanding efforts by Caterpillar's administration and head of security to intimidate and coerce him to do so. As a result, he was informed by Caterpillar that he would be suspended indefinitely without pay.

"Amaya was called back to work a few days later, although the doctor informed him that he was in worse physical condition and should limit strenuous activity," said Duran. "Throughout the rest of his employment, Gaston, his immediate supervisor, subjected him to harsh and constant harassment such as over-scrutinizing his work and complaining about petty matters he would also force him to engage in strenuous activity while ignoring of the doctors orders" He also threatened him that he would loose your job if he did not follow his orders.

According to the lawsuit, Amaya filed a complaint with McCartney who worked in Caterpillar's human resources department, but the harassment continued. During that time, Amaya learned that he had suffered a herniated disc in his lumbar region, a tearing of the meniscus of his right knee and of the ligament in his right elbow, attorneys said.

The lawsuit claims that the light duty jobs assigned to Amaya were to sweep toxic materials and dust in the warehouse without adequate protection and safety equipment.

"As a result of his exposure to breathing these toxic materials, he suffered a second on-the-job injury," said Hannah. "He was diagnosed with allergic rhinitis, conjunctivitis, and upper respiratory inflammation, and received further worker's compensation benefits."

"Even after Mr. Amaya filed another complaint with the HR department, the matter was never investigated," said Duran. "In the end, Caterpillar managers terminated him because he refused to sign documents releasing all claims against the company arising out of his injuries and complaints."

Attorneys said Amaya continues to suffer from physical and emotional pain and injuries related to the reported harassment at Caterpillar.



Former private banker sues Ocean Bank, claims KYC efforts led to her dismissal

Nov 15 2010

Brett Wolf

miami-civil-litigation-attorneyA former private banking officer at Ocean Bank has filed a lawsuit against her former employer claiming that managers discriminated against her and fired her for reporting certain "suspicious" activity to senior managers. A civil complaint filed in the case stated that the plaintiff, Niurka Sanchez, worked in Ocean Bank's wealth management division, handled a $60m portfolio and had been with the bank for 25 years at the time she was sacked in January 2009. Sanchez has sought an undisclosed amount of back pay, compensatory and punitive damages and lawyers' fees.

According to Sanchez's lawyers, Pelayo Duran and Rod Hannah, Sanchez's woes began in early 2008 after Alfonso Macedo became president of Ocean Bank. As Complinet readers may recall, Macedo took the bank's reins less than a year after the Federal Deposit Insurance Corporation targeted the bank with a cease-and-desist order which alleged anti-money laundering failures. Explaining his client's discrimination allegations, Duran said: "The culture of Ocean Bank changed to one favoring employees and officers of Venezuelan national origin. My client, who is Cuban-American, began to notice that she was being singled out and treated differently." Sanchez also claimed in the lawsuit that she brought to the attention of Ocean Bank's managers certain "suspicious activities" relating to foreign transactions "involving certain politically exposed person Venezuelan nationals" in mid-2008. The complaint added that Sanchez sought to file "appropriate and required documentation to report certain transactions and activity and lack of cooperation" as required by the Bank Secrecy Act, and by Ocean Bank's internal policies. The complaint stated: "However, during a personal meeting with Mr. Macedo to discuss the suspicious transactions … Mr. Macedo informed [Sanchez] that what she had done was improper and that she should not have reported the transactions because one of the parties involved was an intimate friend of Mr. Macedo's family who would customarily engage in transactions of this sort." It added: "Sanchez further verbally informed Mr. Macedo that she had grown increasingly suspicious with the activity in the account, as large amounts of dollars had been flowing from another bank owned by [Ocean Bank's] principals into the suspects' accounts with [Ocean Bank] and that the funds were being routinely transferred to offshore banks with conflicting information without the supporting documentation."

The lawsuit also claimed that Sanchez told Macedo that she had been trying "desperately" to comply with the BSA's "know your customer" requirements with regard to accounts involving Macedo's purported "family friend". While the complaint did not elaborate, it can only be assumed that this was a reference to the enhanced due diligence requirements imposed on private bankers by s312 of the USA PATRIOT Act of 2001. The complaint stated that the account holder in question "had been evasive in responding to [Sanchez's] inquiries, for which she had documented her suspicions". It also suggested that Ocean Bank "subsequently and illegally removed all evidence of [Sanchez's] reporting compliance to cover up the suspicious and potentially illegal activity and transactions".

Duran said: "After sharing her concerns with another manager, who took no action, my client was eventually stripped of all of her clients. She was demoted to the International Banking Center. Later, she was informed that she was being terminated in a company-wide layoff."

When contacted by Complinet, a spokesman for Ocean Bank was dismissive of the allegations and annoyed that Sanchez's lawyers had touted "an eight-month-old lawsuit" to the media via a press release the day after the Veterans Day bank holiday. The original civil complaint was filed in March, and the amended complaint was filed in May. The bank's spokesman said: "This lawsuit is nonsense in every way and is devoid of any merit. That Ocean Bank would discriminate against employees of Cuban descent is beyond preposterous. It is unfortunate that the plaintiff and her attorneys are attempting to litigate this case through a press release. We will defend this lawsuit vigorously and look forward to having the truth come out where it belongs, in a court of law."


Miami Judge Set to Rule on Admissibility of SARs in Ocean Bank Lawsuit

November 12, 2010
Colby Adams  

miami-civil-litigation-attorneyA Florida judge will rule Tuesday whether attorneys can discuss the possible filing of a suspicious activity report that allegedly triggered a wrongful termination lawsuit against a Miami community bank.


In a civil complaint filed on March 19, Niurka Sanchez, formerly of Miami-based Ocean Bank's wealth management division, claims she was fired in November 2008 for reporting suspicious activity related to a wealthy Venezuelan customer and "intimate friend" of bank president A. Alfonso Macedo.


The complaint makes no explicit reference to the filing of a suspicious activity report (SAR)—a disclosure that would be illegal under U.S. federal statutes. But James S. Bramnick, an attorney representing Ocean Bank, has expressed concern in an Oct.21 letter that Sanchez's lawyers will attempt to discuss a SAR in court proceedings.


"If you ask any questions at any deposition in this matter regarding the filing of an actual SAR…the contents of a SAR, or the existence of a SAR, I will object and ask you to cease and desist," wrote Bramnick. "If you do not…I will have no choice but to suspend the deposition and seek a Court order."


In the letter, Bramnick also said he could seek "sanctions and fees" against Sanchez and her attorneys, and warned that he would also notify the U.S. Treasury Department's Financial Crimes Enforcement Network (FinCEN) and the Federal Deposit Insurance Corp. of any disclosure.


Rod Hannah, an attorney with Plantation, FL-based Hannah & Jankowski representing Sanchez, described the details surrounding the alleged suspicious activity as "pretty important" to the complaint.


"I understand the necessity to keep the depositions under seal, but I'm not keen on limiting what I can or can't ask during deposition about the topic of suspicious activity," he said, adding that depositions won't be held until the issue was resolved.

Ray Casas, a spokesman for Ocean Bank, called the lawsuit "nonsense in every way" and said that Sanchez, a 25-year veteran of the bank, had been let go as part of company-wide layoffs.


On Oct. 25, lawyers for Sanchez requested that Judge Peter Lopez of the 11th Circuit Judicial Court of Miami-Dade County rule on whether the potential discussion of a SAR would be legal.


Sanchez, who exercised anti-money laundering duties in her role at the bank, alleged in the complaint that she became suspicious about large dollar transfers from another account owned by Ocean Bank's principals. The funds were then "routinely" transferred to offshore banks "with conflicting information" and no supporting documentation, according to the lawsuit.


The customer, classified by Ocean Bank as a politically exposed person, then evaded questions about the suspicious activity, said Sanchez, who alleges she was reprimanded after disclosing her investigation to Ocean Bank executives in an intra-bank suspicious activity reporting form, or SARF.


After Sanchez told Macedo of her efforts to comply with Bank Secrecy Act regulations, Ocean Bank "removed all evidence of [the] Plaintiff's reporting compliance to cover up the suspicious and potentially illegal activity and transactions," the complaint said.

Macedo personally told Sanchez that reporting the transactions was "improper," and that the customer, "an intimate friend" of Macedo's family, "would customarily engage in transactions of this sort," the complaint said.


In the same lawsuit, Sanchez alleged that Macedo, of Venezuelan descent, discriminated against her because of her Cuban heritage.


Federal judges have, in numerous cases, ruled that SARs were protected from plaintiff requests.


During legal proceedings, the "[suspicious] activity can be revealed, but not the SAR or the existence of a SAR," said Steve Hudak, a FinCEN spokesman. The reports are usually "followed up with conventional investigatory tactics, subpoenas, surveillance and wiretaps" that can be revealed in court.


The judge may also schedule a trial at Tuesday's hearing, said Hannah.


Read More on this story...



$3.5 million award goes to 15 workers, but it may not be collectible

August 18 2008

Daily Business Review


Case: Liliana Perez et al v. Quest Security Services, Frank Montejo and Ileana Montejo.

Case No: 2003-20626-CA-13

Description: Wage dispute

Filing date: Sept. 5, 2003

Trial date: July 29, 2008

Judge: Miami-Dade Circuit Judge Pedro Echarte Jr.

Plaintif attorneys: Pelayo Duran, The Law Offices of Pelayo Duran, Miami; Adis Riveron, Adis L. Riveron P.A., Miami; and Mercy Pina-Brito P.A., Miami

Defense attorneys: None

Jury decision: $3.5 million

Details: A wage dispute arose between Quest Security, a defunct contractor, and Perez and 16 other employees. The company, which was operated by Frank and Ileana Montejo, handled security at Miami International Airport.

Plaintiff case: The plaintiffs alleged Quest failed to pay overtime and minimum wages for three years while they worked for Quest, violating county ordinances and state and federal whistle-blower and labor laws.

They alleged Quest fired them in violation of the state's whistle-blower act after they complained about violations of the federal Fair Labor Standards Act.

Defense Case: In court papers filed in Quest's defense by an attorney who dropped out of the case in May 2007, former company lawyer John Agnetti of Hoffman Larin & Agnetti of Hoffman Larin & Agnetti contended Quest had no liability.

Outcome: Echarte awarded a default judgment on liability in the plaintiff's favor last November. The jury, asked to determine damages only, awarded $3.5 million to 15 plaintiffs. Two of the original plaintiffs dropped out of the case. State corporate records show Quest is no longer in operation and it remains uncertain whether the award is collectible.

Comments: "We feel vindicated and we're very pleased with the jury verdict," Duran said, declining to comment on the litigation itself. "Everone feels vindicated that justice has been served."

Post verdict: Echarte has not approved the verdict yet.

- Billy Shields

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