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300 Delaware Ave., Suite 1300, Wilmington, Delaware 19801

Werb & Sullivan – Attorneys at Law

Werb & Sullivan is a dynamic and hardworking law firm that has been successful in representing its clients since its formation in 1993. Its Partners and Associates are all highly experienced and seasoned attorneys. The Firm’s clients have included large and multinational corporations, small businesses, and individuals.

Firm attorneys regularly appear before the Federal and State Courts for the District of Delaware, with strong emphasis in the United States Bankruptcy Court, as well as in the Delaware Court of Chancery, a tribunal nationally recognized for its effective adjudication of disputes involving businesses and fiduciaries. They also appear regularly in all of the State and Federal Courts of Pennsylvania and New Jersey. In addition to their trial work, firm attorneys have argued appeals before the Delaware Supreme Court, the New Jersey Appellate Division and the United States Court of Appeals (Third Circuit).

The firm also provides counsel and representation on a wide variety of transactional matters, such as the purchase and sale of businesses, as well as advice and counsel with respect to the formation and maintenance of corporations, limited liability companies and other types of business entities under Delaware law. Bar admissions of the firm’s attorneys include Delaware, Pennsylvania, New Jersey, District of Columbia and New York, and they have been admitted to practice before the United States District Courts for the District of Delaware, the Eastern District of Pennsylvania, the District of New Jersey, The Southern and Eastern Districts of New York, the United States Court of Appeals for the Second and Third Circuits, and The Supreme Court of The United States.

The firm’s principal office is conveniently located in the heart of Wilmington’s business district at 300 Delaware Avenue, in close proximity to Wilmington’s Amtrak station and Interstate I-95, and only a 25 minute drive to the Philadelphia International Airport.


Article in American Banker – March 22, 2016

An article by William M. Aukamp was published in American Banker on March 22, 2016, titled “Onslaught of Mortgage Rules Is Worse Than Many Realize.

Senator Sanders and his oft repeated claim about the bank bailout

Published in the Wilmington News Journal – February 11, 2016 by William Aukamp

In his stump speeches, the Senator Bernie Sanders often claims that the bank bailout by the government came at the expense of the taxpayers.

In point of fact, it did not come out of the hide of taxpayers. The money advanced by the government to help shore up the banks during the financial crisis has not only been repaid, but the government has also received billions of dollars in interest payments on the money advanced. Unfortunately, his mantra provides a fertile soil for those who call for more regulation of banks.

The problem today is not that we do not have enough regulation, but we have too much, which has caused many community banks to throw in the towel and sell out to larger institutions, because they cannot afford the resources necessary to fulfill the myriad compliance requirements. Anyone who has attended a residential mortgage closing recently can attest to the fact that consumers are presented with a mountain of documents to sign or acknowledge that they do not have either the time or inclination to read. So called consumer protection regulations are needlessly complex and one is hard pressed to understand the rationale for many of them. For example, the regulations define high cost mortgages and higher priced mortgages, each with their own definition and lengthy list of compliance requirements. One might reasonably ask why we need two categories of more expensive mortgages.

The senator’s “break up the big banks” mantra sounds good but could leave us with banks unable to compete with much larger foreign banks. A better solution would be to reinstate the repealed sections of Glass-Steagall that were intended to separate commercial banking from investment banking. It should be recalled that prior to the repeal of these sections, commercial banks had some opportunities to engage in otherwise prohibited securities activities. They could be affiliated with companies engaged in such activities so long as they were not “principally engaged” in them. Prior to the repeal, the feds ruled that they could derive up to 20 percent of their revenues from securities activities without being deemed “principally engaged in them.”

A problem common to all major industries, not just banking, is increasing consolidation, which is a reflection of less than vigorous enforcement of our antitrust laws. Republican President Teddy Roosevelt long ago recognized the danger monopoly power presented to our capitalistic system.

Senator Sanders’ rightfully draws attention to the problem of income inequality and stagnation in the wages of American workers. Raising taxes on the wealthy, as he advocates, might help to reduce the disparity, but this alone will not eliminate the problem. Moreover, raising them too much could be counter productive. At the same time, the Republicans should end their knee jerk obsession with cutting taxes, as if this would solve all problems.

The bottom line is that simplistic campaign slogans mask the need for thoughtful bi-partisan discussions about how to address some very serious problems.

Small Business Law Alert


If you send electronic mail messages to advertise or promote your business, you should become familiar with a federal law titled “Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003,” generally referred to by its acronym, “CAN-SPAM Act.” The law applies to commercial electronic mail messages, defined as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet web site operated for a commercial purpose). The term “commercial electronic message” does not include a transactional or relationship message.

A compliance Guide issued by the Federal Trade Commission (FTC) states that the primary purpose of an email is transactional or relationship if it consists only of content that: (1) facilitates or confirms a commercial transaction that the recipient has already agreed to; (2) gives warranty, recall, safety, or security information about a product or service; (3) gives information about a change in terms or features or account balance information regarding a membership, subscription, account, loan or other ongoing commercial relationship; (4) provides information about an employee relationship or employee benefits; or (5) delivers goods or services as part of a transaction that the recipient has already agreed to.

The FTC Guide notes that each separate email violation of the CAN SPAM Act is subject to penalties of up to $16,000, but maintains that following the law is not complicated. The FTC summarized CAN SPAM’s main requirements as follows: (1) Don’t use false or misleading header information. Your “From,” To, ” Reply-To,” and routing information – including the originating domain name and email address- must be accurate and identify the person or business who initiated the message; (2) Don’t use deceptive subject lines. The subject line must accurately reflect the content of the message; (3) Identify the message as an ad. The law gives you a lot of leeway in how to do this, but you must disclose clearly and conspicuously that your message is an advertisement; (4) Tell recipients where you are located. Your message must include your valid physical postal address. This can be your current street address, a post office box you’ve registered with the US Postal Service, or a private mailbox you’ve registered with a commercial mail receiving agency established under Postal Service regulations; (5) Tell recipients how to opt out of receiving future emails from you. Your message must include a clear and conspicuous explanation of how the recipient can opt out of getting email from you in the future. Craft the notice in a way that’s easy for an ordinary person to recognize, read, and understand. Creative uses of type size, color, and location can improve clarity. Give a return email address or another easy internet-based way to allow people to communicate their choice to you. You may create a menu to allow a recipient to opt out of certain types of messages, but you must include the option to stop all commercial messages from you. Make sure your spam filter doesn’t block these opt-out requests; (6) Honor opt-out requests promptly. Any opt-out mechanism you offer must be able to process opt-out requests for at least 30 days after you send your message. You must honor a recipient’s opt-out request within 10 days. You can’t charge a fee, require the recipient to give you any personally identifying information beyond email address, or make the recipient take any step other than sending a reply email or visiting a single page on an Internet web site as a condition for honoring an opt-out request. Once people have told you they don’t want to receive more messages from you, you can’t sell or transfer their email addresses, even in the form of a mailing list. The only exception is that you may transfer the addresses to a company you’ve hired to comply with the CAN SPAM ACT; (7) Monitor what others are doing on your behalf. The law makes clear that even if you hire another company to handle your email marketing, you can’t contract away your legal responsibility to comply with the law. Both the company whose product is promoted in the message and the company that actually sends the message may be held legally responsible.

If you would like to receive a copy of the FTC’s 9 page Compliance Guide, contact Brian Smith by email at bsmith@werbsullivan or by phone at (302) 472-6908

This alert is for general information purposes only. It does not constitute legal or tax advice, and may not be used and relied upon as a substitute for legal or tax adviceregarding a specific problem. Advice should be obtained from a qualified attorney or tax practitioner in the jurisdiction where the advice is sought.

Werb & Sullivan Brian A. Sullivan
300 Delaware Avenue, Suite 1300 Duane D. Werb
Wilmington, DE 19801 Jack J. Shrum
Mathew P. Austria
William M. Aukamp


On September 4, 2014, the Federal Reserve issued a Press Release announcing that beginning in October, Term Deposit Facilities (TDFs) will incorporate an early withdrawal feature.

What is a TDF? In an overview of TDFs published by the Fed, it stated: “The term Deposit Facility is a program through which the Federal Reserve Banks offer interest-bearing term deposits to eligible institutions. The Term Deposit Facility was established to facilitate the conduct of monetary policy by providing a tool that may be used to manage the aggregate quantity of reserve balances held by depository institutions. An increase in term deposits outstanding drains reserve balances because funds used to pay for them are removed from the accounts of participating institutions for the life of the term deposit. Term deposits cannot be used to satisfy reserve requirements or clear payments. Term deposits can be used as collateral for discount window advances or for payment system risk purposes.”

TDFs will operate under both fixed rate and floating rate formats. “The Federal Reserve will announce offerings of term deposits in advance of the operation date. The announcement will specify the details of the operation and will be available on the Board of Governors’ web site. The terms will be awarded through different formats, including a competitive single-price auction format with a non-competitive bidding option, a fixed rate format at the interest rate specified in advance, or a floating rate format. The interest rate paid on term deposits awarded through a floating-rate format will be the operation effective interest rate, which is determined by the average daily effective rates over the term of the instrument. The daily effective rate is the sum of the value of the reference rate for that day and the spread rate for the operation.”

The Federal Reserve will announce offerings of term deposits in advance of the operation date. A TDF participant can submit a tender for term deposits directly, using the TDF application, or through an agent, such as a correspondent bank. The announcements are made on the Fed’s web site. Auction operations can involve either competitive or non competitive tenders. TDF participants can submit one or the other, but not both. The announcements include information about the total offering amount, term, maximum and minimum bid amounts per institution, and maximum bid rate. For example, an announcement made on January 9, 2013 specified a total offering amount of $3,000,000,000, a maximum bid per institution of $1,250,000,000, a minimum amount of $10,000, and a maximum bid rate of 0.75000%. While the minimum bid can vary from auction to auction, a review of several auction announcements revealed that $10,000 was the specified minimum in each case.

For more information about TDFs, visit the Fed’s web site at Banks located in the Federal Reserve Bank of Philadelphia’s district can call Donna Wilson, at (215) 574-6595 for guidance on how to get started as a TDF participant.

This Alert is for general information purposes only. It does not constitute legal or tax advice, and may not be used and relied upon as a substitute for legal or tax advice regarding a specific problem. Advice should be obtained from a qualified attorney or tax practitioner in the jurisdiction where the advice is sought.

Werb & Sullivan Duane D. Werb
300 Delaware Avenue, Suite 1300 Brian A. Sullivan
Wilmington, DE 19801 Jack J. Shrum
(302) 652-1100 Mathew P. Austria
William M. Aukamp

Bill Aukamp has authored a handbook for bank directors

Bill Aukamp has authored a handbook for bank directors titled “Banking Law for Directors and More.” It provides a brief history of our banking system, the respective roles of today’s banking agencies, and how they interact. It also discusses the processes employed by the Federal Reserve in its efforts to influence interest rates. A typical bank’s financial statements are used as a window into key legal and regulatory requirements applicable to the various components. Requirements that do not specifically relate to financial statement items are  also discussed, along with a description of alternative forms of organization, the Bank Merger and Change in Control Acts, and much more. Matters requiring specific board review and/or approval are highlighted. The handbook should also be of interest to a bank’s senior management team. To request a complimentary copy, call Bill at (302) 472-6902, or send him an email at


Duane Werb, representing small Oklahoma “Mom and Pop” oil producers in the Semcrude Bankruptcy successfully argued an appeal before the United States Court of Appeals for the Third Circuit, resulting in a reversal of a decision by the United States District Court for the District of Delaware that had denied his clients the right to pursue a class action indefinitely and overruled their objection to a plan of confirmation in a Chapter 11 bankruptcy proceeding post confirmation. The lower court based its decision on a judge made, rather esoteric, doctrine of equitable mootness. Writing for the majority, District Judge Thomas Ambro, in explaining the doctrine, commented “Following confirmation of a plan by a bankruptcy court, an aggrieved party has the statutory right to appeal the court’s rulings. Nevertheless, if debtors or others believe granting the requested relief would disrupt the effected plan or harm third parties, they may seek to dismiss the appeal as equitably moot”. In conclusion, Judge Ambro stated: “ Dismissing an appeal as equitably moot should be rare, occurring only where there is sufficient justification to override the statutory rights of the party seeking review. Here, the evidentiary record does not support Debtor’s contention that a successful appeal would collapse their plan of reorganization or undermine the justifiable reliance of third parties to their significant harm. Holding otherwise was an abuse of discretion. We thus reverse the District Court’s dismissal and remand for it to hear Appellant’s appeal on its merits.” Upon remand to the District Court, the parties agreed to mediation, which resulted in a settlement, thereby concluding almost six years of protracted litigation.



Duane D. Werb, Chairman

Duane D. Werb

Managing Partner Duane D. Werb has served as chairman of the Board of Directors of Wilmington Renaissance Corporation (WRC) since 2006. WRC is a privately funded, non-profit economic development organization whose purpose is to revitalize the downtown area of Wilmington, making it an even more desirable city in which to live, play and prosper.

With a modest annual budget, WRC is able to effectuate major improvements in downtown Wilmington – but only through strong partnerships and collaborative efforts with many supportive and like-minded individuals and organizations.

Development companies, community associations, and other organizations dedicated to improving the downtown and its adjacent neighborhoods provide invaluable contributions that help to move WRC’s mission forward. The organization’s partnerships with the City of Wilmington’s administration and city council are crucial to achieving results. The collective efforts are dedicated to improving the downtown and its adjacent neighborhoods.

The mission of WRC is to develop and implement strategies that will increase the economic vitality of downtown Wilmington, strengthen its role as a center of educational, cultural and social activity, and enhance its reputation as an exciting place to live and visit by marketing Wilmington’s unique history and character.

Working with its development partners, WRC will work to:

Improve the downtown business experience for workers and business owners alike by supporting existing businesses and working to attract new businesses including retail, restaurants and entertainment venues that will support the downtown workers’ needs;
Grow the current downtown residential community, through the marketing of existing downtown living spaces, recruitment of businesses interested in building more residential developments and the recruitment of businesses that serve the needs of downtown residents;
Expand educational, arts and cultural activities and events to increase the number of people who visit Wilmington and support the economic growth of the city;
Advocate for the development and implementation of infrastructure and transportation improvements that will create a friendlier, comfortable and easy-to-use city.
For more information regarding the various programs and initiatives of WRC, please visit

To contact the attorneys at Werb & Sullivan email us or call (302) 652-1100, today.

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