Ballard Spahr attorneys have submitted comments to the CFPB in response to its Request for Information Regarding Bureau Rules of Practice for Adjudication Proceedings.
Our comments are based on the extensive experience of Ballard Spahr attorneys in representing bank and non-bank clients in connection with more than 50 CFPB investigations. In addition to myself, the Ballard Spahr attorneys who participated in drafting our comment letter are Alan Kaplinsky, Chris Willis, Anthony Kaye, and Bo Ranney.
As we observe in our letter, the CFPB’s rules for administrative adjudication create a forum in which the playing field is designed to be unfair to the respondent and to afford maximum advantage to the Bureau’s enforcement staff. To instill confidence in its enforcement actions, we urge the Bureau to adopt a policy of using the federal courts as the exclusive venue for such actions.
To the extent the Bureau continues to use administrative enforcement actions, we recommend various revisions to the Bureau’s rules of practice to make them fair to enforcement targets. Our recommended revisions include the following:
- Eliminate the 300-day deadline for a matter to proceed from complaint to post-hearing determination and conform time limits to those set forth in the Federal Rules of Civil Procedure
- Allow respondents to conduct depositions and written discovery of the Bureau and to obtain third-party discovery and testimony through subpoenas
- Conform evidentiary rules to the Federal Rules of Evidence, including the hearsay rules
- Revise rules regarding amicus participation to make then even-handed
- Revise rules regarding amendments to notices of charges to establish a deadline for amendments
- Revise ex parte communications rule to make prohibition applicable to communications with Bureau employees
Our full comment letter is available here. We previously submitted comments to the Bureau in response to its Request for Information Regarding Bureau Civil Investigative Demands and Associated Processes.