On July 19, the Federal Trade Commission will hold a workshop in San Antonio titled the “2017 Military Consumer Financial Workshop: Protecting Those Who Protect Our Nation.” The FTC has uploaded an agenda and list of panelists for the workshop. Acting FTC Chairman Maureen K. Ohlhausen will be in attendance and deliver the event’s opening remarks. Describing the focus of the forum, Ohlhausen commented that “[h]elping servicemembers and veterans avoid fraud, learn about their legal rights and remedies, and find resources that protect them in the financial area is a top priority.”

Topics to be discussed include auto finance, student lending, installment credit practices, debt collection, legal rights and remedies, financial literacy, and identity theft. The FTC expects the workshop to draw participants from a wide range of spheres, including all service branches, military consumer advocates, consumer groups, legal services providers and clinics serving the military, and representatives from government and industry.  The event, which is free and open to the public, will also be tweeted live from the FTC’s Military Consumer Twitter account (@Milconsumer) using the hashtag #MilFinancial Workshop.

The Federal Trade Commission has provided its annual Financial Acts Enforcement Report to the CFPB covering the FTC’s enforcement activities in 2016 relating to compliance with Regulation Z (Truth in Lending Act), Regulation M (Consumer Leasing Act), and Regulation E (Electronic Fund Transfer Act).  Under Dodd-Frank, the FTC retained its authority to enforce these regulations with respect to entities subject to its jurisdiction.  The FTC and CFPB coordinate their enforcement and related activities pursuant to a MOU entered into in 2012 and reauthorized in 2015.  The Report responds to the CFPB’s request for information regarding the FTC’s efforts, which focused on three areas: enforcement actions; rulemaking, research, and policy development; and consumer and business education.

Regulation Z/TILA.  The FTC’s TILA enforcement activities included: (1) initiating two actions in federal district court for civil penalties involving alleged deceptive advertising by auto dealers, one of which focused on dealer advertising aimed at non-English speaking consumers; (2) winning a $1.3 billion dollar judgment against a group of payday lenders in Kansas City for alleged deceptive lending practices, including failing to truthfully disclose loan terms; (3) obtaining a $13.4 million judgment for contempt against a consumer electronics retailer for violations of a prior consent order, which arose from failures to provide required written disclosures and account statements; and (4) continuing to litigate two federal cases involving alleged forensic audit scams by mortgage assistance relief services that offered, among other things, to review or audit mortgage documents to identify violations of the TILA, Regulation Z, and other federal laws, and obtaining in both cases monetary judgments against multiple defendants.

In the first of the federal court actions involving alleged deceptive advertising by auto dealers, the FTC sued three auto dealers who it alleged concealed sale and lease terms that added significant costs or limited who could qualify for advertised prices.  Such alleged concealment included using print too small to read without magnification to disclose that, in addition to a low monthly price, the consumer would be required to pay a down payment and fees up front and pay a large amount at the end of the financing term.  The dealers were alleged to have violated the TILA by advertising credit terms without clearly and conspicuously disclosing required information and by failing to keep and produce required records.

In the second of such federal court actions, the FTC sued nine dealerships and owners who it alleged had enticed consumers, particularly financially distressed and non-English speaking consumers, with advertisements that made misleading claims about the availability of vehicles for advertised prices and financing terms.  The group was alleged to have violated TILA and Regulation Z by not clearly disclosing required credit information in advertisements.

The FTC reported that its TILA rulemaking, research and policy efforts continued through 2016.  Though the FTC does not have rulemaking authority under the TILA, it nonetheless engages in research related to the TILA.  The FTC’s research initiatives included: (1) proposing a qualitative survey of consumer experiences in buying and financing automobiles at dealerships; (2) beginning a forum series exploring emerging financial technologies, where the inaugural forum addressed marketplace lending; (3) holding a workshop on improving the effectiveness of consumer disclosures related to advertising claims and privacy policies; (4) hosting a conference focused on TILA and other compliance issues facing Midwest consumers, and in particular payday loans and car title loans; and (5) participating in the interagency group that provides advice to the Department of Defense on Military Lending Act regulations.

TILA consumer and business education efforts by the FTC included: (1) providing online guidance to the military community about personal financial decisions and military consumer lending issues; (2) issuing blog posts and videos for consumers regarding automobile purchasing and financing; and (3) issuing guidance on deceptive payday lending practices, marketplace lending issues, and disclosures.

Regulation M/Consumer Leasing Act.  The FTC’s Regulation M enforcement efforts included one final administrative consent order involving auto dealers alleged to have deceived consumers and the filing of the two federal court actions discussed above.  In the consent order, the auto dealers, Southwest Kia and Sage Auto, were alleged to have advertised low monthly car lease payments and down payments, without disclosing other key terms and, in violation of the CLA, failed to disclose or clearly and conspicuously disclose lease terms.  In the Southwest Kia action, the dealers were alleged to have violated the CLA by advertising lease terms without clearly and conspicuously disclosing required information—for instance, a television advertisement offered vehicles for less than $200 a month and disclosed in fine print visible for two seconds that the offer only applied to leases and required a $1,999 payment at signing.  The Sage Auto defendants allegedly violated the CLA by failing to clearly and conspicuously disclose lease terms.  As an example, the defendants ran newspaper advertisements offering vehicles for $38 a month and $38 down, but the fine print below the ad listed additional charges of $2,695 at signing, limited the offer to leases, and limited the $38 payment to the first six months.

The CLA does not confer rulemaking authority on the FTC.  Nonetheless, the FTC hosted a workshop to examine consumer leasing of rooftop solar panels.  The FTC also worked with the ABA committee on consumer leasing issues.  FTC blog posts also addressed consumer leasing.

Regulation E/EFTA. The FTC’s Regulation E enforcement actions included six new or ongoing cases.  Four cases involved negative options and the payment terms that applied automatically absent cancellation.

In the first, the defendants allegedly obtained consumers’ credit or debit card information purportedly to pay shipping costs but imposed recurring monthly charges to their credit or debit card accounts for unordered products.  This case resulted in a $72.7 million monetary judgment suspended upon the defendants’ surrender of virtually all assets.

In the second case, customers were allegedly enticed to sign up for “free” or “risk free” trials but their bank accounts were electronically charged recurring monthly fees without authorization.  The second case resulted in an agreed-upon $280.9 million judgment against some defendants, though others continue to litigate.

The third case involved the alleged use of personal information to sign up for a “free trial” or discount program for weight-loss supplements, where customers’ bank accounts were then charged electronically on a recurring basis.  The defendants also allegedly failed to allow consumers to stop the charges.  The third case led to a $105 million judgment, again suspended after surrender of over $9 million in personal and business assets.

The fourth case also involved weight loss supplements.  Here, the FTC alleged consumers were promised a “risk-free trial” offer, and were then enrolled in an inadequately disclosed monthly plan resulting in additional charges to their credit card or debit card accounts.  Consumers who failed to cancel trial memberships were allegedly billed on a monthly basis.  The fourth action was filed along with a stipulated final order imposing a $16.4 million judgment, suspended after the sale and liquidation of personal and business assets.

The FTC’s two other EFTA-related cases were the payday lending case and consumer electronics retail cases discussed above.  In the payday lending case, the defendants allegedly violated the EFTA by conditioning payday loans on payment by preauthorized debits from bank accounts.  In the consumer electronics retail case, the FTC alleged an EFTA violation where the extension of credit was conditioned on mandatory preauthorized transfers.

As with the TILA and the CLA, the FTC lacks rulemaking authority under the EFTA, although it conducts research and policy work that touches on related issues.  In that regard, the FTC worked with the Department of Defense interagency group and ABA on electronic fund transfer issues, interpretive rules, and trainings.  The FTC also hosted various conferences addressing EFTA issues and other compliance issues in connection with marketplace lending, crowdfunding and peer-to-peer payments.

The FTC continued its consumer and business education efforts with blog posts providing guidance on negative option plans and recent cases, explaining possible EFTA and Regulation E violations, giving advice to consumers, and providing guidance to businesses on EFTA issues.

The OCC announced that its Office of Innovation will host office hours for national banks, federal savings associations, and financial technology (fintech) companies from July 24 through July 26, 2017 at the OCC’s district office in New York City.  According to the OCC, the office hours are intended to “provide an opportunity for meetings with OCC officials to discuss financial technology, new products or services, partnering with a bank or fintech company, or other matters related to financial innovation.”

The OCC stated that its staff “will provide feedback and respond to questions” and that each meeting will be no longer than one hour.  Persons wishing to meet with the OCC can request a meeting through July 5 and are expected to indicate the reason for their interest in having the meeting.  The OCC plans to hold office hours in other cities at later dates.  (An initial round of office hours meetings took place in San Francisco last month.)

Last October, the OCC announced that it was creating the Office of Innovation to serve as an office dedicated to responsible innovation and to implement a formal framework to improve the agency’s ability to identify, understand, and respond to financial innovation affecting the federal banking system.  The announcement followed the OCC’s release last spring of a white paper, “Supporting Responsible Innovation in the Federal Banking System: An OCC Perspective.”  The white paper was part of an initiative announced by former Comptroller Thomas J. Curry in August 2015 to develop a comprehensive framework to improve the OCC’s ability to understand innovation in the financial services industry, and to help national banks and federal savings associations in the face of  increasing competition from fintech companies.  In December 2016, the OCC announced its proposal to allow fintech companies to apply for special purpose national bank (SPNB) charters and, in March 2017, it issued a draft supplement to its existing Licensing Manual for SPNB charters as well as its responses to comments received on its SPNB charter proposal.

It is unclear whether the latest office hours announcement can be read as an indication of continuing OCC support for the SPNB charter proposal following Mr. Curry’s departure.  Last month, Keith Noreika was appointed by President Trump to serve as Deputy Comptroller and began serving as Acting Comptroller on May 5.  It has since been widely reported that President Trump will nominate Joseph Otting to replace Mr. Curry as Comptroller.  Neither Mr. Noreika or Mr. Otting is known to have yet taken a public position with respect to the SPNB charter.

 

 

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The White House announced that President Trump intends to nominate James Clinger to be a FDIC member for a six-year term and to be Chairperson for a five-year term, effective November 29, 2017 when the current FDIC chairperson’s term ends.  Mr. Clinger’s nomination must be confirmed by the Senate.

According to the White House announcement, Mr. Clinger was most recently the Chief Counsel for the House Financial Services Committee, having held this position since 2007.  He previously served as Deputy Assistant Attorney General from 2005 to 2007.  Prior to his DOJ service, Mr. Clinger served as Senior Banking Counsel for the House Financial Services Committee from 2001 to 2005, and as Assistant Staff Director from 1995 to 2001.  Before entering public service, he was a litigator in private practice.

 

 

In a notice published in today’s Federal Register, the Dept. of Education announced that it is postponing  “until further notice” the July 1, 2017 effective date of various provisions of the “borrower defense” final rule issued by the ED last November, including the rule’s ban on arbitration agreements.  In a second notice also published in today’s Federal Register, the ED announced that it plans to establish two negotiated rulemaking committees, with one committee to develop proposed regulations to revise the “borrower defense” rule and the other to develop proposed revisions to the “gainful employment” rule that became effective in July 2015 and includes requirements for schools to make various disclosures such as graduation rates, earnings of graduates, and student debt amounts.

Effective Date Postponement.   Last week, the California Association of Private Postsecondary Schools (CAPPS) filed a complaint in D.C. federal district court against the ED and Education Secretary Betsy DeVos to overturn the “borrower defense” final rule.  In its notice delaying the rule’s July 1 effective date, the ED stated that the postponement “will preserve the regulatory status quo while the litigation is pending and the Court decides whether to uphold the final regulations.”

The Federal Register notice lists the specific provisions of the final rule for which the effective date is postponed.  The ED described the postponed provisions as those “pertaining to the standard and process for the Department to adjudicate borrower defense claims, requirements pertaining to financial responsibility standards, provisions requiring proprietary institutions to provide warnings about their students’ loans repayment rates, and prohibitions against institutions including arbitration or class action waivers in their agreements with students.”  The ED is retaining the July 1 effective date for several provisions of the final rule, such as those expanding the types of documentation that can be used for granting a discharge based on a borrower’s death.

Negotiated rulemaking.  The Federal Register notice indicates that the ED plans to hold public hearings on July 10, 2017 in Washington, D.C. and on July 12, 2017 in Dallas, Texas.  The ED stated that, after it reviews the public comments submitted at the hearing and in written submissions, it will publish one or more documents in the Federal Register announcing the specific topics for which it intends to establish the negotiated rulemaking committees and request nominations for individual negotiators.  The ED anticipates that the committees will begin negotiations in November or December 2017, with the committees meeting in Washington, D.C. area for up to three sessions of three to four days each at roughly five- to eight-week intervals.

Comments on the topics on which the Department intends to conduct negotiated rulemaking and additional topics to be considered for action by the negotiated rulemaking committees must be received by the ED on or before July 12, 2017.

State AGs Motion to Intervene.  Earlier this week, a group of 8 state attorneys general and the D.C. attorney general filed a motion for leave to intervene in the CAPPS lawsuit and to be heard at the hearing on the preliminary injunction sought by CAPPS. While the lawsuit challenges the overall final rule, CAPPS also filed a motion for a preliminary injunction in which it asked the court to preliminarily enjoin only the final rule’s arbitration ban and class action waiver provisions pending the resolution of the lawsuit.  To explain their interest in the case, the AGs highlight the arbitration ban in the “borrower defense” rule and assert that “by protecting borrowers’ ability to bring private lawsuits, the [ban] restore[s] an important component of the State Movants’ consumer protection enforcement frameworks, which were designed to include private lawsuits to supplement public enforcement efforts.”

 

An Illinois federal judge ordered Dish Network to pay the federal government $168 million for violating the FTC’s Telephone Sales Rule (“TSR”).  The judgment is the largest civil penalty ever obtained for a violation of the TSR.  The remainder of the civil penalty was awarded to the states of California, Illinois, North Carolina, and Ohio for violations of the Telephone Consumer Protection Act (“TCPA”) and various state statutes.  In addition to permanently blocking Dish from making calls in violation of the do-not-call laws, the order requires Dish to undergo substantial long-term compliance monitoring.  Among the many costly provisions of the compliance monitoring component of the order, Dish is required to hire a telemarketing-compliance expert to prepare policies and procedures to ensure that Dish and its primary retailers continue to comply with the injunction and the telemarketing laws.

The decision follows a five week bench trial that commenced in January 2016.  A number of factors were central to the district judge’s 475-page opinion.  Significantly, the calls were placed to individuals whose numbers were listed on the National Do Not Call Registry and to individuals who informed Dish that they did not want to receive calls from them.  Notably, the court ruled in favor of the federal government on all of the TSR counts and found more than 66 million TSR violations.  It further chastised Dish for employing call centers without any vetting or meaningful oversight.  The court also admonished Dish for its refusal to take responsibility for the actions of its call centers and retailers.  Such remarks represent a growing trend of courts scrutinizing companies over their monitoring of third-party vendors and their practices.  Just last month, a North Carolina federal judge presiding over a TCPA class action, found Dish vicariously liable for its vendor’s willful and knowing violations of the TCPA and trebled the damages to $1,200 per call—more than $61 million in total.

A Dish spokesman said that Dish “respectfully disagrees” with the Illinois decision and plans to appeal.

We previously reported on the Executive Order 13772 titled “Core Principles for Regulating the United States Financial System,” which is a high-level policy statement consisting of a series of Core Principles that are designed to inform the manner in which the Administration regulates the financial system.  The Executive Order directs the Secretary of the Treasury to identify, in a report to the President, any laws, regulations, guidance and other Government policies “that inhibit Federal regulation of the United States financial system in a manner consistent with the Core Principles.”

The American Bankers Association (“ABA”) has submitted a white paper that identifies areas of concern with respect to various fair lending topics.  In this white paper, the ABA “offers its views” in relation to the directive that the Secretary has received pursuant to the Executive Order:

  • Under the Fair Housing Act (“FHA”), federal agencies should apply the disparate impact theory of liability consistent with the framework outlined by the Supreme Court in Inclusive Communities.
  • Disparate impact claims are not cognizable under the Equal Credit Opportunity Act.
  • Redlining should be assessed consistent with the Community Reinvestment Act (“CRA”), and purchased loans should be recognized as promoting access to credit.
  • The focus of the CFPB should remain on consumers, not business.

Inclusive Communities Framework: The ABA comment concerning FHA disparate impact claims arises from industry concerns that federal agencies have largely disregarded the safeguards against abusive disparate impact claims that were a centerpiece of the Supreme Court decision in Inclusive Communities.  In the aftermath of the Supreme Court decision in Inclusive Communities, the ABA sent a letter to the federal bank regulatory agencies, the CFPB, HUD and the DOJ requesting confirmation “in interagency guidance, updated exam procedures, and where appropriate amended regulations that the Agencies’ consideration of disparate impact claims in both the supervisory and enforcement context will be governed by standards consistent with the . . . framework in” Inclusive Communities.

The white paper asserts, however, that “[t]here has been nothing” of the sort by these agencies in response to Inclusive Communities and that “examples where a federal agency has taken action to apply the Court’s framework for consideration of disparate impact are hard to find.”  After observing that some defendants have succeeded in fair lending litigation by asserting the [Inclusive Communities] safeguards against abusive disparate impact claims, the ABA notes that “[a] win in court comes after much time and expense and public reputational damage.”  The concern expressed therefore is that “the menace of supervisory assertion of disparate impact claims without appropriate controls can exalt leverage over law.”

Rejection of ECOA Disparate Impact Claims: The comment regarding the ECOA is premised on the rationale of the Supreme Court decision in Inclusive Communities, which highlighted key differences between the FHA and the ECOA that support the view that disparate impact claims are not cognizable under the ECOA.  It thus is consistent with observations expressed in our article regarding the Supreme Court decision, as well as those expressed more recently in the Majority Staff Report of the House Financial Services Committee titled “Unsafe at Any Bureaucracy, Part III: The CFPB’s Vitiated Legal Case Against Auto Lenders.”  This issue is discussed in greater detail in a Business Lawyer article titled “The ECOA Discrimination Proscription and Disparate Impact– Interpreting the Meaning of the Words That Actually Are There,” 61 Bus. Law. 829 (2006).  The recommendations of the ABA include a request that “[t]he Agencies should acknowledge in writing that disparate impact claims are not recognized under the ECOA.”

Redlining and Purchased Loans: The CRA-related comments concerning redlining and purchased loans are premised on the ABA’s assertion that agencies have “invent[ed] redlining [claims] by ignoring intent, CRA performance or purchased loans.”  Significantly, the ABA notes that, “[i]n recent enforcement actions, Agencies have disregarded a bank’s CRA assessment area” and, instead “have overlaid their own creation, a ‘reasonably expected market area’ (REMA) or a ‘Proper Assessment Area’ – an area Agencies assert that the bank should serve.”  The redlining case against Klein Bank would be an example of this phenomenon.  The ABA asserts that this approach has resulted in “the curious anomaly of banks that received high CRA marks over an extended period of time facing regulatory assertions of redlining.”  Finally, the white paper notes that “in some enforcement actions Agencies have been unwilling to consider purchased loans, despite the fact that under CRA banks are encouraged to purchase loans.”

CFPB Focus: The comment that the focus of the Bureau should remain on consumer credit culminates in the following specific recommendations: (i) repeal of Section 1071 of the Dodd-Frank Act relating to the collection and reporting of data concerning lending to “women-owned, minority-owned and small business”; (ii) reassigning the implementation of Section 1071 to the Small Business Administration as an interim measure; and (iii) eliminating “any vestige of Bureau regulatory, supervisory, or enforcement authority over commercial credit or other commercial account and financial services” by means of a series of specific amendments to the Dodd-Frank Act.  (The Financial CHOICE Act bill passed by the House of Representatives last week includes a repeal of Section 1071.)

Late yesterday the U.S. Department of the Treasury issued the first in a series of reports to the President pursuant to Executive Order 13772 regarding “Core Principles for Regulating the United States Financial System.”  We will be reviewing this report, and the subsequent reports that the Treasury Department press release indicates will be issued “over the coming months.”

By a vote of 233-188, the House of Representatives passed H.R. 10, the Financial CHOICE Act yesterday.  The bill, often referred to as the Dodd-Frank Act replacement bill, includes an overhaul of the CFPB’s structure and authority and makes significant changes to the rulemaking process followed by the CFPB and federal banking agencies.

As passed by the full House, the bill includes several amendments to the version of the bill passed by the House Financial Services Committee on May 4.  One such amendment is the amendment introduced by House Financial Services Committee Chairman, Jeb Hensarling, to strike the provision which purported to repeal the Durbin Amendment.  Based on reports we have seen, it does not appear any of the amendments impact the bill’s provisions dealing with the CFPB.

The bill’s fate in the Senate is very uncertain, with most pundits predicting it will not pass the Senate in its current form.

On June 7, 2017, Attorney General Jeff Sessions issued a memorandum directing that “Department attorneys may not enter into any agreement on behalf of the United States in settlement of federal claims or charges . . . that directs or provides for a payment or loan to any non-governmental person or entity that is not a party to the dispute.” In a press release, he explained that “settlement funds should go first to the victims and then to the American people—not to bankroll third party special interest groups or the political friends of whoever is in power.”

The DOJ and CFPB frequently include such provisions in consent orders settling fair lending claims. For example, in BancorpSouth Bank’s consent order with the CFPB and DOJ, the bank agreed to spend $500,000 on “partnerships” with “one or more community-based organizations or governmental organizations that provide credit, financial education, homeownership counseling, credit repair, and/or foreclosure prevention services to the residents of majority–minority neighborhoods . . . .” Other banks in other fair lending cases have been required to contribute $750,000 to similar organizations.

Each of the fair lending settlements involved substantially more money than the funds directed at community organizations. Nevertheless, the sums that the defendants were required to spend on these organizations were not insubstantial. Under the DOJ’s new policy, these components of the settlements would be prohibited. Given that the DOJ and CFPB do not always see eye to eye under the new administration, it is unclear how the Attorney General’s new policy will impact future fair lending settlements involving both federal agencies. We will, of course, continue to monitor these cases and keep you posted.

The Office of the Comptroller of the Currency has issued a new bulletin (2017-21) containing fourteen frequently asked questions to supplement OCC Bulletin 2013-29 entitled “Third-Party Relationships: Risk Management Guidance.”   The 2013 bulletin provided updated guidance for managing operational, compliance, reputation, strategic, and credit risk presented by third-party business relationships of national banks and federal savings associations.

In the new bulletin, the OCC observes that many banks have recently developed relationships with financial technology (fintech) companies in which the fintech companies perform or deliver services on behalf of a bank or banks and therefore meet the 2013 bulletin’s definition of a third-party relationship.  The OCC states that, as a result, it would expect bank management to include such fintech companies in the bank’s third-party risk management process.  The FAQs include the following specifically addressed to fintech companies:

  • Is a fintech company arrangement considered a critical activity?
  • Can a bank engage with a start-up fintech company with limited financial information?
  • How can a bank offer products or services to underbanked or underserved segments of the population through a third-party relationship with a fintech company?

The FAQs also specifically address bank arrangements with marketplace lenders, in particular the question “What should a bank consider when entering into a marketplace lending arrangement with nonbank entities?”  The OCC’s guidance includes the following:

  • For compliance risk management, banks should not originate or support marketplace lenders that do not have adequate compliance management processes and should monitor the marketplace lenders to ensure that they appropriately implement applicable consumer protection laws, regulations, and guidance.
  • When banks enter into marketplace lending or servicing arrangements, because the banks’ customers may associate the marketplace lenders’ products with those of the banks, reputation risk can arise if the products underperform or harm customers.
  • Operational risk can increase quickly if the banks and the marketplace lenders do not include appropriate limits and controls in their operational processes, such as contractually agreed-to loan volume limits and proper underwriting.
  • To address the risks created by marketplace lending arrangements, a bank’s due diligence of marketplace lenders should include consulting with the bank’s appropriate business units, such as credit, compliance, finance, audit, operations, accounting, legal, and information technology.
  • Contracts or other governing documents should set forth the terms of service-level agreements and contractual obligations, and significant contractual changes should prompt reevaluation of bank policies, processes, and risk management practices.

The CFPB recently announced that it has begun to examine service providers on a regular, systematic basis, particularly those supporting the mortgage industry.  Previously, the CFPB has only examined some service providers on an ad hoc basis.  The change represents a significant expansion of the CFPB’s use of its supervisory authority and will substantially increase the number and types of entities facing CFPB examinations.  On June 13, 2017, from 12 p.m. to 1 p.m. ET, Ballard Spahr attorneys will hold a webinar, “The CFPB’s Expansion of its Supervisory Program to Service Providers – What You Need to Know.”  More information and a link to register is available here.