Regulatory and Enforcement

We suspected something was afoot when December 2022 came and went without the CFPB announcing its annual inflation adjustments to the credit card late fee safe harbor amounts set forth in Regulation Z (which implements the Truth in Lending Act).  With the CFPB’s issuance yesterday of a proposal to substantially reduce the safe harbor amounts, eliminate the annual inflation adjustments, and make other significant changes to the Regulation Z rules for credit card late fees, we now know the reason for the CFPB’s inaction on the adjustments.… Continue Reading

On Friday, January 27, California Attorney General Rob Bonta announced an investigative sweep of businesses that provide mobile apps, issuing warning letters to those that AG Bonta alleges failed to comply with the California Consumer Privacy Act (CCPA).  This sweep focused specifically on “popular retail, travel, and food service industry apps” that failed to comply with consumer opt-out requests or otherwise failed to offer mechanisms for consumers to stop the sale of their personal information.   … Continue Reading

As discussed in our prior post, the Department of Justice (DOJ) entered into a settlement with Meta Platforms Inc., formerly known as Facebook Inc. (Meta), to resolve allegations that Meta engaged in discriminatory advertising in violation of the Fair Housing Act (FHA). A key part of that settlement was Facebook’s agreement to build a new Variance Reduction System (VRS) to address disparities for race, ethnicity, and sex between the housing advertisers’ targeted audiences and the group of Facebook users to whom Facebook’s internal personalization algorithms actually deliver the ads. … Continue Reading

In a letter to Director Chopra, five banking trade groups address the CFPB’s obligation to comply with the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) before proposing a rule on credit card late fees and late payments.  The groups are the American Bankers Association, Credit Union National Association, Independent Community Bankers of America, National Association of Federally-Insured Credit Unions, and National Bankers Association.… Continue Reading

The CFPB has issued a new request for information (RFI) to inform its biennial review of the credit card market mandated by the Credit Card Accountability Responsibility and Disclosure Act of 2009 (CARD Act).  Comments on the RFI must be received by April 24, 2023.

The CFPB’s first CARD Act report was published in October 2013, its second report was published in December 2015, its third report was published in December 2017, its fourth report was published in August 2019, and its fifth report was published in September 2021.… Continue Reading

The final rule issued by the Federal Reserve Board to implement the LIBOR Act by establishing default rules for benchmark replacements in certain contracts that use LIBOR as a reference rate was published in today’s Federal Register and will become effective on February 27, 2023.

Yesterday, Fannie Mae and Freddie Mac issued instructions to servicers on replacement indices for their legacy single-family mortgage loans with 1-month, 6-month, and 1-year LIBOR indices. … Continue Reading

On January 23, 2023, the New York Department of Financial Services released guidance with the stated goal of helping to protect customers of virtual currency businesses in the event of an insolvency or similar proceeding by imposing new custody and disclosure requirements on virtual currency entities that act as custodians.  Specifically, the guidance focuses on four areas for virtual currency entities acting as custodians (or “VCE Custodians”):

  • Segregation of and Separate Accounting for Customer Virtual Currency: A VCE Custodian is expected to (1) separately account for and segregate customer virtual currency from the corporate assets of the VCE Custodian and its affiliated entities, both on-chain and on the VCE Custodian’s internal ledger accounts; (2) avoid comingling customer virtual currency with any of the VCE Custodian’s own virtual currency or with any other non-customer virtual currency; and (3) clearly and prominently disclose the manner in which the VCE Custodian segregates and accounts for customer virtual currency. 
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The CFPB has issued a new circular (2023-01) that addresses the circumstances under which “negative option marketing practices” can violate the CFPA prohibition of unfair, deceptive, or abusive acts or practices.  

The circular uses the term “negative option” to refer to “a term or condition under which a seller may interpret a consumer’s silence, failure to take an affirmative action to reject a product or service, or failure to cancel an agreement as acceptance or continued acceptance of the offer.” … Continue Reading