We discuss each of the three categories of risk identified in the guidance (consumer compliance, third-party, and litigation), plaintiffs’ legal theories in class actions challenging NSF fees, the role of arbitration clauses and contract language in defending class actions, the FDIC’s suggested risk mitigation practices, issues to consider in navigating FDIC expectations for remediation of self-identified NSF fee issues and plaintiffs’ demands in class action settlements, the position of other federal regulators on re-presentment NSF fees, and state focus on NSF fees.… Continue Reading
FDIC
FDIC issues cease and desist letters alleging false or misleading representations about deposit insurance on crypto-related products
On August 19, 2022, the FDIC issued cease and desist letters to five crypto companies, alleging they made false and misleading statements about FDIC deposit insurance and demanding immediate corrective action. The five companies are FTX US, Cryptonews.com, CryptoSec.info, SmartAsset.com, and FDICCrypto.com. The FDIC’s actions come weeks after issuing an “Advisory to FDIC-Insured Institutions Regarding Deposit Insurance and Dealings with Crypto Companies” to address the agency’s concerns regarding misrepresentations about FDIC deposit insurance.… Continue Reading
FDIC issues guidance on multiple re-presentment NSF fees
The FDIC has issued new supervisory guidance (FIL-40-2022) on multiple non-sufficient funds (NSF) fees arising from the re-presentment of the same unpaid transaction. The guidance directly applies only to state-chartered banks and thrifts that are not members of the Federal Reserve System. National banks and federal thrifts are supervised by the Office of the Comptroller of the Currency (OCC) and state-chartered banks that are members of the Federal Reserve System are supervised by the Federal Reserve Board (FRB). … Continue Reading
FDIC issues advisory on deposit insurance and crypto assets
The FDIC has issued an “Advisory to FDIC-insured institutions Regarding Deposit Insurance and Dealings with Crypto Companies” to address the agency’s concerns regarding misrepresentations about FDIC deposit insurance by certain crypto companies. Of particular concern to the FDIC is the risk that consumer confusion or harm can arise from crypto assets offered by, through, or in connection with an insured bank particularly when a non-bank offers crypto assets to its customers while also offering an insured bank’s deposit products.… Continue Reading
FDIC updates enforcement manual for cease-and-desist actions
On July 25, 2022, the FDIC issued Financial Institution Letter (FIL)-34-2022 announcing updates to Chapters 1 and 4 of its Formal and Informal Enforcement Actions Manual (Manual). The Manual includes updates to the minimum standards for the FDIC’s termination of cease-and-desist and consent orders. The updates do not change any rights or obligations of the parties to an enforcement action.… Continue Reading
Key differences between the OCC’s rescinded 2020 CRA final rule and the 2022 CRA revisions proposed by U.S. banking regulators
As we previously reported, the Office of the Comptroller of the Currency (“OCC”) rescinded its 2020 Community Reinvestment Act (“CRA”) final rule (the “2020 CRA Final Rule” or the “Rescinded Rule”) in December 2021 and has since been operating under a CRA framework largely based on the OCC’s 1995 CRA rule (the “1995 Rule”), which was adopted jointly with the Federal Reserve and the FDIC. … Continue Reading
California lawmakers urge FDIC to rein in bank partnerships
Four Democratic members of the California state legislature recently sent a letter to the Federal Deposit Insurance Corporation (FDIC) urging the agency to take action against FDIC-supervised banks that partner with non-bank lenders to originate high-cost installment loans.
Two of the letter’s authors, California Senator Monique Limon and Assemblymember Tim Grayson, were also sponsors of Assembly Bill 539, passed in 2019, which caps the annual interest rate at 36% plus the federal funds rate for consumer loans of at least $2,500 but less than $10,000 made by lenders licensed under the California Financing Law. … Continue Reading
Trade Groups Say “No Thanks” to Notion that FDIC Should Consult CFPB Before Approving Bank Mergers
The results are in after the closing of a public comment period related to the Federal Deposit Insurance Corp.’s review of its bank merger policies. The request for information (RFI) included questions related to the agency’s current bank merger review process, and how the process could be improved. One issue raised in the RFI is “to what extent should the CFPB be consulted by the FDIC when considering the convenience and needs factor and should that consultation be formalized?”… Continue Reading
CFPB announces launch of new system for providing guidance and issues first Circular; FDIC issues final rule on misuse of FDIC name or logo or making misrepresentations about deposit insurance
Just one day after announcing that it was launching a new system to provide guidance to other agencies with consumer financial protection responsibilities on how the CFPB intends to enforce federal consumer financial laws, the CFPB released its first Consumer Financial Protection Circular (2022-02) addressing deceptive representations involving the FDIC’s name or logo or deposit insurance. … Continue Reading
OCC, FDIC, and Federal Reserve propose amendments to CRA regulations
After moving alone in 2020 to reform its Community Reinvestment Act (CRA) regulation, the Office of the Comptroller of the Currency (OCC) has joined the Federal Deposit Insurance Corporation (FDIC) and Federal Reserve Board in issuing a joint notice of proposed rulemaking setting forth proposed amendments to their regulations implementing the CRA. … Continue Reading