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  • What FCC's Transparency Rule Means for Internet Privacy
    April 21, 2015
    Stephen M. Ruckman & Anoush Garakani

    There has been extensive coverage of the Federal Communication Commission’s new Open Internet Order, including questions about its ultimate fate, given pending court challenges. One element of the order that has not gotten attention, though, is the only element to have withstood the prior order’s court challenge: the “transparency rule.”

    The transparency rule is intended to ensure that broadband Internet service providers provide consumers access to the information they need to make informed choices about the broadband Internet services they purchase. The newly adopted Open Internet Order has not only retained but enhanced the transparency rule, suggesting that it will be a key FCC tool for protecting consumers in their use of the Internet, and recent FCC enforcement activity suggests one significant use of this tool will be to protect consumers’ privacy.

    Originally published in Law360; reprinted with permission. 

  • Letting the CAT Out of the Bag
    April 10, 2015
    Tom Sporkin & Tim Coley

    Tom Sporkin and Tim Coley authored, "Letting the CAT Out of the Bag," which was published in WatersTechnology on Friday, April 10, 2015. 

    In her February keynote address at the annual Securities and Exchange Commission (SEC) Speaks conference in Washington, DC, SEC Chair Mary Jo White called the soon-to-be-developed Consolidated Audit Trail (CAT) "a game changer for monitoring and overseeing the market." 

    But five years after the Flash Crash, and several market dislocations later, efforts to implement the CAT ─ originally greenlighted by then-Chair Mary Schapiro in 2009 ─ have hit more delays than expected, threatening to impede its implementation for several years.

    Today, due in no small part to media-fueled anxiety over the purported evils of high-frequency trading and dark pools, the investing public is still largely uncertain of the SEC's ability to monitor and actively regulate the US markets. And investor confidence is not the only threat to the health of the US markets ─ capital flight is also a growing risk, as reflected by Siemens' decision to delist its NYSE-listed ADRs in favor of Germany-based exchanges. That decision came on the heels of aggressive SEC enforcement actions against the company and its officials.

    Click here to read the full article at www.waterstechnology.com

  • Regulatory Blue Pencil: CFPB Guidance, Enforcement Actions Signal Expanding Focus on Vendor Management
    April 7, 2015
    Elizabeth McGinn & Moorari Shah

    In April 2012, the Consumer Protection Financial Bureau (the ‘‘CFPB’’ or ‘‘Bureau’’) issued Bulletin 2012-03 (the ‘‘Service Provider Bulletin’’), a guidance document setting forth the CFPB’s high-level expectations related to the engagement of third party service providers by supervised financial institutions. In the three years hence, the Bureau has often referenced the Servicer Provider Bulletin in subsequent guidance and enforcement actions, but has not provided much in the way of detailed requirements for managing service providers similar to those established by other prudential regulators for their respective supervised entities. Despite the absence of strong guideposts, the CFPB has nonetheless sent unmistakable signals to highlight conduct which fails to meet the Bureau’s expectations on a variety of vendor relationship issues.

    The latest addition to the CFPB’s loosely-sewn patchwork of vendor management guidance is Compliance Bulletin 2015-01 (the ‘‘CSI Bulletin’’), which, among other directives, puts CFPB-supervised entities on notice that they may not invoke nondisclosure agreements to avoid complying with requests from the Bureau to produce a third party’s confidential information. To drive home the point, the CSI Bulletin states: ‘‘Failure to provide information required by the CFPB is a violation of law for which the CFPB will pursue all available remedies.’’

    Originally published in BloombergBNA; reprinted with permission. 

Knowledge + Insights

  • Special Alert: CFPB Releases Outline of Proposed Rule for Payday, Vehicle Title, and Similar Loans
    March 27, 2015

    On March 26, the CFPB announced that it is considering proposing a rule to “end payday debt traps” and released several related documents, including a fact sheet and an outline of the proposal that will be presented to a panel of small businesses pursuant to the Small Business Regulatory Enforcement Fairness Act (SBREFA).  The proposal sets forth ability to repay requirements for “short-term” and “longer-term” loans, and then provides alternative options for lenders to provide both types of loans in lieu of complying with the general ability to repay requirements.

    Under the SBREFA process, the CFPB first seeks input from a panel of small businesses that likely will be subject to the forthcoming rule.  A report regarding the input of those reviewers is then created and considered by the CFPB before issuing its proposed rule.

    Click here to view the full Special Alert.

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    Questions regarding the matters discussed in this Alert may be directed to the lawyers listed below, or to any other BuckleySandler attorney with whom you have consulted in the past.

  • Special Alert: USDA-RHS Proposes Its Own QM Rule
    March 16, 2015

    On March 5, 2015, the USDA-RHS released a proposed rule to amend the regulations for the Single Family Housing Guaranteed Loan Program (SFHGLP) to provide that a loan guaranteed by USDA-RHS is a QM if it meets certain requirements set forth by the CFPB. In addition, USDA-RHS proposed to add the definition of “Qualified Mortgage” to its regulations. The proposal follows the adoption of separate QM definitions for FHA and VA loans last year. 
     
    The proposed rule also seeks to: (i) expand USDA-RHS’ lender indemnification authority for loss claims in certain instances, such as fraud , misrepresentation, and noncompliance with loan origination requirements, (ii) add a new special loan servicing option, (iii) revise the interest rate reduction requirement for refinances, and (iv) add a streamlined-assist refinance option. Comments to the proposed rule must be received on or before May 4, 2015.
     
    Questions regarding the proposed rule may be directed to any of our lawyers listed below, or to any other BuckleySandler attorney with whom you have consulted in the past.

  • Special Alert Update: OCC Revises Guidance Regarding Consumer Protection Requirements to Overdraft Lines and Protection Services
    March 11, 2015

    On March 6, 2015, the OCC issued its revised “Deposit-Related Credit” booklet (“DRC booklet”) of the Comptroller’s Handbook, which replaced the “Deposit-Related Consumer Credit” booklet issued on February 11, 2015 (previously covered in this Special Alert).  While the new booklet covers the same products – check credit (overdraft lines of credit, cash reserves, and special drafts), overdraft protection services, and deposit advances – the OCC made significant amendments to scale back the provisions of the prior version.  Specifically, the new DRC booklet no longer contains supervisory principles that could be read to require that banks provide substantive consumer protections that are not currently required by the applicable consumer protection regulations.   For example, the DRC booklet no longer requires that banks:

    • Only enroll customers into an overdraft protection service if they have affirmatively requested that product;
    • Ensure the ability to repay for all applicants enrolled in an overdraft protection service; and
    • Ensure that any fees charged in connection with an overdraft protection service are reasonably related to the program’s costs and associated risks.

    In making these changes, the OCC requires supervisors to assess DRC products more in line with existing consumer protection laws.  The OCC states as much in OCC Bulletin 2015-17, which announced the DRC booklet.  There, the OCC acknowledges that the DRC booklet “is intended as a summary restatement of existing laws, regulations, and policies [and] ... [n]othing in this booklet should be interpreted as changing existing OCC policy.”

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    Questions regarding the matters discussed in this Alert may be directed to any of our lawyers listed below, or to any other BuckleySandler attorney with whom you have consulted in the past.

  • Special Alert: OCC Guidance Applies Consumer Protection Requirements to Overdraft Lines and Protection Services
    February 16, 2015

    UPDATE: On February 20, the OCC announced that it would be removing the “Deposited-Related Consumer Credit” booklet, originally issued on February 11, from its website. The OCC’s February 11 booklet seemingly required banks to change overdraft protection services, however the agency has since stated that the booklet was not intended to establish new policy. According to the OCC’s website, the agency will “[revise] the booklet to clarify and restate the existing law, rules, and policy.” When the OCC releases its amended version of the booklet, we will update the February 16 Special Alert to reflect the agency’s modifications.

    On February 11, 2015, the OCC issued the “Deposit-Related Consumer Credit” booklet of the Comptroller’s Handbook, which replaced the “Check Credit” booklet. The booklet provides updated guidance and examination procedures that the OCC will use to assess a bank’s deposit-related consumer credit (DRCC) products, which include check credit (overdraft lines of credit, cash reserves, and special drafts), overdraft protection services, and deposit advances. In many respects, it tracks the CFPB’s proposed prepaid rule, which would apply the Truth-in-Lending Act and Regulation Z to a broad range of credit features associated with prepaid products.

    The OCC sets forth certain supervisory principles that apply to all DRCC products, which appear to meld consumer protection and safety and soundness concerns. These principles require that banks provide substantive consumer protections in connection with certain DRCC products that are not currently required by the applicable consumer protection regulations. Specifically, the supervisory principles include the following:

    • Opt-In and Regulation E: Banks should not automatically enroll any customer in DRCC products, and should only enroll customers who affirmatively have so requested. In contrast, the opt-in requirement applies, under Regulation E, only to overdraft services in connection with ATM and one-time debit card transactions.
    • Ability to Repay and Regulation Z: Banks should ensure ability to repay for all applicants enrolled in DRCC products, meaning that the associated underwriting practices should analyze the applicant’s income or assets and debt obligations. In contrast, under Regulation Z, this ability-to-pay requirement applies to credit card accounts, not DRCC products like overdraft lines of credit accessed by a debit card or account number or overdraft protection services. If the final CFPB prepaid rules are substantially similar to the proposed rules, then certain credit features associated with prepaid cards will also require compliance with the ability-to-pay rule.
    • Fee Limits: Banks must ensure that any fees charged in connection with DRCC products are reasonably related to the program’s costs and associated risks. In contrast, under Regulation Z, the requirement that penalty fees represent a reasonable proportion of the total costs incurred as a result of the violation applies to credit cards, not DRCC products.

    The OCC also expects banks to monitor the volume of revenue that DRCC products generate, and to evaluate whether the bank unduly relies on fees generated by a DRCC product. Bank management should also guard against “an over reliance on fee income from any single product.”

    In addition, the OCC expects banks to monitor customer behavior and any outlier usage of DRCC products to avoid what the guidance frames as operational, compliance, reputational, and credit risk. For example, the OCC posits that repeated extensions of credit may constitute “loan flipping” and subject the bank to credit risk. Additional supervisory principles address disclosures, program availability and eligibility, consumer usage, credit terms and repayment methods, and credit reporting.

    The OCC’s risk management expectations may also have tangible effects on a bank’s current operating practices, including higher capital requirements insofar as DRCC portfolios may have subprime credit characteristics. In this regard, the OCC’s requirement that banks report DRCC products in regulatory reports as loans may also have practical effects on banks.

    It is worth noting that, two years ago, the OCC published proposed guidance relating to deposit advance products in the Federal Register, which allowed for public comment and time to prepare for any new compliance and supervisory expectations. The OCC published final guidance in the Federal Register in November 2013 (previously covered here) and OCC Bulletin 2013-40. This time, the OCC has dispensed with the opportunity for public comment and appears to require immediate compliance, notwithstanding that many of the expectations outlined with respect to certain DRCC products are radically new—including for overdraft protection services, as to which the OCC previously stated that “[b]anks generally do not underwrite overdraft protection services on an individual basis when enrolling the consumer.”

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    Questions regarding the matters discussed in this Alert may be directed to any of our lawyers listed below, or to any other BuckleySandler attorney with whom you have consulted in the past.

  • Special Alert: CFPB States Supervisory Obligations Trump Nondisclosure Agreements
    January 29, 2015

    On January 27, the CFPB issued Compliance Bulletin 2015-01 to remind supervised financial institutions of their obligations concerning the disclosure of confidential supervisory information (CSI) to the CFPB and to third parties. Specifically, the Bulletin addresses the interaction between a financial institution’s obligations with respect to the CFPB and its contractual obligations under nondisclosure agreements (NDAs) with a third party that restrict the sharing of information. Such NDAs typically (i) restrict sharing protected information with any third party (which would include a supervisory agency) other than in connection with a subpoena or similar legal requirement and (ii) require the institution to advise the third party before it shares information as required by law (which again would include sharing protected information with a supervisory agency).

    Supervised financial institutions and other persons, with limited exceptions outlined in the Bulletin, are generally prohibited from disclosing CSI to third parties. According to the Bulletin, a supervised financial institution should not rely on the provisions of an NDA to justify disclosing CSI in a manner not otherwise permitted, either through a valid exception or prior written approval from the CFPB. The Bulletin appears to take the position that the fact that information has been shared with the CFPB is itself CSI.

    The Bulletin also warns supervised financial institutions that an NDA between an institution and a third party does not alter or limit the CFPB’s supervisory authority, and that the failure based on an NDA to provide CSI or other information required by the CFPB to conduct its supervisory activities is a violation of law for which the CFPB will pursue all available remedies.

    In that supervised institutions such as banks and bank holding companies have been subject to the same issue for many years, this bulletin may be aimed at non-banks that are new to being subject to federal financial supervision.  

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    Questions regarding the matters discussed in this Alert may be directed to any of our lawyers listed below, or to any other BuckleySandler attorney with whom you have consulted in the past.

    • Jeffrey P. Naimon, (202) 349-8030
    • Jonice Gray Tucker, (202) 349-8005
    • Andrea K. Mitchell, (202) 349-8028
    • Valerie L. Hletko, (202) 349-8054
    • Michelle L. Rogers, (202) 349-8013
    • Benjamin K. Olson, (202) 349-7924
    • John P. Kromer, (202) 349-8040
    • Joseph M. Kolar, (202) 349-8020
    • Jeremiah S. Buckley, (202) 349-8010