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Financial Services Law Insights and Observations

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  • Buckley Sandler Special Alert: DOJ announces new policy on pursuing individuals in corporate resolutions

    Financial Crimes

    U.S. Deputy Attorney General Rod Rosenstein said at a conference this morning that the U.S. Department of Justice has revised its guidelines relating to corporate resolutions with the DOJ, particularly as those guidelines relate to charging culpable individuals. The revised guidelines modify the 2015 Yates Memo, and affirmatively obligate companies seeking leniency from the DOJ to investigate and furnish information about culpable employees and agents substantially involved in wrongdoing.

    Corporations now will receive cooperation credit in criminal resolutions only if all employees substantially involved in the alleged wrongdoing are identified to the government. And in civil resolutions, corporations will receive cooperation credit only if the corporation reveals the involvement of senior management and board members in the alleged wrongdoing. The new policy highlights the DOJ’s ongoing focus on criminal and civil enforcement actions against individuals and emphasizes the importance of giving serious consideration to obtaining individual counsel very early in the process of an investigation.

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    Click here to read the full special alert.

    If you have questions about the DOJ’s new policy or other related issues, please visit our White Collar practice page or contact one of Buckley Sandler’s 15 partners in that practice.

    Financial Crimes DOJ FCPA Special Alerts

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  • Buckley Sandler Special Alert: Weathering the coming tide of congressional investigations

    Federal Issues

    The results are in: Party control of the U.S. House of Representatives will change for the third time in 12 years, leaving legions of pundits to speculate about what happens next. Prospects for a fundamental change in the way Congress and Washington operate are dim, particularly given that the U.S. Senate remains under Republican control. With new legislation most likely dead on arrival due to the political stalemate on Capitol Hill, the Democrats’ most reliable opportunity to exert their will is almost certainly through congressional oversight and investigations. The last time the Democrats controlled the House during a Republican presidency, following the 2006 midterms, Rep. Henry Waxman remarked that Congress’s oversight powers are “just as important, if not more important than legislation.”

    While it is tempting to dismiss congressional oversight, and the attendant theatrical hearings and testimony as nothing but sound and fury, the reality for companies, executives, and others under the microscope is far less anodyne. Lack of preparation and ill-conceived strategy in responding to congressional investigations heightens the prospect of reputational harm that, unchecked, will frustrate business goals, damage shareholders, and derail — or end — careers.

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    Click here to read the full special alert.

    Please join us for a Dec. 5 webcast that will delve deeper into these topics and offer some thoughts on navigating the coming tide of congressional investigations. If you have questions about congressional investigations or other related issues, please visit our Congressional Investigations practice page, or contact a Buckley Sandler attorney with whom you have worked in the past.

    Federal Issues Special Alerts U.S. House U.S. Senate

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  • Buckley Sandler Special Alert: California governor signs significant data privacy bill into law

    Privacy, Cyber Risk & Data Security

    On June 28, California Governor Jerry Brown signed the California Consumer Privacy Act (the “Consumer Privacy Act” or the “Act”) into law. The Act was enacted largely in response to a more restrictive ballot initiative (“Ballot Initiative”) that appeared to have gained a sufficient number of signatures to appear on the November 2018 ballot in the state. Both the Act and the Ballot Initiative were a reaction to high-profile news stories involving large-scale consumer data collection and sharing by online companies, often done without notice to or consent from consumers.

    The Ballot Initiative, driven and funded by a coalition of privacy advocates, proposed both expanding consumer privacy rights under existing state laws such as the California Online Privacy Protection Act and the “Shine the Light” law, and giving new consumer rights with regard to information sharing. The Ballot Initiative, which was withdrawn in response to the enactment of the Act, would have provided state residents with increased rights regarding the types of information online companies possess about them, the purposes for which the information is used, and the entities with which the information is shared. Consumers would also have been given the right to stop certain sharing of their personal information. Critics asserted that the Ballot Initiative was poorly crafted and would stifle innovation in data services. Last minute revisions to the language of the Act, which generally follows the requirements of the Ballot Initiative, sought to address some of these concerns and several industry groups that had opposed the Ballot Initiative did not lobby against the quick passage of the Act.

     

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    Click here to read the full special alert.

    If you have questions about the act or other related issues, please visit our Privacy, Cyber Risk & Data Security practice page, or contact a Buckley Sandler attorney with whom you have worked in the past.

    Privacy/Cyber Risk & Data Security State Issues Special Alerts

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  • Buckley Sandler Special Alert: D.C. Circuit significantly narrows FCC’s order defining autodialer

    Courts

    On March 16, the D.C. Circuit issued its much anticipated ruling in ACA International v. FCC. The D.C. Circuit’s ruling significantly narrows a Federal Communication Commission order from 2015, which, among other things, had broadly defined an “autodialer” for purposes of the Telephone Consumer Protection Act.

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    Click here to read the full special alert.

    If you have questions about the ruling or other related issues, please visit our Class Actions practice page, or contact a Buckley Sandler attorney with whom you have worked in the past.

    Courts FCC Appellate D.C. Circuit TCPA Special Alerts Autodialer ACA International

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  • Buckley Sandler Special Alert: Mulvaney says the CFPB will depend heavily on state Attorneys General for enforcement of consumer protection laws

    Federal Issues

    Buckley Sandler Special Alert

    Mick Mulvaney, the acting director of the Consumer Financial Protection Bureau, in a February 28 speech, outlined the Bureau’s overall direction and strategic priorities, and described plans to coordinate with state Attorneys General in enforcing federal consumer financial protection law. Mulvaney made the remarks in Washington, D.C., at the winter meeting of the National Association of Attorneys General (NAAG).

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    Click here to read the full special alert.

     

    If you have questions about the remarks or other related issues, please visit our State Attorneys General and Consumer Financial Protection Bureau practice pages, or contact a Buckley Sandler attorney with whom you have worked in the past.

    Federal Issues CFPB Succession State Attorney General Enforcement Special Alerts

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  • Buckley Sandler Special Alert: Supreme Court limits definition of “whistleblower” in potentially hollow victory for public companies

    Courts

    Buckley Sandler Special Alert

    On February 21, the U.S. Supreme Court issued its opinion in Digital Realty Trust, Inc. v. Somers, a long-anticipated case that clarifies who is protected as a “whistleblower” under the Dodd-Frank Act’s anti-retaliation provisions. In a unanimous decision penned by Justice Ginsburg, the Court held that the Dodd-Frank Act protects an individual only if he or she has reported a securities law violation to the U.S. Securities & Exchange Commission (SEC)—internal reports are not sufficient.

     

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    Click here to read the full special alert.

     

    If you have questions about the decision or other related issues, please visit our Whistleblower practice page, or contact a Buckley Sandler attorney with whom you have worked in the past.

    Courts U.S. Supreme Court Whistleblower Special Alerts SEC Dodd-Frank

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  • Special Alert: Treasury Issues Report Encouraging Sweeping Reforms to Regulation of Consumer Financial Products and Services

    Federal Issues

    On June 12, the Treasury Department issued the first of four reports to the president detailing its review of financial regulation in the United States and making recommendations to reform federal regulatory oversight of depository institutions. For depository (and nondepository) institutions offering consumer financial products and services, the report sets forth a series of recommendations to reform the supervision and enforcement practices of federal financial regulators, and in particular the Consumer Financial Protection Bureau. The report also details a number of recommended reforms to regulations governing mortgage lending and servicing and indicates that the Treasury Secretary is particularly interested in modernizing the Community Reinvestment Act (CRA).

    The report makes clear that the Treasury Department supports substantial structural reforms at the CFPB, many of which complement concepts included in the Financial CHOICE Act, which passed the House on June 8. The Treasury Department is particularly interested in reducing the autonomy of the CFPB by making the CFPB Director removable at will by the president or converting the CFPB to a commission, as well as by subjecting the CFPB’s budget to Congressional appropriations. The Treasury Department also proposes eliminating the CFPB’s supervisory authority, and would return that authority to the federal prudential regulators for depository institutions and to state regulators for other financial institutions, as applicable. The report also contains a number of recommendations to amend the CFPB’s enforcement authority, which are aimed at giving regulated institutions better advance notice of regulatory expectations and stronger procedural rights when responding to CFPB investigations. The proposed CFPB reforms come within a broader set of recommended reforms to the entire federal financial oversight structure designed to ensure consistency and fairness across regulators.

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    Click here to read full special alert.

    If you have questions about the ruling or other related issues, visit our Consumer Financial Protection Bureau practice page for more information, or contact a Buckley Sandler attorney with whom you have worked in the past.

    Federal Issues Financial CHOICE Act Special Alerts Consumer Finance CRA Department of Treasury

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  • Special Alert: Supreme Court Holds that a Person May Collect Defaulted Debts Purchased for Its Own Account Without Triggering the FDCPA

    Courts

    On June 12, the United States Supreme Court issued a ruling in Henson v. Santander Consumer USA Inc., affirming the Fourth Circuit’s holding that the Fair Debt Collection Practices Act’s (“FDCPA” or the “Act”) definition of the term “debt collector” does not necessarily apply to a company collecting debts in default that it purchased for its own account.

    The Henson Case
    The FDCPA defines the term “debt collector” as those who regularly seek to collect debts “owed…another.” Like the Fourth Circuit, the Supreme Court reasoned that the FDCPA’s definition focuses attention on “third party collection agents working for a debt owner — not on a debt owner seeking to collect debts for itself” and thus, in the context of the facts presented, the purchaser of the debts at issue did not qualify as a debt collector under the FDCPA.

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    Click here to read full special alert.

    If you have questions about the ruling or other related issues, visit our Debt Collection & Buying practice page for more information, or contact a Buckley Sandler attorney with whom you have worked in the past.

    Courts Special Alerts FDCPA Debt Collection

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  • Special Alert: OCC Issues Supplement to Third-Party Oversight Guidance, Emphasizes Bank Responsibilities in Managing Risks in Fintech Relationships

    Federal Issues

    On June 7, the Office of the Comptroller of the Currency (OCC) issued Bulletin 2017-21 as a supplement to Bulletin 2013-29, the OCC’s 2013 risk management guidance related to third-party relationships. The OCC’s latest release answers 14 frequently asked questions (FAQs) and marks the second supplement issued this year to Bulletin 2013-29. Previously, on January 24, 2017, the OCC issued Bulletin 2017-7 to advise national banks, federal savings associations, and technology service providers of examination procedures the OCC would follow during supervisory examinations.

    As previously summarized in Buckley Sandler’s Special Alert, Bulletin 2013-29 requires banks and federal savings associations (collectively “banks”) to provide comprehensive oversight of third parties, and warns that failure to have in place an effective risk management process commensurate with the risk and complexity of a bank’s third-party relationships “may be an unsafe and unsound banking practice.” Bulletin 2013-29 outlined a “life cycle” approach and provided detailed descriptions of steps that a bank should consider taking at five important stages of third-party relationships: (i) planning; (ii) due diligence and third-party selection; (iii) contract negotiation; (iv) ongoing monitoring; and (v) termination. Consistent with the life cycle approach established in Bulletin 2013-29, the examination procedures set forth in Bulletin 2017-7 identify steps examiners should take in requesting information relevant to assessing the banks’ third-party relationship risk management at each phase of the life cycle.

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    Click here to read full special alert.

    If you have questions about the ruling or other related issues, visit our Vendor Management and FinTech practice pages for more information, or contact a Buckley Sandler attorney with whom you have worked in the past.

    Federal Issues OCC Risk Management Special Alerts

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  • Special Alert: CFPB Proposes Amendments to 2015 HMDA Rule

    Agency Rule-Making & Guidance

    On April 13, the Consumer Financial Protection Bureau (CFPB) issued a proposal to amend the 2015 Home Mortgage Disclosure Act (HMDA) rule. The changes are primarily for the purpose of clarifying data collection and reporting requirements, and most of the clarifications and revisions would take effect in January 2018. Comments on the CFPB’s proposal are due 30 days after publication in the Federal Register.

    The CFPB describes the changes as being non-substantive in nature, noting that the proposal is meant to provide “clarifications, technical corrections, or minor changes.” While we describe the more significant proposed amendments below in greater detail, highlights of the proposal include:

    • Clarification of the definitions of “automated underwriting system,” “closed-end mortgage loan” (specifically, extension of credit), “dwelling” (specifically, multifamily residential structures and communities), “home improvement loan,” and “home purchase loan” (specifically, construction and permanent financing)
    • Permission for institutions to report “not applicable” for loan purpose and the loan originator’s Nationwide Mortgage Licensing System and Registry ID when reporting certain purchased loans originated before Regulation Z’s loan originator rules took effect
    • Clarification of the exclusions for temporary financing and construction loans, commercial or business purpose loans, financial institutions that do not meet the loan-volume threshold, and new funds in advance of consolidation with New York State consolidation, extension, and modification agreements (CEMA)
    • Provision of a safe harbor for bona-fide errors related to incorrect census tract reporting if the institution properly uses the geocoding tool published on the CFPB website


    Click here to read full special alert

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    If you have questions about the amendments or other related issues, visit our Consumer Financial Protection Bureau practice for more information, or contact a Buckley Sandler attorney with whom you have worked in the past.

    Agency Rule-Making & Guidance CFPB HMDA Federal Register Mortgages Special Alerts

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