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Satellite company to pay over $200 million for telemarketing violations
On December 7, the DOJ announced a settlement with a satellite service provider totaling over $210 million in penalties to be paid to the United States and four states for alleged violations of the TCPA, the FTC Act, and similar state laws. The settlement stems from an action brought by the United States against the satellite company in 2009 asserting that the company initiated millions of unlawful telemarketing calls to consumers and was responsible for millions of calls made by marketers of the company’s products and services. In 2017, a district court awarded the U.S. and the states of California, Illinois, North Carolina, and Ohio $280 million in civil penalties, with a record $168 million going to the federal government (covered by InfoBytes here). On appeal, the U.S. Court of Appeals for the Seventh Circuit affirmed liability but vacated and remanded the monetary award for recalculation.
The stipulated judgment requires the satellite company to pay over $200 million in civil penalties, with $126 million going to the U.S. government, nearly $40 million to California, over $6.5 million to Illinois, nearly $14 million to North Carolina, and $17 million to Ohio.
2nd Circuit: SEC within authority to bring actions for SAR failings
On December 4, the U.S. Court of Appeals for the Second Circuit affirmed summary judgment in favor of the SEC in an action brought by the agency against a penny stock broker-dealer, concluding the agency has the authority to bring an action under Section 17(a) of the Securities Exchange Act of 1934 (Exchange Act) and Rule 17a-8 promulgated thereunder for failure to comply with the Suspicious Activity Report (SAR) provisions of the Bank Secrecy Act (BSA). According to the opinion, the SEC filed an action against the broker-dealer for violating the Exchange Act and Rule 17a-8’s reporting, recordkeeping, and record-retention obligations by failing to file SARs as required by the BSA. Both parties moved for summary judgment, with the broker-dealer arguing that the SEC was improperly enforcing the BSA. The district court granted summary judgment in favor of the SEC in part (deferring “its resolution of categories of allegedly deficient SARs pending discovery and additional briefing”) and denied summary judgment for the broker-dealer, concluding that the SEC had authority to bring the action under the Exchange Act. After discovery and additional briefing, the SEC moved for summary judgment on the Rule 17a-8 violations and the district court granted summary judgment as to nearly 3,000 violations on the basis of the broker-dealer’s SARs-reporting and recordkeeping practices and imposed a $12 million civil penalty.
On appeal, the 2nd Circuit agreed with the district court, rejecting the broker-dealer’s argument that the SEC is attempting to enforce the BSA, which only the U.S. Treasury Department has the authority to do. The appellate court noted that the SEC is enforcing the requirements of Rule 17a-8, which requires broker-dealers to adhere to the BSA in order to comply with requirements of the Exchange Act, which does not constitute the agency’s enforcement of the BSA. Moreover, the appellate court concluded that the SEC did not overstep its authority when promulgating Rule 17a-8, as SARs “serve to further the aims of the Exchange Act by protecting investors and helping to guard against market manipulation,” and that the broker-dealer did not meet its “‘heavy burden’ to show that Congress ‘clearly expressed [its] intention’ to preclude the SEC from examining for SAR compliance in conjunction with FinCEN and pursuant to authority delegated under the Exchange Act.” In affirming the $12 million civil penalty, the appellate court stated that the district court acted “within its discretion to impose the [] penalty” considering the broker-dealer’s “systematic and widespread evasion of the law.”
Restaurant chain to pay SEC $125,000 for misleading Covid-19 disclosures
On December 4, the SEC announced a settlement with a national restaurant chain for allegedly making misleading disclosures about the impact of the Covid-19 pandemic on its business operations. According to the order, in the restaurant’s Form 8-Ks filed on March 23 and April 3, the restaurant disclosed that it was “operating sustainably at present under this [off-premise] model” (referring to its to-go and delivery services). However, the SEC asserts that the restaurant did not disclose that it was “losing approximately $6 million in cash per week; and that it had only approximately 16 weeks of cash remaining, even after the $90 million revolving credit facility borrowing,” nor did it disclose the letter it send to its landlords announcing it would not be paying April rent. The SEC asserts the disclosures were materially false and misleading and violated Section 13(a) of the Exchange Act and Rules 13a-11 and 12b-20 thereunder. Without admitting the findings, the restaurant agreed to pay $125,000 in civil money penalties. This is the first action the SEC has taken against a company for misleading investors
District court denies dismissal and stay of CFPB action
On November 30, the U.S. District Court of the District of Maryland denied a motion to dismiss an action brought by the CFPB against a debt collection entity, its subsidiaries, and their owner (collectively, “defendants”), rejecting the defendants’ argument that the Bureau lacked standing to bring the action. As previously covered by InfoBytes, in September 2019, the Bureau alleged the defendants violated the FCRA, FDCPA, and the CFPA by, among other things, failing to (i) establish or implement reasonable written policies and procedures to ensure accurate reporting to consumer-reporting agencies; (ii) incorporate appropriate guidelines for the handling of indirect disputes in its policies and procedures; (iii) conduct reasonable investigations and review relevant information when handling indirect disputes; and (iv) furnish information about accounts after receiving identity theft reports about such accounts without conducting an investigation into the accuracy of the information. The defendants moved to dismiss the action arguing, among other things, that (i) the Bureau lacks standing to bring the action; and (ii) Director Kraninger’s ratification of the litigation was invalid. In the alternative, the defendants moved to stay the lawsuit until the U.S. Supreme Court issued a ruling in Collins v. Mnuchin (covered by InfoBytes here).
The court denied the motion to stay, concluding that the issues pending before the Supreme Court in Mnuchin may not necessarily apply to the Bureau, as they are different agencies and further, there is no issue of ratification in Mnuchin. Thus, given the “uncertainty surrounding the effect a decision in Collins v. Mnuchin will have on the present case,” the court denied the motion to stay. The court also denied the motion to dismiss, concluding, among other things, that the Supreme Court’s finding in Seila Law LLC v. CFPB (covered by a Buckley Special Alert) that the Bureau had a constitutional defect in its leadership structure under Article II does not diminish the agency’s Article III standing. Moreover, the court concluded that the decision in Seila Law does not mean that the Bureau “lacked authority during the time in which it was led by an improperly removable Director,” and therefore the Bureau had the authority to initiate the September 2019 lawsuit against the defendants. Further, the court held that the July 2020 ratification of the enforcement action was proper.
Fed issues supervisory letter covering appeals process
On December 4, the Federal Reserve Board issued supervisory letter SR 20-28 / CA 20-14, which discusses the internal appeals process for material supervisory determinations and its policy regarding the Ombudsman. As previously covered by InfoBytes, in March, the Fed issued final amendments intended to improve and expedite the appeals process. Among other things, the final amendments (i) clarify that Matters Requiring Attention and Matters Requiring Immediate Attention “are appealable material supervisory determinations”; (ii) “permit an institution’s senior management to file an appeal, provided that management informs the institution’s board of directors of their decision to file an appeal and keeps the board informed of the status of the appeal”; (iii) “permit an institution to request an extension of time to file an appeal in appropriate circumstances”; and (iv) “clarify that, at an institution’s request, the initial review panel must schedule a meeting with the institution.” The amended Ombudsman policy formalizes current practices of the office, including receiving supervisory-related complaints and supervisory determination appeals. The Fed requests that Reserve Banks distribute the supervisory letter covering the appeals process changes to their various supervised institutions and to appropriate supervisory staff.
CFPB charges online lender with MLA violations
On December 4, the CFPB announced it filed a complaint in the U.S. District Court for the Northern District of California against a California-based online lender alleging violations of the Military Lending Act (MLA). According to the CFPB, the “action is part of a broader Bureau sweep of investigations of multiple lenders that may be violating the MLA,” which provides protections connected to extensions of consumer credit for active-duty servicemembers and their dependents. The complaint alleges that since October 2016 the lender, among other things, made more than 4,000 single-payment or installment loans to over 1,200 covered borrowers in violation of the MLA. Specifically, the Bureau claims that these violations include (i) extending loans with Military Annual Percentage Rates (MAPR) exceeding the MLA’s 36 percent cap; (ii) requiring borrowers to submit to arbitration in loan agreements; and (iii) failing to make certain required loan disclosures, including a statement of the applicable MAPR, before or at the time of the transaction. The complaint seeks an injunction against the lender that would require the lender to “correct inaccurate information furnished to consumer reporting agencies concerning loans that were void ab initio,” and would prohibit it from collecting on those loans and require it to rescind the credit agreements on those loans. The complaint also seeks damages, redress, disgorgement of ill-gotten gains, and civil money penalties.
FSOC annual report highlights Covid-19 impact on financial stability
On December 3, the Financial Stability Oversight Council (FSOC) released its 2020 annual report. The report reviews financial market developments, identifies emerging risks, and offers recommendations to enhance financial stability. The report also highlights the impact of Covid-19 on the economy and the financial system. The report notes that although “policy actions to minimize the effects of the pandemic have been effective at improving market conditions, risks to U.S. financial stability remain elevated compared to last year” and that “the global outlook for economic recovery is uncertain, depending on the severity and the duration of the ongoing pandemic.” Highlights include:
- Nonbank mortgage origination and servicing. FSOC notes that disruptions in mortgage payments due to the pandemic have focused attention on the nonbank sector. In particular, FSOC states that due to a surge in refinancing due to low rates, nonbank servicers have an additional source of liquidity to help sustain operations. However, FSOC cautions that “an increase in forbearance and default rates . . . has the potential to impose significant strains on nonbank servicers.” FSOC recommends federal and state regulators coordinate and share data and information, identify and address potential risks, and strengthen oversight of nonbank companies originating and servicing residential mortgages.
- Alternative Reference Rates. FSOC recommends that the Alternative Reference Rates Committee continue to work to facilitate an orderly transition to alternative reference rates following the anticipated cessation of LIBOR at the end of 2021, and encourages federal and state regulators to “determine whether further guidance or regulatory relief is required to encourage market participants to address legacy LIBOR portfolios.”
- Cybersecurity. FSOC “recommends that federal and state agencies continue to monitor cybersecurity risks and conduct cybersecurity examinations of financial institutions and financial infrastructures to ensure, among other things, robust and comprehensive cybersecurity monitoring, especially in light of new risks posed by the pandemic.” FSOC also supports “efforts to increase the efficiency and effectiveness of cybersecurity examinations across the regulatory authorities.”
- Large bank holding companies. FSOC recommends that financial regulators “continue to monitor and assess the impact of rules on financial institutions and financial markets—including, for example, on market liquidity and capital—and ensure that [bank holding companies] are appropriately monitored based on their size, risk, concentration of activities, and offerings of new products and services.”
Additional topics also addressed include short-term wholesale funding markets, nonfinancial business borrowing, and commercial real estate asset valuations.
OFAC sanctions supporter of Iranian chemical weapons research
On December 3, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) announced sanctions against a subordinate to the Iranian Organization of Defensive Innovation and Research and its director for its involvement in Iran’s chemical weapons research. The government made the sanctions designations pursuant to Executive Order 13382, which aims to freeze the assets of proliferators of weapons of mass destruction along with their supporters. As a result, all property and interests in property belonging to, or owned by, the designated persons subject to U.S. jurisdiction are blocked, and U.S. persons are also generally prohibited from engaging in transactions with them. OFAC further warned foreign financial institutions that knowingly facilitating significant transactions or providing significant support to the designated persons may subject them to U.S. sanctions.
Additionally, OFAC updated and issued several Iran-related FAQs.
SEC issues whistleblower awards totaling nearly $3 million
On December 7, the SEC announced whistleblower awards to five individuals totaling nearly $3 million for information provided in three different enforcement actions. According to the first redacted order, the SEC awarded a whistleblower nearly $1.8 million for voluntarily providing original information to the Commission leading to a successful enforcement action. The whistleblower, a company insider, provided detailed information that would have been difficult to detect in the absence of the tip and “provided extraordinary assistance” to Commission staff, which resulted in the return of money to harmed investors.
In the second redacted order, the SEC awarded two whistleblowers a total of approximately $750,000. The first whistleblower received a roughly $500,000 award for providing “credible [and] high quality” information directly to enforcement staff, which prompted the opening of an investigation and resulted in a successful enforcement action. The second whistleblower received approximately $250,000 for providing new information towards the end of the investigation “that resulted in the inclusion of additional allegations in the Covered Action.” The SEC noted that both whistleblowers provided substantial assistance in the investigation, including participating in interviews and providing explanations and clarity on complex issues.
In the third redacted order, two whistleblowers were jointly awarded nearly $400,000 for providing information that prompted the opening of an investigation leading to a successful enforcement action. The SEC stated that the whistleblowers also “provided substantial and continuing assistance to [e]nforcement staff during the course of the investigation.”
The SEC has now paid approximately $731 million to 123 individuals since the inception of the program.
VA proposes partial claim payment program
On December 9, the Department of Veterans Affairs (VA) published a proposed rule in the Federal Register, which would establish a temporary program to help veterans return to making normal loan payments on VA-guaranteed loans after exiting a Coronavirus Aid, Relief, and Economic Security Act (CARES Act) forbearance period, known as “the COVID–19 Veterans Assistance Partial Claim Payment program” (PCP). The proposal would allow the VA to assist a veteran exiting a CARES Act forbearance by purchasing the amount of the veteran’s CARES Act indebtedness needed to bring the loan current, known as a “partial claim payment.” In exchange for the VA’s partial claim payment, the veteran would have to agree to repay the VA the amount of the PCP.
In order to qualify for the PCP, servicers must first evaluate the borrower for loss-mitigation options already available in the VA program. For a loan to qualify for a PCP, among other things, (i) the guaranteed loan must have been either current or less than 30 days past due on March 1, 2020; (ii) the borrower must have received a CARES Act forbearance and missed at least one scheduled monthly payment; and (iii) there remains at least one unpaid monthly payment that the veteran did not make while under a CARES Act forbearance. Moreover, the amount of the partial claim payment cannot exceed 15 percent of the unpaid principal balance of the guaranteed loan on the date the borrower entered into the CARES Act forbearance. The PCP would have an annual interest rate fixed at 1 percent, with an automatic 60-month deferment period while interest accrues, and a total term of 120 months.
The proposal does not include an effective date, but the VA requests comments on how a final rule that is not effective for 30 or 60 days following publication might negatively impact veterans, servicers, and other stakeholders. Additionally, the VA asks whether there would be enough time for industry implementation of the partial claim payment program if the final rule is effective 7 days after publication.
Comments on the proposal are due by January 8, 2021.