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FCC signs robocall enforcement partnerships with states
On March 28, the FCC announced it launched formal robocall investigation partnerships with the Connecticut, District of Columbia, Idaho, Kentucky, Minnesota, New Jersey, and Wyoming state attorneys general, bringing the total number of state-federal partnerships to 22. According to the FCC, the seven AGs entered into a Memoranda of Understanding (MOU) with state robocall investigators and the FCC’s Enforcement Bureau, which establishes critical information sharing and cooperation structures to investigate spoofing and robocall scam campaigns. The FCC also noted that it expanded existing MOUs in Michigan and West Virginia with robocall investigations. According to the press release, the MOUs help facilitate relationships with other actors, including other federal agencies and robocall blocking companies, and provide support for and expertise with critical investigative tools, including subpoenas and confidential response letters from suspected robocallers. The FCC also noted that “[d]uring investigations, both the FCC’s Enforcement Bureau and state investigators seek records, talk to witnesses, interview targets, examine consumer complaints, and take other critical steps to build a record against possible bad actors,” which “can provide critical resources for building cases and preventing duplicative efforts in protecting consumers and businesses nationwide.”
Chopra: Large repeat offenders should face tougher consequences
On March 28, CFPB Director Rohit Chopra warned that large, dominant banks and firms that repeatedly break the law “should be subject to the same consequences of enforcement actions as small firms.” Speaking before the University of Pennsylvania Law School as the 2022 Distinguished Lecturer on Regulation, Chopra told attendees that the current “double-standard” enforcement approach needs to end, and that the Bureau intends to establish dedicated units within its supervision and enforcement divisions to detect repeat offenders and corporate recidivists “to better hold them accountable.” This may mean that insured depository institutions lose access to federal deposit insurance or are put directly into receivership, Chopra stated, explaining that “[r]epeat offenses and, in particular, order violations, may be a sign that an institution’s condition or behavior is unsafe and unsound.”
Pointing out that penalties become meaningless if regulators are not willing to enforce them, Chopra stated that the Bureau needs “to move away from just monetary penalties and consider an arsenal of options that really work to stop repeat offenses.” To address this, Chopra outlined a new set of “bright-line structural remedies, rather than press-driven approaches” that the Bureau will consider when it discovers large entities are repeatedly committing the same types of violations. These include: (i) imposing limits or caps on size or growth; (ii) banning certain types of business practices; (iii) forcing companies to divest certain product lines; (iv) placing limitations on leverage or requirements to raise equity capital; and (v) revoking government granted privileges. Additionally, with respect to licensed nonbank institutions of all sizes that repeatedly violate the law, Chopra indicated that the Bureau will deepen its collaboration with state licensing officials to allow states to determine whether to suspend licenses or liquidate assets.
Chopra also raised the prospect of targeting individuals. “Agency and court orders bind officers and directors of the corporation, and so do the laws themselves, so there are multiple ways in which individuals are held accountable. Where individuals play a role in repeat offenses and order violations, it may be appropriate for regulatory agencies and law enforcers to charge these individuals and disqualify them. Dismissal of senior management and board directors, and lifetime occupational bans should also be more frequently deployed in enforcement actions involving large firms.” Chopra emphasized that “[w]hen it comes to individuals, we also need to pay close attention to executive compensation incentives. Important remedies for restoring law and order may include clawbacks, forfeitures, and other changes to executive compensation, including where we tie up compensation for longer periods of time and use that deferred compensation as the first pot of money to pay fines.”
CFTC awards $625,000 to whistleblowers
On March 28, the CFTC announced approximately $625,000 in awards to four whistleblowers whose information led the agency to a successful Commodity Exchange Act enforcement action. The associated order noted that the claimants “provided the Commission with original information,” and “each provided ongoing cooperation and assistance to Division staff, which significantly contributed to the success of the Covered Action.” One claimant received a higher award percentage to recognize that he or she provided the highest level of ongoing assistance and cooperation.
The CFTC has awarded approximately $330 million to whistleblowers since the enactment of its Whistleblower Program under Dodd-Frank, with whistleblower information helping prosecute enforcement actions leading to more than $3 billion in monetary sanctions.
FDIC releases February enforcement actions
On March 25, the FDIC released a list of administrative enforcement actions taken against banks and individuals in February. During the month, the FDIC made public six orders consisting of “three Orders to Pay Civil Money Penalty, two orders terminating consent order, and one consent order.” Among those announced were two civil money penalties for alleged violations of the Flood Disaster Protection Act. In one civil money penalty, imposed against a Kansas-based bank, the FDIC claimed that the bank “made, increased, extended, renewed, sold, or transferred a loan secured by a building or mobile home located or to be located in a special flood hazard area without properly notifying the Administrator of FEMA or their designee.” The order requires the payment of a $2,250 civil money penalty. In another civil money penalty, imposed against a Minnesota-based bank, the FDIC claimed that the bank: (i) “made, increased, extended, or renewed loans secured by a building or mobile home located or to be located in a special flood hazard area without requiring that the collateral be covered by flood insurance”; (ii) “made, increased, extended or renewed a loan secured by a building or mobile home located or to be located in a special flood hazard area without providing timely notice to the borrower and/or the servicer as to whether flood insurance was available for the collateral”; and/or (iii) “failed to comply with proper procedures for force-placing flood insurance in instances where the collateral was not covered by flood insurance at some time during the term of the loan.” That order requires the payment of a $3,000 civil money penalty.
SEC awards $1.25 million to whistleblower
On March 25, the SEC announced that it awarded a whistleblower $1.25 million for providing specific and credible information that prompted SEC staff to begin an investigation that resulted in a successful SEC covered action. According to the redacted order, the whistleblower voluntarily provided original information and participated extensively in assisting SEC staff through identifying witnesses, explaining critical documents, and helping focus the investigation on key issues, which saved SEC time and resources.
The SEC has awarded approximately $1.2 billion to 256 individuals since issuing its first award in 2012.
District Court denies motion to dismiss for lack of jurisdiction
On March 21, the U.S. District Court for the Western District of Virginia denied defendants’ motion to dismiss for lack of subject matter jurisdiction in a suit alleging that they misrepresented the cost of immigration bond services and deceived migrants to keep them paying monthly fees, including by making false threats of deportation for failure to pay. The defendants argued that “the CFPB lacks authority to exercise any power to enforce the CFPA with respect to [the defendants] because these corporations are regulated by state insurance regulators (12 U.S.C. § 5517(f)) and are merchants, retailors, or sellers of nonfinancial goods or services.” However, the district court noted that “limitations on the CFPB’s regulatory authority do not equate to limitations on this court’s jurisdiction.” The defendants also argued “that the exclusions to CFPB jurisdiction enumerated in the CFPA are jurisdictional limits on the court.” The district court found the defendants were “mistaken” and that “Congress did not expressly state that any threshold limitation on the CFPA’s scope shall count as jurisdictional limitations on the court. For these reasons, the court finds that it has subject-matter jurisdiction in this case.”
As previously covered by InfoBytes, the U.S. District Court for the District of Columbia denied the defendants’ request to enforce a modified Civil Investigative Demand (CID) and prevent the CFPB from obtaining personal information about the defendants’ clients via CIDs to third parties. In August 2017, the CFPB issued a CID to the defendants requesting various documents and information. The CFPB filed the present lawsuit in February 2021.
District Court enters $2.8 million judgment in CFPB student debt relief action
On March 22, the U.S. District Court for the Central District of California entered a stipulated final judgment and order against one of the defendants in an action brought by the CFPB, the Minnesota and North Carolina attorneys general, and the Los Angeles City Attorney, alleging a student loan debt relief operation deceived thousands of student-loan borrowers and charged more than $71 million in unlawful advance fees. As previously covered by InfoBytes, the complaint asserted that the defendants violated the CFPA, the Telemarketing Sales Rule, and various state laws. Amended complaints (see here and here) also added new defendants and included claims for avoidance of fraudulent transfers under the Federal Debt Collection Procedures Act and California’s Uniform Voidable Transactions Act, among other things. A stipulated final judgment and order was entered against the named defendant in July (covered by InfoBytes here), which required the payment of more than $35 million in redress to affected consumers, a $1 civil money penalty to the Bureau, and $5,000 in civil money penalties to each of the three states. The court also previously entered final judgments against several of the defendants, as well as a default judgment and order against two other defendants and a settlement with two non-parties (covered by InfoBytes here, here, here, here, and here).
The final judgment issued against the settling defendant, who neither admitted nor denied the allegations except as specifically stated, permanently bans the defendant from participating in telemarking services or offering or selling debt-relief services, and prohibits it from misrepresenting benefits consumers may receive from a product or service. The defendant is also permanently restrained from violating applicable state laws, and may not disclose, use, or benefit from customer information obtained in connection with the offering or providing of the debt relief services. The settlement orders the defendant to pay more than $2.8 million in consumer redress, as well as a $1 civil money penalty to the Bureau and $5,000 to each of the three states.
Agencies seek to update administrative enforcement proceedings
On March 22, the Federal Reserve Board, OCC, FDIC, and NCUA issued an interagency proposal to update policies and procedures governing administrative proceedings for supervised financial institutions. According to the proposal, the amendments are necessary to account for the routine use of electronic presentations in hearings and for use of technology in administrative proceedings, and to account for relevant legal developments since the rules were last updated, including the abolishment of the Office of Thrift Supervision, and the grant of new authorities to the agencies. Additionally, according to the proposal, the Fed “proposes to codify and clarify its long-standing practices concerning the conduct of formal administrative investigations and promulgate rules governing all formal investigations of organizations and individuals within the Board’s jurisdiction.” Finally, the FDIC proposes to amend its rules of administrative proceeding to permit greater use of depositions in the course of administrative proceedings.
Colorado reaches agreements with credit unions over unused GAP fees violations
Recently, the Colorado attorney general announced three separate settlements (see here, here, and here) with three credit unions resolving allegations that they neglected to refund unearned Guaranteed Automobile Protection (GAP) fees to Colorado consumers. The administrator of the Uniform Consumer Credit Code (UCCC), who is part of the Consumer Protection Division of the Department of Law and who led this investigation, concluded that the credit unions engaged in unfair and deceptive trade practices under the Colorado Consumer Protection Act by failing to provide GAP refunds automatically without waiting for a request from the consumer. Under the terms of the assurances of discontinuance, the credit unions have agreed to comply with all legal obligations and issue refunds to affected borrowers, and: (i) must comply with the UCCC rule’s GAP refund requirements; (ii) are subjected to an audit to verify the accuracy of their self-audits; and (iii) must send a confirmation letter pre-approved by the administrator to each consumer to whom a GAP refund was paid because of the self-audits. The AG noted that the “settlements are part of our office’s efforts to ensure lending institutions follow Colorado law and do not cheat hardworking consumers out of money they are entitled to under their lending and coverage agreements.”
FTC, DOJ halt deceptive credit repair operation
On March 21, the FTC and DOJ announced that the U.S. District Court for the Southern District of Texas entered a permanent injunction against a credit repair organization accused of allegedly defrauding consumers out of millions of dollars by promising to remove negative information from their credit reports, while actually filing fake identity theft reports to explain the negative items. (Press releases linked here and here.) According to the complaint, filed by the DOJ on behalf of the FTC, the defendants allegedly claimed their “two-step process” could remove negative items from consumers’ credit histories or credit reports through “advance disputing” of negative information and help boost credit scores by adding “credit building products” to consumers’ credit reports. However, according to the FTC, defendants failed to follow through on their credit repair promises, and instead filed identity theft reports even when consumers had not actually been victims of identity theft. The FTC claimed many consumers actually saw their credit scores decrease because the defendants’ “unsupported challenges rarely if ever cause[d] credit reporting agencies to delete or change any consumer’s credit information.” Company representatives also allegedly informed consumers that the process could boost consumers’ credit scores by 50-200 points within 90 days—a violation of the Credit Repair Organizations Act and the Telemarketing Sales Rule. Additionally, the FTC claimed that the defendants illegally required consumers to pay upfront fees up to $1,500, and failed to include disclosures detailing cancellation policies or provide consumers with copies of the contracts they were required to sign in order to obtain the defendants’ services. The permanent injunction imposes financial restrictions on the defendants and halts their operations.