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On January 29, Senators Sherrod Brown (D-OH) and Charles Grassley (R-IA) sent a letter to U.S. Attorney General Eric Holder complaining that settlements obtained by the DOJ from financial institutions alleged to have contributed to the financial crisis “involve penalties that are disproportionately low,” both in relation to the institutions’ profits and the amount of harm the institutions are alleged to have caused. The Senators charge that the DOJ’s “prosecutorial philosophy”, which includes giving consideration to the impact of a prosecution or large penalty against an institution on the broader financial system, erodes public confidence and undermines the department’s institutional standing. The Senators seek responses to a series of questions about the DOJ’s approach to post-financial crisis enforcement, including its use of outside experts in making decisions regarding prosecution of the largest financial institutions.
On January 28, Maryland Attorney General (AG) Doug Gansler announced a new unit in his office dedicated to online privacy enforcement and policy. The AG stated that the new unit will (i) monitor companies to ensure they are in compliance with state and federal consumer privacy laws, (ii) examine weaknesses in online privacy policies and work alongside major industry stakeholders and privacy advocates to provide outreach and education to businesses and consumers to broaden awareness about privacy rights, and (iii) pursue enforcement actions where appropriate. The unit announced by the AG appears similar to one formed by California Attorney General Kamala Harris, which recently has been active with regard to mobile application privacy. Last year, AG Gansler announced “Privacy in the Digital Age” as his central initiative as President of the National Association of Attorneys General.
California District Court Holds Song-Beverly Credit Card Act Does Not Prohibit Post-Transaction Collection of Zip Codes, Denies Class Certification
On January 28, the U.S. District Court for the Northern District of California denied a motion for class certification filed by a group of plaintiffs seeking to challenge, on behalf of similarly situated individuals, a retailer’s policy that required cashiers to request consumer zip codes in connection with a purchase transaction. Gormley v. Nike, Inc., No, 11-893, 2013 WL 322538 (N.D. Cal. Jan. 28, 2013). The court held that the named plaintiffs failed to demonstrate typicality because their experiences were inconsistent with the policy they sought to challenge. The court explained that while the policy required cashiers to request zip codes after providing the purchased merchandise and a receipt to the customer, each plaintiff testified that the cashier asked for a zip code prior to providing those items. The court disagreed with the plaintiffs’ argument that the timing of the request was irrelevant based on the plaintiffs’ assertion that the California Supreme Court held in Pineda v. Williams-Sonoma Stores Inc. that a request for a card holder’s zip code violates the Song-Beverly Credit Card Act. The court explained that Pineda only addressed whether zip codes constituted personal identification information, and then chose to follow subsequent district court decisions holding that the Song-Beverly Act prohibits only a request for personal identification information as a condition to completing a credit card transaction.
On January 18, the federal banking agencies issued a final rule amending Regulation Z to implement certain requirements from the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act) that require creditors to obtain appraisals for a subset of loans called Higher-Priced Mortgage Loans (HPMLs), and to notify consumers who apply for these loans of their right to a copy of appraisal. On the same day, the Consumer Financial Protection Bureau issued a final rule under the Equal Credit Opportunity Act (ECOA), as amended by the Dodd-Frank Act, to require creditors to provide residential mortgage loan applicants with a copy of any and all appraisals and other written valuations developed in connection with an application for closed or open-end credit that is to be secured by a first lien on a dwelling. Both rules take effect on January 18, 2014. BuckleySandler has prepared a Special Alert that provides additional details regarding the HPML appraisal rule, as well as a Special Alert regarding the ECOA appraisal rule.
On January 25, the U.S. Court of Appeals for the D.C. Circuit held that appointments to the National Labor Relations Board (NLRB) made by President Obama in January 2012 during a purported Senate recess were unconstitutional, and vacated an order of the NLRB as constituted with those improperly appointed members. Noel Canning v. NLRB, No. 12-1115, slip. op (D.C. Cir. Jan. 25, 2013). The court, making a distinction between recesses generally and “the Recess” as used in the Constitution, held that the President can only make recess appointments during intersession recesses, and not during intrasession recesses. The court explained that the President's NLRB appointments were made during an intrasession recess, as the Senate was operating pursuant to a unanimous consent agreement that provided it would meet in pro forma sessions. Moreover, the court held that the President may only fill vacancies that arise or begin during such intersession recesses, as opposed to vacancies that happen to exist during such recesses. The court determined that the vacancies at issue here existed well before the recess. The court held that the appointments were constitutionally “invalid from their inception” and therefore the NLRB lacked a quorum to issue the NLRB order challenged on appeal. The court vacated the NLRB’s order at issue. The President appointed CFPB Director Richard Cordray as a recess appointment on the same day the President appointed the NLRB members. Mr. Cordray’s appointment is the subject of a lawsuit currently pending in the U.S. District Court for the District of Columbia.
President Obama Re-nominates Richard Cordray for CFPB Director, Nominates Mary Jo White for SEC Chair
On January 24, President Obama announced his re-nomination of current CFPB Director Richard Cordray. Mr. Cordray has led the Bureau since January 2012 when President Obama used his recess appointment authority to install the CFPB director. Absent Senate confirmation, Mr. Cordray’s recess appointment expires at the end of this year. Further, the constitutionality of that appointment may be called into question by a recent federal appellate court decision addressing other recess appointments. Also on January 24, President Obama nominated Mary Jo White for Senate confirmation to serve as Chairman of the SEC. Ms. White is a former U.S. Attorney for the Southern District of New York, during which time she led high-profile prosecutions of organized crime members and terrorists. Most recently she was in private practice.
On January 24, a Joint Powers Authority established by San Bernardino County decided not to pursue a proposal under which the County would use eminent domain power to seize underwater mortgages from private trusts and provide principal reduction for the borrowers. In announcing the decision, the chairman of the Authority explained that the decision was based on warnings from experts about the destabilizing effect on the housing market such a policy would have, and noted that county residents did not favor the proposal. Instead, the Authority approved an agreement to work with banking, mortgage, real estate, and investment firms to connect homeowners with appropriate mortgage assistance programs. San Bernardino had been closely watched since it began pursuing the concept last year. Its decision could portend how other localities will proceed. At least one recent report indicates that several other localities that have been considering eminent domain proposals already were wary of the concept even before San Bernardino’s decision.
On January 23, the FHFA settled and voluntarily dismissed one of the lawsuits it initiated in 2011 as conservator for Fannie Mae and Freddie Mac, alleging against many parties that billions of dollars of MBS purchased by the GSEs were based on offering documents that contained materially false statements and omissions. FHFA v. Gen. Elec. Co., No. 11-7048, Notice of Dismissal (Jan. 23, 2013). This is the first settlement to be announced in connection with this series of cases; the lead case currently is on appeal to the U.S. Court of Appeals for the Second Circuit. Although the FHFA did not release any details related to the settlement, in reports the FHFA’s general counsel described the resolution as “consistent with FHFA’s responsibilities as conservator.”
On January 22, the FFIEC proposed guidance on the applicability of consumer protection and compliance laws, regulations, and policies to activities conducted via social media by federally supervised financial institutions, as well as nonbanks supervised by the CFPB. With regard to compliance and legal risks, the guidance addresses (i) the applicability of existing federal laws and regulations to the use of social media for marketing and originating new deposit and lending products and the use of social media to facilitate consumer use of payment systems; (ii) the need to apply BSA/AML internal controls to customers engaging in electronic banking through the use of social media, and e-banking products and services offered in the context of social media, as well as BSA/AML risks emerging through the growing use of social media; (iii) CRA monitoring of social media sites run by an institution; and (vi) customer privacy issues associated with social media. The guidance also reviews reputational risks related to social media, including risks related to (i) fraud and brand identity; (ii) social media vendor monitoring; (iii) privacy; (iv) consumer complaints; and (v) employee use of social media. Finally, the guidance addresses the vulnerability of social media to malware and the resultant operational risk. The FFIEC is accepting comments for 60 days after publication in the Federal Register. After the comment period, the agencies will issue supervisory guidance and will urge state regulators to follow.
On January 22, Senator Bob Corker (R-TN) sent a letter to federal regulators responsible for finalizing the Dodd-Frank Act mandated “qualified residential mortgage” (QRM) standard, urging that the final QRM definition mirror the “qualified mortgage” (QM) definition recently promulgated by the CFPB. The QRM rule will define those loans exempt from the Act’s risk retention requirements for mortgage securitizers, a requirement that also will be set by the rule though it cannot be less than the statutory floor of five percent of the credit risk for any asset that is not a QRM. The Act also prohibits the QRM standard from being broader than the QM definition. Senator Corker maintains that, because the QRM rule will exempt loans sold to federal government sponsored enterprises and government agencies, “if the QRM rule is written differently than the QM rule, most financial institutions will only originate loans intended for sale to” those entities and as a result the return of private capital to the secondary market will be limited.
- Valerie L. Hletko to discuss "Forecasting litigation and settlement trends in the mortgage servicing and fair lending context" at the American Conference Institute National Forum on Residential Mortgage Regulatory Enforcement & Litigation
- Michelle L. Rogers and Jonice Gray Tucker to discuss “Building a govt affairs program; Government investigations” at the TechGC National Summit
- Tina Tchen to deliver keynote address at the American Bar Foundation Montgomery Summer Research Diversity Fellowship 30th Anniversary Celebration
- Douglas F. Gansler to discuss "Privacy, security and protection of your assets in contracts; Security exercises and tactical measures" at the TechGC National Summit
- H Joshua Kotin will discuss federal regulatory developments in mortgage lending and servicing at the Mortgage Bankers Association of Arkansas Fall Conference
- Kate Shrout to discuss "Conducting workplace investigations" at the TechGC National Summit
- Kathryn R. Goodman to discuss "HECM servicing policies and updates" at the National Reverse Mortgage Lenders Association Annual Meeting & Expo
- Fredrick S. Levin to discuss "Reverse mortgage litigation trends" at the National Reverse Mortgage Lenders Association Annual Meeting & Expo
- Melissa Klimkiewicz to speak at the "Digital marketing compliance roundtable" at the National Reverse Mortgage Lenders Association Annual Meeting & Expo
- Hank Asbill to discuss "The role of the media in white collar criminal investigations and the Mueller probe" at the American Bar Association White Collar Crime Town Hall
- John C. Redding to discuss "Regulatory compliance update" at PowerSports Finance
- Matthew P. Previn to discuss "Enforcement trends: Who is doing what and how?" at the Cambridge Forums Inc. Forum on Consumer Finance Litigation & Enforcement
- Jonice Gray Tucker to discuss "Protect yourself from a CFPB investigation" at the National Association of Settlement Purchasers Conference
- Tina Tchen to deliver keynote address at the American Bar Association Professional Success Summit
- Andrea K. Mitchell to discuss "Developments in fair lending law" at the Mortgage Bankers Association Summit on Diversity and Inclusion
- Jonice Gray Tucker to discuss "Consumer financial services" at the Practising Law Institute Banking Law Institute
- Daniel P. Stipano to discuss "New CDD Rule: Pitfalls in compliance" at the American Bankers Association/American Bar Association Financial Crimes Enforcement Conference