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Category Archives: Regulatory and Compliance

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CFPB’s First No-Action Letter: Supporting Innovation AND Supervision for Fair Lending

Posted in Regulatory and Compliance
The Consumer Financial Protection Bureau (the “Bureau”) issued its first no-action letter (“NAL”) to Upstart Network, Inc. (“Upstart”), a marketplace lender that sought to clarify that its automated model for underwriting unsecured, non-revolving loans does not present a violation of the Equal Credit Opportunity Act (“ECOA”) and… Read the rest

Regulatory Alert: Debt Collection

Posted in Regulatory and Compliance
Among the announcements in its Spring 2017 rulemaking agenda, which was just released on July 20, the Consumer Financial Protection Bureau (CFPB) announced that later this year it plans to issue a Notice of Proposed Rulemaking (NPRM) regarding debt collectors’ communications and disclosure practices. The CFPB’s guidance is notable both for indic… Read the rest

Second Circuit Holds That Printing of Expiration Date Is a Bare Procedural Violation of FACTA That Is Inadequate Under Spokeo to Confer Standing to Sue

Posted in Regulatory and Compliance
Addressing the issue of when “a bare procedural violation of a statutory right constitute[s] an injury in fact sufficient for standing to bring suit in federal court”, the U.S. Court of Appeals for the Second Circuit has joined the Seventh Circuit in holding, in the specific context of the Fair and Accurate Credit Transactions Act of 2003 (“FACTA”… Read the rest

Supreme Court Narrows FDCPA’s Definition of Debt Collector

Posted in Regulatory and Compliance
Debt buyers generally are considered “debt collectors” under the Fair Debt Collection Practices Act (“FDCPA”).  However, on June 12, 2017, the Supreme Court decided Henson v. Santander Consumer USA Inc., which resolved an existing circuit split and unanimously affirmed a Fourth Circuit holding that a company that collects debts that it had p… Read the rest

Consumer Financial Data Aggregation & the Potential for Regulatory Intervention

Posted in Regulatory and Compliance
I. Introduction A confluence of regulatory activity and policy debates seem to be laying the groundwork for future regulation of consumer financial data aggregation activities. The outcome of these activities could significantly affect how financial data may be shared by financial institutions, controlled by third-party data aggregators, and used… Read the rest

FRB Governor Indicates Data Aggregators Could Impact Bank Safety & Soundness as Part of the “Fintech Stack”

Posted in Regulatory and Compliance
In a recent speech at the Northwestern Kellogg Public-Private Interface Conference, Federal Reserve Board Governor Lael Brainard indicated that the relationships between banks and data aggregators within the “fintech stack” may present safety and soundness concerns that warrant oversight by the FRB (and perhaps other prudential regulators).… Read the rest

A “Bad Apples” Database for Banks? Not So Fast.

Posted in Regulatory and Compliance
Overview Should banks, while guarding against rolling episodes of misconduct by bankers, have the ability to blackball employees from the banking industry?  A “bad apples” database of bank employees who have acted improperly in prior jobs would help ferret out potential problem employees before they are hired and able to do more bad banking deals… Read the rest

CFPB Seeks Comments on the Credit Card Market for Its 2017 CARD Act Report

Posted in Regulatory and Compliance
The Consumer Financial Protection Bureau recently issued a request for information (the RFI) regarding the consumer credit card market. The CARD Act (Pub. L. No. 111–24, 123 Stat. 1734 (2009)) requires the CFPB to publish a biennial report on the state of the credit card market, and responses to the RFI will inform the CFPB’s findings in its forthcomin… Read the rest

RFI on Consumer Data Sharing Shows CFPB Interest in Data Aggregators

Posted in Regulatory and Compliance
The Consumer Financial Protection Bureau (CFPB or the “Bureau”) has recently expressed interest in how consumer financial information aggregators and financial services companies interact to share and protect financial data about consumers. Below we provide background on this growing industry, summarize the CFPB’s recent Request for InforRead the rest

Caveat Venditor: CFPB Bulletin on Sales Practices and Incentive Compensation Suggests More Enforcement Actions may be Coming

Posted in Financial Services Litigation and Enforcement, Regulatory and Compliance
On November 28, 2016, the Consumer Financial Protection Bureau (the “Bureau”) issued CFPB Compliance Bulletin 2016-13, titled “Detecting and Preventing Consumer Harm from Production Incentives” (the “Bulletin”).  Inviting “dialogue and discussion” on issues surrounding the uses of production incentives for consumer financi… Read the rest

Federal Banking Agencies Seek Comment on Enhanced Cyber Risk Management Standards for Large Banks

Posted in Regulatory and Compliance
To address the increasing risk of technology failures and cyber-attacks affecting the largest banking organizations, an advance notice of proposed rulemaking titled Enhanced Cyber Risk Management Standards (the ANPR) was recently issued by the Board of Governors of the Federal Reserve System, the Office of the Comptroller of the Currency, and the Fed… Read the rest

Regulators and Innovation – an Update on Key Developments

Posted in Deals and Technology, Regulatory and Compliance
Innovation in the delivery of financial products and services continues at a rapid rate.  We discuss below some recent developments at the Consumer Financial Protection Bureau and the Office of the Comptroller of the Currency that illustrate the ways in which two key financial services regulators are working to keep up. CFPB’s Innovation Insights ReRead the rest

Assessing the Utility of CARD Act Disclosures

Posted in Regulatory and Compliance
PLA has for many years posted elite academic research questioning the utility of CARD Act disclosures.  For example, in 2013 we posted Regulating Consumer Financial Products: Evidence from Credit Cards by Sumit Agarwal from Georgetown University, Souphala Chomsisengphet from the Office of the Comptroller of the Currency, Neale Mahoney from the… Read the rest

Blockchain, Regtech Dominate Financial Industry Innovations

Posted in Regulatory and Compliance
On September 7, 2016, attorneys from Davis Wright Tremaine LLP attended Next Money NYC 2016. Next Money featured speakers from across the payments industry and the BBVA Open Talent Pitch Competition where twenty fintech start-ups competed for two € 30,000 prizes. Here are our top takeaways from the conference: Blockchain Holds Potential to Reshape Di… Read the rest

CFPB Official Offers Update and Guidance on Regulations

Posted in Regulatory and Compliance
This morning we attended the meeting of the Financial Services Roundtable’s Consumer Working Group, which featured a presentation by David Silberman, Acting Deputy Director of the Consumer Financial Protection Bureau. Deputy Director Silberman described the Bureau’s rulemaking process, touched on a handful of its ambitions for rules under a ra… Read the rest

Cybersecurity Response to Recent Wholesale Payment Systems Breaches

Posted in Regulatory and Compliance
In February 2016, hackers stole $81 million from the Bangladesh central bank by sending fraudulent messages through the Society for Worldwide Interbank Financial Telecommunication (SWIFT) messaging system. Three months later, hackers attempted to steal over $1 million from a commercial bank in Vietnam using a similar method. Since then, almost a doz… Read the rest

NYDFS Issues Regulation Addressing Anti-Money Laundering Transaction Monitoring and Filtering Requirements

Posted in Regulatory and Compliance
On June 30, 2016, the New York Department of Financial Services (NYDFS) issued a final regulation obliging regulated institutions to meet enhanced requirements for transaction monitoring and filtering programs aimed at preventing Bank Secrecy Act (BSA)/anti-money laundering (AML) violations and transactions with sanctioned entities (the “Fin… Read the rest