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Insights Into The Financial Fraud Enforcement Task Force Priorities for 2013
On March 20, 2013, Michael Bresnick, Executive Director of DOJ’s Financial Fraud Enforcement Task Force gave a speech at the Exchequer Club of Washington, DC highlighting recent accomplishments of the Task Force and outlining its priorities for the coming year. He began by discussing a number of areas of known focus for the Task Force, including RMBS fraud, fair lending enforcement, and servicemember protection. He then outlined three additional areas of focus that the Task Force has prioritized, including (i) the “government’s ability to protect its interests and ensure that it does business only with ethical and responsible parties;” (ii) discrimination in indirect auto lending; and (iii) financial institutions’ role in fraud by their customers, which include third party payment processors and payday lenders.
The third priority, which was the focus of Mr. Bresnick’s remarks, involves the Consumer Protection Working Group’s prioritization of “the role of financial institutions in mass marketing fraud schemes -- including deceptive payday loans, false offers of debt relief, fraudulent health care discount cards, and phony government grants, among other things -- that cause billions of dollars in consumer losses and financially destroy some of our most vulnerable citizens.” He added that the Working Group also is investigating third-party payment processors, the businesses that process payments on behalf of the fraudulent merchant. Mr. Bresnick explained that “financial institutions and payment processors . . . are the so-called bottlenecks, or choke-points, in the fraud committed by so many merchants that victimize consumers and launder their illegal proceeds.” He said that “they provide the scammers with access to the national banking system and facilitate the movement of money from the victim of the fraud to the scam artist.” He further stated that “financial institutions through which these fraudulent proceeds flow . . . are not always blind to the fraud” and that the FFETF has “observed that some financial institutions actually have been complicit in these schemes, ignoring their BSA/AML obligations, and either know about -- or are willfully blind to -- the fraudulent proceeds flowing through their institutions.” Mr. Bresnick explained that “[i]f we can eliminate the mass-marketing fraudsters’ access to the U.S. financial system -- that is, if we can stop the scammers from accessing consumers’ bank accounts -- then we can protect the consumers and starve the scammers.”
Mr. Bresnick stated that the Task Force’s message to banks is this: “Maintaining robust BSA/AML policies and procedures is not merely optional or a polite suggestion. It is absolutely necessary, and required by law. Failure to do so can result in significant civil, or even criminal, penalties under the Bank Secrecy Act, FIRREA, and other statutes.” He noted that banks should endeavor not only to know their customers, but also to know their customers’ customers: “Before they agree to do business with a third-party payment processor, banks should strive to learn more about the processors’ merchant-clients, including the names of the principals, the location of the business, and the products being sold, among other things.” They further should be aware of glaring red flags indicative of fraud, such as high return rates on the processor’s accounts: “High return rates trigger a duty by the bank and the third-party payment processor to inquire into the reasons for the high rate of returns, in particular whether the merchant is engaged in fraud.” (See BuckleySandler’s previous Spotlight on Anti-Money Laundering posts here, here and here.) Mr. Bresnick underscored this point by mentioning a recent complaint filed by the DOJ in the Eastern District of Pennsylvania.
With respect to the financial institutions’ relationships with the payday lending industry, Mr. Bresnick stated that “the Bank Secrecy Act required banks to have an effective compliance program to prevent illegal use of the banking system by the banks’ clients.” He explained that financial institutions “should consider whether originating debit transactions on behalf of Internet payday lenders – particularly where the loans may violate state laws – is consistent with their BSA obligations.” Although he acknowledged that it was not a simple task for a financial institution to determine whether the loans being processed through it are in violation of the state law where the borrower resides, he suggested “at a minimum, banks might consider determining the states where the payday lender makes loans, as well as what types of loans it offers, the APR of the loans, and whether it makes loans to consumers in violation of state, as well as federal, laws.”
In concluding, Mr. Bresnick said, “It comes down to this: When a bank allows its customers, and even its customers’ customers, access to the national banking system, it should endeavor to understand the true nature of the business that it will allow to access the payment system, and the risks posed to consumers and society regarding criminal or other unlawful conduct.”
The agenda outlined by Mr. Bresnick reinforces ongoing efforts by FinCEN and the FDIC, and adds to the priorities recently sketched out by CFPB and the OCC. Together they describe an ambitious, and increasingly aggressive, financial services enforcement agenda for federal regulators and enforcement authorities.
Federal Reserve Board Inspector General Reviewing CFPB's Use of Enforcement Attorneys During Examinations
Recently, the Federal Reserve Board’s Office of Inspector General (OIG), which also serves as the OIG for the CFPB, released an updated Work Plan. The Work Plan includes as a “work in progress,” an evaluation of the CFPB’s integration of enforcement attorneys into its examinations of financial institutions. According to the Plan, the OIG is assessing (i) the potential risks associated with this examination approach and (ii) the effectiveness of any safeguards that the CFPB has adopted to mitigate the potential risks associated with this approach. Banks and nonbanks have previously expressed concern with the CFPB’s approach, which differs from the traditional approach taken by other federal regulators. In fact, in November 2012, the CFPB Ombudsman recommended that the CFPB review its implementation of the policy. The Work Plan states that the OIG expects to complete its review during the second quarter of 2013.
U.S. Supreme Court Rejects SEC's Bid for More Time to Bring Civil Fraud Enforcement Action
On February 27, the U.S. Supreme Court held that the clock on the five-year statute of limitations for the SEC to pursue civil fraud claims under the Investment Advisers Act begins to run when the fraud occurs, and not when it is discovered, because the “discovery rule” does not apply to government enforcement actions for civil penalties. Gabelli v. SEC, No. 11-1274, 2013 WL 691002 (Feb. 27, 2013). The Court’s holding followed an investment adviser’s appeal from a Second Circuit decision that, under the discovery rule, the statute of limitations had not accrued until the fraud was discovered or could have been discovered with reasonable diligence because the claims sounded in fraud. The Court reversed the Second Circuit’s decision and remanded for further proceedings on the basis that extending the fraud discovery rule to government civil penalty enforcement actions would improperly leave defendants exposed to government action for an uncertain period beyond the five years after their alleged misdeeds. The Court explained that the discovery rule is meant to preserve the claims of parties who have no reason to suspect fraud, but that the government, here the SEC, is different insofar as it is specifically tasked with rooting out fraud and possesses several legal tools to that end. The Court also observed that, unlike a standard victim of fraud seeking only recompense, the government also seeks remedies intended to punish.
Cordray and Curry Address AGs Regarding Enforcement Initiatives
On February 26, CFPB Director Richard Cordray and Comptroller of the Currency Tom Curry addressed the National Association of Attorneys General. Mr. Cordray’s remarks were largely duplicative of those given a week earlier to the CFPB Consumer Advisory Board, and again identified several “problems” observed by the CFPB. Those problems were (i) deceptive and misleading marketing of consumer financial products and services, (ii) “debt traps” that trigger a cycle of debt, such as short-term credit products, (iii) “dead ends” in markets such as debt collection, loan servicing, and credit reporting where consumers cannot choose their provider and lack typical market influences, and (iv) discrimination. With regard to short-term loans, Mr. Cordray identified as an enforcement challenge lenders that lack a physical presence, and acknowledged ongoing efforts by the CFPB to address “loans that involve off-shore or other jurisdictional issues.” In his remarks, Mr. Curry first stressed the similar objectives of, and close working relationship among, the OCC, the CFPB, and the attorneys general. He then spent the majority of his remarks explaining why most OCC enforcement actions are resolved by settlement, adding that the first enforcement goal of the OCC as a “prudential bank supervisor” is remediation. Mr. Curry also responded to criticisms that OCC enforcement actions are “insufficiently severe,” and noted that the OCC is prepared to litigate if an institution refuses to consent.
FTC Halts Alleged Illegal Consumer Account Billing Operation
On February 20, the FTC announced that it obtained a preliminary injunction in the U.S. District Court for the District of Nevada against a firm and affiliated entities alleged to have debited consumers’ bank accounts and charged their credit cards small amounts, without authorization. Although the FTC does not yet know how the defendants obtained the consumers’ financial information, the FTC states that some consumers had recently applied for payday loans via the Internet. The FTC’s complaint alleges that the firms attempted to conceal the scheme by (i) creating dozens of shell companies to open merchant accounts with payment processors that enable merchants to get customers’ money via electronic banking, (ii) registering more than 230 Internet domain names, often using identity-hiding services and auto-forward features, and (iii) inflating their total number of deposits and lowering their return rates by taking multiple unauthorized debits of a few pennies each, and then immediately refunding them before making a larger debit of about $30. The FTC is seeking, among other things, restitution and a permanent injunction. The FTC was assisted in its investigation by the Utah Department of Commerce’s Division of Consumer Protection and the Arkansas Attorney General Office’s Consumer Protection Division.
House Financial Services Ranking Member Seeks Additional Information Regarding Foreclosure Review Settlements
On February 15, House Financial Services Committee Ranking Member Maxine Waters (D-CA) sent an amended set of requests to the Federal Reserve Board and the OCC regarding the recent agreements in principle to end the Independent Foreclosure Review (IFR) established by consent orders issued in April 2011. Ms. Waters asks that, in advance of finalizing the terms of the agreements, the agencies produce by March 1, 2013: (i) policies and procedures about how loan files were to be reviewed by the IFR independent consultants, and any checklists used; (ii) calls or reports from the consultants to the agencies regarding error rates of reviewed files, or errors by analysts conducting the reviews; (iii) guidelines issued by the agencies to any consultant related to interpretation of the remediation framework; (iv) correspondence between the agencies and any consultant with regard to the servicing platform identified as “Loss Mitigation Notes,” and inconsistencies between the reported availability of borrower records provided by such a program and records entered into any other part of the servicing platform; and (v) any proposed plan for future reform or modification of servicing platforms or procedures generated or submitted by any consultant to the agencies. This request follows related requests made by Ms. Waters and other Democratic lawmakers seeking details pertaining to the settlement.
Special Alert: HUD Issues Final Disparate Impact Rule
On February 8, HUD issued a final rule authorizing so-called "disparate impact" or "effects test" claims under the Fair Housing Act. The rule provides support for private or governmental plaintiffs challenging housing or mortgage lending practices that have a "disparate impact" on protected classes of individuals, even if the practice is facially neutral and non-discriminatory and there is no evidence that the practice was motivated by a discriminatory intent. The rule also will permit practices to be challenged based on claims that the practice improperly creates, increases, reinforces, or perpetuates segregated housing patterns.
In its final rule, HUD codified a three-step burden-shifting approach to determine liability under a disparate impact claim. Once a practice has been shown by the plaintiff to have a disparate impact on a protected class, the final rule states that the defendant would have the burden of showing that the challenged practice "is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests of the respondent . . . or defendant . . . . A legally sufficient justification must be supported by evidence and may not be hypothetical or speculative." As proposed, the defendant would have had the burden of proving that the challenged practice "has a necessary and manifest relationship to one or more legitimate, nondiscriminatory interests."
HUD explained in the rule's preamble that, although it declined to use the term "business necessity" in the second prong of the disparate impact analysis, the phrase "substantial, legitimate, nondiscriminatory interest" is "equivalent to the 'business necessity' standard found in the Joint Policy Statement. The standard set forth in this rule is not to be interpreted as a more lenient standard than 'business necessity.'" HUD also highlighted the removal of the word "manifest," which was replaced by the language "a legally sufficient justification must be supported by evidence and may not be hypothetical or speculative." HUD noted that the revised language is "intended to convey that defendants and respondents . . . must be able to prove with evidence the substantial, legitimate, nondiscriminatory interest supporting the challenged practice and the necessity of the challenged practice to achieve that interest."
With respect to the less discriminatory alternative prong, HUD clarified in the preamble that the alternative must also serve the specified interest supporting the challenge. However, HUD declined to specify in the rule that the less discriminatory alternative must be "equally effective" as the challenged policy - which would have made the rule consistent with the legal standard set forth in the Supreme Court case Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989).
Other noteworthy aspects of the final rule include:
- HUD's decision not to address comments raising objections to the rule based on the fact that the disparate impact standard is inconsistent with that set forth in Smith v. City of Jackson Miss., 544 U.S. 228 (2005) and Wards Cove.
- HUD's statement that the rule applies to pending and future cases because it is not a change in HUD's position but rather a formal interpretation of the Fair Housing Act that clarifies the appropriate standards for proving a violation under an effects theory. HUD also chose not to conduct a cost/benefit analysis on this basis.
- HUD's clarification that the Fair Housing Act provides in these cases awards of damages, both actual and punitive.
- New language in the regulation stating that unlawful discriminatory conduct under the Fair Housing Act includes "servicing of loans or other financial assistance with respect to dwellings in a manner that discriminates, or servicing loans or other financial assistance which are secured by residential real estate in a manner that discriminates, or providing such loans or financial assistance with other terms or conditions that discriminate" on a prohibited basis.
- Language in the preamble restating HUD's position that the Fair Housing Act applies to homeowner's insurance.
Notwithstanding HUD's view that the final rule merely clarifies the existing interpretation of the Fair Housing Act, we expect that this rule will pose substantial compliance challenges for financial institutions.
OCC Personnel Changes Elevate Role of Enterprise Governance and Ombudsman, Indicate Increased Focus on Fair Lending
On February 7, the OCC announced that Larry Hattix will serve as Senior Deputy Comptroller for Enterprise Governance and Ombudsman. The move also elevates enterprise governance to the OCC’s Executive Committee. In the new position, Mr. Hattix will oversee the agency’s enterprise governance function, national bank and savings association appeals program, and the agency’s customer assistance group. Mr. Hattix has served as Ombudsman since January 2008, prior to which he served as Assistant Deputy Comptroller for the Cincinnati/Columbus Field Office, where he directly supervised 40 banks. On the same day, the OCC announced Donna Murphy as Director for Community and Consumer Law, a position that oversees the OCC’s law department division that provides legal interpretations and advice on consumer protection, fair lending, and community reinvestment and development issues. Ms. Murphy had served as Principal Deputy Chief for the Housing and Civil Enforcement Section, Civil Rights Division, at the Department of Justice since October 2010. Prior to that, she served as Deputy Chief and Acting Chief for the Housing and Civil Enforcement Section.
FTC Announces Mobile Privacy Enforcement Action, Issues Mobile Privacy Staff Report
On February 1, the FTC announced that it is requiring a social networking application company to pay $800,000 and make certain compliance enhancements to resolve allegations that the firm (i) misled and deceived users by automatically collecting and storing personal information from users’ mobile device address books even if the users had not selected that option and despite claims that the application collected only certain non-personal user information, and (ii) violated the Children’s Online Privacy Protection Act Rule by collecting personal information from approximately 3,000 children under the age of 13 without first getting parents’ consent. Pursuant to the consent decree, in addition to the monetary penalty, the company must establish a comprehensive privacy program, and obtain independent privacy assessments every other year for the next 20 years.
Concurrently, the FTC released a staff report that provides disclosure policy and other guidance to mobile platforms, application developers, advertising networks and analytics companies, and application developer trade associations. For example, the report urges platforms to (i) provide just-in-time disclosures to consumers and obtain affirmative express consent before allowing applications to access sensitive content like geolocation; (ii) consider providing just-in-time disclosures and obtaining affirmative express consent for other content that consumers may find sensitive; and (iii) consider developing icons to depict the transmission of user data. With regard to application developers, the report recommends, for example, that developers (i) provide just-in-time disclosures and obtain affirmative express consent before collecting and sharing sensitive information; and (ii) improve coordination and communication with advertising networks and other third parties that provide services for applications. During a call announcing the report, the FTC explained that the report is intended to influence industry standards, and that the Commission staff will reference the report for future policymaking. The FTC also noted that the National Telecommunications and Information Agency is developing a code of conduct on mobile application transparency, and, if strong privacy codes are developed, the FTC will view adherence to such codes favorably in connection with its law enforcement work.
FTC Chairman Announces Plans to Step Down
On February 1, the FTC announced that Chairman John Leibowitz plans to step down on February 15, 2013. Mr. Leibowitz has been a Commissioner since September 2004, and has served as Chairman for the past four years. During his tenure, the FTC has prioritized consumer privacy and financial fraud enforcement and policy development. With regard to privacy initiatives during his time as Chairman, the FTC issued a landmark report setting forth best privacy practices for all businesses, and recently updated the Children’s Online Privacy Protection Rule.