CFPB invokes dormant authority to examine nonbanks
On April 25, the CFPB announced it was invoking a “dormant authority” under the Dodd-Frank Act to conduct supervisory examinations of fintech firms and other nonbank financial services providers based upon a determination of risk. “This authority gives us critical agility to move as quickly as the market, allowing us to conduct examinations of financial companies posing risks to consumers and stop harm before it spreads,” CFPB Director Rohit Chopra explained. The Bureau has direct supervisory authority over banks and credit unions with more than $10 billion in assets, certain nonbanks regardless of size that offer or provide consumer financial products or services, and the service providers for such entities. With this announcement, the Bureau now plans to use a provision under Section 1024 of Dodd-Frank that allows it to examine nonbank financial entities, upon notice and an opportunity to respond, if it has “reasonable cause” to determine that consumer harm is possible.
In tandem with the announcement, the Bureau also issued a request for public comment on an updated version of a procedural rule that implements its statutory authority to supervise nonbanks “whose activities the CFPB has reasonable cause to determine pose risks to consumers,” including potentially unfair, deceptive, or abusive acts or practices. The statute requires that the Bureau “base such reasonable cause determinations on complaints collected by the CFPB, or on information from other sources,” which the Bureau stated may include “judicial opinions and administrative decisions, . . . whistleblower complaints, state partners, federal partners, or news reports.” “Given the rapid growth of consumer offerings by nonbanks, the CFPB is now utilizing a dormant authority to hold nonbanks to the same standards that banks are held to,” Chopra stated.
Among other things, the new rule establishes a disclosure mechanism intended to increase transparency of the Bureau’s risk-determination process. Specifically, the new rule will exempt final decisions and orders by the CFPB director from being considered confidential supervisory information, allowing the Bureau to publish the decisions on their website. Subject companies will be given an opportunity seven days after a final decision is issued to provide input on what information, if any, should be publicly released. According to the Bureau, there “is a public interest in transparency when it comes to these potentially significant rulings by the Director as head of the agency. Also, if a decision or order is publicly released, it would be available as a precedent in future proceedings.”
The procedural rule is effective upon publication in the Federal Register and has a 30-day comment period.