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Financial Services Law Insights and Observations


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  • DFPI announces investigation into crypto platform

    On November 10, the California Department of Financial Protection and Innovation (DFPI) announced that it is investigating “the apparent failure” of a crypto asset platform, which recently announced that it filed for bankruptcy. According to DFPI, it takes “oversight responsibility very seriously,” and expects “any person offering securities, lender, or other financial services provider that operates in California to comply with our financial laws.”

    Licensing State Issues DFPI California State Regulators Digital Assets Cryptocurrency

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  • OFAC sanctions Iranian media corporation

    Financial Crimes

    On November 16, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) announced sanctions pursuant to Executive Order 13846 against six senior employees of the Iranian state-run media corporation that has broadcast hundreds of forced confessions of Iranian, dual national, and international detainees in Iran. According to OFAC, the corporation was designated in 2013 and does not act “as objective media outlet but rather as a critical tool in the Iranian government’s mass suppression and censorship campaign against its own people.” OFAC also noted that the corporation has “recently broadcast televised interviews of individuals being forced to confess that their relatives were not killed by Iranian authorities during nationwide protests but died due to accidental, unrelated causes.” As a result of the sanctions, all property and interests in property belonging to the sanctioned persons subject to U.S. jurisdiction are blocked and must be reported to OFAC. Additionally, “any entities that are owned, directly or indirectly, 50 percent or more by one or more blocked persons are also blocked.” U.S. persons are also generally prohibited from engaging in any dealings involving the property or interests in property of blocked or designated persons. Persons that engage in certain transactions with the individuals or entities designated today may themselves be exposed to designation. Additionally, OFAC warned that “any foreign financial institution that knowingly facilitates a significant transaction or provides significant financial services for any of the individuals designated today could be subject to U.S. sanctions.”

    Financial Crimes Of Interest to Non-US Persons Department of Treasury OFAC OFAC Sanctions OFAC Designations Iran SDN List

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  • Treasury recommends closer supervision of fintech-bank partnerships


    On November 16, the U.S. Treasury Department, in consultation with the White House Competition Council, released a report entitled Assessing Impacts of New Entrant Non-bank Firms on Competition in Consumer Finance Markets. The report is a product of President Biden’s July 2021 Executive Order, Promoting Competition in the American Economy, (covered by InfoBytes here), which, among other things, ordered Treasury to submit a report within 270 days on the effects on competition of large technology and other non-bank companies’ entry into the financial services space. Assessing Impacts of New Entrant Non-bank Firms on Competition in Consumer Finance Markets is the final report in a series of reports that assesses competition in various aspects of the economy. Among other things, the report found that while concentration among federally insured banks is increasing, new entrant non-bank firms, specifically “fintech” firms, are adding significantly to the number of firms and business models competing in consumer finance markets and appear to be contributing to competitive pressure. In addition to enabling new capabilities, fintech firms are also creating new risks to consumer protection and market integrity, according to the report. The report noted that non-bank firms could “pose risks by engaging in harmful regulatory arbitrage, conducting activities in a manner that inappropriately sidesteps safety and soundness and consumer protection law requirements applicable to an [insured depository institution].”

    The report also noted that new entrant non-bank firms or their offerings may pose risks of reliability or fraud issues, in addition to data privacy risks and the potential for new forms of surveillance and discrimination. The report provided recommendations for regulators to encourage fair and responsible competition that benefits consumers and their financial well-being, including: (i) addressing market integrity and safety and soundness concerns by providing a clear and consistently applied supervisory framework for bank-fintech relationships; (ii) protecting consumers by robustly supervising bank-fintech lending relationships for compliance with consumer protection laws and their impact on consumers’ financial well-being; and (iii) encouraging consumer-beneficial innovation by supporting innovations in consumer credit underwriting designed to increase credit visibility, reduce bias, and prudently expand credit to underserved consumers.

    Fintech Federal Issues Biden Nonbank Supervision

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  • DFPI suspends a crypto lending company; issues notice to suspend a different crypto lending company

    On November 18, the California Department of Financial Protection and Innovation (DFPI) announced an order suspending a cryptocurrency lender’s California license for 30 days pending DFPI’s investigation. The suspension follows the DFPI’s notice to suspend issued on November 11, which was prompted by the cryprocurrency lender's November 10 announcement that it would limit platform activity, including pausing client withdrawals. DFPI noted that the cryptocurrency lender confirmed its “significant exposure to [a crypto asset platform]” and affiliated entities. DFPI further noted that the cryptocurrency lender expected “that the recovery of the obligations owed to us by FTX will be delayed as FTX works through the bankruptcy process.”  According to the cryptocurrency lender, withdrawals would continue to be paused. DFPI also noted that in February 2022, the respondent was ordered to desist and refrain from offering or selling unqualified, non-exempt securities in the form of its interest accounts in California.  

    Later, DFPI issued an order suspending a different cryptocurrency lender’s license license for 30 days pending DFPI’s investigation into the respondent’s recent announcement to limit its platform activity, including pausing client withdrawals. The respondent had sent a communication to customers signed by the CEO, stating: “I am sorry to report that the collapse of [the cryptocurrency lender that was issued a notice to suspend from DFPI on November 10] has impacted our business. Until we are able to determine the extent of this impact with specific details that we feel confident are factually accurate, we have paused deposits and withdrawals on [its own platform] effective immediately.” DFPI also noted that it is “investigating the extent to which [the cryptocurrency lender] has been affected by the bankruptcy of [the cryptocurrency lender that was issued a notice to suspend from the DFPI on November 10] and related companies.”

    Licensing State Issues Digital Assets DFPI California State Regulators Virtual Currency

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  • 9th Circuit says number generator does not violate TCPA


    On November 16, the U.S. Court of Appeals for the Ninth Circuit upheld a district court’s dismissal of a proposed TCPA class action, holding that in order for technology to meet the definition of an “automatic telephone dialing system” (autodialer), the system must be able to “generate and dial random or sequential telephone numbers under the TCPA’s plain text.” Plaintiff claimed he began receiving marketing texts from the defendant after he provided his phone number to an insurance company on a website. Plaintiff sued alleging violations of the TCPA and asserting that the defendant used a “sequential number generator” to select the order in which to call customers who had provided their phone numbers. This type of number generator qualifies as an autodialer under the TCPA, the plaintiff contended, referring to a footnote in the U.S. Supreme Court’s ruling in Facebook v. Duguid (covered by a Buckley Special Alert), which narrowed the definition of an autodialer under the TCPA and said “an autodialer might use a random number generator to determine the order in which to pick phone numbers from a preproduced list.” Defendant countered, however, that its system is not an autodialer, and “that the TCPA defines an autodialer as one that must generate telephone numbers to dial, not just any number to decide which pre-selected phone numbers to call.”

    The 9th Circuit was unpersuaded by the plaintiff’s argument, calling it an “acontextual reading of a snippet divorced from the context of the footnote and the entire opinion.” The appellate court pointed out that nothing in Facebook suggests that the Supreme Court “intended to define an autodialer to include the generation of any random or sequential number.” The 9th Circuit further explained that “[u]sing a random or sequential number generator to select from a pool of customer-provided phone numbers would not cause the harms contemplated by Congress.”

    Courts Appellate Ninth Circuit TCPA Autodialer Class Action

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  • 2nd Circuit: Convicted SEC whistleblower cannot claim award


    On November 15, the U.S. Court of Appeals for the Second Circuit denied a petition from a plaintiff to review a decision by the SEC to not grant him his whistleblower award because he pled guilty to participating in the crime he reported. According to the order, the plaintiff provided information to the SEC that assisted in a successful agency enforcement action with respect to an international bribery scheme. The plaintiff timely filed an application for a whistleblower award in connection with both the action for which he had provided information and another related action. He pled guilty to bribery charges but had not yet been sentenced. The order further noted that because of the guilty plea, the SEC determined that the plaintiff had been “convicted of a criminal violation related to” the bribery scheme that was at issue in both actions. The order noted that, generally, the SEC is required under federal law to pay a monetary award to a whistleblower when that whistleblower “voluntarily provided original information to the Commission that led to the successful enforcement” of “any judicial or administrative action brought by the Commission under the securities laws that results in monetary sanctions exceeding $1,000,000.” The order further noted that the SEC may not make an award "to any whistleblower who is convicted of a criminal violation related to the judicial or administrative action for which the whistleblower otherwise could receive an award.”

    On appeal, the plaintiff argued that he was not “convicted” under 15 U.S.C. § 78u-6(c)(2)(B). The plaintiff also claimed that the fact that he had not yet been sentenced—even though a court has accepted his guilty plea—means that he had not been “convicted.” The appellate court found that he did not raise this issue before the agency and therefore it need not address the plaintiff’s argument about the meaning of “convicted.” But even if it were to excuse the forfeiture, the plaintiff’s argument would fail, the appellate court concluded. The plaintiff also argued that the bribery charges to which he pled guilty were not connected to the actions he was a whistleblower on, and that the SEC did not support its finding of a connection with any substantial evidence. The appellate court disagreed with this argument as well, stating the SEC and the plaintiff interpret the meaning of “related to” differently. The appellate court further explained that “[t]he SEC interprets the term to mean that 'the conduct underlying the criminal conviction must be connected to or stand in some relation to the Covered Action.'" The order stated, “[the plaintiff] suggests that the term requires the whistleblower to have been 'a part of the conduct underlying the ... enforcement action' and to have known about the conduct during its occurrence.’”

    Courts Appellate Second Circuit SEC Whistleblower

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  • FTC sues company for deceptive schemes

    Federal Issues

    On November 16, the FTC announced an action against a company that markets and sells business opportunities for allegedly pitching deceptive moneymaking schemes promising big returns to consumers. Claims were also brought against the company owners. The FTC alleged in its complaint that the defendants violated the FTC Act, the Business Opportunity Rule, and the Consumer Review Fairness Act by selling business packages and business coaching through an internet retailer under various names that promised consumers they could “generate passive income on autopilot.” However, the FTC claimed the defendants charged consumers between $5,000 and $100,000 for the programs and used fake consumer reviews in their marketing and sales pitches. Few consumers ever made money from these schemes, the FTC said. Additionally, the defendants allegedly charged consumers thousands of dollars to participate in a cryptocurrency investment service, which defendants claimed could generate profits for consumers “while you sleep.” According to the FTC, the defendants harmed consumers by, among other things, (i) deceiving them about potential earnings; (ii) using fake testimonials; (iii) suppressing negative reviews and promising refunds to consumers if they removed their complaints; (iv) threatening to sue dissatisfied consumers and adding language to contracts to prevent consumers from leaving negative reviews; and (v) failing to provide required disclosures when selling their programs.

    Under the terms of the proposed stipulated order, the defendants will be prohibited from making deceptive earnings claims and misleading consumers about the nature of their products, including the likelihood of profits. Defendants must also stop engaging in behavior that interferes with consumer reviews and complaints. The defendants will also be required to pay $2.6 million in monetary relief. The proposed order includes nearly $53 million in total monetary judgment, which is partially suspended due to defendants’ inability to pay.

    Federal Issues FTC Enforcement Digital Assets FTC Act Business Opportunity Rule Consumer Review Fairness Act

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  • Yellen cites crypto market risks

    Federal Issues

    On November 16, Treasury Secretary Janet Yellen issued a statement addressing recent crypto market developments. “The recent failure of a major cryptocurrency exchange and the unfortunate impact that has resulted for holders and investors of crypto assets demonstrate the need for more effective oversight of cryptocurrency markets,” Yellen said, stressing that existing regulations must be rigorously enforced against those who operate in the crypto-asset space. Acknowledging recent actions taken by federal regulators to address crypto risks in response to President Biden’s Executive Order on Digital Assets (covered by InfoBytes here), Yellen cautioned that it is imperative for the federal government, including Congress, to move quickly to address regulatory gaps in this space. She warned that while spillovers from recent events in the crypto markets “have been limited,” the interconnections between the traditional financial system and the crypto markets “could raise broader financial stability concerns.”

    Federal Issues Digital Assets Department of Treasury Cryptocurrency Fintech

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  • Senate Banking grills regulators on crypto

    Federal Issues

    On November 15, the Senate Committee on Banking, Housing, and Urban Affairs held a hearing entitled “Oversight of Financial Regulators: A Strong Banking and Credit Union System for Main Street” to hear from federal financial regulators about growing risks related to bank mergers, bailouts, climate change, crypto assets, and cyberattacks, among other topics. Committee Chairman Sherrod Brown (D-OH) opened the hearing by emphasizing that Congress “must stay vigilant and empower regulators with the tools to combat these growing risks,” and said that banks and credit unions must be able to partner with third parties in a manner that enables competition but without risking consumer money. He also warned that big tech companies and shadow banks should not be allowed to “play by different rules because of special loopholes.” In his opening statement, Ranking Member Patrick J. Toomey (R-PA) challenged the regulators to “not stray beyond their mandates into politically contentious issues or establish unnecessary new regulatory burdens,” pointing to the participation of the Federal Reserve Board, FDIC, and OCC in the Network for the Greening the Financial System as an example of politicizing financial regulation.

    Testifying at the hearing were the Fed’s Vice Chair for Supervision Michael S. Barr, NCUA Chair Todd M. Harper, acting FDIC Chairman Martin J. Gruenberg, and acting Comptroller of the Currency Michael J. Hsu. Cryptocurrency concerns were a primary focus during the hearing, where Toomey asked the regulators why they still have not provided public clarity on banks’ involvement in crypto activities, such as providing custody services or issuing stablecoins.

    Pointing to a major cryptocurrency exchange’s recent major collapse, Toomey pressed Hsu on whether the OCC “discourages banks from providing custody services” for crypto assets. Toomey speculated, “it seems to me if people had access to custody services provided by a wide range of institutions, including regulated financial institutions, they might be able to sleep more comfortably knowing that those assets are unlikely to be used for some completely inappropriate purpose.” Answering that the OCC discourages banks from engaging in activities that are not safe, sound, and fair, Hsu acknowledged that there are underlying fundamental issues and questions about what it means to control crypto through a custody “which have not been fully worked out.” Toomey emphasized that part of the obligation rests on the OCC to provide clarity on how banks could provide these services in a safe, sound, and fair manner, and stressed that currently these activities are operating in a space outside the regulatory perimeter. Barr agreed that it would be useful for the Fed to provide guidance to banks on how to safely custody crypto assets and said it is something he plans to work on with his colleagues.

    Toomy further noted that Congress’s failure “to pass legislation in this space and the failure of regulators to provide clear guidance has created ambiguity that has driven developers and entrepreneurs overseas where regulations are often lax at best.” Senator Bill Haggerty (R-TN) cautioned that lawmakers should not resort to a “heavy-handed” regulatory response to the cryptocurrency exchange’s collapse. “No amount of poorly considered, knee-jerk over-regulation here in the U.S. would have prevented a foreign-domiciled company like [the collapsed cryptocurrency exchange] from doing what it did,” Haggerty said. “The fact of the matter is that crypto, much like all of finance, isn’t beholden to a specific country or a specific legal system, and by not acting and by failing to provide legal clarity here in the United States, Congress only incentivizes activity to migrate outside of our country’s borders,” Haggerty stated, adding that it is “important to recognize that whatever happened with a bad actor running a centralized exchange and defrauding customers” has “nothing to do with the technology underpinning crypto itself.” When asked by Sen. John Kennedy (R-LA) which regulator was responsible for watching the collapsed cryptocurrency exchange, Gruenberg said “I think in the first instance, you’d probably want to engage with the market regulators, the SEC and the CFTC, to talk about the activities and the authorities in this area.”

    The regulators also discussed efforts to mitigate cybersecurity risks and strengthen information security within the banking industry. Hsu stressed during the hearing that “the greatest risk is the risk of complacency,” while noting in his prepared remarks that the OCC is aware of the risks associated with cybersecurity and has “encouraged banks to stay abreast of new technology and threats.” Barr pointed to the importance of operational resilience in his prepared remarks, noting that “technology-based failures, cyber incidents, pandemics, and natural disasters,” combined with the growing reliance on third-party service providers, expose banks to a range of operational risks that are often challenging to anticipate. Harper commented in his prepared remarks that the NCUA continues to provide guidance for credit unions to reinforce their ability to withstand potential cyberattacks, and recommends that credit unions report cyber incidents to the NCUA, the FBI, and the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency. In his prepared remarks, Gruenberg pointed to recent examination findings revealing that banks that have dedicated resources for implementing appropriate controls are better at defending against cyberattacks, and said the FDIC is “piloting technical examination aids that will help [] examiners focus on the controls [] found to be most effective in defending against these attacks.”

    The House Financial Services Committee also held a hearing later in the week that focused on similar topics with the regulators. Chair Maxine Waters (D-CA) and Rep. Patrick McHenry (R-NC) also announced that the committee will hold a hearing in December to investigate the aforementioned cryptocurrency exchange’s collapse and understand the broader consequences the collapse may have on the digital asset ecosystem.

    Federal Issues Digital Assets Privacy, Cyber Risk & Data Security Senate Banking Committee House Financial Services Committee FDIC OCC NCUA Federal Reserve Risk Management Third-Party Climate-Related Financial Risks Fintech

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  • CFPB issues fall supervisory highlights

    Federal Issues

    On November 15, the CFPB released its fall 2022 Supervisory Highlights, which summarizes its supervisory and enforcement actions between January and June 2022 in the areas of auto servicing, consumer reporting, credit card account management, debt collection, deposits, mortgage origination, mortgage servicing, and payday lending. Highlights of the findings include:

    • Auto Servicing. Bureau examiners identified instances of servicers engaging in unfair, deceptive, or abusive acts or practices connected to add-on product charges, loan modifications, double billing, use of devices that interfered with driving, collection tactics, and payment allocation. For instance, examiners identified occurrences where consumers paid off their loans early, but servicers failed to ensure consumers received refunds for unearned fees related to add-on products.
    • Consumer Reporting. The Bureau found deficiencies in credit reporting companies’ (CRCs) compliance with FCRA dispute investigation requirements and furnishers’ compliance with FCRA and Regulation V accuracy and dispute investigation requirements. Examples include: (i) NCRCs that failed to report the outcome of complaint reviews to the Bureau; (ii) furnishers that failed to send updated information to CRCs following a determination that the information reported was not complete or accurate; and (iii) furnishers’ policies and procedures that contained deficiencies related to the accuracy and integrity of furnished information.
    • Credit Card Account Management. Bureau examiners identified violations of Regulation Z related to billing error resolution, including instances where creditors failed to (i) resolve disputes within two complete billing cycles after receiving a billing error notice; (ii) conduct reasonable investigations into billing error notices due to human errors and system weaknesses; and (iii) provide explanations to consumers after determining that no billing error occurred or that a different billing error occurred from that asserted. Examiners also identified Regulation Z violations where credit card issuers improperly mixed original factors and acquisition factors when reevaluating accounts subject to a rate increase, and identified deceptive acts or practices related to credit card issuers’ advertising practices.
    • Debt Collection. The Bureau found instances of FDCPA violations where debt collectors engaged in conduct that harassed, oppressed, or abused the person with whom they were communicating. The report findings also discussed instances where debt collectors communicated with a person other than the consumer about the consumer’s debt when the person had a name similar or identical to the consumer, in violation of the FDCPA.
    • Deposits. The Bureau discussed how it conducted prioritized assessments to evaluate how financial institutions handled pandemic relief benefits deposited into consumer accounts. Examiners identified unfairness risks at multiple institutions due to policies and procedures that may have resulted in, among other things, (i) garnishing protected economic impact payments funds in violation of the Consolidated Appropriations Act of 2021; or (ii) failing to apply the appropriate state exemptions to certain consumers’ deposit accounts after receiving garnishment notice.
    • Mortgage Origination. Bureau examiners identified Regulation Z violations and deceptive acts or practices prohibited by the CFPA. An example of this is when the settlement service had been performed and the loan originator knew the actual costs of those service, but entered a cost that was completely unrelated to the actual charges that the loan originator knew had been incurred, resulting in information being entered that was not consistent with the best information reasonably available. The Bureau also found that the waiver language in some loan security agreements was misleading, and that a reasonable consumer could understand the provision to waive their right to bring a class action on any claim in federal court.
    • Mortgage Servicing. Bureau examiners identified instances where servicers engaged in abusive acts or practices by charging sizable fees for phone payments when consumers were unaware of those fees. Examiners also identified unfair acts or practices and Regulation X policy and procedure violations regarding failure to provide consumers with CARES Act forbearances.
    • Payday Lending. Examiners found lenders failed to maintain records of call recordings necessary to demonstrate full compliance with conduct provisions in consent orders generally prohibiting certain misrepresentations.

    Federal Issues CFPB Supervision Examination UDAAP Auto Lending CFPA Consumer Finance Consumer Reporting Credit Report FCRA Regulation V Credit Furnishing Credit Cards Regulation Z Debt Collection FDCPA Mortgages Deposits Prepaid Accounts Covid-19 CARES Act

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