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Hitachi Settles SEC FCPA Case for $19M
On September 28, the SEC filed a settled complaint in Washington, D.C. federal court against Tokyo-based Hitachi, Ltd. for alleged FCPA books and records and internal controls offenses. According to the SEC’s Complaint, the company failed to accurately report payments made to the African National Congress (ANC), South Africa’s ruling political party, in connection with a multi-billion dollar plan to build new power stations in the country. Hitachi purportedly sold a 25-percent stake in a South African subsidiary to a company that was a front to funnel funds to the ANC. The SEC alleges that Hitachi was (i) aware that it had partnered with a “funding vehicle” for the ANC; (ii) encouraged the front company to continue using its political influence to obtain additional government contracts; and (iii) agreed to pay “success fees” to the front company. Hitachi did not admit wrongdoing in the settlement and agreed to pay a $19 million penalty.
In its announcement, the SEC’s Director of Enforcement, Andrew Ceresney, cited Hitachi’s “lax internal control environment” as the factor that led to the conduct described in the complaint. Continuing the trend of international cooperation in FCPA investigations, the SEC also thanked the African Development Bank and the South African Financial Services Board for their assistance with the investigation.
European Court of Justice Ruling on Validity of U.S.-EU Data Sharing Agreement Scheduled for October 6
Following up on an opinion issued on September 23 by the European Court of Justice Advocate General Yves Bot, the European Court of Justice is scheduled to issue its ruling on the validity of the U.S.-EU Safe Harbor Program on October 6. The High Court’s swift decision to issue judgment follows an opinion from the Advocate General advocating that the 2000 data sharing agreement between the U.S. and the European Union is invalid and inadequately protects Europeans’ personal data. Previous InfoBytes coverage can be seen here. The case is Schrems v. Data Protection Commissioner.
Director Cordray Submits Letter to Trade Associations Regarding TRID Compliance
On October 1, CFPB Director Richard Cordray, on behalf of the FFIEC, responded to correspondence from the American Bankers Association and other trade associations seeking guidance as to their compliance with the Bureau’s Know Before You Owe TILA-RESPA Integrated Disclosure Rule, which will become effective on October 3, 2015. Per Director Cordray’s letter, the FFIEC’s member agencies’ examiners “will expect supervised entities to make good faith efforts to comply with the Rule’s requirements in a timely manner.” Moreover, examiners will take a number of factors into consideration in determining compliance with the Rule, including (i) an institution’s implementation plan; (ii) an institution’s training of its staff; and (iii) how an institution handles any early technical problems or other implementation challenges.
New Jersey Resident Charged with Securities and Wire Fraud
On October 1, the U.S. Attorney for the Southern District of New York filed a complaint against New Jersey fund manager William J. Wells charging him with running a “Ponzi” scheme which raised over $1.5 million from investors. According to the complaint, Wells “engaged in a fraudulent scheme to obtain investments by falsely representing that he had achieved consistently positive trading returns in the U.S. equity markets, including through the successful use of options to hedge risk.” Wells allegedly misled investors by claiming that (i) his trading was generating positive returns when it was not; (ii) investors held investments in certain stocks when, in fact, neither Wells nor his firm did; and (iii) sub-accounts had been created for clients, but no such sub-accounts were ever funded. Wells was charged with one count of securities fraud and one count of wire fraud, each carrying a maximum prison sentence of 20 years and a maximum fine of $5 million, or two times the gross gain or loss from the offense.
In a parallel action, the SEC filed a complaint charging Wells with violations of the Securities Act, the Securities Exchange Act, and the Investment Advisers Act.
CFPB Takes Action against Indirect Auto Lender over its Debt Collection Practices
On October 1, the CFPB ordered an indirect auto lender and its auto title lending subsidiary to pay more than $48 million in restitution and consumer relief over allegations that both companies engaged in unlawful debt collection practices. The CFPB alleged that the companies used a variety of “deceptive” tactics to coerce borrowers into making payments on their remaining loan amounts. The CFPB further asserted that the companies provided inaccurate information in their advertisements to borrowers regarding monthly interest rates, and misled borrowers about the effect of changing payment due dates or the ramifications of extending loan terms, which resulted in additional accrued interest owed over the life of the loan. Under terms of the consent order, the companies agreed to, among other things, provide $44.1 million in restitution and loan balance reductions to affected borrowers and pay a $4.25 million civil money penalty.
DOJ Assistant Attorney General Stresses Public-Private Cooperation In the Event of a Cyber Breach
On September 30, U.S. Assistant Attorney General John Carlin delivered remarks at the 2015 Cybersecurity Summit hosted jointly by the U.S. Chamber of Commerce and the American Gaming Association. In his remarks, Carlin highlighted a variety of “tools,” including the use of sanctions, the DOJ may employ on individuals or entities that engage in malicious cyber-enabled activities against the U.S. Notably, Carlin discussed certain advantages for increased collaboration among the private sector and government to share information and best practices “to help defend against or disrupt [cyber] attacks before they happen or in real time,” adding that “law enforcement can also enlist the assistance of international partners to help retrieve stolen data or identify a perpetrator.” Concluding his remarks, Carlin urged companies to adopt a strong cybersecurity risk management program.
U.S. House Financial Services Committee Pass Several Financial Regulatory Bills Seeking Regulatory Relief and Stronger Consumer Protection
On September 30, the U.S. House Financial Services Committee approved five pieces of legislation aimed at strengthening consumer protection, providing regulatory relief to publicly traded companies, and seeking expanded oversight of the CFPB. Approved in an overwhelming 56-3 vote, H.R. 957, the Bureau of Consumer Financial Protection-Inspector General Reform Act of 2015, creates an independent Inspector General for the CFPB to be nominated by the President and confirmed by the U.S. Senate. The committee also passed H.R. 2769 in a 50-9 vote. The Risk-Based Capital Study Act of 2015 mandates the National Credit Union Administration to conduct a study of appropriate capital requirements for federal and state credit unions prior to new rules becoming effective.
SEC Appoints New Head of Examination Program in Atlanta Regional Office
On September 29, the SEC named William Royer as the Atlanta Regional Office’s Associate Director of the examination program. Since June of this year, Royer has served as the examination program’s Acting Associate Director. In his role, Royer will supervise staff responsible for the examination of broker-dealers, investment advisers, investment companies, transfer agents, along with other SEC registrants. Prior to joining the SEC in 2013 as an Assistant Director within the Office of Compliance and Inspections and Examinations’ Office of the Chief Counsel, Royer worked as a securities attorney in private practice and served as General Counsel for two international investment management firms.
Buckley Sandler Webcast Recap: Strategies for Meeting the CFPB's Expectations for Consumer Complaint Management
On September 29, BuckleySandler hosted a webcast, “Meeting the CFPB's Expectations for Consumer Complaint Management,” presented by partner Jonice Gray Tucker and counsel Kari Hall. This recap covers highlights from their discussion, which included a discussion of the CFPB’s expectations and practical advice for managing consumer complaints in the evolving regulatory environment.
Background
The webcast began with a brief background on the CFPB’s approach to consumer complaints. In particular, the presenters touched upon how the CFPB has used complaints as a driving force in determining priorities in guiding supervisory work, identifying leads for enforcement, and in informing rulemaking efforts. The presenters also discussed how the Bureau may deal with deficiencies in consumer complaint management in examinations and ways in which the outgrowth of such deficiencies may lead to enforcement actions. In addition, the presenters highlighted key elements of effective complaint management programs.
Fundamental Issues in Consumer Complaint Management
The presenters continued with a discussion of threshold issues in developing and implementing a consumer complaint management system. In particular, the presenters focused on why complaint management is important, the challenges of defining what is or is not a complaint, and timelines for responding to complaints. The presenters pointed out that the CFPB expects capture of both written and oral complaints, as well as awareness and understanding of third-party service provider complaints.
CFPB Complaint Management Guidance to Date and Recent Complaint Developments
The presenters then covered the CFPB’s existing guidance on complaint management, as well as recent developments.
CFPB guidance includes:
- CFPB Supervision and Examination Manual
- Consumer Response Annual Report
- Company Portal Manual, Version 2.15 (August 2015)
- CFPB Supervisory Highlights
Recent developments include the publication of complaint narratives and the issuance of monthly complaint reports. Both CFPB initiatives are viewed as controversial by the industry because the Bureau does not verify complaint information or “normalize” the data to account for the fact that larger companies may receive more complaints than smaller companies.
Best Practices
The webcast concluded with a discussion of best practices for consumer complaint management. Among other things, the presenters discussed strategies that can be used to centralize the complaint management function; key issues to consider in connection with monitoring, tracking, and escalating complaints; issues that should be covered in policies, procedures, and training as well as mechanisms for maintaining an open dialogue with regulators and consumer advocates.
Agencies Unveil Student Loan Servicing Regulatory Framework
On September 29, the CFPB issued a report examining public comments and providing policy recommendations to address issues in the student loan servicing market. The report follows a May 2015 Request for Information notice where the CFPB, together with the Department of Treasury and the Department of Education (collectively, the Agencies), sought feedback on ways to improve student loan servicing practices.
In a parallel announcement, the Agencies released an interagency Joint Statement of Principles on Student Loan Servicing, which is expected to serve as a regulatory framework in the reformation of current student loan servicing practices, and establish minimum federal compliance requirements.