Subscribe to our InfoBytes Blog weekly newsletter and other publications for news affecting the financial services industry.
On October 11, the SEC, Commodity Futures Trading Commission (CFTC), and Financial Crimes Enforcement Network (FinCEN) issued a joint statement to remind persons who engage in digital asset activities or handle cryptocurrency transactions of their anti-money laundering and countering the financing of terrorism (AML/CFT) obligations under the Bank Secrecy Act (BSA). According to the agencies, AML/CFT obligations apply to entities defined as “financial institutions” under the Bank Secrecy Act, which include “futures commission merchants and introducing brokers obligated to register with the CFTC, money services businesses (MSB) as defined by FinCEN, and broker-dealers and mutual funds obligated to register with the SEC.” The obligations include, among other things, (i) establishing and implementing an effective AML program; and (ii) complying with recordkeeping and reporting requirements such as suspicious activity reporting (SARs).
The agencies note that persons who engage in digital asset-related activities may have AML/CFT obligations regardless of the “label or terminology used to describe a digital asset or a person engaging in or providing financial activities or services involving a digital asset.” According to the agencies, the facts and circumstances underlying the asset or service, “including its economic reality and use,” is what determines how the asset is categorized, the applicable regulatory treatment, and whether the persons involved are financial institution under the BSA.
Additionally, FinCEN reminded financial institutions of its supervisory and enforcement authority to “ensure the effectiveness of the AML/CFT regime,” emphasizing that persons who provide money transmission services are MSBs subject to FinCEN regulation. FinCEN also referred to its May 2019 interpretive guidance, which consolidated and clarified current FinCEN regulations, guidance, and administrative rulings related to money transmissions involving virtual currency. (Previous InfoBytes coverage here.)
On August 6, the CFPB published a blog providing an update on credit access and the Bureau’s first-issued No-Action Letter (NAL), and reporting that use of alternative data in underwriting may expand access to credit. In 2017, the CFPB announced its first NAL to a company that uses alternative data and machine learning to make credit underwriting and pricing decisions. One condition for receiving the NAL required the company to agree to a model risk management and compliance plan, which analyzed and addressed risks to consumers and the real-world impact of its service. Through specific testing, the company worked to answer two key questions: (i) “whether the tested model’s use of alternative data and machine learning expands access to credit, including lower-priced credit, overall and for various applicant segments, compared to the traditional model”; and (ii) “whether the tested model’s underwriting or pricing outcomes result in greater disparities than the traditional model with respect to race, ethnicity, sex, or age, and if so, whether applicants in different protected class groups with similar model-predicted default risk actually default at the same rate.”
According to the Bureau, the company reported that in the access to credit comparisons, the alternative data model approved 27 percent more applicants as compared to a traditional underwriting model, and yielded 16 percent lower average APRs for approved loans, with the expansion in access to credit “occur[ing] across all tested race, ethnicity, and sex segments.” For the fair lending testing, the company reported that no disparities were found in the approval rate and APR analysis results provided for minority, female, and older applicants. Additionally, the company reported significant expansion of access to credit for certain consumer segments under the tested model, including that (i) “consumers with FICO scores from 620 to 660 are approved approximately twice as frequently”; (ii) “[a]pplicants under 25 years of age are 32 [percent] more likely to be approved”; and (iii) “[c]onsumers with incomes under $50,000 are 13 [percent] more likely to be approved.” The Bureau noted that the testing results were provided by the company, and the simulations and analyses were not separately replicated by the Bureau.
On August 2, FDIC Chairman Jelena McWilliams spoke before the Financial Conduct Authority’s 2019 Global AML and Financial Crime TechSprint in Washington, D.C. on the importance of promoting innovation within the banking industry and ramping up efforts to help banks embrace new technologies. McWilliams noted that she is “impatient for transformation,” especially in areas that would assist banks—particularly community banks—in eliminating regulatory uncertainty, adopting new technologies, managing risks, or partnering with fintech startups to improve regulatory compliance in areas such as Bank Secrecy Act/anti-money laundering rules. McWilliams discussed the FDIC’s new office of innovation (FDIC Tech Lab), which was created to support these goals. In particular, McWilliams indicated that the FDIC would support collaboration with developers, institutions, and regulators to pilot new products and services, with the goal of publishing the results of these pilots to facilitate understanding of what worked, what did not, and methods of improvement going forward. According to McWilliams, “[b]y promoting these developments and encouraging our FDIC-supervised institutions to voluntarily adopt a more advanced technological footing, we can help foster the transformation of the community banking sector. In turn, the institutions we supervise can reach greater efficiency with products and services that are more attractive to consumers.”
On July 23, NYDFS announced its newly created Research and Innovation Division, led by Matthew Homer as Executive Deputy Superintendent. “The financial services regulatory landscape needs to evolve and adapt as innovation in banking, insurance and regulatory technology continues to grow,” NYDFS Superintendent Linda Lacewell stated. “This new division and these appointments position [NYDFS] as the regulator of the future, allowing the Department to better protect consumers, develop best practices, and analyze market data to strengthen New York’s standing as the center of financial innovation.” The Research and Innovation Division, which will house NYDFS’ division responsible for supervising and licensing virtual currencies, will also assess technology efforts focusing on financial exclusion, consumer data protection rights, and financial services innovation. Among the appointees, NYDFS highlighted Homer’s recent experience as head of policy and research at a New York fintech company that provides open banking functionality for financial services providers, as well as his experience in emerging technology and financial inclusion at various federal agencies.
On June 25, the House Financial Services Committee’s Task Force on Financial Technology held its first-ever hearing, entitled “Overseeing the Fintech Revolution: Domestic and International Perspectives on Fintech Regulation.” As previously covered by InfoBytes, the Committee created the task force to explore the use of alternative data in loan underwriting, payments, big data, and data privacy challenges. The hearing’s witness panel consisted of high-ranking innovation officials across various agencies and associations, including the CFPB, OCC, SEC, CSBS, and the U.K.’s Financial Conduct Authority. Among other things, the hearing discussed whether digital currency is considered a security, the OCC’s special purpose national bank charter, and the U.K.’s regulatory sandbox approach.
SEC representative, Valerie Szczepanik, stated that she believes the SEC has been “quite clear” with regard to initial coin offerings, noting that “[e]ach digital asset is its own animal. It has to be examined on its facts and circumstances to determine what in fact it is. It could be a security, it could be a commodity, it could be something else. So we stand ready to provide kind of guidance to folks if they want to come and talk to us. We encourage them to come talk to us before they do anything so they can get the benefit of our guidance.”
While much of the OCC special purpose bank charter discussion focused on a social media’s plan to launch its own virtual currency, CSBS representative, Charles Clark, emphasized that “[s]tate regulators oppose the special purpose charter because it lacks statutory authority” and that it should be up to Congress to decide whether the OCC can regulate non-bank entities. Clark noted that a federal system would create an unlevel playing field compared to a state system where “a small company can enter the system, scale up, and be competitive with an innovative idea.”
Lastly, the FCA representative, Christopher Woolard, emphasized that fintech firms participating in the country’s sandbox program are “fully regulated” and probably the U.K.’s “most heavily supervised,” noting that the FCA believes “sandbox firms have to work in the real world from day one.” Additionally, Woolard asserted that the sandbox program is making a difference in the market stating that of their 110 tests, 80 percent of the firms that enter the program go on to fully operate in the market. He concluded asserting, “we believe that around millions of consumers have  access to new products  geared around better value or greater convenience.”
On June 24, the Conference of State Bank Supervisors (CSBS) announced that financial regulators from 23 states have now agreed to a multi-state compact that will offer a streamlined licensing process for money services businesses (MSB), including fintech firms. As previously covered by InfoBytes, in February 2018, the original agreement included seven states. According to the announcement, 15 companies are currently involved in the initiative, and as of June 20, they have received 72 licenses. The 23 states participating in the MSB licensing agreement are: California, Connecticut, Georgia, Iowa, Idaho, Illinois, Kansas, Kentucky, Louisiana, Massachusetts, Mississippi. North Carolina, North Dakota, Nebraska, Ohio, Rhode Island, South Dakota, Texas, Tennessee, Utah, Vermont, Washington, and Wyoming.
On June 10, Senators Elizabeth Warren (D-Mass.) and Doug Jones (D-Ala.) wrote to the Federal Reserve Board, the OCC, the FDIC, and the CFPB requesting information regarding the role the regulators can play in ensuring that fintech companies serve consumers on a nondiscriminatory basis. The letter asserts that ,while the fintech business model—using algorithms to underwrite loans, typically without face-to-face interaction with consumers—has “the potential to expand access to financial services for underserved populations,” it also has the potential to lead to discriminatory results. Based on recent reports cited in the letter, the Senators ask the regulators to, among other things, (i) identify what their agency is doing to combat lending discrimination by lenders using algorithmic underwriting; (ii) explain how the agencies’ oversight of fair lending laws extend to the fintech industry; and (iii) describe any analyses conducted on the impact of fintech algorithms on minority borrowers. The letter requests the agencies respond to the inquiries by June 24.
On May 24, the FTC announced the launch of a dedicated fintech resource page hosted on the agency’s business center website. The fintech page contains the following materials: (i) guidance, including Safeguards Rule and Privacy Rule compliance information; (ii) videos that will be regularly rotated discussing topics such as artificial intelligence and blockchain; (iii) related posts containing relevant information on small business financing and recent fintech enforcement actions; and (iv) legal resources, including relevant cases and staff reports.
On April 30, the OCC released a proposed Innovative Pilot Program (and accompanying program FAQs), which is designed to support responsible innovation in the U.S. federal banking system by allowing eligible entities to test novel products, services, or processes that could present significant benefits to consumers, businesses, financial institutions, and communities. Under the program, the OCC would provide eligible entities with regulatory input, through tools such as interpretive letters during the development and implementation of proposed innovative activities. Any proposal the agency determines to have potentially predatory, unfair, or deceptive features; poses undue risk to consumers; or poses undue safety and soundness risk to an institution would be deemed as inconsistent with existing law and policy and not permitted in the program. Highlights of the proposed program include:
- Eligibility. OCC-supervised financial institutions may participate in the program independently or when partnered with a third-party entity to offer an innovative activity. Third-party entities, not supervised by the OCC, may not independently participate. Additionally, eligible entities seeking to participate in the program must establish an uncertainty (“perceived to be a barrier to development and implementation”) that justifies the need for the OCC’s involvement during development or implementation of the innovative product or service and must also show how the innovative activity has the potential to benefit the needs of consumers, businesses, and or communities.
- Parameters. The OCC anticipates participation in the program to last between three and 24 months, but the duration of each pilot will be on a case-by-case basis. The program may include the use of interpretive letters, supervisory feedback, and technical assistance, as well as potential determinations of legal permissibility before a live test. Notably, the program will not provide any statutory or regulatory waivers, and all participants must continue to comply with applicable laws and regulations.
- Evaluation Process. The four-step application process includes (i) a preliminary discussion with the OCC about the proposed pilot; (ii) submission of a tailored expression of interest (EOI) to the OCC’s Office of Innovation or assigned supervisory office; (iii) evaluation of the EOI by the OCC; and (iv) acceptance or declination of the request. If a proposal is accepted, the testing phase will begin and the entity will be required to submit periodic information and reports, including key performance indicators, issues identified, and any steps taken to address the issues.
The OCC will maintain the confidentiality of proprietary information, including the identity of any participating entities. Comments on the proposal must be submitted by June 14.
On April 24, the Financial Industry Regulatory Authority (FINRA) announced the formation of a new office, the Office of Financial Innovation, that will act as a central point of coordination for issues related to financial innovation by FINRA members. The new office, which is an outgrowth of FINRA’s Innovation Outreach Initiative (previously covered by InfoBytes here), will collaborate with various FINRA teams as well as regulators, investors, and other stakeholders to encourage the use of fintech in a way that strengthens market integrity and protects investors. The new office also will incorporate FINRA’s existing Office of Emerging Regulatory Issues, which focuses on analyzing new and emerging risks and trends related to the securities market.
- Daniel P. Stipano to discuss "BSA/AML culture of compliance roundtable" at the FiSCA Annual Conference
- Daniel P. Stipano to discuss "Is there a better way to fight money laundering" at the FiSCA Annual Conference
- Michelle L. Rogers to discuss "What's trending in enforcement" at the Mortgage Bankers Association Annual Convention & Expo
- Kathryn L. Ryan and Moorari K. Shah to discuss "Today's regulatory environment - Are you in the know?" at the Equipment Leasing and Finance Association Annual Convention
- Buckley Webcast: Smoke and mirrors: Navigating the regulatory landscape in banking the marijuana industry
- H Joshua Kotin to discuss "CMS - Components of a successful monitoring program" at the RegList Annual Workshop
- Tim Lange to discuss "Temporary authority to operate - Are you prepared? Hear what the states are doing" at the RegList Annual Workshop
- Sherry-Maria Safchuk to discuss "Cybersecurity" at the RegList Annual Workshop
- Jeffrey P. Naimon to discuss "Hot topics in mortgage origination" at the Conference on Consumer Finance Law Annual Consumer Financial Services Conference
- Sherry-Maria Safchuk to discuss "CCPA: Countdown to compliance – A discussion of common questions and what is next on the CA privacy horizon" at the Conference on Consumer Finance Law Annual Consumer Financial Services Conference
- Jonice Gray Tucker to discuss "Fintech regulatory developments, crypto-assets, blockchain and digital banking, and consumer issues" at the Practising Law Institute Banking Law Institute
- Daniel P. Stipano to discuss "Adapting to the rapidly changing compliance landscape involving marijuana and marijuana-related businesses" at an ACAMS webinar
- Amanda R. Lawrence to discuss "How to balance a successful (and stressful) career with greater personal well-being" at the American Bar Association Women in Litigation Joint CLE Conference