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  • FTC fines two fintech firms $59 million for PPP loan practices

    Federal Issues

    On March 18, the FTC announced enforcement actions against two companies that allegedly made “false promises” to small businesses seeking Paycheck Protection Program (PPP) loans. Both companies have agreed to settle with the FTC to resolve alleged violations of the Covid-19 Consumer Protection Act and the FTC Act. 

    According to the FTC’s complaint on the first company—a company that offers online financing products to small businesses—and its subsidiary allegedly engaged in a pattern of deceptive and unfair conduct by quoting shorter processing times for consumers’ applications, despite being aware of the significant delays. The companies also allegedly ignored consumers’ requests to withdraw their pending applications frequently. The FTC further alleged that roughly 40 percent of the companies’ consumers had their applications canceled or rejected. The proposed stipulated order included a prohibition against misrepresentations, an injunction concerning the companies’ application practices (which had prohibited them from failing to allow consumers to promptly withdraw their applications), and a $33 million judgment for monetary relief. The companies must also comply with reporting requirements detailed in the settlement.

    The FTC’s complaint against the second company—an online platform offering PPP financing services to small businesses—and its CEO, alleged that respondents made deceptive claims to consumers, many of whom were eligible but never received funding because the respondents failed to fix known technical issues with their system or provide consumers with assistance. According to the complaint, the company claimed that processing a loan would only take 24 hours through the “fast lane” service, but the company’s chat support was slow, as were its review and processing times. The FTC noted that the time-sensitive nature of PPP funding meant any delays had significant impacts on consumers. In addition to the $26 million monetary judgment, the settlement with the company and its CEO prohibited them from making any deceptive, false, or unsubstantiated claims about financial services or products.

    Federal Issues FTC FTC Act Enforcement Covid-19 PPP

  • Utah amends its Consumer Sales Practices Act

    State Issues

    On March 13, the Governor of Utah signed HB 443 (the “Act”), also known as the Utah Consumer Sales Practices Act Amendments, into law. The Act will amend class action lawsuits and will clarify provisions related to “targeted solicitations” involving financial information. According to the Act, “targeted solicitation” will be defined as any written or oral advertisement for a product or service that (i) is addressed to the consumer’s personal account; (ii) contains specific account information (iii) is offered by a supplier that is not sponsored by or affiliated with the financial institution managing a consumer’s personal account; and (iv) is not authorized by the financial institution managing the consumer’s personal account. The Act will go into effect on May 1. 

    State Issues State Legislation Consumer Protection

  • Indiana enacts HB 1284 regarding change in terms for deposit accounts

    State Issues

    On March 12, the Governor of Indiana signed HB 1284 which codified a new chapter regarding a contract for a deposit account between a depository institution and a consumer may be changed occasionally, subject to the terms of the deposit account agreement. The bill will provide that after continued use of the deposit account by the consumer after a modification to the agreement has been disclosed through written notice by the depository institution, then it will be considered clear or “prima facie” evidence that the consumer will accept the new terms. The depository institution must provide written notice of the changes at least 30 days before the effective date of any change to the deposit account agreement. The bill will go into effect on July 1. 

    State Issues State Legislation Disclosures Depository Institution

  • Utah amends credit report disclosures to protect consumers

    State Issues

    On March 13, the Governor of Utah signed into law HB 99, a bill that amended certain provisions related to consumer credit protections. Specifically, the bill made an addition to the Credit Services Organizations Act at Utah Code 13-21-7.5, adding a disclosure requirement when a credit services organization provides a credit report to a consumer. The disclosure must identify the consumer reporting agency that provided the information, the credit score model used to calculate the score, and the minimum and maximum possible scores under the model. This bill will go into effect May 1.

    State Issues State Legislation Consumer Reporting Credit Report Credit Scores

  • CBO report outlines strengths and risks of the FHLBank system

    Federal Issues

    Recently, the Congressional Budget Office (CBO) released a report on the Federal Home Loan Banks’ (FHLBanks) role in the financial system, outlining their strengths and risks in the larger financial system. The CBO noted that FHLBanks are insulated from failure because their main activity, granting advances to members, was “overcollateralized and benefits from the banks’ super-lien position.” On accounting this year, the CBO estimated that in FY 2024, FHLBanks will receive $7.3 billion in subsidies, driven by new debts and reductions in debt-service costs. The CBO also estimated that in FY 2024, FHLBanks will issue $800 billion of debt and make advances of $560 billion. The CBO listed three potential risks FHLBanks could pose to the broader financial system: first was a risk to taxpayers in the event the FHLBank system failed and required government support; second was the risk that any FHLBank stress could spill over into other financial areas; and third was the risk of losses to the FDIC Deposit Insurance Fund from FHLBanks’ collateralized lending and their “super-lien positions.” However, the CBO’s report noted that FHLBanks pose less of a risk than Fannie Mae, Freddie Mac, or other commercial banks. Further, there have never been any credit losses on an FHLBank advance. Despite these strengths, CBO noted that FHLBanks could still fail in an economic crisis.

    Federal Issues FHLB Accounting

  • Wyoming SF 96 amends regulations for banks offering custodial or fiduciary services for digital assets

    State Issues

    On March 15, the Governor of Wyoming signed SF 96 (the “Act”), which amended regulations for banks offering custodial or fiduciary services for digital assets, made conforming adjustments, and set an effective date. The Act clarified the commissioner’s ability to petition for discharge of receivership duties at the commencement of a bankruptcy proceeding. With respect to digital asset custodial services, the Act included two new provisions which detailed how (i) a bank will be permitted to offer custody services for stablecoin reserves as long as these services align with the guidelines of the Act and adhere to the commissioner's rules and regulations; and (ii) a supervised trust company chartered within Wyoming will be authorized to offer custodial services for digital assets, provided that it would meet the requirements of the Act and follow the commissioner's rules and regulations. The Act will go into effect on July 1. 

    State Issues State Legislation Digital Assets Fiduciary Duty

  • Washington State enshrines new act on uniform special deposits

    State Issues

    On March 13, the Governor of Washington State signed into law SB 5801, enshrining a new chapter titled the Uniform Special Deposits Act. The law will apply to special deposits under account agreements that intend to establish a special deposit. In Section 5, a “special deposit” is characterized as a bank deposit for the benefit of two or more beneficiaries, denominated in a currency for the purposes stated in the account agreement, and “subject to a contingency.” The law further described the process for determining a permissible purpose, payment to a beneficiary by a bank, and the duties and liability of the bank, among others. It also described that, unless provided for in the account agreement, special deposits will terminate five years after the date it was first funded. The Uniform Special Deposits Act will go into effect July 1.

    State Issues Washington Deposits State Legislation

  • Chopra pens comment letter on appraisal issues, including bias, related to not-for-profit player’s oversight

    Federal Issues

    On March 18, the Director of the CFPB, Rohit Chopra, in his capacity as a voting member of the FFIEC, released a comment letter regarding the recent Appraisal Subcommittee hearings. He opened on how the appraisal process was governed not by a governmental agency, but instead by a not-for-profit corporation leading to “key issues” related to appraisal bias. Despite its private status, this organization was governed by the Appraisal Subcommittee which monitors and reviews the organizational structure of the not-for-profit appraisal corporation. Chopra outlined several issues gleaned from the four hearings: First, Chopra noted “severe deficiencies” with the not-for-profit’s conflict of interest policies, noting that the Executive Branch’s conflict of interest policies for employees spanned 77 pages, while the not-for-profit’s policy was less than 10. Second, the not-for-profit has an “insular and contorted governance structure” that favors private over public interests. And third, the Appraisal Foundation’s governance processes, such as electing its President, lack transparency. Chopra highlighted these three examples and described the overall lack of accountability as “deeply troubling” because the not-for-profit was one of the most powerful players when it comes to appraisals.

    Federal Issues Appraisal Nonprofit CFPB

  • EU Parliament becomes first to enact binding law on artificial intelligence

    Privacy, Cyber Risk & Data Security

    On March 13, the European Parliament of the European Union voted into law the world’s first binding law on artificial intelligence (AI) titled “Laying Down Harmonised Rules on Artificial Intelligence (Artificial Intelligence Act)” to put forth a flexible coordinated approach regarding the “human and ethical” implications of AI. The stated objectives of this new regulation comprise ensuring that AI systems are safe and respecting the existing laws that protect the fundamental rights of citizens. Further, the act will aim to make sure AI investments are legally sound, enforce AI laws effectively, and develop a single market for AI applications. The European Parliament stated its legal basis for this law is through Article 114 of the Treaty on the Functioning of the European Union.

    Following 89 preambles, the law’s Title I sets forth general subject matters: the law will set “harmonised rules” for the market as it will implement more AI systems; it prohibited certain AI systems; created specific requirements for “high-risk” AI systems; created transparency rules regarding emotion-recognition or biometric systems; and created rules on marketing surveillance. Title II prohibited AI practices and Title III covered “high-risk” AI systems. Prohibited AI systems include distorting someone’s behavior or vulnerabilities, evaluating trustworthiness with possibly a social score, or using “real-time” remote biometric identification systems for law enforcement (unless searching for either victims of a crime or missing children, among others). Title III on “high-risk” AI systems defined “high-risk” systems as those that pose fundamental risks to the rights of individuals, specifically to the health and safety of a citizen, among others.

    Privacy, Cyber Risk & Data Security Artificial Intelligence European Union

  • Chopra discusses open banking and standard-setting

    Federal Issues

    On March 13, the Director of the CFPB, Rohit Chopra, delivered prepared remarks at the Financial Data Exchange Global Summit and discussed advancing the U.S. towards open banking. Chopra outlined the current efforts and considerations surrounding the development of industry standards that would help transition consumers with switching financial products. The CFPB had been finalizing rules on Section 1033 of the CFPA which would grant consumers the right to access their financial data and would aim to protect sensitive personal financial information while promoting open banking (covered by InfoBytes here).

    Chopra highlighted the importance of creating industry standards for data sharing and communication protocols, drawing parallels with existing standards in electronics and financial services. While the CFPB's proposal acknowledged the role of standards, Chopra noted that it intentionally avoided being overly “prescriptive” to avoid stifling innovation, among other things.

    The speech also addressed the potential for anticompetitive behavior in the standard-setting process. Chopra noted historical instances of anticompetitive behavior, a concern that the CFPB had been monitoring closely. The Bureau will be working with the DOJ to prevent such practices.

    The Bureau sought to codify what standard-setting organizations must demonstrate to be recognized under the proposed rule, then invite those organizations to begin the process of receiving formal recognition from the CFPB. Based on the comments received on the proposed rule, Chopra expects that by this fall, the final rule will “identify the areas where standards are relevant to the requirements of the final rule.” Chopra also noted the CFPB considered whether standard-setting organizations should be balanced so no entity or group of entities can “dominate[] decision making.” He noted that the Bureau will investigate the makeup of entities’ standard-setting/modification groups and funding structure, warning if an entity’s composition or funding suggests favoritism, then “that will be a problem.” Chopra noted that if the CFPB cannot identify standard-setting organizations, it is prepared to implement more detailed guidance.

    Federal Issues CFPB Open Banking CFPA Agency Rule-Making & Guidance

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