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OCC reminds banks of venture capital prohibitions
On November 23, the OCC sent banks a reminder that they are generally prohibited from making most equity investments in venture capital funds. The bulletin warned that simply because an investment in a fund qualifies for the venture capital fund exclusion under the Volcker Rule, it does not mean the fund is a permissible investment for a national bank, federal savings association, or federal branch and agency of a foreign bank. Prior to investing in a venture capital fund, banks must make a determination as to whether the investment is permissible and appropriate for the bank. The OCC reminded banks that engaging in impermissible and inappropriate investments may expose a bank and its institution-affiliated parties to enforcement actions and civil money penalties. Additionally, national bank directors may be held personally liable for losses attributed to impermissible investments. The OCC noted, however, that equity investments in venture capital funds may be allowed provided they are public welfare investments or investments in small business investment companies.
CFPB updates status on data collection rulemaking
On November 22, the CFPB filed its seventh status report in the U.S. District Court for the Northern District of California as required under a stipulated settlement reached in February 2020 with a group of plaintiffs, including the California Reinvestment Coalition, related to the collection of small business lending data. The settlement (covered by InfoBytes here) resolved a 2019 lawsuit that sought an order compelling the Bureau to issue a final rule implementing Section 1071 of the Dodd-Frank Act, which requires the Bureau to collect and disclose data on lending to women and minority-owned small businesses. The newest status report states that the Bureau has met its deadlines under the stipulated settlement, which included issuing its long-awaited proposed rule (NPRM) in September. As covered by a Buckley Special Alert, the NPRM would require a broad swath of lenders to collect data on loans they make to small businesses, including information about the loans themselves, the characteristics of the borrower, and demographic information regarding the borrower’s principal owners. This information would be reported annually to the Bureau and published by the Bureau on its website. Comments on the NPRM are due January 6, 2022. Among other things, the Bureau notes in its status report that once the Section 1071 NPRM comment period concludes, it will meet and confer with plaintiffs to discuss an “appropriate deadline” for issuing the final rule, consistent with the stipulated settlement.
Find continuing Section 1071 coverage here.
FDIC releases October enforcement actions
On November 26, the FDIC released a list of administrative enforcement actions taken against banks and individuals in October. During the month, the FDIC issued three orders consisting of “one Order to Pay Civil Money Penalty, one Consent Order, and one Section 19 Order.” Among the orders is a civil money penalty imposed against an Arkansas-based bank based on allegations of deceptive practices related to misrepresenting the availability of Veterans Administration refinance loan terms. The bank, which did not admit or deny the violations, agreed to pay a $129,800 civil money penalty.
Biden terminates Burundi sanctions
On November 18, President Biden signed Executive Order (E.O.) “Termination of Emergency With Respect to the Situation in Burundi” to terminate a 2015 emergency declared in E.O. 13712 and revoke the authorization of sanctions with respect to Burundi. (See also OFAC’s announcement here.) According to Deputy Secretary of the Treasury Wally Adeyemo, the steps are a result of changed circumstances and positive political developments and reforms taken by President Ndayishimiye, who continues “to press the Government of Burundi to improve the human rights situation in the country and hold accountable those responsible for violations and abuses.” Adeyemo added that the revocation demonstrates that the U.S. “may ease or remove sanctions when circumstances warrant such an adjustment, including in cases where relevant parties change their behavior.” As a result, all persons previously blocked pursuant solely to the Burundi Sanctions Regulations are now removed from OFAC’s Specially Designated Nationals and Blocked Persons List, and all property and interests in property blocked solely pursuant to these regulations are unblocked. Additionally, OFAC will remove the Burundi Sanctions Regulations from the Code of Federal Regulations in the future. However, “[p]ending or future OFAC enforcement investigations or actions related to apparent violations of the Burundi Sanctions Regulations that occurred while E.O. 13712 was in effect may still be carried out,” Treasury stated.
Chamber of Commerce requests access to FTC privacy-related communications
On November 19, the U.S. Chamber of Commerce sent FOIA requests to the FTC seeking, among other things, communications on consumer data privacy policies the FTC has discussed or considered as ordered by President Biden’s broad July 9 executive order, which tasked the FTC with establishing rules to address concerns about “unfair data collection and surveillance practices that may damage competition, consumer autonomy, and consumer privacy.” (Covered by InfoBytes here.) The Chamber is seeking all communications between FTC Chair and Commissioner Lina Khan and former commissioner Rohit Chopra related to the FTC’s Penalty Offense Authority and/or enforcement policy statements addressing privacy-related topics, as well as communications with the Center on Privacy and Technology at Georgetown Law. As previously covered by InfoBytes, the Center’s founder, Alvaro Bedoya, was nominated in September by President Biden to serve as an FTC commissioner. With respect to the requests for records related to the FTC’s Penalty Offense Authority, over the past few months the FTC has issued several warnings using its Penalty Offense Authority related to false money-making claims, misleading online endorsements, and unlawful for-profit education institution practices. (Covered by InfoBytes here, here, and here.) Among other things, the FOIA letters also request all records related to artificial intelligence, including communications between the FTC and the White House Office of Science and Technology Policy and/or the CFPB.
District Court enters final judgment in 2016 CFPB structured settlement action
On November 18, the U.S. District Court for the District of Maryland entered a stipulated final judgment and order against one of the individual defendants in an action concerning allegedly unfair, abusive, and deceptive structured settlement practices. As previously covered by InfoBytes, the Bureau claimed the defendants violated the CFPA by employing abusive practices when purchasing structured settlements from consumers in exchange for lump-sum payments. According to the Bureau, the defendants encouraged consumers to take advances on their structured settlements and falsely represented that the consumers were obligated to complete the structured settlement sale, “even if they [later] realized it was not in their best interest.” In July 2021, the court considered the defendants’ motion to dismiss the Bureau’s amended complaint, as well as the defendants’ motion for judgment on the pleadings on the grounds that the enforcement action was barred by the U.S. Supreme Court’s decision in Seila Law LLC v. CFPB, which held that that the director’s for-cause removal provision was unconstitutional (covered by a Buckley Special Alert), and that the ratification of the enforcement action “came too late” because the statute of limitations on the CFPA claims had already expired (covered by InfoBytes here). The court’s opinion allowed the Bureau to pursue its amended 2016 enforcement action, which alleged unfair, deceptive, and abusive acts and practices and sought a permanent injunction, damages, disgorgement, redress, civil penalties, and costs.
Under the terms of the settlement, the individual defendant—“an attorney who provided purportedly independent professional advice for almost all Maryland consumers who made structured-settlement transfers with [the defendants]” and who has neither admitted nor denied the allegations—is prohibited from, among other things, (i) participating or assisting others in participating in any structured-settlement transactions; (ii) owning, being employed by, or serving as an agent of any structured-settlement-factoring company; or (iii) providing independent professional advice concerning any structured-settlement transactions. The individual defendant is also prohibited from disclosing, using, or benefiting from affected consumers’ information, and must pay $40,000 in disgorgement and a $10,000 civil money penalty.
FDIC updates brokered deposit FAQs
On November 22, the FDIC released an update to the Questions and Answers Related to the Brokered Deposits Rule. The FDIC clarified in a new FAQ in conjunction with the updated Brokered Deposit framework that, with respect to the “facilitation” definition’s first prong, a “third party that has legal authority, contractual or otherwise, to direct another entity (e.g., custodial agent) to move a depositor’s funds or close a depositor’s account would meet the first prong of the ‘facilitation’ definition.” The FAQ specified, however, that such third parties would not meet this first prong if the third party directs another entity to move depositor funds or close a depositor’s account “based only upon either instructions or an approval received from the depositor for each occurrence and specific to each deposit account.” The FAQ further noted that third parties recommending the placement of funds in a particular deposit account may meet the second and/or third prong of the “facilitation” definition depending on various facts and circumstances.
Biden nominates Powell and Brainard
On November 22, President Biden selected Jerome Powell to serve a second term as Chair of the Federal Reserve Board and nominated Fed Governor Lael Brainard to serve as Vice Chair of the Board of Governors, replacing current Vice Chair Richard Clarida. The White House highlighted Powell’s “steady leadership during an unprecedently challenging period, including the biggest economic downturn in modern history and attacks on the independence of the Federal Reserve,” and applauded Powell and Brainard’s shared “focus on ensuring that economic growth broadly benefits all workers.” The White House noted that both nominees are advancing key Biden administration priorities, including addressing climate-related financial risks and staying ahead of emerging risks to the country’s financial system. Powell issued a statement on his nomination, thanking President Biden for the opportunity to continue to serve as Chair and highlighting several key priorities, including “vigilantly guarding the resilience and stability of the financial system, addressing evolving risks from climate change and cyber attacks, and facilitating the modernization of the payments system while protecting consumers.” Brainard also released a statement affirming her commitment to serving all Americans and ensuring the Fed reflects the diversity of the communities it serves. President Biden still needs to fill three open seats on the Board, including the position of Vice Chair for Supervision. The White House stated that President Biden intends to announce the additional nominations in early December.
FTC expands criminal referral program
On November 18, the FTC announced the expansion of its criminal referral program as part of its effort to cease and deter corporate crime, which enhances the agency’s work in combating criminal misconduct in consumer protection and antitrust. According to the announcement, the new measures highlighted in the policy statement guarantee that cases are promptly referred to local, state, federal, and international criminal law enforcement agencies so that corporations and their executives partaking in criminal behavior are held accountable. According to the policy statement, the agency intends to refine its collaboration with its criminal law enforcement partners to stop and deter consumer protection and competition criminal violations, including by, among other things: (i) publicly and regularly reporting on the FTC’s criminal referral efforts; (ii) developing guidelines to ensure criminal law violations, specifically by major corporations and their executives, are identified; and (iii) “convening regular meetings with federal, state, and local criminal authorities to facilitate the coordination that will enable the appropriate law enforcement partners to take up cases referred by the FTC and develop best practices to enhance this coordination.” The policy statement builds on the agency’s continuing partnerships with criminal authorities to decrease misconduct. According to FTC Chair Lina M. Khan, the FTC “is redoubling its commitment and improving its processes to expeditiously refer criminal behavior to criminal authorities, promoting accountability and deterrence.”
FinCEN issues environmental crimes notice
On November 18, the Financial Crimes Enforcement Network (FinCEN) issued a notice calling attention to the increase of environmental crimes and associated illicit financial activity. FinCEN emphasized that this trend is due to: (i) its strong association with corruption and transnational criminal organizations, two of FinCEN’s national anti-money laundering and countering the financing of terrorism priorities; (ii) a need to enhance reporting and analysis of related illicit financial flows; and (iii) environmental crimes’ contribution to the climate crisis, including threatening ecosystems, decreasing biodiversity, and increasing carbon dioxide in the atmosphere. The notice also provided financial institutions with specific suspicious activity report filing instructions and outlined the likelihood of illicit financial activity associated with several types of environmental crimes.