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On February 1, the FTC announced that it is requiring a social networking application company to pay $800,000 and make certain compliance enhancements to resolve allegations that the firm (i) misled and deceived users by automatically collecting and storing personal information from users’ mobile device address books even if the users had not selected that option and despite claims that the application collected only certain non-personal user information, and (ii) violated the Children’s Online Privacy Protection Act Rule by collecting personal information from approximately 3,000 children under the age of 13 without first getting parents’ consent. Pursuant to the consent decree, in addition to the monetary penalty, the company must establish a comprehensive privacy program, and obtain independent privacy assessments every other year for the next 20 years.
Concurrently, the FTC released a staff report that provides disclosure policy and other guidance to mobile platforms, application developers, advertising networks and analytics companies, and application developer trade associations. For example, the report urges platforms to (i) provide just-in-time disclosures to consumers and obtain affirmative express consent before allowing applications to access sensitive content like geolocation; (ii) consider providing just-in-time disclosures and obtaining affirmative express consent for other content that consumers may find sensitive; and (iii) consider developing icons to depict the transmission of user data. With regard to application developers, the report recommends, for example, that developers (i) provide just-in-time disclosures and obtain affirmative express consent before collecting and sharing sensitive information; and (ii) improve coordination and communication with advertising networks and other third parties that provide services for applications. During a call announcing the report, the FTC explained that the report is intended to influence industry standards, and that the Commission staff will reference the report for future policymaking. The FTC also noted that the National Telecommunications and Information Agency is developing a code of conduct on mobile application transparency, and, if strong privacy codes are developed, the FTC will view adherence to such codes favorably in connection with its law enforcement work.
On February 1, the FTC announced that Chairman John Leibowitz plans to step down on February 15, 2013. Mr. Leibowitz has been a Commissioner since September 2004, and has served as Chairman for the past four years. During his tenure, the FTC has prioritized consumer privacy and financial fraud enforcement and policy development. With regard to privacy initiatives during his time as Chairman, the FTC issued a landmark report setting forth best privacy practices for all businesses, and recently updated the Children’s Online Privacy Protection Rule.
On January 30, the DOJ announced that Assistant Attorney General for the Criminal Division Lanny Breuer will leave the department on March 1, 2013. Mr. Breuer was confirmed for the position in April 2009. The DOJ press release credits him with taking “significant steps to fight corruption at home and abroad,” including by increasing enforcement of the Foreign Corrupt Practices Act, and “protecting the integrity of our banking systems and fighting financial fraud.” With regard to the latter, the release cites Mr. Breuer’s LIBOR investigation, and his efforts to develop the division’s Money Laundering and Bank Integrity Unit to support enforcement of the Bank Secrecy Act.
On January 31, the SEC announced that George Canellos will serve as Acting Director for the Division of Enforcement. Mr. Canellos currently is the Deputy Director of that division, and effective February 8, 2013, will fill the director role vacated by the departing Robert Khuzami. Mr. Canellos was appointed Deputy Director in June 2012 and, according to the release, has been instrumental in developing the division’s Cooperation Program, in generating numerous programmatic, policy, and legislative initiatives, and in critical decisions on national priority enforcement actions. He previously served three years as Director of the SEC’s New York Regional Office.
On January 15, the Department of Justice (DOJ) announced that it reached a settlement with a Michigan community bank regarding alleged redlining practices. In its complaint, the DOJ charged that between 2006 and 2009, the bank served the credit needs of white neighborhoods in the Saginaw and Flint, Michigan metropolitan areas to a significantly greater extent than it served the credit needs of majority African-American neighborhoods. Under the terms of the consent order, the bank is required to open a loan production office in an African-American neighborhood in Saginaw, invest $75,000 in a special financing program to increase the amount of credit the bank extends to majority African-American neighborhoods in and around Saginaw, invest $75,000 in partnerships with organizations that provide credit, financial, homeownership, and/or foreclosure prevention services to the residents of those neighborhoods, and invest $15,000 in outreach that promotes the bank’s products and services to potential customers in those neighborhoods.
Federal Regulators Agree to Monetary Settlement With 10 Servicers In Lieu of Independent Foreclosure Review
On January 7, the OCC and the Federal Reserve Board announced that 10 of the 14 mortgage servicers subject to consent orders issued in April 2011 regarding alleged improper servicing and foreclosure practices agreed in principle to resolve those allegations by paying borrowers $3.3 billion directly and providing $5.2 billion in borrower assistance through loan modifications and forgiveness of deficiency judgments. For the settling servicers, the agreement ends the costly and ineffective Independent Foreclosure Review program required by the consent orders, pursuant to which the banks were to compensate borrowers for any financial injury and/or improper foreclosure identified by third-party consultants through a case-by-case loan file audit process or in response to borrower requests for review. The OCC states that more than 3.8 million borrowers are expected to receive compensation ranging from hundreds of dollars up to $125,000, without having to take any action to become eligible. The exact payout will depend on the type of alleged servicing error, and the regulators expect that borrowers will be contacted by the end of March with payment details. The regulators continue to seek similar agreements with the remaining companies subject to the 2011 consent orders.
On November 14, the SEC reported the results of its enforcement program for the fiscal year ending September 30, 2012. During the year, the SEC filed 734 enforcement actions, which included an increasing number of actions focused on highly complex products, transactions, and practices. The SEC obtained orders requiring more than $3 billion in penalties and disgorgement, an 11% increase over the amount required in 2011. The SEC believes these metrics indicate “sustained high-level performance,” which it attributes to various reforms and innovations put in place over the past two years. The announcement highlights certain cases related to (i) the financial crisis, (ii) insider trading, (iii) investment advisers, (iv) broker-dealers, (v) FCPA, and (vi) municipal securities. On November 15, the SEC released its Annual Report on the Dodd-Frank Whistleblower Program. The annual report provides an overview of the program and notes that the SEC received 3,001 whistleblower tips from all 50 states and from 49 countries, including a tip that resulted in the first ever award under the program. There were 143 enforcement judgments and orders issued with potential for a whistleblower award. The most common complaints related to corporate disclosures and financials (18.2%), offering fraud (15.5%), and manipulation (15.2%).
The Evolution of False Claims Act and FIRREA Enforcement
Buckley LLP will host a webinar on Friday, November 16, 2012, from 1:00 - 2:15 PM ET, focused on the Government's most recent financial fraud enforcement actions, an overview of recent False Claims Act (FCA) cases and the Government's increasing use of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (FIRREA), and what this means for financial institutions that do business with the Government, Government-Sponsored Enterprises (GSEs), and other recipients of federal funds.
- A summary of recent enforcement actions by the DOJ, including the U.S. Attorney's Office for the Southern District of New York's (SDNY) use and expansion of FCA and FIRREA.
- Understanding what the SDNY's most recent lawsuits mean for the industry.
- Challenges facing financial services companies who do business with the Government and the GSEs.
- Predictions about where the Government may go from here.
This webinar will be of particular interest to in-house legal, compliance, and risk management personnel at banks and other financial services providers that do business with the Government, GSEs and other recipients of federal funds. Please no outside law firms, government agency personnel, consulting firms, or media. After registering and being approved, you will receive a confirmation email containing instructions for joining the webinar. Click here to register.
The CFPB: Investigations and Enforcement Actions in Focus
On Thursday, December 6, 2012 from 2:00-3:15 PM E, Buckley LLP will host a webinar to discuss the CFPB's rules governing investigations, enforcement actions, and adjudications. Buckley attorneys Jeff Naimon and Jonice Gray Tucker also will discuss themes prevalent in the first three public enforcement actions undertaken by the CFPB, all of which were predicated, in part, on allegations of unfair and deceptive practices.
This webinar will be of particular interest to in-house legal, compliance, and risk management personnel at banks and other financial services providers subject to CFPB oversight. Please no outside law firms, government agency personnel, consulting firms, or media. After registering and being approved, you will receive a confirmation email containing instructions for joining the webinar. Click here to register.
On October 24, Pennsylvania enacted three bills that together make numerous substantive and technical changes to upgrade and modernize the state’s banking code, all of which take effect December 23, 2012. HB 2368 updates commercial, mortgage, and consumer lending provisions of the code by, among other things, removing conflicting and outdated lending provisions, and reflecting current lending interest rates and fees. This bill also (i) adds provisions required by the Dodd-Frank Act with regard to lending limits that require state financial regulators to consider credit exposure to derivative transactions, (ii) increases penalties for unlawful lending and trust activities to a felony and a $10,000 to $500,000 fine, and (iii) removes the current two-person cap on the number of individuals who can be beneficiaries of deposit accounts. HB 2369 provides for greater public disclosure and enforcement by the Department of Banking, and clarifies the Department’s examination authority over bank subsidiaries. It also allows the Department to assess civil money penalties against individuals and institutions for conduct that causes the institution to suffer substantial financial loss, is willful, flagrant or evidences bad faith, involves an insider who benefits in a substantial way, or does not comply with previous supervisory actions involving violations. The bill allows the Department to publicly disclose enforcement actions against depository institutions and their employees, and expands the Department’s authority to remove officers and employees from bank management and boards whenever such individuals violate any law or Department order. HB 2369 also requires any state or local government agency that proposes civil enforcement of a law or ordinance against a bank to consult with and receive approval from the Department prior to enforcement. HB 2370 repeals certain sections of the state’s general usury law that duplicate TILA’s variable rate mortgage loan disclosures. It also adds savings banks to the list of institutions subject to maximum interest rate provisions and clarifies that the maximum rate is the rate authorized by federal or state law.
DOJ Files First Civil Fraud Suit Alleging False Claims Act And FIRREA Violations In The Sale Of Loans To Fannie Mae And Freddie Mac
On October 24, the United States Attorney’s Office for the Southern District of New York (SDNY) filed a $1 billion civil mortgage fraud lawsuit against a mortgage lender and a major financial institution in connection with loans sold to the government-sponsored enterprises (GSEs), the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac). Filed as a complaint-in-intervention in a pending qui tam, or whistleblower, lawsuit, the complaint alleges that the mortgage lender engaged in a scheme to defraud the GSEs in connection with the mortgage loans it sold to them, and that the financial institution that later acquired the lender was aware of and continued the misconduct. The suit seeks damages and penalties under the False Claims Act (FCA) and the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (FIRREA). This is the first civil suit brought by the Department of Justice concerning mortgages sold to the GSEs, and indicates that the government might commence other suits based on the sale of conventional mortgages to those entities.
The government’s allegations focus on a loan origination system initiated by the lender in 2006 that allegedly eliminated checkpoints on loan quality and led to fraud and other defects in the loans. The complaint alleges that the lender and the financial institution sold these loans to the GSEs but misrepresented that the loans complied with GSE requirements. The GSEs pooled the loans into mortgage backed securities and sold them to investors, subject to guarantees on principal and interest payments. As the allegedly defective loans defaulted, the GSEs suffered over $1 billion in losses through the payment of guarantees to investors.
These allegations set forth a theory of liability that the government had not previously articulated. Previous cases brought by the government primarily involved loans made by government program participants and alleged misrepresentations made directly to government agencies, whereas the complaint in this case is based on conventional loans and alleged misrepresentations to the GSEs. Moreover, unlike previous cases, defendants did not receive federal funds directly from the government, but rather only may have received such funds indirectly based on the government’s funding of the GSEs.
In addition, the complaint also represents another use by the government of FIRREA. Here, FIRREA is used to pursue the alleged profits made by defendants from the challenged loan origination system. See “Understanding FIRREA’s Reach: When Does Fraud ‘Affect’ a Financial Institution.” The case also marks yet another financial fraud qui tam action filed in New York. Both the FCA and FIRREA provide substantial rewards for whistleblowers and the government’s relatively quick decision to intervene, along with its fast response in other recent matters, may encourage other such suits in the SDNY. See “Whistle-Blower Bounties May Encourage Residential Mortgage-Backed Securities Fraud Reporting.”
In short, this action is another example of the government’s increasingly aggressive efforts to recoup losses stemming from the financial meltdown, as well as a reminder of the significance of the whistleblower provisions in both the FCA and FIRREA. Most importantly, it is a clear sign that government loan program participants are no longer the only targets for financial fraud recovery, and that the government may challenge the conduct of any lender who sold loans to the GSEs.