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OCC Updates Comptroller’s Licensing Manual Booklet to Provide Guidance on Failure Acquisitions
On August 3, the Office of the Comptroller of the Currency (OCC) released OCC Bulletin 2017-26 announcing a revised version of its “Failure Acquisitions” booklet designed to provide guidance on several policies and procedures impacting national banks and federal savings associations interested in acquiring a failed depository institution through the FDIC’s bidding process. The booklet, which is part of the Comptroller’s Licensing Manual, covers:
- an overview of the process banks must follow when submitting a purchase and assumption (P&A) application, which requires OCC approval before a bank can begin the FDIC bidding process;
- considerations undertaken by the OCC when reviewing a P&A application;
- a description of the process and elements of the application, including public notice and competitive factors, as well as legal and accounting standards; and
- references and links to informational resources.
CFPB Fines National Bank $4.6 Million for FCRA Violations
On August 2, the CFPB ordered a national bank to pay $4.6 million for allegedly failing to establish adequate policies and procedures for providing consumer deposit account information to nationwide specialty consumer reporting agencies (NSCRAs). The consent order alleges that the bank violated the Fair Credit Reporting Act and Regulation V by failing to provide consumers the results of investigations into their disputes and by withholding the contact information for the consumer reporting company supplying the information used to deny a checking account application. Pursuant to the consent order, in addition to the civil money penalty, the bank must (i) implement policies and procedures to ensure NSCRAs receive accurate consumer deposit account information; (ii) provide consumers with the results of its dispute investigations concerning information furnished to NSCRAs; and (ii) give consumers NSCRA contact information in situations of adverse action.
FDIC Releases List of Enforcement Actions Taken Against Banks and Individuals in June 2017
On July 28, the FDIC released its list of 23 orders in administrative enforcement actions taken against banks and individuals in June. Civil money penalties were assessed against two banks, including one citing violations of the National Flood Insurance Act for (i) failing to obtain flood insurance before loan origination, and (ii) failing to follow force placed flood insurance procedures.
Also on the list are 13 Section 19 orders allowing applicants to participate in the affairs of an insured depository institution and four orders for removal and prohibition for bank employees breaching fiduciary duties and participating in “unsafe or unsound banking practices” leading to financial losses.
There are no administrative hearings scheduled for August 2017.
FINRA Announces Head of Enforcement, Consolidates Enforcement Functions into Single Department
On July 26, the Financial Industry Regulatory Authority (FINRA) announced the promotion of Susan Schroeder to Executive Vice President and Head of Enforcement. Previously, Ms. Schroeder served as FINRA Senior Vice President and Deputy Chief of Enforcement, and she began serving as acting Head of Enforcement around the start of this year. Schroeder will report directly to CEO Robert Cook. FINRA also announced plans to consolidate its existing enforcement teams—“one handling disciplinary actions related to trading-based matters found through Market Regulation’s surveillance and examination programs, and the other handling cases referred from other regulatory oversight divisions including Member Regulation, Corporate Financing, the Office of Fraud Detection and Market Intelligence, and Advertising Regulation”—into a single unit led by Schroeder. This reorganization was prompted by FINRA360, the organization’s comprehensive self-evaluation and improvement examination.
FTC Staff Supports FCC’s Proposal to Reverse Broadband Enforcement Authority
On July 17, FTC staff submitted its comments to the FCC in response to the FCC’s Notice of Proposed Rulemaking on Restoring Internet Freedom (NPRM), in favor of returning broadband enforcement authority to FTC. (See previous InfoBytes coverage here.) The NPRM would reverse a 2015 FCC decision, which changed the classification of broadband internet access service from an “information service to a common carrier service,” and resulted in a loss to the FTC’s authority. Currently, the FTC cannot regulate common carrier activities. FTC staff argued that with the exception of broadband providers, FTC jurisdiction covers virtually all other internet entities. Having one agency with enforcement authority over all internet entities would allow for “consistent standards and consistent application of those standards.” The result, the staff encouraged, would be the creation of a “level playing field for all companies operating in the Internet ecosystem.”
Acting FTC Chairman Maureen K. Ohlhausen endorsed the staff comments and offered support for the NPRM to reverse the 2015 Title II classification of broadband internet access service as a way to “restore the FTC’s ability to protect broadband consumers under its general consumer protection and competition authority.” However, FTC Commissioner Terrell McSweeny dissented, stating that “[u]nless Congress repeals the common carrier exemption in the FTC Act, the FTC could continue to face challenges to its authority over common carriers.” Consequently, “[r]epealing these rules would be harmful for consumers and the marketplace . . . . Rather than roll[ing] back protections, we should augment them with renewed FCC vigor and a change to anachronistic barriers to FTC enforcement.”
Global Bank and U.S. Subsidiaries Fined $246 Million for Deficiencies in Internal Foreign Exchange Trading Controls
On July 17, the Board of Governors of the Federal Reserve (Board) fined a global bank and two of its U.S. subsidiaries $246 million for allegedly lacking appropriate oversight and controls to ensure the bank’s foreign exchange (FX) trading activities were in compliance. According to the cease and desist order, the Board alleged that the bank’s “deficient policies and procedures” prevented it from detecting unsafe and unsound conduct and communications between bank traders and traders at other financial institutions concerning their trading positions. In addition to the fine, the bank is required to improve its oversight and controls over its FX trading activities, submit a written plan to improve its compliance risk management program, and provide an enhanced written internal audit program, subject to Board approval. Furthermore, the bank is prohibited from re-employing any individuals involved in the illegal communications.
It was noted in the order that the bank conducted a review of its FX trading activities covering the investigation time period, identified and reported the illegal conduct to the Board and the Federal Reserve Bank of New York, and fully cooperated with the investigation. Improvements to address identified deficiencies have already begun.
FTC Chairman Announces Reforms for Bureau of Consumer Protection, Aims to Improve Transparency
On July 17, FTC Acting Chairman Maureen K. Ohlhausen announced process reforms designed to reduce burden and improve transparency in investigations conducted by its Bureau of Consumer Protection (BCP). The initiative, which is part of the FTC’s reform efforts announced in April of this year, is designed to “protect consumers and promote competition without unduly burdening legitimate business activity.” To streamline information requests for CIDs in consumer protection cases, the BCP intends to:
- Provide plain language descriptions of the CID process and develop business education materials to help small businesses understand how to comply;
- Add detailed descriptions of the scope and purpose of investigations to assist companies in better understanding the information the FTC seeks;
- Limit relevant time periods to minimize undue burden on companies when possible;
- Significantly reduce the length and complexity of CID instructions for providing electronically stored data; and
- Increase response times (for example, 21 days to 30 days for targets, and 14 days to 21 days for third parties) to improve the quality and timeliness of compliance by recipients.
BCP will continue its current practice of communicating with investigation targets at least every six months once the CID has been complied with to provide investigation status updates.
SEC Chairman Outlines Regulatory Agenda
On July 12, SEC Chairman Jay Clayton spoke at the nonpartisan Economic Club of New York about the principles behind his regulatory agenda. In addition to outlining the SEC’s three-part mission on investor protection, market order and efficiency, and capital formation, Clayton stressed the need for cooperation with domestic and foreign regulators to ensure effective, sound regulatory approaches. Noting the SEC’s coordination with the Commodity Futures Trading Commission (CFTC) on issues concerning cybersecurity and swap markets specifically, Clayton highlighted plans to continue to work with the CFTC, under the guidance of Title VII of the Dodd-Frank Act, to “reduce unnecessary complexity as well as costs to both regulators and market participants.” The SEC also plans to continue to encourage strong enforcement and examination programs.
Enforcement Actions Announced by CFTC for Fraud, Registration Violations in Florida
On July 11, the CFTC announced that the U.S. District Court for the Middle District of Florida entered an order for final judgment by default against two individuals and their company for fraudulently soliciting investors in a commodity pool, misappropriating pool participants’ funds, and committing futures fraud, among other things. According to the CFTC complaint filed on January 26 of 2017, the defendants fraudulently marketed their company to prospective participants, materially misrepresented their past trading success using fabricated high rates of return, provided account statements to investors showing fictitious increases in value, and failed to disclose defendant’s previous permanent injunction on trading.
In addition to imposing a permanent injunction on trading and registration, the Court ordered defendants to pay civil monetary penalties of almost $1.85 million as well as restitution of $459,613. An appointed monitor will oversee the defendants’ payment of restitution. The Court also required one of the defendants to affirmatively disclose his violations in any future marketing materials, presentations, speeches or websites. The required disclosure names his violations, the amount of restitution and civil penalties he must pay, along with the case numbers of his CFTC actions.
Both of the defendants recently pleaded guilty to related criminal charges. One defendant was sentenced to one year and one day in prison in connection with her guilty plea to one count of obstruction of justice, and the other defendant is awaiting sentencing in connection with his guilty plea to one count of wire fraud.
FDIC Releases List of Enforcement Actions Taken Against Banks and Individuals in May 2017
On June 30, the FDIC released its list of 36 orders in administrative enforcement actions taken against banks and individuals in May. Several of the orders on the list assess civil money penalties for violations of the Flood Disaster Protection Acts of 1973 and 1968 and their flood insurance requirements including: (i) failing to obtain flood insurance before loan origination; (ii) failure to maintain adequate insurance coverage on loans; (iii) failure to provide the required notification and failure to provide timely notification on loans; (iv) failing to maintain adequate flood insurance during the term of the loan; (v) allowing flood insurance to lapse during the term of the loan; and (vi) failing to provide written notice to the borrower concerning flood insurance before renewing a loan.
Also on the list are 14 assessments of civil money penalties, three of which are coupled with orders of restitution. Additionally, there are six orders for removal and prohibition for bank employees breaching fiduciary duties and using positions of control to “facilitate and conceal schemes perpetrated by Bank customers” that caused the bank to violate the Bank Secrecy Act.
There are no administrative hearings scheduled for July 2017.