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President Obama Announces Nomination for DOJ Criminal Chief
On September 17, President Obama announced his intent to nominate Leslie R. Caldwell to serve as the DOJ’s Assistant Attorney General, Criminal Division. Ms. Caldwell currently is a partner at Morgan Lewis & Bockius LLP where she co-chairs the firm’s corporate investigations and white collar practice group. Prior to entering private practice, Ms. Caldwell served as Director of the DOJ’s Enron Task Force from 2002 to 2004. Prior to that she served as Chief of the Criminal Division and Securities Fraud Section at the U.S. Attorney’s Office for the Northern District of California and held several positions in the U.S. Attorney’s Office for the Eastern District of New York.
DOJ Announces Settlement of Auto Lending Discrimination Suit
On September 6, the DOJ announced the resolution of a long-running lawsuit against an auto dealer and a bank that financed many of the dealer’s loans, in which the government alleged that the dealer and the bank violated ECOA by charging non-Asian customers higher interest rate markups than other customers over a three-year period. The bank entered into a partial consent decree in 2009 and agreed to pay a total of $410,000 to non-Asian borrowers to resolve the allegations against it. The dealer chose to litigate and obtained a dismissal in trial court; that order was reversed last year by the Ninth Circuit. The dealer agreed to a consent decree with the DOJ on September 4 that fully resolved all claims against it. The dealer, which is now out of business, specifically denied the government’s allegations and the decree made clear the outcome was a “compromise of disputed allegations.” Under the terms of the decree, the dealer will pay up to a total of $125,000 to non-Asian customers who were charged higher dealer interest rate markups. If the dealer or its principal shareholder re-enter the business of automobile lending within the two year duration of the consent decree, it will be required to implement clear guidelines for setting dealer markup and pricing, in compliance with ECOA, and establish fair lending training for its employees and officers.
Republican House Members Object To DOJ Online Lender Probe
Last week, a group of 31 Republican House Members reportedly submitted a letter to the DOJ and FDIC accusing the agencies of “intimidating some community banks and third party payment processors with threats of heightened regulatory scrutiny unless they cease doing business with online lenders.” According to reports, the letter argues that the government’s actions effectively cut off access to lawful, short-term, high-interest loans available online. Several prominent online lenders have reportedly ceased their lending operations in response to similar pressure from state regulators.
August Beach Read Series: Understanding FIRREA
FIRREA is a financial fraud statute that has been on the books for decades, and is fast-becoming a valuable weapon in the Department of Justice’s efforts to combat alleged financial fraud. FIRREA’s reach is broader than other civil fraud statutes available to the government, making it an especially powerful tool.
- It allows civil liability for violations of any of 14 enumerated criminal statutes, including mail and wire fraud;
- It allows for whistleblower recovery, and the potential for significant monetary penalties for the government;
- It has a 10 year statute of limitations; and
- Unlike the False Claims Act, there need not be a link between government funds and the alleged fraud; instead, the fraud need only affect a federally-insured financial institution, which arguably can include the defendant institution.
To learn more about FIRREA and how it impacts the financial services industry, please review some of our recent articles on the issue. BuckleySandler partner, Andrew Schilling, recommends what steps to take if your institution receives a FIRREA subpoena in his article, “U.S. Using Subpoenas Under 1989 Act as New Tool to Probe Financial Firms.” BuckleySandler attorney Andrew Schilling use a small civil bank fraud case to shed some light on how penalties in FIRREA cases are determined in “Finally, 8 Factors Governing FIRREA Civil Penalty Awards”. Matthew Previn discuss the first time the court permitted DOJ to use FIRREA against an institution engaging in fraud that “affects” the same institution in their article, “A Financial Institution’s Fraud on Itself Triggers FIRREA.” Visit our False Claims Act and FIRREA Practice Resource Center for additional information.
Senator Warren Presses DOJ on National Mortgage Servicing Settlement FHA-Related Releases
On August 21, Senator Elizabeth Warren (D-MA) sent a letter to Attorney General Eric Holder raising concerns about the provisions of the National Mortgage Settlement that relate to the government’s release of potential FHA-related False Claims Act-based claims against the settling servicers. Senator Warren’s letter questions the settlement amount that the government obtained for the release of such claims. The Senator calls for a “clearer and more public accounting of the [alleged] damages FHA incurred” as a result of the settling servicers’ conduct, and presses DOJ more broadly on its enforcement approach to large financial institutions. Senator Warren is seeking information and documents relating to the DOJ’s assessment of any potential FHA claims and the process by which it agreed to settle those claims.
Tribes Seek to Halt New York Internet Lending Investigation; Meet with DOJ on Parallel Investigation
On August 21, two Native American tribes and related entities announced a lawsuit against the New York Department of Financial Services (DFS) in response to its recent effort to halt the offering of online payday loans to New York borrowers. On August 6, the DFS, among other related actions, sent letters to 35 online lenders, including lenders affiliated with Native American tribes, demanding that they cease and desist offering allegedly illegal payday loans to New York borrowers. The tribes argue that the DFS actions are “intimidation tactics” that will deny the tribes’ rights as sovereign entities and will result in irreparable injury to the tribes absent injunctive relief. The tribes claim that the investigation already has led to “significant harm” to tribes’ business relationships, which impacts the funding of tribal government operations. The suing tribes also met with the DOJ on August 21 regarding its Internet lending enforcement activities. The tribes sent a follow up letter quoting DOJ officials who reportedly stated they are concerned only with financial fraud, and that the DOJ’s actions are not aimed at tribal short-term lending businesses. The letter also indicates that tribal governments will join the Financial Fraud Enforcement Task Force’s Consumer Protection Working Group.
Southern District of New York Endorses Use of FIRREA in Mortgage Fraud Cases
On August 16, the U.S. District Court for the Southern District of New York issued a written opinion in support of its May 8, 2013 dismissal of claims for damages and civil penalties under the False Claims Act (FCA) brought by the federal government against a mortgage lender alleged to have sold defective loans to Freddie Mac and Fannie Mae while representing that the loans complied with the enterprises’ requirements. U.S. v. Countrywide Fin. Corp., No. 12-1422, 2013 WL 4437232 (S.D.N.Y. Aug. 16, 2013). Although it dismissed the FCA claims, the court did not dismiss the government’s claims under the Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA) that the lender’s conduct “affected” a federally insured financial institution – the lender itself. In its opinion, the court rejected the lender’s arguments that FIRREA’s legislative history and policy considerations contradict the government’s position, and instead applied a plain meaning analysis and held that the lender allegedly has paid billions of dollars to settle repurchase claims by Fannie Mae and Freddie Mac as a result of the alleged fraud, which “affected” the lender itself and as such is sufficient to sustain the FIRREA counts. The court also rejected the lender’s argument that the government failed to adequately allege the FIRREA predicate offenses of mail fraud and wire fraud because the alleged misrepresentations were “mere breaches of contract that cannot separately support an action for fraud,” holding that the argument is premised on the “fundamental error” that “mail fraud and wire fraud are subject to the same arcane limitations as common law fraud.” Notably, the court dismissed the government’s FCA claims “with prejudice” because the government failed to plead fraud with particularity with respect to loans sold after the enactment of the Fraud Enforcement and Recovery Act of 2009, which extended the FCA to cover indirect recipients of federal funds.
August Beach Read Series: Increasing Scrutiny of Short-Term, Small-Dollar Credit Products
The interest of regulators and enforcement authorities in short-term, small-dollar credit products - including payday loans, advance deposit products, installment loans, and more – has intensified in 2013. State and federal authorities have taken numerous actions to enforce existing law and to develop new rules for these products.
Earlier this year we reported on the DOJ’s prioritization of this area of consumer finance, and we have since reported on many other state and federal developments, including those related to state enforcement of licensing and usury laws against online lenders, federal regulators' scrutiny of advance deposit products and payday loans, congressional interest in small dollar loans (here and here), and the Department of Defense’s potential expansion of the Military Lending Act.
With regard to this last issue, BuckleySandler Partner Valerie Hletko recently examined the DOD’s advance notice of proposed rulemaking related to installment loans used by members of the armed forces and their families. The authors point out that the DOD’s interest in installment loans is emblematic of the scrutiny of short-term, small-dollar credit products, which appear to be increasingly vexing to regulators who recognize widespread demand for them but are concerned that such products may create a high-cost borrowing cycle.
In a 2012 article Partners John Kromer and Valerie Hletko previewed the CFPB’s interest in these products and identified some best practices for short-term, small-dollar lenders.
Senate Committee Expands Review of Virtual Currency Policies
On August 12, Senators Tom Carper (D-DE) and Tom Coburn (R-OK), the leaders of the Senate Committee on Homeland Security and Government Affairs, sent a letter to Secretary of Homeland Security Janet Napolitano regarding federal virtual currency policy. The committee reportedly sent similar letters to the DOJ, the Federal Reserve Board, the Treasury Department, the SEC, the CFTC, and the OMB. Citing a federal court’s recent holding that virtual currency Bitcoin is money or currency for the purpose of determining jurisdiction under the Securities Act of 1933, as well as other recent developments related to virtual currencies, the lawmakers seek information about (i) the agencies’ existing policies on virtual currencies, (ii) coordination among federal or state entities related to the treatment of virtual currencies, and (iii) “any plans” “strategies” or “ongoing initiatives” regarding virtual currencies. This recent scrutiny of virtual currencies follows regulatory and enforcement actions taken earlier this year, including guidance issued by FinCEN and federal criminal charges against a digital currency issuer and money transfer system. For a review of those actions and other state and federal regulatory challenges facing emerging payment providers, please see a recent article by BuckleySandler attorney and Ian Spear.
State, Federal Authorities Increase Scrutiny of Virtual Currencies, Emerging Payment Providers
On August 12, New York Department of Financial Services (NY DFS) Superintendent Benjamin Lawsky issued a notice of inquiry about the “appropriate regulatory guidelines that [the NY DFS] should put in place for virtual currencies.” The NY DFS notes the emergence of Bitcoin and other virtual currency as the catalyst for its inquiry, and the notice states that the NY DFS already has “conducted significant preliminary work.” That preliminary work includes 22 subpoenas the NY DFS reportedly issued last week to companies associated with Bitcoin.
The NY DFS is concerned that virtual currency exchangers may be engaging in money transmission as defined in New York. Under existing New York law, and the laws of a majority of other states, companies engaged in money transmission must obtain a license, post collateral, submit to periodic examinations, and comply with anti-money laundering laws. However, the NY DFS also suggests that regulating virtual currency under existing money transmission rules may not be the most beneficial approach. Instead, it is considering “new guidelines that are tailored to the unique characteristics of virtual currencies.” The NY DFS notice does not provide any timeline for further action on these issues.
Meanwhile, the U.S. Senate Committee on Homeland Security and Government Affairs is reviewing federal policy as it relates to virtual currencies. On August 12, the leaders of that committee, Senators Tom Carper (D-DE) and Tom Coburn (R-OK), sent a letter to Secretary of Homeland Security Janet Napolitano regarding federal virtual currency policy. The committee reportedly sent similar letters to the DOJ, the Federal Reserve Board, the Treasury Department, the SEC, the CFTC, and the OMB. Citing a federal court’s recent holding that Bitcoin is money or currency for the purpose of determining jurisdiction under the Securities Act of 1933, as well as other recent developments related to virtual currencies, the lawmakers seek information about (i) the agencies’ existing policies on virtual currencies, (ii) coordination among federal or state entities related to the treatment of virtual currencies, and (iii) “any plans,” “strategies,” or “ongoing initiatives” regarding virtual currencies. The letter specifically notes the importance of balancing the need to deal with “potential threats and risks . . . swiftly” with the goal of ensuring that “rash or uninformed actions don’t stifle a potentially valuable technology.”
This recent scrutiny of virtual currencies follows regulatory and enforcement actions taken earlier this year, including guidance issued by FinCEN and federal criminal charges against a digital currency issuer and money transfer system. For a review of those actions and other state and federal regulatory challenges facing emerging payment providers, please see a recent article by BuckleySandler attorney and Ian Spear.