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In September, the CFPB published documents related to an investigation into whether a national bank opened credit card accounts without customer authorization in violation of various federal laws and regulations, including the Fair Credit Reporting Act and the Consumer Financial Protection Act’s ban on unfair or abusive practices. In March 2019, the Bureau issued a civil investigative demand (CID) to the bank seeking, among other things, “a tally of specific instances of potentially unauthorized credit card accounts,” as well as a manual assessment of card accounts that were never used by the customer. The bank argued in its petition to modify or set aside the CID that it had already provided information to regulators showing that it did not have a “systemic sales misconduct issue,” and cited to the OCC’s broad review into sales practice issues at mid-size and large national banks, which has not, according to the bank, identified systemic issues with bank employees opening unauthorized accounts without consumer consent. Among other things, the bank also contended that the CID was unduly burdensome—requiring manual account-level assessments—and said the CFPB should end its investigation because the facts “refute an investigation’s initial hypothesis.” The bank further argued that the inquiry into its sales practices should be conducted by CFPB supervisory staff instead of as an enforcement investigation, which would be “the proper mechanism for resolving any remaining issues when an investigation fails to uncover evidence warranting [e]nforcement action.”
Concerning the bank’s argument that the CID was unduly burdensome, the Bureau stated in its order denying the petition that the bank had failed to “meaningfully engage” with the Bureau during the course of the investigation in a way that merited modification to the terms of the CID. Moreover, with regard to whether the investigation should be conducted by supervisory staff, the Bureau countered that “[t]his is not a request properly made in a petition to modify or set aside a CID, for the same reasons that it is not proper to use a CID petition to ask that the Bureau close an investigation because (in the recipient’s view) it has already shown that it engaged in no wrongdoing.”
On September 17, the DOJ and the CFPB filed a brief with the U.S. Supreme Court arguing that the for-cause restriction on the president’s authority to remove the Bureau’s single Director violates the Constitution’s separation of powers. The brief was filed in response to a petition for a writ of certiorari by a law firm, contesting the May decision by the U.S. Court of Appeals for the Ninth Circuit, which held that (i) the Bureau’s single-director structure is constitutional, and that (ii) the district court did not err when it granted the Bureau’s petition to enforce a law firm’s compliance with a 2017 civil investigative demand (CID) (previously covered by InfoBytes here). The brief cites to a DOJ filing in opposition to a 2018 cert petition, which also concluded that the Bureau’s structure is unconstitutional by infringing on the president’s responsibility to ensure that federal laws are faithfully executed, but urged the Court to deny that writ as the case was a “poor vehicle” for the constitutionality consideration (previously covered by InfoBytes here).
In contrast to the December brief, the DOJ now asserts that the present case is a “suitable vehicle for resolving the important question,” noting that only the constitutional question was presented to the Court and the 9th Circuit has stayed its CID mandate until final disposition of the case with the Court. Moreover, the government argues that until the Court resolves the constitutionality question of the Bureau’s structure, “those subject to the agency’s regulation or enforcement can (and often will) raise the issue as a defense to the Bureau’s efforts to implement and enforce federal consumer financial law.” While the Bureau previously defended the single-director structure to the 9th Circuit, the brief notes that since the May decision was issued, “the Director has reconsidered that position and now agrees that the removal restriction is unconstitutional.”
On the same day, Director Kraninger sent letters (here and here) to House Speaker Nancy Pelosi (D-Calif.) and Senate Majority Leader Mitch McConnell (R-Ky.) supporting the argument that the for-cause restriction on the president’s authority to remove the Bureau’s single Director, violates the Constitution’s separation of powers. Kraninger notes that while she is urging the Court to grant the pending petition for certiorari to resolve the constitutionality question, her position on the matter “does not affect [her] commitment to fulfilling the Bureau’s statutory responsibilities” and that should the Court find the structure unconstitutional, “the [Consumer Financial Protection Act] should remain ‘fully operative,’ and the Bureau would ‘continue to function as before,’ just with a Director who “may be removed at will by the [President.]’”
On May 21, the CFPB issued two orders partially modifying civil investigative demands (CID) issued by the Bureau in 2017 and 2018. In 2017, a revised CID was issued to a provider of tax debt relief products and services concerning potential violations of UDAAP provisions under the Consumer Financial Protection Act (CFPA). Thereafter, the company petitioned the Bureau to set aside or modify the CID, arguing, among other things, that (i) the CFPA does not empower the CFPB to issue a CID to a tax preparation company given it does not provide a “‘consumer financial product or service’”; (ii) the investigation should be limited initially to information relevant to determining whether the Bureau has enforcement authority over the company; and (iii) the CID is overly broad because the notification of purpose does not comply with the CFPA’s requirements for authorizing Bureau CIDs. In the order, the Bureau rejected the company’s argument that it is not subject to the Bureau’s enforcement authority, stating that the agency is authorized to issue a CID to any person who may have information relevant to a violation, and moreover, the Bureau need not accept as true the company’s factual assertions that its business conduct does not include any activities covered by the CFPA. It also declined the company’s request that the CID be modified to focus solely on information relevant to determining whether the Bureau has enforcement authority over the company, stating that an agency may simultaneously investigate jurisdictional facts and possible violations. The Bureau further noted that the CFPA does not require a notification of purpose to identify particular persons who engaged in the conduct at issue or whether the company itself is under investigation. However, the CFPB modified the notification of purpose to include a statement reflecting that an additional purpose of the investigation is to determine whether false and misleading representation have been made to consumers regarding tax debt relief products and services.
In 2018 a second CID was issued to a financial services company to investigate whether it has engaged in any potential UDAAP violations concerning its marketing and servicing of deferred- interest financing. The company petitioned the Bureau to set aside the CID on the grounds that it (i) provides an inadequate notification of purpose; (ii) seeks information not relevant to any investigation; (iii) is unduly broad and burdensome; and (iv) “is fundamentally at odds” with the Bureau’s mission. Among other things, the Bureau’s order rejected the company’s argument that oral misrepresentations related to deferred-interest financing “are not relevant because no such representations were made to consumers (or, if they were, they were not so numerous as to merit the Bureau’s attention),” or they were not made by the company. According to the Bureau, these objections go to whether the company complied with the law, not whether the information the Bureau seeks is relevant. The Bureau also rejected the company’s arguments related to whether the agency could seek information related to transactions outside of the limitations period for potential violations of the CFPA, stating that the information may allow the Bureau to develop an understanding of the company’s practices and operations. However, while the Bureau emphasized that the company failed to demonstrate that complying with the CID would be overly burdensome, it did make some modifications to the notification of purpose on the recommendation of enforcement counsel, and extended the production timeline.
On May 6, the U.S. Court of Appeals for the 9th Circuit held that (i) the CFPB’s single-director structure is constitutional, and that (ii) the district court did not err when it granted the Bureau’s petition to enforce a law firm’s compliance with a 2017 civil investigative demand (CID). As previously covered by InfoBytes, the CFPB previously determined that none of the objections raised by the law firm warranted setting aside or modifying the CID, which sought information to determine whether the law firm violated the Telemarketing Sales Rule (TSR) when providing debt-relief services. The law firm contended that the CFPB’s single-director structure was unconstitutional and therefore the CID was unlawful. It argued further that the CFPB lacked statutory authority to issue the CID.
On review, the 9th Circuit held that the for-cause removal restriction of the CFPB’s single director is constitutionally permissible based on existing Supreme Court precedent. The panel agreed with the conclusion reached by the U.S. Court of Appeals for the D.C. Circuit majority in the 2018 en banc decision in PHH v. CFPB (covered by a Buckley Special Alert) stating, “if an agency’s leadership is protected by a for-cause removal restriction, the President can arguably exert more effective control over the agency if it is headed by a single individual rather an a multi-member body.” The 9th Circuit noted that the dissenting opinion of then Court of Appeals Judge Brett Kavanaugh found that the single-director structure was unconstitutional and noted that “[t]he Supreme Court is of course free to revisit those precedents, but we are not.”
The 9th Circuit next addressed the law firm’s argument that the CFPB lacked statutory authority when it issued the CID. The panel held that the TSR “does not exempt attorneys from its coverage even when they are engaged in providing legal services,” and therefore, the Bureau has investigative authority without regard to the Consumer Financial Protection Act’s (CFPA) practice-of-law exclusion. In addition, the panel rejected the law firm’s argument that the CID was vague or overly broad, and stated that the CID fully complied with the CFPA’s requirements and identified the allegedly illegal conduct and violations.
On April 23, the CFPB announced updates to its policy on Civil Investigative Demands (CIDs). According to the Bureau, the new policy is consistent with comments received in response to a 2018 Request for Information, which solicited public feedback on “how best to achieve meaningful burden reduction or other improvement to the CID processes while continuing to achieve the Bureau’s statutory and regulatory objectives” (previously covered by InfoBytes here). Going forward, CIDs will (i) provide additional information on potentially applicable provisions of law that may have been violated; (ii) specify business activities subject to Bureau authority; and (iii) “[i]n investigations where determining the extent of the Bureau’s authority over the relevant activity is one of the significant purposes of the investigation, staff may specifically include that issue in the CID in the interests of further transparency.”
On March 6, the FTC’s Office of Legal Counsel warned recipients that subpoenas and civil investigative demands (CID) issued by the agency are legally enforceable demands and should be taken seriously. The FTC stated it is willing “to work with parties and their counsel to determine the scope of the agency’s subpoena or CID and a timeframe for compliance” and issued a reminder that under the FTC’s Rules of Practice, parties are required to meet and confer to identify issues or concerns that may affect a party’s ability to comply. The FTC additionally discussed measures the Office of Legal Counsel may undertake in order to compel compliance, including the possibility of federal court action.
On February 25, the CFPB petitioned the U.S. District Court for the Southern District of New York for an order requiring a debt collection law office to comply with a civil investigative demand (CID) issued by the Bureau in June 2017. The CID requested information from the debt collection firm as part of a Bureau investigation into whether debt collectors, furnishers, or other persons associated with the collection of debt and furnishing of information have engaged or are engaging in unfair, deceptive, or abusive acts or practices in violation of the CFPA, FDCPA, and FCRA. According to the petition, the firm partially responded but withheld several responses asserting that doing so would require the firm's principal to violate professional responsibility rules in the states of New York and New Jersey. Withheld information, the Bureau claims, includes telephone calls and written correspondence with indebted consumers, disputes with consumers over the firm's credit reporting activities to third party agencies, and service contracts with creditors on whose behalf the firm collects debt. The Bureau argued that the court should direct the law firm to comply with the CID because, aside from following all applicable procedural requirements for the issuance of a CID contained within the CFPA, it “has shown that the investigation is being conducted for a legitimate purpose, that the inquiries may be relevant to that purpose, that the information sought is not already within the Bureau's possession, and that the administrative steps required by the [CFPA] and its implementing regulations have been followed. . . .” The Bureau further requested an order that the firm show cause and explain why it should not be compelled to comply with the CID.
On September 6, the U.S. Court of Appeals for the 5th Circuit declined to enforce a Civil Investigative Demand (CID) issued by the CFPB against a Texas public records company, after holding the Bureau did not comply with Dodd-Frank when it issued the CID. After initially receiving the CID, the Texas company objected to its Notification of Purpose as inadequate, as it read, “whether consumer reporting agencies, persons using consumer reports, or other persons have engaged or are engaging in unlawful acts and practices in connection with the provision or use of public records information in violation of the Fair Credit Reporting Act . . . or any other federal consumer law.” In response, the Bureau filed a petition in federal court seeking to enforce the CID and the lower court granted the petition, holding that the Notification of Purpose provided fair notice of the violations under investigation as required by the Dodd-Frank Act. The 5th Circuit disagreed, however, finding that the CID did not identify an alleged violation. The court noted that the CID only made references to the FCRA, a “broad provision of law that the CFPB has authority to enforce,” and “any other federal consumer financial law,” which subsequently “defeats any specificity provided by the reference to the FCRA.” The court emphasized that it could not review the CID under the “reasonable relevance” standard, because the CID failed to identify the conduct under investigation and concluded that the Bureau does not have “unfettered authority to cast about for potential wrongdoing.”
On August 13, in a divided opinion that is not precedential, the U.S. Court of Appeals for the 3rd Circuit affirmed a lower court’s decision to grant a petition filed by the CFPB to enforce a civil investigative demand (CID) issued to a student loan servicer, rejecting arguments that the scope of the Bureau’s investigation was too broadly defined. The Notification of Purpose in the CID at issue named the entirety of the servicer’s business operations, without identifying any specific conduct, when the CFPB sought records to determine whether the servicer’s practices violated federal consumer financial laws. The servicer objected to the Notification of Purpose and petitioned the Bureau to set aside or modify the CID because it did not adequately “state the nature of the conduct constituting the alleged violation which is under investigation and the provision of law applicable to such violation.” The appellate court held that the servicer’s “contention rests on the flawed assumption that the CFPB could not investigate all of [the servicer’s] conduct,” and that, moreover, “[n]othing prohibits the CFPB from investigating the totality of [the servicer’s] business activities, and courts have previously enforced administrative subpoenas regarding conduct that is coextensive with the recipient’s business activity.”
On July 23, the CFPB denied a petition by a debt collector to modify or set aside a civil investigative demand (CID) issued by the Bureau in September 2017. The CID requested information from the debt collector “to determine whether debt collectors, depository institutions, or other persons have engaged or are engaging in unlawful acts and practices in connection with the collection of debt. . . .” The debt collector petitioned the Bureau to set aside or modify the CID, which requests were denied. The Bureau rejected the company’s argument that the CID should be set aside because the purported violations of the Fair Debt Collection Practices Act are not actionable under the “bona fide error rule.” The order emphasizes that the Bureau is not required to establish there was a violation of law in order to issue a CID, and the debt collector’s arguments “prematurely assert substantive defenses to claims the Bureau has not yet asserted.” The order also rejects the company’s argument that the CID be modified because certain requests are “disproportionate” and would impose an undue burden on the company, requiring the manual review of numerous audio files, which the Bureau denies because “[c]onclusory allegations of burdensomeness are insufficient.” The Bureau did allow for some of the information in the petition to be redacted because it could constitute confidential supervisory information but denied the request for confidential treatment of the rest of the materials.
- Sherry-Maria Safchuk to discuss "Final CCPA regulations: Compliance considerations" at a CUCP virtual meeting
- H Joshua Kotin to discuss "Servicing GSE payment deferrals" at a Mortgage Bankers Association webinar
- Daniel R. Alonso to discuss "When can trial lawyers take their case to the public? The Harvey Weinstein case and beyond" at a New York City Bar Association webcast
- Daniel P. Stipano to discuss "Cram for the exam: Best prep strategies for a regulatory examination" at an ACAMS webinar
- Melissa Klimkiewicz to discuss "Flood insurance basics" at the NAFCU Virtual Regulatory Compliance School
- Sasha Leonhardt to discuss "Privacy laws clarified" at the National Settlement Services Summit (NS3)