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Financial Services Law Insights and Observations


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  • Court of Chancery throws out suit against bank for alleged fraud


    On April 16, in the Court of Chancery of the State of Delaware, a judge threw out a case with prejudice where a shareholder (the plaintiff) sued a bank but ultimately failed to show a “substantial likelihood of liability.” The plaintiff alleged that the bank, along with its board, violated the EFTA and Regulation E by failing to resolve unauthorized electronic transfer claims and provisionally credit the consumer’s accounts within 10 business days, by failing to resolve unauthorized electronic transfer claims within 45 days, and by failing to reimburse victims of unauthorized electronic fund transfers after 45 days. To bolster the plaintiff’s claims, the plaintiff cited a 2022 U.S. Senate Committee on Banking, Housing, and Urban Affairs (Committee) investigation into the same alleged unauthorized electronic transfers and related reports, including one produced by Senator Elizabeth Warren (D-MA). However, the court found the reports at issue failed to demonstrate a violation of federal regulations. Accordingly, the court denied the plaintiff’s motion for leave to file a supplemental brief and granted the bank’s motion to dismiss.

    Courts EFTA Regulation E U.S. Senate

  • Democratic senators pen letter to trade org. that brought suit against CFPB’s credit card late fee rule

    Federal Issues

    On April 14, two Democratic senators, Sen. Elizabeth Warren (D-MA) and Sen. Sheldon Whitehouse (D-RI), wrote a letter to the head of a commercial trade organization that brought a lawsuit against the CFPB, challenging the CFPB’s rule capping credit card late fees. As previously covered by InfoBytes, the trade organization and other business groups sued the CFPB, challenging its recent final rule limiting most credit card late fees to $8. The senators wrote that the trade organization’s decision to sue was “outrageous and unwarranted” as the senators sought an explanation for the opposition.

    The senators stated that the lawsuit was “frivolous,” and argued that the trade organization neglected “Main Street businesses” and instead was “doing the dirty work of its big bank members” who charged these high fees. Bolstering their position that the rule would cover large credit card issuers only, the senators noted that the rule would be expected to apply to less than one percent of the 4,000 financial institutions offering credit cards. Further, the senators argued that this lawsuit was a pattern of the trade organization representing the interests of large corporations, citing a report that found that only 23 of the 28 million small businesses in the U.S. benefited from the trade organization’s litigation. In seeking an explanation, the senators requested answers to a series of questions, including “How did [the trade organization] reach the decision to sue the CFPB to stop the agency from putting this rule in place?” and “Has the [trade organization] conducted an economic analysis of how the CFPB proposal would impact its members?”

    Federal Issues CFPB Credit Cards Junk Fees U.S. Senate

  • Yellen testifies on FSOC Annual Report, key areas of focus

    Federal Issues

    On February 8, the U.S. Senate Committee on Banking, Housing, and Urban Affairs held a hearing titled “The Financial Stability Oversight Council Annual Report to Congress” with testimony provided by U.S. Treasury Secretary Janet Yellen. Secretary Yellen discussed progress, and continued focus, related to five topics addressed in FSOC’s 2023 Annual Report (covered by InfoBytes here): capital risks posed by nonbank financial institutions; climate-related financial stability risks; cybersecurity risks; monitoring artificial intelligence (AI) use in financial services; and digital asset oversight. In response to questioning from Senator Cortez Masto (D-NV), Yellen discussed how FSOC highlighted that about 70 percent of single-family mortgages were originated by nonbank mortgage originators during the first half of 2023. When Secretary Yellen was asked if the shift from banks to nonbanks in the mortgage space poses a financial stability risk “due to non-banks’ lack of access to deposits,” she responded that FSOC is “very focused” on the issue since non-banks are reliant on short-term financing. In addition, Yellen spoke about AI and learning its impact on vulnerabilities and risk, as well as the Basel III proposal, urging regulators to “finalize these rules as quickly as possible.”

    Federal Issues FSOC Department of Treasury U.S. Senate Basel Mortgage Lenders

  • Senate Banking Committee hearing on P2P payment scams calls for updates to EFTA definitions

    On February 1, the U.S. Senate Committee on Banking, Housing, and Urban Affairs held a hearing on “Examining Scams and Fraud in the Banking System and Their Impact on Consumers,” and invited three panelists to testify, including an attorney from a consumer law center and two vice presidents from banking associations. Chairman Sherrod Brown (D-OH) led the hearing by noting that peer-to-peer (P2) apps are a rising target among scammers, alongside a rise in check fraud. The Chairman noted a 2023 alert from FinCEN warning (as covered by InfoBytes here) of a surge in check fraud after a “drastic” rise in scams, and concluded with a statement that the P2P companies need “rules to make them” do better. Next, Ranking Member Senator Tim Scott (R-SC) called for the companies to spend more money developing security technologies to protect consumers from fraud. Sen. Scott then called for better education in financial literacy to learn about scams and methods. 

    At the hearing, Mr. John Breyault noted that reported losses from P2P payment platforms nearly doubled from $87 million in 2020 to $163 million in 2022. Mr. Breyault asked Congress to play a larger role in preventing fraud on P2P platforms and urged the passage of the Protecting Consumers from Payment Scams Act (which would expand EFTA’s definition of unauthorized electronic fund transfer to cover fraudulently induced payments). Ms. Carla Sanchez-Adams, in her testimony, asserted the entire burden of payment fraud should not fall on the customers and advocated for an updated Electronic Funds Transfer Act that protects consumers from fraudulently-induced transactions. She testified that receiving institutions should have more responsibility, and called for anti-fraud policies that protect consumers from having their accounts frozen, among others. Mr. Paul Benda testified to similar points: he called for an increase in consumer education and the closure of regulatory loopholes to stop impersonation scams. He testified in favor of improved information sharing and enhanced collaboration with law enforcement and regulators.  

    Bank Regulatory Peer-to-Peer Fraud Senate Banking Committee EFTA U.S. Senate Federal Issues

  • President Biden vetoes bill on CFPB small business data rule

    Federal Issues

    On December 19, President Biden vetoed bill S. J. Res. 32 that would have repealed the CFPB’s small business data collection rule known as “Small Business Lending Under the Equal Credit Opportunity Act (Regulation B).” As previously covered by InfoBytes, the small business data collection rule, under Section 1071 of the Dodd-Frank Act, requires small business owners to provide demographic data (i.e., race, gender, ethnicity, etc.), as well as geographic information, lending decisions, and credit pricing to lenders. According to President Biden’s statement accompanying the veto, the CFPB’s final rule brings “transparency to small business lending” and repealing this rule would “hinder” the government’s ability to conduct oversight of predatory lenders. The bill is now to be returned to the Senate to be voted on again and can only become law if two-thirds of members support the bill. Separately, in October, a U.S. District Court in Texas imposed an injunction on the CFPB’s small business data rule (covered by InfoBytes here).

    Federal Issues Executive Order CFPB Section 1071 U.S. Senate White House

  • Warren urges Fed to finalize capital requirements for large banks

    Federal Issues

    On August 29, Senator Elizabeth Warren (D-MA) sent a letter to the Fed regarding its recent notice of proposed rulemaking, urging them to “finalize the rules as quickly as possible.” In July, the Fed announced amendments to the regulatory capital requirements for large banking organizations that would implement the final components of the Basel III agreement (previously covered by InfoBytes here). Warren noted that she is concerned about the Fed’s intent to seek potential modifications as it could result in weakening the proposed rule. Warren also warned that big bank lobbyists has been “engaging in a full-court press to fend off higher capital requirements” before the release of the proposed rule, and that big banks lobbying expenditures were up 20 percent compared to the same period of time in the previous year, indicating a “clear effort to fend off stronger rules” following recent bank failures. The senator finally noted that the capital bank requirements are a threat to bank’s “massive payouts for executives and shareholders.”

    Federal Issues Federal Reserve U.S. Senate Basel Committee Compliance Capital Requirements

  • Senators, Reps request record retention information from the FTC

    Federal Issues

    On August 18, members of the House and the Senate issued a letter to the FTC with various inquiries related to the FTC’s preservation of agency records. The letter notes that the FTC “has struggled to comply” with the Federal Records Act citing a February 2022 memo from the FTC Inspector General issuing two recommendations for improving records management. The letter further indicates that the FTC has not provided explanations for instances of document deletion and have asked for responses by the end of the month to identify (i) what records have been deleted and why; (ii) how the FTC is working to company with retention requirements; (iii) whether it has notified National Archives and Records Administration of any deleted records; and (iv) how it has addressed prior recommendations.

    Federal Issues U.S. Senate U.S. House FTC Recordkeeping

  • Bipartisan Senate legislation would offer stronger ISA protections

    Federal Issues

    On January 31, Senators Mark Warner (D-VA), Todd Young (R-IN), Marco Rubio (R-FL), and Chris Coons (D-DE) reintroduced legislation to strengthen protections for students who enter into income share agreements (ISAs). The senators explained that ISAs are an innovative way for students to finance postsecondary education and serve as an alternative to high-interest student loans. Under an ISA, students agree to pay a percentage of their income over an agreed upon time period in exchange for tuition payments from nongovernmental sources. When the time period ends, students stop payments regardless of whether they have paid back the full amount.

    The ISA Student Protection Act of 2023 would, among other things, (i) prevent ISA providers from requiring payments higher than 20 percent of a student’s income; (ii) exempt students from making payments towards their ISA should their income fall below an affordability threshold; (iii) establish a maximum number of payments and limit payment obligations to the end of a fixed window; (iv) set a minimum number of voluntary payment relief pauses; (v) require ISA providers to give detailed payment disclosures to students who may be considering entering into an ISA (including how payments under an ISA compare to payments under a comparable loan); (vi) provide strong bankruptcy protections for students who enter into an ISA “by omitting the higher ‘undue hardship’ standard for discharge required under private loans”; (vii) prevent funders from accelerating defaulted ISAs; (viii) ensure that ISA obligations end in the event of death or total and permanent disability; (ix) ensure that ISAs fall under federal consumer protection laws, including the FCRA, FDCPA, MLA, SCRA, and ECOA; (x) grant regulatory authority over ISAs to the CFPB; and (xi) clarify how ISA contributions should be treated for tax purposes for both funders and recipients.

    Federal Issues Federal Legislation Student Lending Consumer Finance Income Share Agreements U.S. Senate

  • Senators exploring bank’s dealings with collapsed crypto exchange

    Federal Issues

    On January 30, Senators Elizabeth Warren (D-MA), John Kennedy (R-LA), and Roger Marshall (R-KS) sent a follow-up letter to a California-based bank asking for additional responses to questions related to the bank’s relationship with several cryptocurrency firms founded by the CEO of a now-collapsed crypto exchange. As previously covered by InfoBytes, the senators pressed the CEO for an explanation for why the bank failed to monitor for and report suspicious transactions to the Financial Crimes Enforcement Network, and asked for information about how deposits it was holding on behalf of the collapsed exchange and related firm were being handled. The senators stressed that the bank has a legal responsibility under the Bank Secrecy Act to maintain an effective anti-money laundering program that may have flagged suspicious activity.

    In the letter, the senators accused the bank of evading their previous questions in its December response, writing that while the bank’s answers confirm the extent of its failure to monitor and report suspicious financial activity, it failed “to provide key information needed by Congress to understand why and how these failures occurred.” The bank’s “repeated reference to ‘confidential supervisory information’” as a justification for its refusal to provide the requested information “is simply not an acceptable rationale,” the senators said. They also noted that the bank’s recent advance from the Federal Home Loan Bank of San Francisco—intended “to ‘stave off a further run on deposits’”—has introduced additional crypto market risks into the traditional banking system, especially should the bank fail. The bank was asked to explain how it plans to use the $4.3 billion it received.

    The senators further commented that additional findings have revealed that neither the Federal Reserve nor the bank’s independent auditors were able to identify the “extraordinary gaps” in the bank’s due diligence process. The senators asked the bank to provide responses to questions related to its risk management policies, as well as how many safety and soundness exams were conducted, and whether any of the bank’s executives were “held accountable” for the failures related to the collapsed exchange, among other things.

    Federal Issues Digital Assets U.S. Senate Cryptocurrency Risk Management Bank Secrecy Act Anti-Money Laundering FinCEN Financial Crimes

  • Warren, Wyden urge PCAOB to crack down on crypto auditors

    Federal Issues

    On January 25, Senators Elizabeth Warren (D-MA) and Ron Wyden (D-OR) sent a letter to the chair of the Public Company Accounting Oversight Board (PCAOB) urging the board to make sure it was taking sufficient measures to hold registered audit firms accountable for their work with cryptocurrency clients. The letter highlighted the recent turmoil in the crypto market following the collapse of a major crypto exchange last November, and inquired about “the role that auditors may have played in misleading the public about the financial soundness and safety of crypto companies.” Referring to reports of “scandalous accounting practices” within the industry, the senators urged the PCAOB to take action to ensure accountability. “When PCAOB-registered auditors perform sham audits—even for firms that may lay outside of the PCAOB’s jurisdiction—they tarnish the credibility of the PCAOB and undermine confidence in the PCAOB-registered auditors that investors and the public rely on when making investment decisions,” the senators wrote, adding that “misleading financial reports shake our confidence in the entire auditing industry.”

    The senators asked the PCAOB to respond to several questions concerning alleged misleading auditing practices related to the exchange’s collapse, including whether the PCAOB is taking steps to mitigate risks facing retail investors, whether it was aware of any potential conflicts of interest or other concerning behavior, and whether it has “the authority to strip auditors of their PCAOB-registered status if they provide services or engage in conduct that fall short of PCAOB standards and rules, even if those actions are taken in relation to private, non-SEC registered companies.” The senators also asked the PCAOB to describe the standards that auditors must comply with “when evaluating the risk of exposure to crypto firms or validating the valuation of crypto investments.”

    Federal Issues Digital Assets U.S. Senate Audit Cryptocurrency PCAOB


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