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Senate Commerce Committee Expands Data Broker Inquiry
On February 3, Senate Commerce Committee Chairman Jay Rockefeller (D-WV) again expanded his investigation of data brokers when he asked six brokers for information on the compilation and sale of products that identify consumers based on their financial vulnerability or health status. The issue was raised recently in a majority staff report, which was released in connection with a December 2013 committee hearing. The Chairman cited “serious concerns regarding the sale and dissemination of lists identifying a consumer’s fragile health or financial circumstances without the consumer’s knowledge or permission,” which Mr. Rockefeller believes can be used by businesses seeking to target vulnerable customers for financially risky lending products or fraud schemes. The Chairman seeks a broad range of information about the companies’ data collection and sales practices conducted over a five year period. The letters are the latest in an ongoing review by the Committee, which previously expanded the scope of the review in September 2013.
Senate Democrats Press FHFA On Housing Trust Fund
On January 24, Senators Warren (D-MA), Reed (D-RI), Boxer (D-CA), and 29 other Senate Democrats sent a letter to FHFA Director Mel Watt asking that he lift the suspension on funding for the National Housing Trust Fund (NHTF) and the Capital Magnet Fund (CMF), in “a manner fully consistent with all applicable laws, rules, and regulations.” The Senators assert that the number of homes that are affordable to renters with incomes at or below 30 percent of area median income has decreased by more than one million units since passage of the Housing and Economic Recovery Act in 2008, resulting in a national shortage of nearly five million units affordable and available to extremely low-income renters, and that funding the NHTF and CMF cannot wait for Congress to agree on broader housing finance reform.
CFPB Issues Advisory Regarding Recent Retailer Data Breaches; Congressional Activity Increases
On January 28, the CFPB issued a consumer advisory in response to recent reports of data breaches at several large retailers. In addition to providing tips for consumers in the wake of a retail breach, the advisory encourages card holders to submit complaints about debit and credit card issuers’ inadequate responses to consumer charge disputes related to data breaches.
The advisory is the first public response from the CFPB on data breach issues. It follows a request last month from Senator Chuck Schumer (D-NY), a member of the Senate Banking Committee, that the CFPB conduct an investigation of the data breach and issue a “full report on the findings of its investigation -- informing the public of how this breach occurred, how consumers can protect themselves from similar attacks, and any further recommendations the CFPB may have for retailers to minimize the occurrence of similar breaches.” Schumer also asked Director Cordray to “take a closer look at whether retailers systems should be required to transfer credit and debit card information as encrypted data. . . . The CFPB must ensure that necessary rules and standards for retailers are in place to validate consumers’ trust in the transaction process.”
Numerous congressional committees share jurisdiction over data breach issues. The Senate Banking Committee will be among the first to act with a hearing scheduled for February 3, 2014 that will feature governmental witnesses, as well as the views of the retailer and banking industries.
Senators Introduce Prepaid Card Bills
On January 9, Senator Mark Warner (D-VA), released the Prepaid Card Disclosure Act of 2014. The bill would amend the Electronic Fund Transfer Act to require any person that offers certain prepaid card accounts to offer with any application a table of fees that (i) can be “easily understood”; (ii) is “clearly and conspicuously” displayed; and (iii) includes, at a minimum, the amount and description of each fee that may be charged in connection with the account. In addition, a toll-free number and website at which the consumer can access the fee disclosure would have to be included on the card or other means of account access. The bill would require the CFPB to establish by rulemaking a format for the fee table and would allow the CFPB to require the placement of a QR code or similar technology on any packaging, card, or other object associated with the account to provide an electronic link to the disclosures. The bill follows the December 2013 introduction of the Prepaid Card Consumer Protection Act, sponsored by Senators Robert Menendez (D-NJ) and Richard Blumenthal (D-CT). The bill includes disclosure requirements similar to the Warner bill, plus a “wallet sized” fee disclosure requirement. In addition, Senator Menendez’s bill would, among other things, prohibit numerous fees and most credit features, and would require that financial institutions and account providers close accounts and refund the balance after 12 months of inactivity or other term of inactivity established by the CFPB, and upon request of the consumer.
Senators Seek More Transparency In Federal Agency Settlements
On January 8, Senate Banking Committee members Elizabeth Warren (D-MA) and Tom Coburn (R-OK) released the “Truth in Settlements Act.” The legislation would mandate that for any criminal or civil settlement entered into by a federal agency that requires total payments of $1 million or more, the agency must post online in a searchable format a list of each covered settlement agreement. The list must include, among other things: (i) the total settlement amount and a description of the claims; (ii) the names of parties and the amount each settling party is required to pay; and (iii) for each settling party, the amount of the payment designated as a civil penalty or fine, or otherwise specified as not tax deductible. The bill also would require that public statements by an agency about a covered settlement describe: (i) which portion of any payments is a civil or criminal penalty or fine, or is expressly specified as non-tax deductible; and (ii) any actions the settling company is required to take under the agreement, in lieu of or in addition to any payment. The bill would exempt disclosure of information subject to a confidentiality provision, but would in cases where partial or full confidentiality is applied, require the agency to issue a public statement about why confidential treatment is required to protect the public interest of the U.S. The bill also would require public companies to describe in their annual and periodic SEC reports any claim filed for a tax deduction that relates to a payment required under a covered settlement. In announcing the legislation, Senator Warren stated that the bill is needed to “shut down backroom deal-making and ensure that Congress, citizens and watchdog groups can hold regulatory agencies accountable for strong and effective enforcement that benefits the public interest.”
House, Senate Bills Seek To Ease Volcker Rule Impact On TruPS CDOs
On January 8, House Financial Services Committee chairman Jeb Hensarling (R-TX) and committee member Shelly Moore Capito (R-WV) introduced a bill, H.R. 3819, that would clarify that the Volcker Rule will not require banking institutions to divest their ownership in Trust Preferred Securities (TruPS) collateralized debt obligations (CDOs) that were issued before the date of the final Volcker Rule, December 10, 2013. A group of Republican Senators also announced a bill, the text of which was not immediately available. As recently reported, federal regulators are reviewing whether it is appropriate and consistent with the Dodd-Frank Act to fully exempt TruPS CDOs from the Volcker Rule prohibitions on ownership of covered funds. On January 7, a group of House Democrats sent a letter to the regulators urging them to exempt banks with less than $15 billion in assets from the Volcker TruPS CDO divestiture requirement.
Senate Confirms Federal Reserve Board Chair
On January 6, the U.S. Senate voted 56-26 to confirm Janet Yellen to be Chairman of the Board of Governors of the Federal Reserve. Ms. Yellen will begin her appointment after Chairman Bernanke steps down at the end of January.
CFPB Submits Annual Report To Appropriations Committees
On December 30, the CFPB released an annual report reviewing consumer financial protection activities undertaken by the Bureau during the last fiscal year. The report was presented to the Committees on Appropriations of the U.S. Senate and House of Representatives pursuant to section 1017(e)(4) of the Dodd-Frank Act and covers August 1, 2012 through September 30, 2013. While it does not identify any planned activities, the report reviews the Bureau’s enforcement and fair lending activities to date, and explains the Bureau’s risk-based prioritization process for addressing lending discrimination and allocating enforcement resources. The report also describes the Bureau’s supervisory process, including procedures for conducting examinations and investigations, as well as its complaint process. Finally, the report reviews the proposed and final rules issued to date and provides, as well as administrative issues such as the agency’s spending and organization.
Senate Confirms FHFA Director; FHFA Announces Senior Staff, Organizational Change
On December 10, the U.S. Senate voted to confirm Representative Mel Watt (D-NC) to serve as Director of the FHFA. Once sworn in, Mr. Watt will replace Edward DeMarco, who has led the agency on an “acting” basis for more than four years. Mr. DeMarco has faced criticism from federal and state Democratic policymakers and housing groups, in part based on his decision to not direct Fannie Mae and Freddie Mac to engage in broad principal reduction programs.
On December 11, the FHFA announced that Jeffrey Spohn, FHFA’s Deputy Director of the Office of Conservatorship Operations, will retire in January, and that the FHFA will combine two offices managing conservatorship-related matters into a new Division of Conservatorship. That new division will be led by Wanda DeLeo, who currently serves as Deputy Director in the Office of Strategic Initiatives.
Governor Yellen Addresses Bank Director Removal Over Foreclosure Practices; Lawmakers Press Regulators On Independent Foreclosure Review Details
On November 18, Federal Reserve Chair nominee Janet Yellen responded to a recent inquiry by Senator Elizabeth Warren (D-MA) seeking more details about the Federal Reserve Board’s process for determining whether bank officers or directors should be removed because they directly or indirectly participated in the alleged violations that have resulted in various mortgage servicer settlements. Governor Yellen stated that the Federal Reserve Board “has not, to date, taken any actions removing or prohibiting insiders of the mortgage servicing organizations that were subject to the 2011 and 2012 mortgage servicing enforcement actions for their conduct in connection with servicing or foreclosure activities”, but “[the Federal Reserve Board is], however, continuing to investigate whether such removal or prohibition actions are appropriate.” In addition, on November 15, Senator Warren, joined by Representatives Elijah Cummings (D-MD) and Maxine Waters (D-CA), again pressed the Federal Reserve Board and the OCC to release a public report on the Independent Foreclosure Review process. This latest request follows other similar requests made earlier this year.