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On July 28, the FDIC and the Federal Reserve Board issued a joint letter demanding that a crypto brokerage firm cease and desist from making false and misleading statements regarding the company’s FDIC deposit insurance status and take immediate corrective action to address these false statements. The agencies claimed that the firm made false and misleading representations online, including on its website, stating or suggesting that: (i) it is FDIC–insured; (ii) customers who invested with the firm’s cryptocurrency platform would receive FDIC insurance coverage for all funds provided to, and held by, the firm; and (iii) the FDIC would insure customers against the failure of the firm. The FDIC noted that the false and misleading statements Violate the FDIC Act. The FDIC demanded that the firm take corrective actions by removing the misrepresentations or false statements and provide written confirmation to the FDIC and Board of Governors that it has fully complied with the removal request within two days.
On July 25, the FDIC announced that it updated chapters its Formal and Informal Enforcement Actions Manual, entitled Overview and Administrative Matters and Cease-and-Desist Actions, respectively, regarding the agency’s minimum standards for terminating cease and desist and consent orders issued under Section 8(b) of the FDI Act. According to the FDIC, “the manual provides direction for professional staff related to the work necessary to pursue formal and informal enforcement actions,” and is “intended to support the work of the field, regional, and Washington office’s staff involved in processing and monitoring enforcement actions.” The FDIC is authorized to issue a cease-and-desist order if an insured depository institution has engaged, or is about to engage, in “an unsafe or unsound practice in conducting the business of the institution, or [a] violation of a law and/or regulation, written agreement with the FDIC, or written condition imposed by the FDIC in connection with the granting of any application or other request.” The updates, among other things, clarify that cease-and-desist or consent orders may be terminated if: (i) the institution is in full compliance with all provisions of the order and has fully corrected legal violations, unsafe or unsound practices, or other conditions that led to the issuance of the order; (ii) any provisions deemed “not in compliance” have become outdated or irrelevant; or (iii) deterioration or any provisions deemed “not in compliance” leads to issuance of a new or revised formal action.
On May 17, the FDIC approved a final rule implementing its authority to prohibit any person or organization from making misrepresentations about FDIC deposit insurance or misusing the FDIC’s name or logo. According to the FDIC, the final rule responds to the “increasing number of instances where individuals or entities have misused the FDIC’s name or logo, or have made false or misleading representations about deposit insurance.” To promote transparency on the FDIC’s processes for investigating and enforcing potential breaches of prohibitions under Section 18(a)(4) of the Federal Deposit Insurance Act, the final rule clarifies the agency’s procedures for identifying, investigating, and where necessary, taking formal and informal action to address potential violations, and establishes a primary point-of-contact for receiving complaints and inquiries about potential misrepresentations regarding deposit insurance. The final rule takes effect 30 days after publication in the Federal Register.
In response, the CFPB released Consumer Financial Protection Circular 2022-02 to provide that covered firms are likely in violation of the CFPA’s prohibition on deceptive acts or practices “if they misuse the name or logo of the FDIC or engage in false advertising or make material misrepresentations to the public about deposit insurance, regardless of whether such conduct (including the misrepresentation of insured status) is engaged in knowingly.” As previously covered by InfoBytes, the newly introduced circulars serve as policy statements for other agencies with consumer financial protection responsibilities. Specifically, the Bureau warned that (i) “[m]isrepresenting the FDIC logo or name will typically be a material misrepresentation”; (ii) claiming “financial products or services are ‘regulated’ by the FDIC or ‘insured’ or ‘eligible for’ FDIC insurance are likely deceptive if those claims expressly or implicitly indicate that the product or service is FDIC-insured when that is not in fact the case” (e.g. emerging financial products and services including digital assets and crypto-assets); and (iii) misusing the FDIC’s name or logo creates harm for firms that engage in honest advertising and marketing. CFPB Director Rohit Chopra, as an FDIC board member, announced the Bureau’s support for the final rule. “Misrepresentation claims about deposit insurance are particularly relevant today,” Chopra noted. “FDIC staff has noted an uptick in potential violations in recent years. We are especially concerned about potential misconduct involving novel technologies, including so-called stablecoins and other crypto-assets. While new technologies may yield significant benefits for households, workers, and small businesses, they nonetheless pose risks to consumers who may be baited by misrepresentations or false advertisements about deposit insurance.”
Acting Comptroller of the Currency Michael J. Hsu specifically called out the timeliness of the final rule in light of changes in the marketplace, technological developments, and rapidly evolving consumer behaviors. The final rule “is especially important in light of the growth of nonbank crypto firms and fintechs and their relationships with banks,” Hsu stated. “The potential for consumer confusion about the status of cash held at these firms is high and this final rule will help provide clarity.”
On April 29, the FDIC released a list of administrative enforcement actions taken against banks and individuals in March. During the month, the FDIC issued 13 orders consisting of “six orders terminating consent order, one order to pay civil money penalty, five Section 19 orders, and one order of termination of insurance.” Among the orders is a civil money penalty imposed against a Kentucky-based bank related to alleged violations of the Federal Deposit Insurance Act for allegedly “deceptively advertising interest rates and fees for residential mortgage loans as the lowest on the market, with a promise of a ‘best rate guarantee,’ comparative shopping for such rates, and lower rates due to the bank’s fee structure.” The order requires the payment of a $425,000 civil money penalty.
On March 25, the FDIC issued a request for information (RFI) seeking public comments on bank mergers, including mergers between an insured depository institution and a noninsured institution, to aid the agency’s understanding of and any potential policymaking in this area. Specifically, the RFI seeks input related to the effectiveness of the existing framework in meeting the requirements of Section 18(c) of the Federal Deposit Insurance Act (known as the Bank Merger Act). According to the FDIC, “[s]ignificant changes over the past several decades in the banking industry and financial system warrant a review of the regulatory framework.”
Among the questions posed by the RFI are topics concerning (i) whether additional requirements or criteria (including quantitative measures) should be added to the existing regulatory framework to address financial stability risks that may arise from bank mergers (e.g. “[s]hould the FDIC presume that any merger transaction that results in a financial institution that exceeds a predetermined asset size threshold, for example $100 billion in total consolidated assets, poses a systemic risk concern?”); (ii) the extent to which prudential factors should be considered when acting on a merger application, and whether bright line minimum standards for these factors should be established; (iii) whether agencies should rethink the way they consider whether a merger might affect the convenience and needs factor of a community, and to “what extent should the CFPB be consulted by the FDIC when considering the convenience and needs factor and should that consultation be formalized”; (iv) whether the existing merger review framework creates “an implicit presumption of approval” or requires “an appropriate burden of proof” on bank applicants to prove they have met the criteria of the Bank Merger Act; (v) to what extent has the Bank Merger Act exception “proven beneficial or detrimental to the bank resolution process and to financial stability”; and (vi) to what extent would responses to the questions differ if the merger transaction involves a small insured depository institution.
Comments on the RFI are due 60 days after publication in the Federal Register.
On January 31, the Conference of State Bank Supervisors (CSBS) sent a letter to Senators Charles Schumer (D-NY) and Mitch McConnell (R-KY), asking Congress to “uphold its commitment to the dual banking system” and confirm a member of the FDIC Board with state bank supervisory experience as required by Congress’ 1996 amendment to the Federal Deposit Insurance Act (FDI Act). CSBS explained that “the spirit of the law” and legislative history “indicate that this requirement is only met by a person who has worked in state government as a supervisor of state-chartered banks.” This requirement, CSBS pointed out, has not been met since former Massachusetts State Bank Commissioner Thomas Curry finished his term in 2012, thus leading to a nine-year period in which no one on the Board has had the legally mandated state regulatory experience. CSBS published a blog post the same day outlining three points for consideration: (i) the FDI Act’s legislative history shows Congress’s clear intent to include on the Board an individual (not including the Comptroller of the Currency or the CFPB director) with state government experience supervising state banks; (ii) an individual with “[e]xperience working for the FDIC or the Federal Reserve System does not meet the FDI Act’s requirement of an independent director with ‘state bank supervisory experience’”; and (iii) additional FDI Act provisions concerning state bank supervision reinforce that “‘state bank supervisory experience’ clearly refers only to service as a state government official with bank supervisory responsibilities.’” The letter added that “[a]s regulators of both banks and fintechs, state regulators have unique insight into emerging technologies and their impact on the financial services ecosystem. The FDIC Board would benefit tremendously from state regulators’ practical, real-life experience with innovation.”
On December 14, CFPB Director Rohit Chopra expressed concerns with the FDIC’s current plan to “restore the Deposit Insurance Fund to the statutory minimum in 2028.” The Federal Deposit Insurance Act requires the development and adoption of a Deposit Insurance Fund (DIF) Restoration Plan (Plan) when the fund’s reserve ratio drops below 1.35 percent or is expected to within six months. According to the FDIC, “[e]xtraordinary growth in insured deposits during the first and second quarters of 2020 caused the reserve ratio to decline below the statutory minimum as of June 30, 2020.” The FDIC Board adopted the Plan in September 2020 to restore DIF’s levels to at least 1.35 percent by September 30, 2028, but noted during the Plan’s semiannual update for 2021 that “the overall economic outlook has strengthened relative to when the Plan was first adopted in September 2020,” and that “the banking system continues to appear better positioned to withstand losses when compared to prior periods of stress.” FDIC Chair Jelena McWilliams also commented that since it is difficult to predict deposit trends and potential losses, the agency will continue to monitor this space.
Chopra cautioned that “[g]iven the significant uncertainty in the projections embedded in this plan—and the ultimate goal to have the Deposit Insurance Fund well exceed the 1.35% statutory minimum—we must continue to carefully analyze this plan to probe whether any amendments are necessary prior to the next semi-annual update to the Board of Directors.” He further noted that the 2008 financial crisis highlighted the importance of “countercyclical policy,” and that “regulatory and supervisory safeguards should be strengthened in stronger economic times, when risks tend to build in the financial system and when bank profits are robust.”
FDIC proposes changes to deposit insurance regulations for trust accounts and mortgage servicing accounts
On July 20, the FDIC published a notice of proposed rulemaking (NPRM) that would amend the deposit insurance regulations for trust accounts and mortgage servicing accounts. The changes are intended to clarify the deposit insurance rules for depositors and bankers, enable more timely insurance determinations for trust accounts in the circumstance of a bank failure, and increase consistency of insurance coverage for mortgage servicing account deposits. According to the FDIC, some highlights include, among other things, that: (i) a deposit owner’s trust deposits would be insured up to $250,000 per beneficiary, but must not exceed five beneficiaries, regardless of if a trust is revocable or irrevocable, and regardless of contingencies or the allocation of funds among the beneficiaries; (ii) a maximum amount of deposit insurance coverage would be $1.25 million per owner, per insured depository institution for trust deposits; and (iii) “mortgage servicers’ advances of principal and interest funds on behalf of mortgagors in a mortgage servicing account would be insured up to $250,000 per mortgagor, consistent with the coverage for payments of principal and interest collected directly from mortgagors.” Additionally, the FDIC published a Fact Sheet on the NPRM, which provides an overview of simplifying deposit insurance rules for trust accounts and enhancing consistency for mortgage servicing account deposits. FDIC Chairman Jelena McWilliams released a statement specifying that the NPRM would, “merge the revocable and irrevocable trust categories into one uniform trust accounts category with one set of rules; establish a simple formula for calculating deposit insurance based on the number of beneficiaries; and eliminate the ability for a trust account to be structured to obtain unlimited deposit insurance at a bank, which is the case today, and certainly contrary to the spirit of the Federal Deposit Insurance Act.” Comments on the NPRM will be due 60 days after publication in the Federal Register.
On April 29, the OCC responded to the Conference of State Bank Supervisors’ (CSBS) most recent challenge to the OCC’s authority to issue Special Purpose National Bank Charters (SPNB). As previously covered by InfoBytes, CSBS filed a complaint last December opposing the OCC’s alleged impending approval of an SPNB for a financial services provider, arguing that the OCC is exceeding its chartering authority.
The OCC countered, however, that the same fatal flaws that pervaded CSBS’s prior challenges (covered by InfoBytes here), i.e., that its challenge is unripe and CSBS lacks standing, still remain. According to the OCC, the cited application (purportedly curing CSBS’s prior ripeness issues) is not for an SPNB—the proposed bank would conduct a full range of services, including deposit taking. Further, the OCC stated, even it if was an application for a SPNB charter, there are multiple additional steps that need to occur prior to the OCC issuing the charter, which made the challenge unripe. As to standing, the OCC asserted that any alleged injury to CSBS or its members is purely speculative. Finally, the OCC contended that CSBS’s challenge fails on the merits because the challenge relies on the premise that the company’s application must be for a SPNB, not a national bank, because the company is not going to apply for deposit insurance but there is no requirement in the National Bank Act, the Federal Deposit Insurance Act, or the Federal Reserve Act that requires all national banks to acquire FDIC insurance.
On April 22, the FDIC proposed a rule implementing its authority to prohibit “making misrepresentations about deposit insurance or misusing the FDIC’s name or logo.” The proposed rule is intended to promote transparency on the FDIC’s processes for inspecting and enforcing potential breaches of prohibitions under the FDIC Act by “further clarify[ing]  procedures for identifying, investigating, and where necessary taking formal and informal action to address potential violations of Section 18(a)(4).” Additionally, the proposed rule would establish a primary point of contact for the public to report or inquire about potential violations. The FDIC specified that the proposed rule is in response to the “increasing number of instances where financial services providers or other entities or individuals have misused the FDIC’s name or logo.”
Comments on the proposed rule will be accepted for 60 days after publication in the Federal Register.
- Kathryn L. Ryan and Jedd R. Bellman to discuss “Risk and compliance management: Are you covered?” at a Mortgage Bankers Association webinar
- Melissa Klimkiewicz and Daniel A. Bellovin to discuss “Things to know about flood insurance” at a NAFCU webinar
- Hank Asbill to discuss “Ethical issues at sentencing” at the 31st Annual National Seminar on Federal Sentencing
- Max Bonici will moderate a panel on “Enforcement risk and other regulatory and compliance issues related to crypto and digital assets” at the American Bar Association’s 2022 Annual Meeting
- John R. Coleman to provide a “CFPB Update” at MBA’s 2022 Regulatory Compliance Conference
- Amanda R. Lawrence to discuss “The shifting data privacy and data protection landscape” at MBA’s 2022 Regulatory Compliance Conference
- Jeffrey P. Naimon to provide “An update on key fair lending cases and the CRA and UDAAP rules” at MBA’s 2022 Regulatory Compliance Conference
- Benjamin W. Hutten to discuss “Fundamentals of financial crime compliance” at the Practicing Law Institute
- Benjamin W. Hutten to discuss “Ongoing CDD: Operational considerations” at NAFCU’s Regulatory Compliance & BSA Seminar
- James C. Chou to discuss ransomware at NAFCU’s Regulatory Compliance & BSA seminar
- Elizabeth E. McGinn, Benjamin W. Hutten, and James C. Chou to discuss “The Evolving Regulatory Landscape: Third-party and cyber risk management” at the 2022 mWISE Conference
- James T. Parkinson to present a “Global anti-corruption update” at IBA’s annual conference