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DFPI orders online platform to cease offering crypto-related products
On December 21, the California Department of Financial Protection and Innovation (DFPI) announced it has ordered an online platform offering several crypto-related services and products to desist and refrain from violating the California Securities Law and the California Consumer Financial Protection Law. According to DFPI, the company, which is registered with the California Secretary of State, offers services including (i) a peer-to-peer loan brokering service in which it claims that loans are secured by borrowers’ crypto assets; (ii) an interest-bearing crypto asset account that promises a fixed annual percentage rate yield; and (iii) an interest-bearing fiat account that promises a fixed annual percentage interest rate return. DFPI maintained that the company engaged in unlicensed loan brokering by offering and providing brokering services for personal loans made from one consumer to another (known as peer-to-peer lending), and conducted the unregistered sale of securities, in which consumers’ assets were pooled together with the stated purpose of generating passive returns. DFPI claimed that the company was and is not registered to offer investment contracts or to operate in this capacity with any relevant authority. Finding that these peer-to-peer lending services and interest-bearing accounts violate state law, including a prohibition against engaging in unlawful acts or practices, DFPI ordered the company to stop offering the services and products in California.
DFPI issues reminder to debt collection licensing applicants
Recently, the California Department of Financial Protection and Innovation (DFPI) issued a reminder that starting January 1, 2023, the agency will begin approving applications under the Debt Collection Licensing Act. As previously covered by InfoBytes, the California governor signed AB 156 in September to allow any debt collector that submits an application to the DFPI commissioner by January 1, 2023, to operate pending the approval or denial of the application. DFPI reminded applicants that background checks will be performed at a later date. The period for individuals to provide fingerprints upon request from DFPI is extended from 60 to 90 days. Written notification will be sent to applicants through the Nationwide Multi-State Licensing System 90 days prior to fingerprinting being due. Additionally, DFPI stated that due to the delay in the application process, final approvals may be delayed. Further announcements will be issued in the coming weeks concerning conditional approvals, DFPI said, noting that it will provide at least 30 days' notice before implementing any changes to existing processes.
DFPI announces investigation into crypto platform
On November 10, the California Department of Financial Protection and Innovation (DFPI) announced that it is investigating “the apparent failure” of a crypto asset platform, which recently announced that it filed for bankruptcy. According to DFPI, it takes “oversight responsibility very seriously,” and expects “any person offering securities, lender, or other financial services provider that operates in California to comply with our financial laws.”
DFPI revokes crypto lending company's license; issues notice to suspend a different crypto lending company
On December 19 , the California Department of Financial Protection and Innovation (DFPI) announced that it has moved to revoke a cryptocurrency lender’s license. According to DFPI revoking the license "is the result of the department’s examination, which found that the New Jersey-based finance lender failed to perform adequate underwriting when making loans and failed to consider borrowers’ ability to repay these loans, in violation of California’s financing laws and regulations." DFPI previously announced on November 18 an order suspending a cryptocurrency lender’s California license for 30 days pending DFPI’s investigation. The suspension follows the DFPI’s notice to suspend issued on November 11, which was prompted by the cryprocurrency lender's November 10 announcement that it would limit platform activity, including pausing client withdrawals. DFPI noted that the cryptocurrency lender confirmed its “significant exposure to [a crypto asset platform]” and affiliated entities. DFPI further noted that the cryptocurrency lender expected “that the recovery of the obligations owed to us by [the crypto company] will be delayed as [the crypto company] works through the bankruptcy process.” According to the cryptocurrency lender, withdrawals would continue to be paused. DFPI also noted that in February 2022, the respondent was ordered to desist and refrain from offering or selling unqualified, non-exempt securities in the form of its interest accounts in California.
Later, DFPI issued an order suspending a different cryptocurrency lender’s license license for 30 days pending DFPI’s investigation into the respondent’s recent announcement to limit its platform activity, including pausing client withdrawals. The respondent had sent a communication to customers signed by the CEO, stating: “I am sorry to report that the collapse of [the cryptocurrency lender that was issued a notice to suspend from DFPI on November 10] has impacted our business. Until we are able to determine the extent of this impact with specific details that we feel confident are factually accurate, we have paused deposits and withdrawals on [its own platform] effective immediately.” DFPI also noted that it is “investigating the extent to which [the cryptocurrency lender] has been affected by the bankruptcy of [the cryptocurrency lender that was issued a notice to suspend from the DFPI on November 10] and related companies.”
California DFPI concludes MTA licensure not required for crypto exchange
On November 3, the California Department of Financial Protection and Innovation (DFPI) released a new opinion letter covering aspects of the California Money Transmission Act (MTA) related to a cryptocurrency exchange’s transactions. The redacted opinion letter examines whether the inquiring company’s proposed business activities—which “will offer the purchase, sale, and trading of various cryptocurrencies using a platform provided by its affiliate and in conjunction with another affiliate that is a . . . registered broker-dealer”—are exempt from the MTA. Transactions on the company’s platform will involve the use of the company’s tokenized version of the U.S. dollar. Customers will deposit U.S. dollar funds into a company account where an equivalent amount of tokens will be created and used to facilitate a trade for cryptocurrency. The tokens can also be exchanged for U.S. dollars, or customers can hold the tokens in their wallet. According to the letter, the company says it “does not take custody of its client’s currencies or offer digital wallets,” but rather a “client’s digital wallet is directly linked to the platform and transacts on a peer-to-peer basis with other clients.” In addition to trading cryptocurrencies, the company also plans to allow customers to “trade in cryptographic representations of publicly listed securities,” thereby permitting customers to purchase, sell, or trade the securities tokens on the platform. The company will also be able to transfer customers’ shares of securities tokens from the platform to a customer’s traditional brokerage account. The company explained that these transactions of securities tokens will be covered by the company’s affiliate’s broker-dealer license.
DFPI concluded that because the Department has not yet “determined whether the issuance of tokenized versions of the U.S. Dollar or securities, or their use to trade cryptocurrencies, is money transmission,” it will not require the company to obtain an MTA license in order to perform the aforementioned services or to issue tokenized version of the U.S. dollar or securities. DFPI noted, however, that its conclusions are subject to change, and emphasized that its letter does not address whether the proposed activities are subject to licensure or registration under other laws, including the Corporate Securities Law of 1968.
California amends certain debt collector licensing provisions
On September 27, the California governor signed AB 156, which, among other things, amends various provisions of the Debt Collection Licensing Act to allow any debt collector that submits an application to the commissioner of the Department of Financial Protection and Innovation before January 1, 2023, to operate pending the approval or denial of the application. The amendments also authorize the commissioner to issue a conditional license pending the receipt and review of fingerprints and related information. Additional provisions state that a conditional license will expire under certain conditions, including the issuance of an unconditional license. The amendments also grant the commissioner authorization to deem an application abandoned. The amendments take effect January 1, 2023.
DFPI cracks down on crypto-asset Ponzi schemes
On September 27, the California Department of Financial Protection and Innovation issued desist and refrain orders against 11 entities, including nine crypto asset trading platforms, one metaverse software development company, and one decentralized finance platform for violating California securities laws. While each of the 11 entities allegedly offered and sold unqualified securities through their platforms and promised various fixed rates of return to investors, DFPI claimed that the entities actually engaged in Ponzi-like schemes and used investor funds to distribute supposed profits and returns to other investors. Additionally, DFPI accused the entities of “luring” new investors through referral programs that operated like pyramid schemes in which investors would be paid commissions to recruit new investors. Referring to these as “high yield investment programs (HYIPs),” DFPI claimed the entities provided investors with few details about the people operating the HYIPs, how the HYIPs make money, or how the HYIPs facilitate deposits and withdrawals with crypto assets, among other things. DFPI also accused 10 of the 11 entities of making material representations and omissions to investors about the qualifications of their securities under California law as well as the purported risks. DFPI said in its announcement that it had been directed by an executive order issued by the governor in May (covered by InfoBytes here) to initiate enforcement actions to stop violations of consumer financial laws and to increase residents’ awareness of the benefits and risks associated with crypto asset-related financial products and services.
States accuse crypto platform of offering unregistered securities
On September 26, the New York attorney general sued a cryptocurrency platform for allegedly offering unregistered securities and defrauding investors. New York was joined by state regulators from California, Kentucky, Maryland, Oklahoma, South Carolina, Washington, and Vermont who also filed administrative actions against the platform. The states alleged that the platform failed to register as a securities and commodities broker but told investors that it was fully in compliance. According to the New York AG’s complaint, the platform promoted and sold securities through an interest-bearing virtual currency account that promised high returns for participating investors. The NY AG said that a cease-and-desist letter was sent to the platform last year, and that while the platform stated it was “working diligently to terminate all services” in the state, it continued to handle more than 5,000 accounts as of July. The complaint charges the platform with violating New York’s Martin Act and New York Executive Law § 63(12), and seeks restitution, disgorgement of profits, and a permanent injunction.
California’s Department of Financial Protection and Innovation (DFPI) said in a press release announcing its own action that it will continue to take “aggressive enforcement efforts against unregistered interest-bearing cryptocurrency accounts.” DFPI warned companies that crypto-interest accounts are securities and are therefore subject to investor protection under state law, including disclosure of associated risks.
FTC, DFPI shut down operation offering mortgage relief
On September 19, the FTC and the California Department of Financial Protection (DFPI) announced a lawsuit against several companies and owners for allegedly operating an illegal mortgage relief operation. (See also DFPI’s announcement here.) The filing marks the agencies’ first joint action, which alleges the defendants’ conduct violated the California Consumer Financial Protection Law, the FTC Act, the FTC’s Mortgage Assistance Relief Services Rule (the MARS Rule or Regulation O), the Telemarketing Sales Rule, and the Covid-19 Consumer Protection Act. The agencies claimed that the defendants preyed on distressed consumers with false promises of mortgage assistance relief. According to the complaint, the defendants made misleading claims during telemarketing calls to consumers, including those with numbers on the National Do Not Call Registry, as well as through text messages and in online ads. In certain cases, defendants represented they were affiliated with government agencies or were part of a Covid-19 pandemic assistance program. Among other things, defendants falsely claimed they were able to lower consumers’ interest rates or payments, and instructed consumers not to pay their mortgages, leading to late fees and significantly lower credit score. Defendants also allegedly told consumers not to communicate directly with their lenders, which caused consumers to miss default notices and face foreclosure. Additionally, defendants charged consumers illegal up-front fees ranging from $500 to $2,900 a month, and told consumers they were negotiating loan modifications that in most cases never happened.
The U.S. District Court for the Central District of California granted a restraining order temporarily shutting down the defendants’ operations. In freezing the defendants’ assets and ordering them to submit financial statements, the court noted that the agencies established a likelihood of success in showing that the defendants “have falsely, deceptively, and illegally marketed, advertised, and sold mortgage relief assistance services.”
California passes UDAAP legislation
On September 15, the California governor signed AB 1904, which amends Section 1770 of the Civil Code relating to financial institutions. Among other things, the bill prohibits a covered person or a service provider from engaging in unlawful, unfair, deceptive, or abusive acts or practices regarding consumer financial products or services, such as, among other things: (i) misrepresenting the source, sponsorship, approval, or certification; (ii) using deceptive representations of geographic origin; (iii) representing that goods are original or new if they have deteriorated unreasonably or are altered; (iv) advertising goods or services with the intent not to sell them as advertised; and (v) making false or misleading statements of fact concerning reasons for, existence of, or amounts of, price reductions. The law authorizes the California Department of Financial Protection and Innovation to bring a civil action for a violation of the law. The bill would also make unlawful the failure to include certain information, including a prescribed disclosure, in a solicitation by a covered person, or an entity acting on behalf of a covered person, to a consumer for a consumer financial product or service.
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Upcoming Events
- Keisha Whitehall Wolfe to discuss “Tips for successfully engaging your state regulator” at the MBA's State and Local Workshop
- Max Bonici to discuss “Enforcement risk and trends for crypto and digital assets (Part 2)” at ABA’s 2023 Business Law Section Hybrid Spring Meeting
- Jedd R. Bellman to present “An insider’s look at handling regulatory investigations” at the Maryland State Bar Association Legal Summit