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District Judge Denies Student Loan Servicer’s Motion to Dismiss, Rules CFPB is Constitutional
On August 4, a federal judge in the U.S. District Court for the Middle District of Pennsylvania denied a motion to dismiss brought by a student loan servicer, ruling that the CFPB is constitutional, and that it has the authority to act against companies without first adopting the rules used to define a specific practice as unfair, deceptive, or abusive. Further, the court found that the Bureau’s complaint is “adequately pleaded.” As previously reported in InfoBytes, the CFPB filed a complaint in January of this year, contending that the student loan servicer systematically created obstacles to repayment and cheated many borrowers out of their rights to lower repayments, causing them to pay much more than they had to for their loans.
Citing numerous precedents, including several which have already examined the issue of the CFPB’s constitutionality, the court disposed of several arguments raised by the student loan servicer, finding that:
- There is no merit in the argument that the “CFPB lack[ed] statutory authority to bring an enforcement action without first engaging in rulemaking to declare a specific act or practice unfair, deceptive, or abusive,” because under the provisions of Title X of Dodd-Frank, the CFPB has the authority to declare something as “unlawful” both through rulemaking and litigation.
- The CFPB isn’t outside the bounds of the Constitution, in part because its provision making it difficult for the President to remove the CFPB’s director isn’t any more burdensome than those of other agencies, such as the FTC. By recognizing this, and that the CFPB director “is not insulated by a second layer of tenure and is removable directly by the President,” the court ruled that the “Bureau’s structure is not constitutionally deficient.”
- The funding method utilized by the Bureau has parallels in other federal agencies and does not affect presidential authority, stating that “although the CFPB is funded outside of the appropriations process, Congress has not relinquished all control over the agency’s funding because it remains free to change how the Bureau is funded at any time.” The court therefore found that the President’s constitutional powers have not been curtailed.
The court dismissed the student loan servicer’s assertion that it is unable to “reasonably prepare a response” due to the vague and ambiguous nature of the complaint. Rather, the court argues that the Bureau’s complaint provides enough “multiple specific examples” to warrant a response by way of an answer.
District Judge Denies Motion to Compel Arbitration, Rules Arbitration Agreement Contained in Nested Hyperlink Invalid
On July 21, a federal judge in the U.S. District Court for the Southern District of California denied a Defendant’s motion to compel arbitration, finding that the Plaintiff had not agreed to arbitrate where the Defendant had presented the arbitration agreement electronically to the Plaintiff through a multi-layered set of hyperlinks. See McGhee v. North American Bancard, LLC, 17-CV-0586-AJB-KSC, 2017 WL 3118799 (S.D. Cal. Jul. 21, 2017). The dispute revolved around an agreement for the use of a credit card reader provided by the Defendant. The terms and conditions for this service were presented to the Plaintiff electronically via a hyperlink. The hyperlink was placed next to a checkbox and button labeled with the phrase “I have read and agree to the Terms and Conditions.” But the Terms and Conditions document accessible through that hyperlink did not contain the arbitration agreement. Instead, the arbitration agreement was only accessible by clicking on a second hyperlink contained in the first document. Additionally, the Terms and Conditions document accessible through the first-level hyperlink conflicted with the nested arbitration agreement because the Terms and Conditions document included a forum selection clause designating state and federal courts of Georgia. On these facts, the court found that Plaintiff’s consent applied only to the Terms and Conditions document immediately behind the first hyperlink, and did not apply to the arbitration agreement accessible through the nested hyperlink.
FDIC Releases August List of CRA Compliance Examinations
On August 4, the FDIC published its monthly list of state nonmember banks recently evaluated for compliance with the Community Reinvestment Act (CRA). The list reports CRA evaluation ratings assigned to institutions in May 2017 as required by the Financial Institutions Reform, Recovery, and Enforcement Act of 1989. Monthly lists of all state nonmember banks and their evaluations that have been made publicly available can be accessed through the FDIC’s website. Of the 68 banks evaluated, four were rated “Outstanding,” 62 received a “Satisfactory” rating, and two were rated “Needs to Improve.”
CFPB Releases New Overdraft Protection Study and Prototype “Know Before You Owe” Disclosures
On August 4, the CFPB concurrently announced the release of a new study titled “Data Point: Frequent Overdrafters” on the use of overdraft services by consumers, as well as four new “Know Before You Owe” overdraft disclosure prototype templates. The announcement highlights findings in the study regarding the frequency of use and the costs associated with optional overdraft services. Alongside the publication of the study, the Bureau published four prototype templates currently under testing. These templates—which are not yet effective—are meant to improve on existing model forms by more “clearly laying out the size of the fees and when they can be charged,” as well as clarifying “the institution’s overdraft policies” and explaining that the decision to opt-in to the overdraft services is optional and covers only one-time debit card and ATM transactions. The Bureau continues to test the prototypes and consider further changes. The 2010 model form continues to apply until further notice from the CFPB. These developments reflect the CFPB’s years-long interest in overdraft products and build upon a prior 2014 Data Point study of this issue, as previously reported in Infobytes.
OCC Updates Comptroller’s Licensing Manual Booklet to Provide Guidance on Failure Acquisitions
On August 3, the Office of the Comptroller of the Currency (OCC) released OCC Bulletin 2017-26 announcing a revised version of its “Failure Acquisitions” booklet designed to provide guidance on several policies and procedures impacting national banks and federal savings associations interested in acquiring a failed depository institution through the FDIC’s bidding process. The booklet, which is part of the Comptroller’s Licensing Manual, covers:
- an overview of the process banks must follow when submitting a purchase and assumption (P&A) application, which requires OCC approval before a bank can begin the FDIC bidding process;
- considerations undertaken by the OCC when reviewing a P&A application;
- a description of the process and elements of the application, including public notice and competitive factors, as well as legal and accounting standards; and
- references and links to informational resources.
Senators Introduce Legislation to Override Second Circuit’s Decision in Madden v. Midland
On July 27, a bipartisan group of senators introduced draft legislation (S. 1642), which would require bank loans, sold or transferred to another party, to maintain the same interest rate. As previously covered in InfoBytes, similar legislation (H.R. 3299) was introduced in the House earlier in July to reestablish a “legal precedent under federal banking laws that preempts a loan’s interest as valid when made.” Both measures come as a reaction to the 2015 Second Circuit decision in Madden v. Midland Funding, LLC, in which an appellate panel held that a nonbank entity taking assignment of debts originated by a national bank is not entitled to protection under the National Bank Act from state-law usury claims. The draft legislation seeks to amend the Revised Statutes, the Home Owners’ Loan Act, the Federal Credit Union Act, and the Federal Deposit Insurance Act.
Oregon Governor Enacts Law Regarding Compliance Requirements for Debt Collection Licensees
On August 2, Oregon Governor Kate Brown signed into law House Bill 2356 (HB 2356), which establishes provisions relating to debt collection practices in the state. Among other things, the law (i) details the practices a debt buyer, or debt collector acting on behalf of a debt buyer, is required to follow to legally collect debt; (ii) specifies the type of notice and documents that a debt buyer must provide to a debtor; (iii) requires persons engaged in debt buying to obtain or renew their licenses through the Department of Consumer and Business Services; and (iv) specifies duties of licensees, outlines prohibited conduct, and identifies unlawful collection practices. The law takes effect January 1, 2018.
FHFA Reports Results of Fannie Mae, Freddie Mac Annual Stress Tests
One August 7, the Federal Housing Finance Agency (FHFA) published a report providing the results of the fourth annual stress tests conducted by government-sponsored enterprises Fannie Mae and Freddie Mac (GSEs). In March 2017, the FHFA issued orders directing the GSEs to report the results of the required Dodd-Frank Act stress test to enable financial regulators to determine whether the companies have sufficient capital to support operations in adverse or severely adverse economic conditions. (See previous InfoBytes coverage here.) According to the report, Dodd-Frank Act Stress Tests Results – Severely Adverse Scenario—which provides modeled projections on possible ranges of future financial results and does not define the entirety of possible outcomes—the GSEs will need to draw between $34.8 billion and $99.6 billion in incremental Treasury aid under a “severely adverse” economic crisis, depending on how deferred tax assets are treated. The losses would leave $158.4 billion to $223.2 billion available to the companies under their current funding commitment agreements. Notably, the projected bailout need is lower than what the FHFA reported last year, which ranged between $49.2 billion and $125.8 billion.
Buckley Sandler Special Alert: CFPB Releases Four Prototype Overdraft Disclosure Forms and a Report on Frequent Overdrafters
On August 4, the CFPB released four new prototype overdraft opt-in model disclosure forms and a report titled “Data Point: Frequent Overdrafters.” A summary of the forms and report are provided below. The prototype forms are still in the process of being developed, and the Bureau is requesting feedback as it works toward finalizing them, but the prototypes are intended to replace the current model form A-9 found in Appendix A of Regulation E. The report focuses on bank customers who overdraft their accounts more than 10 times per year and provides context to the Bureau’s concerns on the impact overdraft services may have on financially vulnerable consumers.
Although overdrafts have long been a focus of the CFPB’s enforcement and supervisory activities, this represents the first sign of movement by the Bureau toward the potential new overdraft services rulemaking listed on its 2017 rulemaking agenda, which is currently in the pre-rule stage. We anticipate that aspects of the approach and language contained in these prototype forms may eventually make their way into account agreements. We invite you to review the forms and report to gain insight into the CFPB’s view of overdraft services and the types of concerns the Bureau may attempt to address in future rulemaking.***
Click here to read full special alert.If you have questions about the report or other related issues, please visit our Retail Banking practice page, or contact a Buckley Sandler attorney with whom you have worked in the past.
Three Companies Announce the Close of FCPA Investigations
During the week of July 24, 2017, three different companies announced the closure of DOJ and/or SEC FCPA investigations.
In a Form 10-Q filed with the SEC on July 25, 2017, an American multinational technology company disclosed that the DOJ and SEC had each informed the company in June 2017 of the closure of their respective investigations into “alleged illegal activity by a former Poland employee in connection with sales to the Polish government.” The company initially informed the SEC in 2012 that the Polish Central Anti-Corruption Bureau was looking into the matter, and the DOJ followed up with its own investigation in April of 2013. The DOJ expanded the investigation from Poland to Argentina, Bangladesh, and Ukraine. The 2012 issues came on the heels of a 2011 settlement in which the company paid the SEC $10 million to settle separate FCPA allegations for alleged cash payments to Chinese and Korean officials.
A South African alternative payment systems provider made a similar announcement on July 27, stating that the DOJ had written a letter to the company closing its investigation of alleged FCPA and disclosure violations. According to the announcement, the DOJ, along with the SEC and South African authorities, began looking into a 2012 contract award process involving a subsidiary of the company after an unsuccessful bidder for the same contract “refer[ed] unsubstantiated South African press articles to the DOJ.” The SEC was the first to bow out of the investigation, closing its inquiry through a letter in 2015, followed six months later by the South African government. The company is traded on NASDAQ’s Global Select Market, providing a jurisdictional hook into a case otherwise about payments made by a South African company in South Africa to South African citizens who were South African government employees. Our additional coverage of this matter can be viewed here.
In a Form 10-Q filed on July 25, 2017, a mining company also announced the end of a DOJ investigation into alleged violations of the FCPA “relating to certain business activities of [the company] and its affiliates and contractors in countries outside the U.S.” According to the announcement, the Colorado company had already received a similar declination from the SEC earlier this year. Our additional coverage of this matter can be viewed here.
The DOJ simultaneously reportedly confirmed to the Wall Street Journal that the agency was still actively enforcing the FCPA. The Journal cited an anonymous source at the DOJ for assurances that “though there haven’t been any new corporate FCPA cases since mid-January, there is no letup in U.S. enforcement efforts.”