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First State Moratorium on Blockchain Taxes in Nevada
On June 5, the governor of Nevada signed into law legislation (SB 398) that prohibits local governments from taxing or establishing restrictions on blockchain use—making it the first state to outlaw blockchain taxes. In addition to taxes, the new law prohibits requiring a license, permit, or certificate or any other condition on the use of blockchain. The bill also states that blockchain data can now be submitted in situations where the law requires a record to be in writing.
Do Not Call Violations Net $280 Million Fine for FTC, States
On June 5, the U.S. District Court for the Central District of Illinois ruled in favor of the Federal Trade Commission (FTC) and the states of California, Illinois, North Carolina, and Ohio resolving Do Not Call litigation against a direct-broadcast satellite service provider. The court found the service provider liable for making millions of calls resulting in violations of the Telemarketing Sales Rule (TSR) and the Telephone Consumer Protection Act, among other things. The $280 million in civil penalties, with a record $168 million going to the FTC, is the largest civil penalty ever awarded for violation of the FTC Act.
Additionally, the court issued a permanent injunction order against the service provider. Among the requirements in the order, the service provider will show within 90 days of the order effective date that they are “fully complying with the safe harbor provisions” and “have made no prerecorded telemarketing calls at any time during the five (5) years immediately preceding the effective date.” The service provider must also hire an expert to ensure compliance with the injunction and telemarketing laws, provide semi-annual compliance materials, and ensure their compliance with the TSR.
Colorado Extends Fair Debt Collection Practices Act Through 2028
On June 1, Colorado Governor John Hickenlooper enacted legislation (SB 17-216) executing recommendations from the Department of Regulatory Agencies’ 2016 Sunset Report, and extending the Colorado Fair Debt Collection Practices Act (Act) an additional 11 years through September 1, 2028. The Act was originally set to be repealed on July 1, 2017. Specifically, the legislation will implement the following points:
- defines a “debt buyer” as an individual who “engages in the business of purchasing delinquent or defaulted debt for collection purposes,” regardless of whether the debt is collected by the debt buyer, a third-party, or through litigation. The Act applies to debt buyers who purchase consumer debts sold or resold on or after January 1, 2018;
- states that debt collectors or collection agencies that bring legal actions on debts must follow outlined requirements;
- defines collection agency expectations for the purchase, sale or attempted collection of a purchased debt;
- sets the statute of limitations for public actions brought by the administrator of the Act to two years and sets the limit to one year for private actions;
- requires the administrator to prepare a biannual report to address enforcement actions, complaint processing statistics, and significant legal filings, among other things, in addition to hosting biannual meetings to disseminate the findings.
SB 17-216 went into effect June 1, 2017 with the exception of certain provisions governing debt buyers, documentation for legal actions, and Uniform Consumer Credit Code Administrator reporting requirements that take effect January 1, 2018.
Supreme Court Limits SEC Disgorgement
On June 5, the Supreme Court ruled in Kokesh v. SEC that the SEC’s authority to disgorge profits from defendants is subject to the five-year statute of limitations applicable to penalties and fines. The Court rejected the SEC’s position that disgorgement is an equitable remedy and not a penalty, resolving a circuit split on the issue. Writing for the unanimous Court, Justice Sotomayor said that disgorgement “bears all the hallmarks of a penalty,” reasoning that it “is intended to deter, not to compensate.” The defendant in Kokesh was an investment adviser who had been ordered to disgorge approximately $35 million for allegedly misappropriating investor funds.
The SEC routinely seeks disgorgement in FCPA enforcement actions. The Kokesh decision may lead the SEC to seek tolling agreements sooner and in more circumstances, particularly where the alleged conduct occurred over a long period of time. The decision may also impact defendants’ ability to claim insurance coverage for disgorgement because insurers might deny coverage for payment of penalties.
Department of Education Student Debt Collection Contracting Injunction Extended
On May 31, U.S. Court of Federal Claims Chief Judge Susan G. Braden extended her preliminary injunction in a legal dispute involving the awarding of Department of Education (Department) debt collection contracts. She stated the order would stay in place “to preserve the status quo until the viability of the debt collection contracts at issue is resolved.”
Judge Baden’s order provides several reasons for her decision, all pulled from news reports, including: (i) a CFPB report stating that private collection agencies chosen by the Department offer uncertain value despite great cost; (ii) a New York Times article suggesting that oversight for the Department’s student debt would be transferred to the Treasury Department; and (iii) press reports announcing James Runcie’s resignation. Runcie served as the chief operating officer of the Office of Federal Student Aid.
The order has prevented the government from collecting on defaulted student loans—a halt which began on March 29 when Judge Braden issued a temporary restraining order in the matter.
House Energy and Commerce Committee to Hold Hearing June 8 on Fintech Options for Consumers
On June 8, the House Energy and Commerce Committee’s Digital Commerce and Consumer Protection Subcommittee will hold a hearing as part of its “Disrupter Series.” In a press release issued June 1, the hearing, Improving Consumer’s Financial Options with FinTech, will discuss consumer needs and whether the fintech industry is offering financial products and services that meet these needs. “The FinTech industry has allowed the average American to have more control over their financial well-being while simultaneously promoting greater financial literacy. Next week’s hearing is an important opportunity for us to hear from companies on barriers they face in the market and learn how Congress can continue investing in its potential,” stated Committee Chairman, Rep. Bob Latta (R-Ohio). The hearing will begin at 10 a.m. in Room 2123 of the Rayburn House Office Building. Witnesses have not yet been announced.
Cordray Discusses Youth Financial Education, CFPB Responsibilities
Recently, CFPB Director Richard Cordray delivered prepared remarks at the Financial Literacy and Education Commission Meeting in Washington, DC on May 24 and at the People and Places Conference in Arlington, VA on May 31.
Financial Literacy and Education Commission (Commission). Coordinated by the Treasury Department’s Office of Financial Security, the Commission presented results from the 2015 Programme for International Student Assessment study on financial education in the U.S. and how it compares to other countries. Cordray’s opening remarks stressed the-importance of providing financial resources and educational tools empowering young people and outlined efforts the CFPB has underway, such as the Youth Financial Education resource page, the online Money as You Grow tool, and other community outreach education programs.
People and Places Conference. A keynote speaker at the conference, Cordray outlined the three main components of the CFPB’s work: (i) supervision and enforcement; (ii) implementing common-sense rules; and (iii) hearing and addressing consumer complaints to help keep companies accountable. Regarding supervisory and enforcement actions, Cordray stated that the Bureau’s activities serve to help change institutions’ practices for the better by (i) providing consistent supervision; (ii) initiating public enforcement actions to serve as a deterrent to “bad behavior”; and (iii) upholding “laws that ban unfair, deceptive, or abusive acts or practices.” Cordray asserted that by setting expectations financial institutions must meet in their own compliance work, similar violations can be avoided. Cordray spoke next about the need to establish “common-sense rules of the road” in order to protect consumers. He used the mortgage industry as an example of how the Bureau responded to Congress’s directive for developing “much-needed reforms” by “implementing rules to govern underwriting, servicing, and loan originator compensation” and “temper[ed] these regulations for small creditors so as to ease regulatory burdens on community banks and credit unions.” Furthermore, Cordray stated the Bureau’s ability to receive and process consumer complaints is crucial to identifying, understanding, and prioritizing problems.
FDIC Releases List of Enforcement Actions Taken Against Banks and Individuals in April 2017
On May 26, the FDIC released its list of 18 administrative enforcement actions taken against banks and individuals in April. Among the consent orders on the list are civil money penalties for violations of the Flood Disaster Protection Act of 1973 and its flood insurance requirements. Also on the list are a cease and desist order and a civil money penalty assessment issued to a Louisiana-based bank (Bank) for violations of the Bank Secrecy Act (BSA), EFTA, RESPA, TILA, HMDA, and the National Flood Insurance Program. According to the cease and desist order, the FDIC Board of Directors agreed with the Administrative Law Judge’s recommended decision that the Bank engaged in unsafe or unsound practices, which warranted a cease and desist order and civil money penalty. The order also addressed a number of shortcomings identified by the Bank’s examiners, including the following: (i) the Bank’s BSA program lacked adequate internal controls to ensure compliance; (ii) it failed to provide correct and compete electronic funds transfer disclosures to consumers; (iii) borrowers were provided “untimely and improperly completed” good faith estimates; and (iv) the Bank repeatedly failed to accurately report required HMDA information to federal agencies.
An additional eight actions listed by the FDIC related to unsafe or unsound banking practices and breaches of fiduciary duty, including five removal and prohibition orders. There are no administrative hearings scheduled for June 2017. The FDIC database containing all of its enforcement decisions and orders may be accessed here.
NYDFS Fines Global Bank $350 Million for Alleged Foreign Exchange Trading Violations
On May 24, the New York Department of Financial Services (NYDFS) announced that it had assessed a $350 million fine against a global bank and its New York branch (Bank) as part of a consent order addressing allegations that the Bank’s foreign-exchange business had engaged in long-term violations of New York banking law. According to the announcement, NYDFS investigated alleged misconduct occurring between 2007 to 2013 and found the improper conduct “included collusive activity by foreign exchange traders to manipulate foreign exchange currency prices and foreign exchange benchmark rates; executing fake trades to influence the exchange rates of emerging market currencies; and improperly sharing confidential customer information with traders at other large banks.” Specifically, the violations include the following:
- collusion through on-line chat rooms to manipulate securities prices and artificially increase profits;
- improperly exchanging information about past and impending customer trades, including sharing confidential customer information via personal email, in order to maximize profits at customers’ expense;
- manipulating “the price at which daily benchmark rates were set—both from collusive market activity and improper submissions to benchmark-fixing bodies”; and
- “misleading customers by hiding markups on executed trades, including by using secretive hand signals when customers were on the phone; or by deliberately ‘underfilling’ a customer trades, in order to keep part of a profitable trade for the Bank’s own book.”
In addition to the $350 million monetary penalty, the Bank must, within 90 days of the consent order, submit written plans to (i) improve senior management’s oversight of the Bank’s compliance with New York laws and regulations governing its foreign exchange trading business; (iii) enhance internal controls and compliance to adhere to state and federal laws and regulations; and (iii) improve its compliance risk management and internal audit programs. Additionally, the Bank terminated certain employees involved in the misconduct and has agreed it will not—directly or indirectly—re-hire these individuals in the future. As part of this process, the Bank conducted an “employee accountability review” and disciplined other employees “for misconduct or supervisory failures.”
Vehicle Financing Company Owners Plead Guilty to $11 Million Fraud
On May 25, the Massachusetts U.S. Attorney’s Office announced that two vehicle financing company owners (Defendants) entered guilty pleas admitting to counts of mail and wire fraud. The Defendants’ company raised capital by securing investments from individuals to fund its operations. In 2015, the DOJ filed a criminal complaint alleging the Defendants represented to investors that retirement account funds could be rolled over into investments held by the company without triggering the payment of income taxes on the transferred monies. Investors allegedly transferred retirement funds based on these representations, and the Company ultimately lost more than $11 million of the investors’ money. However, the Defendants allegedly never obtained approval from Treasury for the company to act as an authorized custodian or trustee of retirement funds as required in order for the rules permitting tax-free transfers to apply, and therefore solicited the investment funds based on “deceptive acts, false and fraudulent statements and misrepresentation of material facts.” The company ultimately filed for bankruptcy. The plea agreements stipulate maximum penalties of “20 years in prison, three years of supervised release, a fine of $250,000 or twice the gross gain or loss, whichever is greater, a mandatory special assessment of $100, restitution, and forfeiture to the extent charged in the Indictment” and can be accessed here and here. Sentencing is set for September 20, 2017.