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Andrea K. Mitchell quoted in Bloomberg BNA article, “Disparate impact questions could limit CFPB enforcement”

Bloomberg BNA

Andrea K. Mitchell

Andrea K. Mitchell was quoted on July 2, 2018 in a Bloomberg BNA article, “Disparate impact questions could limit CFPB enforcement,” which discussed the CFPB limiting the use of disparate impact assessments under Mick Mulvaney’s leadership, and the effect it will have on fair lending enforcement actions. The article noted, “The disparate impact theory states that lending practices can be discriminatory if they are found to have a disparate impact on communities of color or other minorities, regardless of whether the lender intended to engage in racial discrimination. Regulators, prosecutors, and private plaintiffs’ attorneys have relied for years on those statistics to build cases against lenders. Lenders, on the other hand, said those statistics don’t tell the full story. The financial services industry hoped to get the use of disparate impact eliminated by the courts in 2015. But a June 2015 U.S. Supreme Court decision, written by retiring Justice Anthony Kennedy, in Texas Department of Housing and Community A airs v. Inclusive Communities Project Inc., allowed the use of disparate impact in Fair Housing Act-based cases. The Inclusive Communities decision didn’t answer whether the disparate impact argument is available for ECOA cases, leaving open the question of whether it is even appropriate for the CFPB to use that tool in enforcing the 1974 fair lending law.”

Mitchell said that ultimately that debate should not matter given Mulvaney’s position on fair lending enforcement. “He was very clear that he does not intend for the bureau to pursue disparate impact claims on his watch. Absent formal guidance to that effect, Mulvaney’s remarks are the best indicator we have about fair lending enforcement at the bureau.”

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