Weekly RoundUp
November 11, 2021

CFPB Issues Interpretive Rule on FCRA Consumer Information Matching Requirements

In This Weekly Roundup Issue. The Consumer Financial Protection Bureau (CFPB) issued an interpretive rule on Fair Credit Report Act consumer information matching requirements; the Securities and Exchange Commission (SEC) approved the Public Company Accounting Oversight Board’s Rule 1600 to establish a framework under the Holding Foreign Companies Accountable Act; the SEC is proposing to modernize electronic filing requirements; and Head of the Office of the Comptroller of the Currency (OCC) Michael Hsu is urging bank board to prioritize climate change concerns. These and other developments are discussed in more detail below.

Regulatory Developments

CFPB Issues Interpretive Rule on FCRA Consumer Information Matching Requirements

On November 4, the CFPB issued an advisory opinion and interpretive rule concluding that, in the preparation of a consumer report, a consumer reporting agency using inadequate consumer information matching procedures (i.e., using name-only matching, or even matching consumers with common names only to date of birth or address) is not following “reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates” (15 U.S.C. § 1681e(b)) in violation of the Fair Credit Reporting Act (FCRA).

SEC Approves PCAOB Rule to Establish a Framework for Determinations Under the Holding Foreign Companies Accountable Act

On November 5, the SEC approved the Public Company Accounting Oversight Board’s (PCAOB) Rule 6100, adopted under the Holding Foreign Companies Accountable Act (HFCAA). The HFCAA prohibits trading in an issuer’s stock if the company uses an audit firm for three consecutive years that a foreign jurisdiction prevents the PCAOB from inspecting completely. PCAOB Rule 6100 establishes the framework for the PCAOB’s determinations under the HFCAA.

SEC Proposes to Modernize Electronic Filing Requirements

On November 4, the SEC announced proposed amendments that would update electronic filing requirements for forms that were sometimes required to be filed or submitted in a paper form. The proposal is aimed at providing a more efficient experience for filers, the public accessing the information and the SEC. The public comment period remains open for 30 days after publication in the Federal Register.

“By asking pointed questions of management about their institutions’ exposures to climate change risks, bank boards can help put into motion the concrete steps that banks need to take to prudently manage climate risk."
– Acting Comptroller Michael Hsu

OCC Head Urges Bank Boards to Lean in On Climate Risk

On November 8, Acting Comptroller of the Currency Michael Hsu called for large bank boards of directors to ask senior management five climate-related questions: (1) What is our overall exposure to climate change? (2) Which counterparties, sectors, or locales warrant our heightened attention and focus? (3) How exposed are we to carbon tax? (4) How vulnerable are our data centers and other critical services to extreme weather? and (5) What can we do to position ourselves to seize opportunities from climate change?

ESG Shareholder Proposals Will Be More Difficult to Exclude After SEC Staff Interpretive Reversal

On November 3, the staff of the SEC’s Division of Corporation Financepublished Staff Legal Bulletin No. 14L, which reverses a series of interpretive positions and is likely to result in a significant increase in the number of shareholder proposals that involve climate change, human capital management and other significant social policy issues being included in proxy statements during the 2022 proxy season. The interpretive changes, which were effective upon publication, will reduce the ability of companies to obtain assurances that the staff will not recommend enforcement action (“no-action” letters) if the company excludes a shareholder proposal from its proxy statement under Rule 14a-8 of the Securities Exchange Act of 1934.

Read the client alert for guidance on what companies should be doing now and further insight into interpretive changes.

OSHA’s Emergency Temporary Standard: A Practical Guide for Employers

On November 6, the U.S. Court of Appeals for the Fifth Circuit issued a temporary stay of the Occupational Safety and Health Administration (OSHA) Standard, which temporarily prevents the OSHA Standard from going into effect. As summarized in a previous client alert, the OSHA published this “emergency temporary standard” that, among other things, mandates that employers with 100 or more U.S. employees adopt written vaccination policies, collect and maintain data about vaccination status, and implement workplace rules, including requiring employees who are not fully vaccinated undergo weekly testing for COVID-19 and wear a face covering in the workplace as well as in vehicles when traveling with another employee on company business. Given the fast-approaching compliance date and the possibility that the stay will not remain in place, employers should take steps now to prepare to comply with the OSHA Standard.

Read the client alert to learn more about the status of the legal challenges to the OSHA Standard and steps employers should take to comply if the OSHA Standard remains effective.

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Josh Burlingham
Serene Qandil