b'For more information, please visit www.lenderlawwatch.com or www.enforcementwatch.comregulators. The CFPB hosted a similar joint workshopthe personal information being collected. The CCPA, TRACKING ACTIONS BY PRODUCT IN 2016 & 2019 with the FTC on credit reporting in December 2019.however, does exempt certain types of information that Given the multiple Requests for Information (RFIs)are subject to the Gramm-Leach Bliley Act, depending issued by the Bureau in 2019, and the industryson the context in which the information is collected and 60 confusion regarding how certain statutes, regulations,shared. As companies scrambled over the last year and rules should be interpreted, these symposia haveto prepare themselves for the landmark CCPA, other 50 51 the potential to provide critical insight into the Bureausstates, such as New York and Nevada, also took steps 49 decision making and interpretation. to follow Californias lead and enact privacy laws that 40 impose requirements for the use, sharing and security 2016 CFPB UDAAP GUIDANCE of personal data in 2019.Change in Action30 31 2019 Looking into 2020, the CFPB announced its policy statement on how it intends to apply the abusivenessLOOKING AHEAD TO 2020THE U.S. 20 prong in UDAAPs prohibition on abusive acts orSUPREME COURTS DOCKET 1816 practices. The common-sense framework employsAs predicted in last years Review, the Court granted 10 14 13 14 11 a balancing test, where the harm to the consumercertiorari to decide the question of whether the 10 7 must outweigh the benefit. The policy also providesCFPB directors for-cause-only removal provision is 3 5 3 that, when arising from a common core of facts, theconstitutional. It will review the Ninth Circuits ruling 0DebtMortgage PaydayAutoStudentCreditCredit,CFPB will not cite abusiveness if it cites unfairnessin CFPB v. Seila Law, (No. 17-56324) (9th Cir.), which Collection &Lending Lending Lending Reporting Debit &or deception for the same conduct, although it doesupheld the constitutionality of the CFPBs directorship Settlement Prepaid Cardsnot define the standard. In its policy statement, thestructure. Among other issues, the Court will consider Product CFPB also stated that it will not seek monetary reliefwhether vesting of substantial executive authority in the unless there has been a lack of good faith effort toCFPB, an independent agency led by a single director, comply with the law, but it will still seek full consumerviolates the separation of powers. If the CFPB is found restitution regardless of whether there is a finding ofunconstitutional on this basis, the court will decide the end of financial crisis-era litigation. Thus, we expectreview whether the CFPB (and Director Kraninger)bad faith. This year will reveal how the new policy playswhether the proper remedy is to invalidate the CFPB federal enforcement to remain down unless or untilhave followed the law and Bureau policies whenout, including the impact of its application to mattersor whether the for-cause removal provision, 12 U.S.C. there is a change in administration. resolving cases without consumer restitution or relief.on appeal or those already filed or pending with 5491(c)(3), can be severed from the Dodd-Frank Act. Three states continue to be the most active:California,Most of these efforts have been for political gain onlyabusiveness claims. In the CFPBs response brief, it agreed that the single Massachusetts, and New York. Each states attorneyand are unlikely to result in significant change in largedirector structure is unconstitutional, but urged the general and/or related enforcement agencies continuepart because of the lack of Congressional oversightCourt to resolve the issue by ruling that the President authority over the CFPB (ironically, a design feature ofPRIVACY AND DATA SECURITYhas the authority to remove the director at will, rather to prioritize consumer finance enforcement andthe CFPB that Senator Warren herself crafted), but they regulation, particularly with respect to student lendingRegulators have indicated an intent to continuethan declare the CFPB as a whole unconstitutional. In and debt relief, auto lending and repossession, andpresent a clear forecast of what may be yet to come iffocusing on privacy and data security protections.light of the CFPBs position, the House filed an amicus debt collection. We expect this will continue in 2020,executive power changes hands in 2021. In October, the California Attorney General issuedbrief with the Court defending the constitutionality of and that these frequent actors may be joined by othersproposed regulations to implement the CCPA, whichthe for-cause removal provision and the Ninth Circuits in recently-turned Democratic states, including those inCFPB INDUSTRY SYMPOSIUM would provide California residents the right to see,decision. the Midwest (particularly Michigan and Minnesota). delete and stop the use and sale of their personalIn a related constitutionality question, the Supreme In April 2019, CFPB Director Kraninger announced ainformation. Consumers also would be granted the right The House of Representatives and Senate DemocratsBureau-led symposium series designed to exploreto sue for statutory damages for data breaches thatCourt will also decide whether the FHFAs structure will likely continue to seek a role in consumer financeconsumer protections in todays dynamic marketplace.result from a companys failure to maintain reasonableviolates the separation of powers and whether to strike oversight and enforcement leading up to and followingHer hope is that the series will stimulate a proactivesecurity procedures. Another important aspect of thedown the statutory provisions that make the agency the November election. Recently, the House has notand open dialogue that will assist the CFPB in itsproposed regulations is heightened transparencyindependent in Collins v. Mnuchin, (No. 19-422). been shy to use its subpoena power to call in industrypolicy development and rulemaking processes.requirements, including requirements to provide participants and the Bureau Director herself in an effortIn June 2019, Director Kraninger and her Deputyprivacy notices to consumers that detail specifics about to implement its policy agenda. Furthermore, a growingDirector Brian Johnson kicked off the Bureaus first number of Senate Democrats (led by presidentialsymposium on Abusive Acts or Practices under candidates Elizabeth Warren and Bernie Sanders)the UDAAP provisions in the CFPA, which included recently asked that the Office of Inspector Generalpanel discussions and testimony from academics and 44 45'