Alert December 08, 2009

OTS Issues Revised Guidance in Enforcement Policy Statement on Civil Money Penalties

The OTS issued an updated Enforcement Policy Statement on Civil Money Penalties (the “Policy Statement“) that replaces and supersedes prior guidance issued by the OTS in a 1993 OTS Regulatory Bulletin.  The Policy Statement describes the statutory framework for civil money penalties (“CMPs”), the factors considered by the OTS in assessing CMPs and the procedures used by the OTS in making a decision whether or not to assess CMPs.  Included as appendices to the Policy Statement are updated matrices used by the OTS in considering whether to assess CMPs and in deciding the amount of any CMPs to be assessed.  The matrices take into account the severity of: (1) violations of law, (2) reckless, unsafe or unsound practices and (3) breaches of fiduciary duty and reflect 13 assessment factors, originally recommended in 1993 by the Federal Financial Institutions Examination Council to the federal banking agencies.