On June 16, President Trump announced his intention to nominate James Clinger to serve as Chairman of the FDIC. According to the announcement, Mr. Clinger will first be nominated to fill the vacant director position on the FDIC Board for a six-year term and then will be nominated to replace Martin Gruenberg as Chairman of the FDIC for a five-year term beginning on November 29, 2017. Mr. Clinger was most recently the Chief Counsel for the House Committee on Financial Services, having held this position since 2007. Mr. Clinger previously served as Deputy Assistant Attorney General from 2005 to 2007 and as Senior Banking Counsel for the House Committee on Financial Services from 2001 to 2005, and as the Committee’s Assistant Staff Director from 1995 to 2001. Like Joseph Otting, President Trump’s nominee to serve as Comptroller of the Currency, Mr. Clinger is expected to support the Trump administration’s financial regulatory reform efforts if confirmed by the Senate.
On June 15, the CFPB announced that it is proposing several updates to the prepaid account rule. The prepaid account rule, which was issued in 2016 but is not yet effective, amends Regulation E to extend consumer protections such as limited liability against unauthorized transactions and required account opening disclosures, to prepaid accounts. The prepaid account rule also amends Regulation Z, extending credit card protections to prepaid cards that offer overdraft and credit features. The CFPB’s proposal seeks comment on several proposed changes to the rule. First, the CFPB is proposing to require consumers to register their accounts and confirm their identity in order to receive full fraud and error protection, in response to industry concerns that applying such protections to unregistered accounts would increase fraud risk. However, for accounts where the consumer’s identity is later verified, financial institutions would be required to limit liability and resolve errors with regard to disputed transactions that occurred prior to verification. Second, the CFPB is proposing to create a limited exception to the Regulation Z portion of the prepaid account rule for certain business arrangements between prepaid account issuers and credit card issuers that offer traditional credit card products, a common arrangement for digital wallet products, if certain conditions are satisfied. The exemption would apply only if (1) the prepaid card cannot access credit from the credit card account unless the consumer has submitted a written request to authorize linking the two accounts, (2) the parties do not condition the acquisition or retention of either account on whether the consumer authorizes such a linkage, and (3) the parties do not vary certain terms and conditions based on whether the two accounts are linked. Finally, the proposal would allow flexibility for disclosing fees on pre-acquisition disclosures, and clarify exemptions for certain loyalty and promotional rewards and gift cards from the prepaid account rule. In April 2017, the CFPB delayed the general effective date of the prepaid rule by six months, to April 1, 2018. In this proposal, the CFPB is requesting comment on whether a further delay would be necessary. Comments are due by 45 days after publication in the Federal Register. A revised Small Entity Guide, which includes a summary of these updates, can be found here.
On June 19, the OCC added a new booklet to its Comptroller’s Licensing Manual on amendments to the articles of association, charter and bylaws of national banks and federal savings associations. The booklet provides the OCC’s policies and procedures regarding articles of association amendments for national banks, charter amendments for federal savings associations, and bylaw amendments for both national banks and federal savings associations. The booklet also contains some common legal requirements that may affect amendments to articles of association, charters, or bylaws.
Enforcement & Litigation
On June 7, the CFPB issued a consent order against mortgage servicer Fay Servicing, LLC (Fay), requiring Fay Servicing to pay $1.15 million to borrowers and to cease activities that the CFPB contended violated the Real Estate Settlement Procedures Act (RESPA), its implementing regulation, Regulation X, and the Consumer Financial Protection Act of 2010 (CFPA). View the LenderLaw Watch blog post.
On May 31, the CFPB issued its Monthly Complaint Report, this month’s complaints by consumers aged 62 and older. The CFPB drew its analysis of more than 103,100 complaints from its Complaint Database, which can be found here. The complaint report is an illuminating view into common issues older consumers feel they face in interacting with their financial institutions, and as such can be a helpful resource for entities interested in improving their customer service, especially for older segments of their customer base. View the LenderLaw Watch blog post.
It’s the call that every general counsel dreads: “We’ve been hacked.” In the face of an increasing threat, cybersecurity preparedness and incident response have become top priorities for corporate boards and general counsel. Smart companies have prepared by implementing comprehensive written information security plans (to minimize the potential for a cyber incident) and incident response plans that are regularly exercised and updated in order to facilitate crisis management and decision-making in the hours, days and weeks once an incident occurs. View the Corporate Counsel article written by Privacy and Cybersecurity partner Karen Neuman.
Join Goodwin for an informative webinar exploring aspects of the new DOL Fiduciary Rule. In the 60-minute program, we will discuss how we got here and what to do now (and what to hold off doing). We will also discuss the likely litigation and enforcement landscape, in both the short-term and the longer-term. To register, please click here.
Money20/20 Europe is engineered to bring together all the stakeholders with a part to play in the commerce revolution: payments and financial services providers, banks and nonbanks, the mobile ecosystem, the retail industry (offline and online), marketing services and data companies, investors, advisory firms and government bodies. Money 20/20 Europe will again take place in Copenhagen. For more information, please visit the event website.
Alison Douglass, partner in Goodwin’s Financial Industry and ERISA Litigation practices, will be speaking at the T. Rowe Price DCIO Client Advisory Board Meeting to provide an update on fiduciary risk and active management.
The consumer finance industry is heading toward uncertainty with the current administration promising to loosen regulation. ACI’s 29th Consumer Finance Class Actions & Litigation conference will address the uncertainties by providing new and emerging trends as well as topics affecting consumer finance litigation and class actions. Sabrina Rose-Smith, partner in Goodwin’s Financial Industry and Consumer Financial Services Litigation practices, will serve as co-chair of this conference and will be a speaker on the “Consumer Finance Class Action Litigation and Settlement Trends and New and Emerging Procedural Consideration Including Ascertainability of Class and Class Members, Offers in Judgment, and More” panel. For additional information, please visit the event website.
Jamie Fleckner, partner in Goodwin’s Financial Industry practice and Chair of its ERISA Litigation practice, will be speaking in an upcoming Strafford live webinar, “ERISA Breach of Fiduciary Duty Class Actions: Avoiding and Defending Claims Against Companies and Fiduciaries.” The panel will provide guidance to counsel for plan fiduciaries and companies on avoiding and defending ERISA class claims that allege breach of fiduciary duty related to the selection and administration of investment plans.