On March 18, 2020, Square Inc., became the first U.S. fintech company to receive conditional approval of an Industrial Loan Company (“ILC”) charter from the Federal Deposit Insurance Corporation (“FDIC”), to pair with its prior charter approval on March 17, 2020 from the Utah Department of Financial Institutions.  It became the first new de novo ILC charter to be approved by the FDIC in over a decade.  This comes just one day after the FDIC codified its approach to managing ILCs generally.  The ILC charter allows non-bank owned companies to provide various deposit and lending services to customers without being subject to federal bank holding company regulations.

Square Inc. was formed in 2009 as a payment services provider enabling businesses to accept card payments.  Since then, the platform has expanded its suite of services to include software and hardware products related to point-of-sale payments, merchant services, money transmission, and business financing.

With the ILC charter approval, in 2021, Square is expected to launch Square Financial Services, Inc., as an independent and direct subsidiary industrial bank, which will provide small-business loans and deposit products to Square’s customers.  According to the company, Square Financial Services will be headquartered in Salt Lake City, Utah.

The road to ILC charter approval has not been easy or swift.  ILCs are required to obtain FDIC deposit insurance.  Applications for deposit insurance are evaluated under a framework of seven factors, including the applicant’s financial history and condition, capital structure, future earnings prospects, general character and fitness of the management, as well as any risks to the Deposit Insurance Fund, the convenience and needs of the community to be served by ILC, and whether the institution’s corporate powers are consistent with the purposes of the Federal Deposit Insurance Act.

While Square received conditional approval of an ILC charter, the decision of the FDIC board was not unanimous, with one dissenter noting Square’s inconsistent profitability since its initial founding in 2009, and potential vulnerability to an economic downturn.

Given that the FDIC last approved a de novo ILC application over a decade ago, the decision signals a potential easing of regulatory resistance towards fintech companies and their mission to increase access to financial services to traditionally underserved consumers.

There are widespread expectations that the Supreme Court, following an oral argument last week, may rule that part of the law that created the CFPB is unconstitutional.  As a result, many business executives, in particular, have been asking their lawyers about the likely impact of such a ruling.  These questions have included ones like:  Could a prior CFPB action, including a settlement punishing the target of an investigation, somehow be annulled and unwound?  And what would need to happen in order to bring a lawsuit (or to take some other action) seeking an annulment like that?

These are a valid questions.  In our view, the analysis to answer them begins by focusing on what, exactly, is claimed to be unconstitutional about the CFPB.

What is the Constitutional Problem with the CFPB?

The parties challenging the CFPB’s constitutionality are focused specifically on one provision of the Dodd-Frank Act, which created the agency.  That provision insulates, to a large degree, a Senate-confirmed Director of the CFPB from removal by the President.  It does so by permitting removal only “for inefficiency, neglect of duty, or malfeasance in office,” a legal term of art often abbreviated as “for cause,” which as a practical matter makes removal by the President very unlikely.  This protection from removal makes the CFPB Director different from Cabinet secretaries, for example, whom the President may terminate at will and for any reason.

The Supreme Court has historically allowed Congress to similarly insulate the members of multi-member, staggered commissions that run agencies (like the FTC), largely on the theory that if a President disapproves of such an agency’s policy direction, he or she can soon influence the agency when the next commission spot opens up, and in any event can often designate who chairs the commission.  But challengers to the CFPB have pointed out that, where a regulator is run by a single person — which is the case with the CFPB’s Director — Congress has never tried to insulate that individual from removal at the will of the President.  And they argue that Congress’ decision to do so is an unconstitutional infringement on the President’s authority under the Constitution to direct the operations of the Executive Branch.  That is, in the case of any President who dislikes the policy or enforcement positions of a CFPB Director, the law would unduly inhibit the President’s power to influence the agency.

In the case before the Supreme Court (Seila Law), the target of a CFPB investigation has argued — and the CFPB under the Trump Administration agrees — that the limit on removal is indeed unconstitutional.  We and many other observers agree that their argument is strong.

How is the Supreme Court Likely to Remedy this (Claimed) Violation?

To date, the only appellate opinion to find the CFPB’s removal provision unconstitutional (authored by now-Justice Brent Kavanaugh) went on to hold that the proper remedy was simply to strike the provision — making the Director removable at will — without otherwise disturbing the law or the agency.

We find the reasoning of that opinion to be persuasive.  Justice Kavanaugh (then a federal appeals court judge) explained that in deciding the remedy for a constitutional violation like this, courts should begin by asking:  Is there an alternative that Congress would have preferred if it had known that the passage at issue was unconstitutional?  Justice Kavanaugh reasoned that, in the case of the Dodd-Frank Act, Congress effectively answered that question by including a “severance” provision.  The “severance” provision states that if a court finds any passage of the law to be unconstitutional, it should leave the rest of the law in place.

We think that this same remedy is the most likely outcome at the Supreme Court, if the Court in fact finds that the removal provision is unconstitutional.  The target of the CFPB investigation has argued for broader remedies — such as striking the entire law creating the CFPB and putting the agency out of business — but we think the chance the Court will do something like that is rather low.  As Justice Kavanaugh has pointed out, courts have preferred narrow remedies for constitutional violations like these, even when the law does not contain a “severability” provision.  And it is unlikely that Congress would have preferred no CFPB at all to a CFPB with a Director removable at will.  In the prior case before Justice Kavanaugh, his opinion allowed the CFPB to continue the enforcement action that generated the constitutional challenge, albeit after correcting several errors in the agency’s interpretation of an important consumer-financial law.

But What About Past CFPB Actions?

If the Supreme Court’s remedy is merely to strike the removal clause, it is fair to ask whether that result still calls into question the validity of past CFPB actions.  After all, in this scenario, prior actions would have been directed and finalized by a CFPB Director who was unconstitutionally protected from dismissal by the President.

There have been cases where courts ruled, after striking part of a law as unconstitutional, that the proper result was to invalidate prior agency actions.  However, this has not yet happened where the constitutional problem involved only the President’s power to remove an official.  And we think it unlikely that such a result would obtain here.

Cases invalidating prior agency actions have generally involved two other types of constitutional violations.  First, there have been cases where the law gave power to a government official who did not have the constitutional authority to exercise that power in the first place.  The best example is a law that directed an official under Congress’ control to exercise Executive Branch functions.

The second type of violation involved actions by government officials who were appointed to their jobs in a manner inconsistent with the Constitution.  Examples include officials appointed without Senate confirmation where the Constitution required confirmation.

What these cases have in common is that actions were taken by officers who never should have had the power to take those actions.  But that is not the case where the flaw is in a removal provision like the one involving the CFPB.  Moreover, as a practical matter, most CFPB enforcement actions – and subsequent settlements – have taken place during periods when the CFPB was led by a Director selected by the then-current President, with no indication that the President was unhappy with the Director he chose.  Thus, in opposing an argument to invalidate one of these settlements, the government would argue that the President had as much control over the CFPB Director as the Constitution provides for.

Indeed, one court remarked, in considering a similar issue involving an invalid removal provision, “We should not invalidate” the actions of a President’s own nominee by invoking that President’s “need to exercise executive authority.”  However, there was a period of about 10 months in 2017, following President Trump’s inauguration, when the CFPB was led by an Obama appointee, Richard Cordray, whom President Trump no doubt would have promptly dismissed (or whom would have resigned early) if not for the obstacle of the removal provision.

Nonetheless, the government would also have other, more basic arguments for opposing the invalidation of a past settlement, including ones based on policies against disturbing agreements on which parties have relied.  In the case of many CFPB settlements, the affected parties would include the consumers who received restitution.

In sum, we think that even if the Supreme Court finds a constitutional violation, it is unlikely that the decision will provide a basis for disturbing past agency actions (especially those from periods other than the window of Director Cordray’s work during the Trump Administration).  But we are closely monitoring the case and, in the event that the Court’s opinion does open a window to challenge prior actions, our consumer-finance and appellate teams stand ready to assist.

McGuireWoods’ CFPB and consumer-finance practitioners provide risk-based advice to large and small financial industry clients on a wide range of legal and compliance matters, defend clients subject to investigations and lawsuits, and guide FinTech and other innovators as their products and services approach the market.

McGuireWoods’ appeals and issues team works with all of the firm’s litigation and investigations departments to shape appeal strategies and responses government investigations and submissions. We develop innovative approaches to appeals and develop broader efforts to shape the law to benefit our clients over the long term.

For the first time, a U.S. fintech company is acquiring a regulated U.S. bank, which will give it access to a stable and cheaper source of funding – as well as a national bank charter.

On February 18th, LendingClub, one of the largest providers of personal loans in the U.S., announced that it will pay $185 million in cash and stock to acquire Radius Bancorp, an online bank with about $1.4 billion in assets.  The deal will allow LendingClub to offer an array of new products and diversify its revenue stream, by combining one of the leading digital loan providers with one of America’s fastest growing digital banking platforms.

LendingClub is the first fintech company to acquire a chartered bank as an entry into banking, instead of applying for a national bank charter.  Given the murky regulatory landscape, it may be a smoother path.

On July 31, 2018, the OCC announced that it would start accepting applications for special purpose national bank charters (“SPNB Charters”) from non-depository fintech companies engaged in the business of banking. The goal was to streamline the licensing process, by allowing the OCC to regulate fintech companies with a SPNB Charter.  That way, fintech companies would not have to opt between existing in the gray area where it is unclear whether they need a license, or being bogged down by the process of obtaining licenses from regulators in every state where the company operates.

State regulators responded to the OCC’s announcement with litigation.  The Conference of State Bank Supervisors and the New York State Department of Financial Services both filed lawsuits against the OCC, arguing that the SPNB Charters were beyond OCC’s statutory authority.  In May of 2019, the New York federal district court denied the OCC’s motion to dismiss the lawsuit.  In doing so, the court found that the term “business of banking,” as used in the National Banking Act, meant that only depository institutions were eligible to receive national bank charters from the OCC, and thus the OCC could not issue SPNB Charters to non-depository fintech companies.  In October of 2019, the parties stipulated to entry of final judgment in favor of the New York Department of Financial Services, and agreed to set aside the OCC regulation that would allow non-depository fintech companies to seek a SPNB Charter.  The OCC has appealed the decision, leaving an uncertain federal regulatory future for non-depository fintech companies.

By acquiring Radius Bancorp, LendingClub should be able to avoid the murky waters and sail smoothly into a new position in the marketplace, as an online lender and bank.

California and New York are taking the lead to expand consumer financial protection, in part to smooth out the ebb and flow of federal policy and enforcement at the CFPB.  Within a few days of each other, Governor Gavin Newsom of California and Governor Andrew Cuomo of New York announced proposals to expand regulatory oversight in the financial consumer protection space.

A.  California

On January 10, 2020, California Governor Newsom sent the California Legislature his 2020-21 budget, which includes a proposal to overhaul the state’s Department of Business Oversight (“DBO”), and rename it the Department of Financial Protection and Innovation (“DFPI”). The DFPI, which some observers are describing as a “mini-CFPB,” would have enhanced regulatory powers, as well as responsibility to pursue now-unsupervised financial services providers. The Governor’s Budget Summary cited the reason for the expansion as “[t]he federal government’s rollback of the CFPB,” which leaves Californians vulnerable to predatory businesses and leaves companies without the clarity they need to innovate.” Specific new activities would include, among others:

  • Licensing and examining new industries that are currently unregulated or under-regulated;
  • Protecting consumers through enforcement against unfair, deceptive, and abusive acts and practices (“UDAAPs”);
  • Establishing a new Financial Technology Innovation Office that would cultivate the responsible development of new consumer financial products.

The budget also would provide funding to administer the California Consumer Financial Protection Law. The California Legislature will now begin a detailed review of the budget, a version of which must be passed before June 15, 2020.

B. New York

On January 8, New York Governor Cuomo released his 2020 State of the State address and announced several important measures relevant to fintech and other financial services companies:

  • License requirement for debt collection companies: The Governor will propose legislation giving the New York Department of Financial Services (“NYDFS”) authority to license debt collection entities, and to examine suspected abuses via information requests and books-and-records examinations. The new oversight authority would allow the NYDFS to bring punitive actions against unscrupulous debt collectors, potentially resulting in fines or lost licenses.
  • Strengthen NY’s Consumer Protection Laws: Governor Cuomo also proposed a broad consumer protection agenda aimed at enabling New York to intervene in the absence of federal enforcement in order to protect consumers from new and predatory financial products. The agenda includes:
    • Expanded protection for NY Consumers from UDAAPs: current state law protects consumers from intentional fraud or material misrepresentations regarding financial products or services. The Governor’s proposal would enhance New York law to the level of federal law, which allows enforcement actions for a broader range of UDAAPs.
    • Elimination of exceptions: Although current NY law allows for enforcement actions, many consumer products and services are exempted. The Governor’s proposal would eliminate these exceptions.
    • Closing loopholes: Currently, entities licensed under New York’s Financial Services Law (“FSL”) are not required to pay assessments covering the cost of examinations. The Governor proposed amending the FSL to match the Insurance and Banking Law, which would require these entities to pay for examinations.
    • Fines: To deter illegal conduct, the proposal would amend the state’s law to increase fines. Instead of the current penalty of $5,000 per violation, Governor Cuomo proposed capping penalties at the greater of $5,000, or two times the damages or economic gain attributed to the violation. The FSL would also be updated to include authority for collecting restitution and damages.

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Blending our firm’s nationally recognized financial services practice with our corporate and technology practices, McGuireWoods’ fintech practice provides practical, business-minded counsel on legal and regulatory matters relevant to financial services companies and fintech vendors alike.

FINRA’s examination program has undergone its most significant reorganization in decades. As stated in a press release, Oct. 1, 2018, FINRA’s goal for the reorganization was to “consolidate its Examination and Risk Monitoring Programs, integrating three separate programs into a single, unified program to drive more effective oversight and greater consistency, eliminate duplication and create a single point of accountability for the examination of firms.” The new look of the examination program was released, along with new management, on Dec. 12, 2019.

FINRA launches its revamped examination program with its release of its 2020 Risk Monitoring and Examination Priorities, issued on January 9th.

In 2020, FINRA is prioritizing risk monitoring, surveillance, and examination programs to further its mission of investor protection and market integrity.  The examination priorities are organized around four themes, which build on FINRA’s priorities from prior years:

  1. Sales practice and supervision;
  2. Market integrity;
  3. Financial management; and
  4. Firm operations.

One significant change in this year’s priorities letter is FINRA’s focus on providing guidance to firms – practical considerations and questions that firms should be focused on as they review their program for compliance with regulatory requirements. In the past, the letters have traditionally been a detailed description of issues and requirements. Providing practical guidance is far more valuable to firms and will aid their compliance efforts.

Sales Practice and Supervision

FINRA will continue to focus on areas it has discussed in previous annual priorities letters, including complex products, variable annuities, private placements, fixed income mark-up/mark-down disclosures, representatives acting in positions of trust or authority, and senior investors.  In addition to these areas, FINRA will evaluate firms’ compliance with obligations related to several new or emerging areas, discussed below.

Regulation Best Interest (Reg BI) and Form CRS

The SEC adopted Reg BI in June 2019, which establishes a “best interest” standard of conduct for broker-dealers.  The SEC also adopted a new form – Form CRS – which requires broker-dealers to provide a brief relationship summary to retail investors.  Firms must comply with Reg BI and Form CRS by June 30, 2020.

During the first half of 2020, FINRA plans to review firms’ preparedness for Reg BI.  After June 30, 2020, FINRA will focus on firms’ compliance with Reg BI, Form CRS, and related SEC guidance.  FINRA will work with the SEC to ensure consistency in evaluating broker-dealers and their associated persons for compliance with Reg BI and Form CRS.  FINRA’s 2020 Risk Monitoring and Examination Priorities Letter includes a list of factors FINRA may consider when reviewing firms for compliance with Reg BI.

Two of the questions posed by FINRA bear particular consideration: (1) Do your firm and your associated persons consider the express new elements of care, skill and costs when making recommendations to retail customers? (2) Do your firm and your associated persons consider reasonably available alternatives to the recommendation?  Both FINRA and the SEC have been explicit in their guidance that the Best Interest standard does not always mean the cheapest option available. That said, cost is a factor and the specific question regarding whether “reasonably available alternatives” will be an important consideration for firms. The regulators will be looking at what alternatives were available to firms to offer their customers and, if a firm chooses not to make those available, it will be important to ensure that there their review, assessment, and determinations are fully documented.

Communications with the Public

FINRA will continue to focus on firms’ compliance with obligations relating to FINRA Rule 2210 (Communications with the Public), as well as related supervisory and recordkeeping requirements.  In 2020, FINRA will expand its focus to private placement retail communications, by reviewing how firms handle retail communications regarding private placement securities via online distribution platforms, as well as traditional channels. As the SEC looks to expand retail access to private placements, firms will need to be vigilant in the manner in which these products are offered to customers.

FINRA will  also continue to focus on the challenges that the increasingly broad array of digital communications (i.e., texting, messaging, social media, or collaboration applications) pose to firms’ ability to comply with obligations related to the review and retention of such communications.

Cash Management and Bank Sweep Programs

FINRA recognizes that as commission practices change, cash management services that sweep investor cash into firms’ affiliated or partner banks or money market funds have taken on a greater significance. Bank Sweep Programs are offering more services to retail investors (such as check-writing, debit cards, and ATM withdrawals.  These added features raise concerns about firms’ compliance with a range of FINRA and SEC rules.  FINRA will therefore focus on firms’ compliance with such rules in the context of Bank Sweep Programs. Further, to the extent that firms benefit from these programs and, with commissions dropping and or going away in some instances, regulatory review of fees involved in providing services will increase, reviewing such areas as conflicts, disclosure, fairness, etc.

Sales of Initial Public Offering (IPO) Shares

In light of the growth of the IPO market over the past year, FINRA will focus on firms’ obligations under FINRA Rules 5130 (Restrictions on the Purchase and Sale of Initial Equity Public Offerings) and 5131 (New Issue Allocations and Distributions).

Trading Authorization

This year, FINRA will also focus on whether firms maintain reasonable supervisory systems relating to trading authorization, discretionary accounts, and key transaction descriptors.  It will review whether these supervisory systems are designed to detect and address registered representatives exercising discretion without written authorization from the client.

Market Integrity

FINRA will continue to review compliance with the ongoing obligations related to market manipulation, Trade Report and Compliance Engine (TRACE) reporting, short sales, and short tenders.  Certain firms will be required to begin reporting to the Consolidated Audit Trail (CAT) in April 2020, and that FINRA will work with those firms as they prepare for reporting.  The FINRA Letter reminds firms to continue devoting resources to ensure accuracy in their Order Audit Trail System (OATS) reporting, because OATS remains a critical part of the audit trail data that FINRA uses to meet its regulatory obligations.

In 2020, FINRA expects to focus on the following additional areas to promote market integrity:

  1. Direct market access controls;
  2. Best execution;
  3. Disclosure of order routing information; and
  4. Vendor display rule.

Financial Management

Firms can expect FINRA to continue its focus on compliance programs relating to Exchange Act Rule 15c3-3 (Customer Protection Rule) and Exchange Act Rule 15c3-1 (Net Capital Rule), as well as firms’ overall financial risk management programs.  FINRA has identified the following new areas of focus for 2020:

  1. Digital assets;
  2. Liquidity management;
  3. Contractual commitment arising from underwriting activities; and
  4. London Interbank Offered Rate (LIBOR) transition.

Firm Operations

As firms increasingly rely on technology for business systems and customer-facing activities, cybersecurity has become a large operational risk.  As such, FINRA will focus on cybersecurity and technology governance in 2020.  Specifically, firms should expect FINRA to assess whether their policies and procedures are designed to protect customer information and whether they are implementing controls appropriate to their business model and scale of operations.  FINRA will also ensure firms’ compliance with FINRA Rules 4370 (Business Continuity Plans and Emergency Contact Information), 3110 (Supervision), and 4511 (General Requirements), as well as Exchange Act Rules 17a-3 and 17a-4.

In terms of technology governance, it continues to be important for firms to ensure that all of the right stakeholders are at the table when new technology is being implemented or current technology modified. Often technological solutions are implemented to address an issue and there are unintended consequences creating regulatory gaps. Having compliance and risk at the table as these decisions are being made can often go a long way to mitigating that risk.

Conclusion

FINRA’s examination priorities for 2020 will largely follow prior focus areas, emphasizing firms’ compliance in important areas such as systems for supervision, sales practice risks, anti-money laundering and fraud, insider trading, and manipulation across markets and products.  New this year is an emphasis on Reg BI and Form CRS, as well as issues related to communications with the public, cash management and bank sweep programs, direct market access controls, best execution, disclosure of order routing information, and cybersecurity.

To support firms in their efforts to comply with federal securities laws and regulations, as well as FINRA rules, the 2020 Risk Monitoring and Examination Priorities Letter includes a list of practical considerations and questions for each topic, which may be helpful to firms in evaluating the state of their compliance, supervisory, and risk management programs.

On January 7, 2020, the Securities and Exchange Commission’s Office of Compliance Inspections and Examinations (OCIE) released its 2020 examination priorities.  OCIE is prioritizing practices, products, and services that it believes present heightened risks to investors or market integrity.  The examination priorities are organized around seven themes, many of which build on OCIE’s priorities from prior years:

  1. Retail investor protection, including seniors and those saving for retirement;
  2. Market infrastructure;
  3. Information security;
  4. Focus areas relating to investment advisers, investment companies, broker-dealers, and municipal advisors;
  5. Anti-money laundering programs (AML);
  6. Financial technology (Fintech) and innovation, including digital assets and electronic investment advice; and
  7. Financial Industry Regulatory Authority (FINRA) and the Municipal Securities Rulemaking Board (MSRB).

Retail Investor Protection, Including Seniors and Those Saving for Retirement

Continuing with the trend in recent years, OCIE will focus on recommendations and advice given to retail investors, with a particular focus on seniors and those saving for retirement.  The examinations will focus on intermediaries that serve retail investors—namely, registered investment advisers (RIAs), broker-dealers, and dually-registered firms—and on investments marketed to, or designed for retail investors, such as mutual funds and exchange-traded funds (ETFs), municipal securities and other fixed income securities, and microcap securities.  OCIE will also focus on higher risk products, such as those that:

  • are complex or non-transparent;
  • have high fees and expenses; or
  • where an issuer is affiliated with or related to the registered firm making the recommendation.

OCIE acknowledged the impact that Regulation Best Interest and Form CRS will have on retail investors.  In order to help broker-dealers with the June 30, 2020 compliance date for Regulation Best Interest and Form CRS, OCIE will engage with broker-dealers during the exam process to answer questions they may have concerning implementation of the new rules.

With regard to RIAs as fiduciaries, OCIE will focus on whether they have fulfilled their duties of care and loyalty by providing advice in the best interests of their clients and eliminating—or at least exposing—conflicts of interest.  Fees and expenses, as well as undisclosed—or inadequately disclosed—compensation arrangements, will likely continue as focus areas.

 Information Security

 In 2020, OCIE examiners will focus on:

  • Governance and risk management;
  • Access controls;
  • Data loss prevention;
  • Vendor management;
  • Training; and
  • Incident response and resiliency.

As in past years, these focus areas will allow OCIE to prioritize cyber and other information securities risks in each of its five examination programs.  Examinations will focus on proper configuration of network storage devices, information security governance generally, retail trading information security, and RIAs’ protection of clients’ personal financial information.  With respect to third-party and vendor risk management, OCIE will focus on oversight related to certain service providers.

 Fintech and Innovation, Including Digital Assets and Electronic Investment Advice

 Recognizing that advancements in financial technologies, methods of capital formation and market structures, and registered firms’ use of new sources of data warrant ongoing attention and review, OCIE has placed particular emphasis on Fintech and Innovation in 2020.

In the digital asset space, OCIE will continue to assess: (1) suitability; (2) portfolio management and trading practices; (3) safety of client funds and assets; (4) pricing and valuation; (5) effectiveness of compliance programs and controls; and (6) supervision of employee outside business activities.

With regard to “robo-advisers” or automated investment tools and platforms, OCIE will continue its focus on:

  • Registration;
  • Cybersecurity policies and procedures;
  • Marketing;
  • Fiduciary duty, including adequacy of disclosures; and
  • Effectiveness of compliance programs.

Additional Focus Areas Relating to Investment Advisers, Investment Companies, Broker-Dealers, and Municipal Advisors

 These registrants can expect OCIE to continue its risk-based examinations in 2020.

  • New RIAs and RIAs registered for several years that have yet to be examined should expect to become areas of focus for OCIE in 2020.
  • Investment companies can expect examinations focusing on mutual funds and ETFs, RIA activity, and oversight practices.
  • Broker-dealer examinations will focus on recent rulemaking and trading practices, and
  • Municipal advisor examinations will include registration and continuing education requirements, as well as fiduciary duty obligations.

 Anti-Money Laundering

 AML is a repeat priority for OCIE as it is for all regulators in the financial industry regulatory space.  In 2020, OCIE will examine whether broker-dealer and investment companies are complying with their AML obligations.  OCIE notes four areas of review:

  • customer identification programs and SAR filing obligations;
  • customer due diligence;
  • compliance with beneficial ownership requirements; and
  • timely and robust independent testing of AML programs.

 Market Infrastructure

 With respect to market infrastructure, OCIE will continue examinations of entities providing services critical to market infrastructure, including clearing agencies, national securities exchanges, alternative trading systems, and transfer agents.  Particular attention will be given to the security and resiliency of entities’ systems.

Conclusion

OCIE’s examination priorities for 2020 will largely follow prior focus areas, emphasizing the protection of retail investors with particular focus on fee disclosures, senior investors, and retirement accounts.  OCIE will also continue to examine firms’ abilities to manage risk associated with cybersecurity breaches, money laundering, and digital assets and electronic investment advice.  Finally, regulated firms are reminded that the examination priorities identified are not exhaustive and that OCIE will continue to conduct examinations determined through a risk-based approach that includes analysis of an entity’s history, operations, services, products offered, and other factors.

This blog post originally appeared on our sister site, Subject to Inquiry

The U.S. District Court for the Western District of Texas recently clarified the applicable rate for the calculation of prejudgment interest under the Texas Securities Act (TSA).  In FDIC v. Deutsche Bank Securities Inc., the FDIC, acting as receiver for Guaranty Bank, brought claims against the defendant bank under the TSA stemming from the sale of residential mortgage-backed securities prior to the financial crisis.  While discovery was ongoing, the defendant moved for partial summary judgment seeking a determination regarding the calculation of potential damages, including prejudgment interest.

In ruling on the summary judgment motion, the court noted that while the TSA states that a buyer can recover “consideration paid for the security plus interest thereon at the legal rate,” the term “legal rate” is not defined in the TSA.  Relying on other sources, including the Texas Constitution and Section 302.002 of the Texas Finance Code, the court held that the applicable legal rate of prejudgment interest was 6%.  In advance of trial, and after the case was reassigned to a different district judge, the defendant moved for reconsideration of the court’s opinion regarding the applicable prejudgment interest rate, arguing that the applicable rate was the coupon rate specified in the securities’ certificates.  The FDIC opposed, arguing that Section 302.002 of the Texas Finance Code sets the rate at 6% per year, as was initially determined by the court.

In an amended order granting the motion for reconsideration, the court held first that the coupon rate did not apply because the certificates at issue were not contracts that obligated the defendant to pay a set interest rate.  The court then rejected the FDIC’s assertion that Section 302.002 of the Texas Finance Code governed, because that Section of the Finance Code only applies to contracts that establish a debtor-creditor relationship.  Instead, the court held that where there is no relevant contract specifying an interest rate, Section 304.003 of the Texas Finance Code (which also applies to breach of contract claims where no rate is specified in the contract) supplies the proper prejudgment interest rate under the TSA.  Section 304.003 states that such interest rate is the prime rate published by the Federal Reserve on the date of computation, with a floor of 5% and a cap of 15%.

If widely adopted, and given the substantial impact that prejudgment interest can have on a final damages award, defendants facing claims under the TSA should heed trends in the Federal Reserve prime rate when analyzing their potential exposure.

 

On Friday, the U.S. Supreme Court agreed to consider the constitutionality of the Dodd-Frank Act law that prohibits the President from removing a CFPB Director except for “inefficiency, neglect of duty, or malfeasance” — the so-called “for cause” restriction (see 12 U.S.C. §5491(c)(c)).  The Court’s decision to address this restriction, which the CFPB announced last month it would no longer defend, is not a surprise.  We therefore focus here on three key questions raised by the decision for those affected by the CFPB’s activities:

  1. Is the Court likely to find the “for cause” restriction unconstitutional?
  2. If there is a constitutional violation, what remedy is the Court likely to impose?
    • The Court specifically directed the parties to address this second question on Friday.
  3.  What are the potential practical impacts of a Court ruling on these issues?

Likely Constitutional Ruling

Most observers appear to believe, and we agree, that at least five justices will vote to hold the restriction unconstitutional, as now-Justice Kavanaugh decided in what we believe was a persuasive opinion when the question was before him at the D.C. Circuit three years ago (see our prior posts on that case here and here).  Restricting a President’s ability to remove a single head agency of a powerful regulatory agency (as opposed to individuals on a multi-member commission) is unprecedented.  Indeed, the case that most supports the restriction, Morrison v. Olson, which upheld a similar restriction on the removal of a statutorily appointed Independent Counsel, may be ripe for reconsideration, as the Justice Department pointed out in its brief to the Court (at p. 16 n.2).  A ruling that the restriction is unconstitutional is all the more likely now that the CFPB and the Solicitor General have announced that they will not defend the statute.  In fact, it appears that the Court will have to appoint an amicus to present that defense.

What is the Remedy?

In Friday’s order, the Court also instructed the parties to address a related but not unexpected question:  If the CFPB “is found unconstitutional on the basis of the separation of powers, can 12 U.S.C. §5491(c)(3) [the for-cause removal provision] be severed from the Dodd-Frank Act?”  This question just raises the remedy issue, specifically, whether the correct remedy for the (presumed) constitutional defect is:

  • the limited remedy of striking the “for cause” restriction, thereby making the Director removable at will; or
  • some broader remedy like invalidating the agency entirely, which is the result advocated by the petitioner in the case now before the Court, a law firm defending a CFPB Civil Investigative Demand.

The first, limited remedy, which the Justice Department is advocating for, seems the most likely one to us.  As the government pointed out, it is the remedy selected by the Supreme Court in a recent case involving the Public Company Accounting Oversight board (at pp. 16-17).  Moreover, in the case now before the Court (and unlike that recent one), there is clear evidence of Congress’ intent – the severability clause in the Dodd-Frank Act – in the event the Court finds a constitutional defect.  That clause in the Dodd-Frank Act provides that if “any provision of” the Act “is held to be unconstitutional, the remainder of this Act … shall not be affected thereby.”  12 U.S.C. § 5302.

Practical Effects

As interesting as the constitutional issue is to academics, there may be little to no practical effects in the short-term if the Court decides merely to “blue-pencil” out the “for cause” restriction.  President Trump already has his preferred personnel installed at the CFPB.  Indeed, the most significant effect under a limited-remedy scenario may only come if President Trump is defeated next fall.  With the statute as it stands now, current CFPB Director Kathleen Kraninger is entitled to serve out her full five-year term, until 2023; but if the Court makes her removable at will, a new President presumably would replace her with someone more in tune with that President’s views.

In the meantime, while a few courts may be amenable to arguments by enforcement targets that cases involving them be stayed until the high Court rules, we doubt that those cases will be much impacted in the end.  As now-Justice Kavanaugh observed when the CFPB’s structure was before the D.C. Circuit, in the several recent cases where other agencies were found to be unconstitutionally structured, those agencies and the courts “[w]ithout major tumult” have “subsequently worked through the resulting issues regarding the legality of past rules and of past or current enforcement actions” (at pp. 69-70 n.19).  We would note that the parties with the best hope for some retrospective relief may be those who can show adverse effects from prior Director Richard Cordray’s “over-stay”:  the ten-month period when he continued to serve during the Trump Administration.  The Court’s forthcoming opinion in this case may shed light on the effect, if any, of a ruling that the statute is invalid on past and current CFPB actions, or potentially could leave important questions unanswered, resulting in significant uncertainty and litigation.

Finally, this case may also provide the final answer to a similar question about the for-cause restriction on removing the head of the Federal Housing Finance Agency, which oversees Fannie Mae, Freddie Mac, and the Federal Home Loan Banks.  The U.S. Court of Appeals for the Fifth Circuit already has found that restriction unconstitutional.

On Tuesday, the Consumer Financial Protection Bureau (“Bureau”) published a revised No Action Letter (“NAL”) policy aimed at offering financial innovators an avenue for obtaining more regulatory certainty before introducing new products and services. The Bureau paired its release of the revised NAL policy with an announcement of two new, related policies: one aimed at offering protection to the same innovators by allowing them to test new products in a controlled, “sandbox” environment; and one offering protection for products and services described by “trial disclosures.” Recognizing that financial companies with new offerings face regulatory risk at the state level as well, the Bureau separately announced a new partnership with State Attorneys General designed to promote innovation.

A.  Revised “No Action Letter” Policy 

The new NAL Policy is the Bureau’s second attempt to implement a workable “no action” process along the lines of the practice that has worked well for years at other regulatory agencies, such as the Securities and Exchange Commission. In general, a “no action” policy is intended to offer an industry a procedure for obtaining some certainty, in advance of introducing a new business practice, that the regulator will not challenge the practice as unlawful in supervision or enforcement proceedings. The industry applicant generally obtains that assurance by having counsel describe the practice, and why it is beneficial rather than harmful, in writing to the regulator, who can then respond that the agency will take “no action” if the practice is adopted as described.

The Bureau’s initial NAL Policy, published in 2016 when President Obama’s appointee, Richard Cordray, headed the agency, resulted in only one no action letter. Critics cited several problems with the original policy, including that: a NAL would be revocable at any moment, undermining its main benefit; the policy contemplated making many public — and therefore available to plaintiffs’ lawyers — many materials from the process, including NAL applications and denials; and the policy also permitted the Bureau to make ongoing, invasive data requests from the applicant even after issuing a positive letter.

The revised NAL Policy, according to the Bureau, offers industry “a more streamlined review process.” At 67 pages, however, the Policy is worthy of close study. The Bureau also released an initial, positive no action letter under the new Policy, responding to a request from the Department of Housing and Urban Development (and others) that the Bureau take no action under the Real Estate Settlement Procedures Act’s anti-kickback prohibition regarding certain fee-for-service arrangements between housing counselors and lenders.

B.  “Trial Disclosure Program” and “Compliance Assistance Sandbox” Policies 

In connection with the revised NAL Policy announcement, the Bureau also finalized two other policies intended to allow innovators to introduce new financial products, in consultation with the Bureau, on an initial, limited basis without fear of supervisory or enforcement action: a Trial Disclosure Program (“TDP”) Policy, and a “sandbox” initiative called the Compliance Assistance Sandbox (“CAS”) Policy.

C.  New Partnership with State Attorneys General 

On the same day that the Bureau unveiled its three new policies, the agency also announced the creation of a partnership with certain state regulators. The Bureau describes this partnership — called the “American Consumer Financial Innovation Network,” or “ACFIN” — as one that is open to all state consumer financial regulators, but to date the agency has signed up only Attorneys General elected as Republicans in seven states, none of which are generally viewed as “high risk” states in terms of regulatory risk (Alabama, Arizona, Georgia, Indiana, South Carolina, Tennessee, and Utah).

ACFIN’s purpose, according to the Bureau, is to “enhance coordination among federal and state regulators to facilitate financial innovation.” In theory, such coordination could bring more consistency and certainty to the consumer finance industry. In practice, however, state regulatory oversight and enforcement, and private plaintiff litigation, will continue to present challenges to fintech companies and others trying to chart a course in an uncertain regulatory environment. It remains to be seen whether the Bureau and state regulators can work together to agree on standards that apply to consumer financial services innovators.

On Monday, July 8th, FINRA and the SEC took the unusual step of issuing a joint statement on broker-dealer custody of digital asset securities. In doing so, the Staffs of the SEC’s Division of Trading and Markets and of FINRA’s Office of General Counsel made clear that the SEC and FINRA will continue to apply the existing regulatory framework to the rapidly evolving world of digital assets.

The joint statement notified market participants that any entity that buys, sells, or otherwise transacts in, or effects transactions in, digital asset securities, may be subject to federal regulations, including regulations that may require them to register with the SEC as a broker-dealer and become a member of FINRA.

The joint statement focuses on the Customer Protection Rule, noting that any entity that acts as a broker-dealer must comply with that rule. The Customer Protection Rule requires broker-dealers to safeguard customers’ assets and keep them separate from the firm’s assets, which makes it more likely that a customer’s assets will be returned if the broker-dealer fails. Given the potential for cyberattacks on digital assets trading platforms, and given the way digital asset securities are issued and exchanged, the Customer Protection Rule can present challenges to broker-dealers operating in the digital asset space.

FINRA has received New Membership Applications and Continuing Membership Applications from new and existing broker-dealers that wish to engage in broker-dealer activities involving digital assets. The Applications show that broker-dealers are considering two types of business models. Some broker-dealers are considering providing non-custodial services when it comes to digital assets, which means that the broker-dealer would engage in transactions without ever taking custody of the digital assets (for example, by trade-matching or providing introductions).

Other broker-dealers are pursuing a business model that involves custodying assets. The joint statement noted that broker-dealers that wish to custody assets may find it difficult to comply with the Customer Protection Rule. Fundamentally, the unique way that digital asset securities are issued, held, and transferred makes it challenging to comply with the requirements of the Rule, which requires that a good control location is established and verified. There is an increased risk to the assets from cyberattacks and resulting fraud or theft. Further, transfers to unknown or unintended addresses may leave the broker-dealer without a means to reverse the transaction or otherwise recover the assets. The statement also acknowledges that the issues of establishing the existence of the asset, or establishing that it is in a good control location, also present challenges for the firm’s independent auditor in completing the audit and evidencing their review. The staffs of the SEC and FINRA expressed their desire to engage with market participants, as market participants continue to develop technology that might provide solutions to custody issues.

While it is unusual for the SEC and FINRA to issue joint statements, this statement is similar to other SEC pronouncements in the fintech field in that it expresses a desire to engage with, and learn from, market participants, and makes clear that the existing regulatory framework applies to this rapidly evolving field.