On Oct. 28, the U.S. Court of Appeals for the Fourth Circuit vacated and remanded for reconsideration a district court order certifying a class of mortgage borrowers. The decision, which relies on the U.S. Supreme Court’s decision in TransUnion LLC v. Ramirez, provides further ammunition for the argument that all putative class members must
CFPB Charges Schools With “Abusive” Act of Denying Academic Transcripts to Students With Debts
The Consumer Financial Protection Bureau’s recent guidance on withholding transcripts from students with debts revealed that the CFPB is using a broad definition of “private education loan” that may apply to the practices of some not-for-profit schools. Additionally, while the CFPB characterized this practice as “abusive,” its analysis suggests that these practices may also be
FinCEN Issues Statement on BSA Due Diligence for Independent ATM Owners and Operators
On June 22, 2022, the Financial Crimes Enforcement Network (FinCEN) issued a Statement on Bank Secrecy Act Due Diligence for independent ATM owners and operators. The purpose of the statement is to “provide clarity to banks on how to apply a risk-based approach to conducting customer due diligence (CDD) on independent Automated Teller Machine (ATM) owners or operators, consistent with the requirements set out in FinCEN’s 2016 CDD Rule.”
Under FinCEN’s 2016 CDD Rule, banks are required to establish and maintain written policies and procedures reasonably designed to identify and verify “beneficial owners of legal entity customers.” This Rule extends to conducting CDD on independent ATM owners and operators who maintain bank accounts to supply cash for their ATMs and to settle the electronic funds transfers used to process ATM transactions.
FinCEN Proposes No-Action Letter Process
On June 3, 2022, the Financial Crimes Enforcement Network (FinCen) issued an Advance Notice of Proposed Rulemaking proposing public comment on the enactment of a no-action letter process. This Advanced Notice follows FinCen’s Report to Congress submitted in June 2021 that was based on FinCen’s consultation with the Attorney General, State bank supervisors, State credit union supervisors, and other Federal agencies and regulators. In its report, FinCen evaluated the difficulties it faces because of the overlap between its enforcement authority and other regulators. FinCen also examined the benefits and concerns on how a no-action letter process could affect illicit finance risks. FinCen stated that the primary benefits of a no-action letter process “are that it could promote a robust and productive dialogue with the public, spur innovation among financial institutions, and enhance the culture of compliance and transparency in the application and enforcement of BSA.” Ultimately, FinCen concluded that it should establish a rulemaking to create a no-action letter process.
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Opportunity Financial’s Lawsuit Against California’s Financial-Services Regulator Signals Continued Fight Over “True Lender” Principles
Fintech lender Opportunity Financial (“OppFi”) and the Department of Financial Protection and Innovation (“DFPI”), California’s financial-services regulator, filed dueling claims as they battle over state efforts to enjoin the company’s branded loans, which exceed California’s 36% interest-rate cap. This is the latest effort by fintech lenders to cement the True Lender Rule against state opposition.
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New York State Department of Financial Services Takes Aim at Blockchain Entities Circumventing Sanctions on Russia
Blockchain regulation continues to be the topic du jour, with increasing scrutiny from government agencies across the board. The latest comes from the New York State Department of Financial Services (DFS), which has been a leader in the space since the 2015 “BitLicense” framework under the New York Financial Services Law. On April 28, 2022, new DFS Superintendent Adrienne A. Harris issued fresh guidance encouraging cryptocurrency companies to adopt blockchain analytics tools as a best practice.
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SEC Signals Enhanced Focus on Crypto Assets by Expanding the Enforcement Unit Tasked With Protecting Crypto Markets
Reflecting its determination to monitor the crypto markets, the Security and Exchange Commission has renamed the Cyber Unit the “Crypto Assets and Cyber Unit” and is nearly doubling its size from 30 to 50 members, according to a May 3 press release from the agency. The additional permanent positions will include investigative staff attorneys, trial
The CFPB’s Interest in Examining Fintechs Likely Means More Naming and Shaming by the Agency
On April 25, the Consumer Financial Protection Bureau announced that it will begin examining nonbank “covered persons” that it has determined pose risks to consumers. What is most striking about the announcement is not that the CFPB will start examining this category of nonbanks — it’s had that authority since its inception — but that
FDIC Consumer Compliance Supervisory Highlights for State and Community Banks
On March 31, 2022, the Federal Deposit Insurance Corporation (FDIC) issued the March 2022 edition of its Consumer Compliance Supervisory Highlights. The publication provides a high-level overview of consumer compliance issues identified in 2021 through the FDIC’s supervision of state-chartered banks and thrifts that are not members of the Federal Reserve System. It provides important guidance regarding compliance priorities for these financial institutions.
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Former CFPB Deputy Enforcement Director Jeff Ehrlich Joins McGuireWoods in D.C.
McGuireWoods is pleased to announce that Jeff Ehrlich, former deputy enforcement director at the Consumer Financial Protection Bureau, has joined the firm’s financial services litigation practice as a partner in Washington, D.C.
Jeff joined the CFPB in 2011 and was promoted to deputy enforcement director in 2013. In that role, he led the CFPB’s