Jeff Ehrlich

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 Field Litigation Team, managing investigations and litigation in the CFPB’s regional offices and headquarters. He directed more than 100 enforcement actions against financial services providers, often partnering with other federal regulatory and enforcement agencies and state attorneys general.

Jeff’s experience in consumer finance law and CFPB investigations is unmatched. His perspective, which will be shared regularly on the Consumer FinSights blog, will provide powerful advantages to the firm’s financial services and retail clients who are navigating formal investigations or need guidance to ensure their products and services comply with consumer protection laws.

Please find a copy of the full press release here.

On March 9, 2022, President Biden signed an Executive Order on Ensuring Responsible Development of Digital Assets (“Executive Order”) to mobilize the federal government to develop a strategy for digital assets, intending to encourage innovation in a manner that mitigates the risks to consumers, investors, and businesses. The Executive Order mandates an interagency approach across several executive departments and federal agencies to conduct reports and analyses on key issues impacting digital assets, including consideration of U.S. Central Bank Digital Currencies (“CBDC”). The Executive Order identifies six primary policy objectives:

  1. protect U.S. consumers, investors, and businesses;
  2. protect U.S. and global financial stability and mitigate systemic risk;
  3. mitigate the illicit finance and national security risks posed by misuse of digital assets;
  4. reinforce U.S. leadership in the global financial system and in technological and economic competitiveness;
  5. promote access to safe and affordable financial services; and
  6. support technological advances that promote responsible development and use of digital assets.

Continue Reading Federal Framework for Digital Asset Regulation Comes into Focus

On February 14, 2022, the Securities and Exchange Commission announced a settlement with a crypto lending company in a “first-of-its-kind enforcement action” for failing to register as an investment company under the Investment Company Act of 1940, as amended (the “Investment Company Act”).  In the novel settlement, BlockFi Lending LLC (“BlockFi”) agreed to pay $100 million in penalties — $50 million of which will be paid to the SEC, and the remaining $50 million allocated to 32 different state regulators for similar charges.  As part of the settlement, BlockFi has undertaken to comply with the Investment Company Act either by registering as an investment company or by proving to the SEC Staff that it is not required to do so.  BlockFi has 60 days from entry of the order to comply and may obtain an extension of another 30 days.  Should BlockFi successfully come into compliance, it could be the first SEC-registered entity to offer a digital asset lending product.[1]  Despite BlockFi’s groundbreaking settlement, BlockFi still faces a putative class action by investors.

Continue Reading Despite BlockFi’s $100 Million Settlement with the SEC for Failing to Register as an Investment Company, BlockFi is Under Fire From Investors

In late January 2022, the Federal Reserve released “Money and Payments: The U.S. Dollar in the Age of Digital Transformation,” its much-anticipated discussion paper on central bank digital currencies (CBDCs). In the paper, the Federal Reserve provides a framework and summary of its initial analysis on the potential adoption of a U.S. CBDC and invites the public and other stakeholders to provide their views. The paper does not advance a specific policy outcome or signal any imminent action; rather, it marks an important first step in public debate and engagement on the issue of CBDCs.

Continue Reading Fed: Let’s Talk Central Bank Digital Currencies

Throughout 2021, the SEC followed through on its commitment to aggressively enforce the federal securities laws in digital assets markets.[1] These efforts have resulted in the SEC sharpening its focus on cryptocurrency exchanges and lending products.

Continue Reading 2021 Brought SEC Focus on Crypto Exchanges and Lending Platforms

On November 1, 2021, the President’s Working Group on Financial Markets (PWG), along with the Federal Deposit Insurance Corporation (FDIC) and the Office of the Comptroller of the Currency (OCC) (collectively, the Agencies) issued a Report on Stablecoins (the Report).[1]   Stablecoins “are digital assets that are designed to maintain a stable value relative to a national currency or other reference assets.”[2]  The Report recommends that Congress act promptly to enact legislation addressing stablecoins[3] and signals the Biden Administration’s focus on this issue and looming enforcement from  governing agencies such as the Department of Justice (DOJ), Securities and Exchange Commission (SEC) and Commodity Futures Trading Commission (CFTC).

The Report provides an overview of stablecoins and decentralized finance (DeFi) platforms more generally; risks and regulatory gaps; and the group’s recommendation.  In drafting the Report, the Agencies held discussions with key industry stakeholders, including Coinbase, Kraken, and Stripe.  While the Report signals that one day we may see clarity on relevant guidelines related to stablecoins, the Report itself offers little clarity or specific guidance to stakeholders today.

Continue Reading Biden Administration Signals Focus on Cryptocurrency as President’s Working Group Issues Report on Stablecoin

How to provide financial services to limited-English proficiency (“LEP”) consumers has become a pressing legal issue. Both federal and state laws provide requirements and limitations regarding translations of financial documents. Earlier this year, the Consumer Financial Protection Bureau (“CFPB”) published a comprehensive statement encouraging financial institutions to provide services to LEP consumers. The CFPB also took enforcement action against a company for, among other things, deceptively marketing to Spanish-speaking consumers. Following the trend to protect LEP consumers, a new Nevada law, effective October 1, 2021, makes it a deceptive practice to not  provide translations for certain financial contracts, agreements and disclosures (“Nevada Law”).

Under the Nevada Law, enacted as Assembly Bill No. 359, any person, who in the course of business, advertises and negotiates certain transactions in a language other than English must provide a translation of the contract or agreement that results from the advertising and negotiations. The translation must include every term and condition of the contract or agreement.

Continue Reading New Nevada Law Protects Limited-English Proficiency Consumers by Requiring Translation of Certain Financial Legal Documents

On July 12, 2021, the Board of Governors of the Federal Reserve System (Board), the Federal Deposit Insurance Corporation (FDIC), and the Office of the Comptroller of the Currency (OCC) proposed interagency guidance on how banks should manage third-party relationships, including partnerships with fintech companies. The proposal would offer a framework for banks when developing risk management practices for their third-party relationships, taking into account the level of risk, complexity, size of the organization, and the nature of the third-party relationship.

Continue Reading Bank Regulators Propose Interagency Guidance on Fintech Partnerships

After years of litigation, the Office of Comptroller of the Currency’s (“OCC”) special purpose national bank charter (“fintech charter”) survives to see another day.  On June 3, 2021, the Second Circuit reversed the district court’s decision denying the OCC’s motion to dismiss, delivering a blow to the New York Department of Financial Services (“DFS”) and paving the way for the OCC to again accept applications for its fintech charter.

Continue Reading OCC’s Fintech Charter Survives After Reversal in the Second Circuit

On March 9, 2021, the Second Circuit heard oral arguments in connection with the New York Department of Financial Services’ (“DFS”) challenge to block the Office of Comptroller of the Currency’s (“OCC”) special purpose national bank charter (“fintech charter”). The lawsuit was filed in the Southern District of New York in September of 2018, shortly after the OCC made available its special purpose bank charter.

The fintech charter would allow certain non-depository fintech companies to operate as “special purpose national banks” under the National Bank Act (“NBA”), which is overseen by the OCC without the burden of state-by-state regulation and licensing. The OCC views deposit-taking as just one of the activities undertaken by banks in the “business of banking” under the NBA. However, critics, including the DFS, argue deposit-taking is essential to the “business of banking,” which should preclude non-depository fintech companies from obtaining national bank protections.

Continue Reading Oral Arguments Held in Challenge to OCC’s Fintech Charter