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On March 9, 2021, the Consumer Financial Protection Bureau (“CFPB” or “Bureau”) issued an interpretive rule clarifying that the Equal Opportunity Credit Act (“ECOA”) and its implementing regulation, Regulation B, prohibit discrimination based on sexual orientation and gender identity.  The CFPB made clear that this prohibition also extends to “actual or perceived nonconformity with traditional sex- or gender-based stereotypes, and discrimination based on an applicant’s social or other association.”  Specifically, the Bureau found that, under ECOA and Regulation B:

On December 10, the Financial Crimes Enforcement Network (FinCEN) issued new guidance interpreting section 314(b) of the USA PATRIOT Act and rescinding FinCEN’s previous guidance. Section 314(b) is intended to establish a safe harbor for financial institutions that voluntarily share (in accordance with the statute’s terms) information regarding possible terrorism and money laundering.  The new guidance, which is in the form of a Fact Sheet, appears aimed at providing further encouragement and assurance to financial institutions to participate in section 314(b).
Continue Reading FinCEN Issues Guidance on 314(b) Information Sharing Among Financial Institutions

On Friday, the leaders of the Securities and Exchange Commission (“SEC”), Commodity Futures Trading Commission (“CFTC”), and Financial Crimes Enforcement Network (“FinCEN”) (collectively, the “Agencies”) issued a “Joint Statement on Activities Involving Digital Assets” (the “Joint Statement”).  The Joint Statement serves as a reminder that businesses engaged in activities involving digital assets – or, as they are sometimes called, virtual currencies or cryptocurrencies – should be attentive to their anti-money laundering (“AML”) obligations, including under the Bank Secrecy Act (“BSA”).

The Joint Statement notes that the BSA requires “financial institutions” to:  (1) establish and implement an effective AML program; and (2) comply with certain recordkeeping and reporting requirements, including the filing of suspicious activity reports (“SARs”).  These requirements apply not just to a financial institution’s traditional lines of businesses, but also to its businesses involving digital assets.


Continue Reading Leaders of the SEC, CFTC, and FinCEN Issue Joint Statement Emphasizing AML Obligations for Digital Asset Activities

In the past few weeks, both Federal Deposit Insurance Corporation (“FDIC”) Chairman Jelena McWilliams and Comptroller of the Currency Joseph Otting have spoken publicly about ongoing efforts by their agencies, and by the Federal Reserve Board, to reform regulations implementing the Community Reinvestment Act (“CRA”).

The federal bank regulatory agencies have been working on reforms

On June 14, 2019, the Federal Reserve Board (“Federal Reserve”) released a Notice of Proposed Rulemaking (“NPR”) requesting public comment on updates to its regulations governing the disclosure of confidential supervisory information (“CSI”) and its Freedom of Information Act (“FOIA”) procedures. Although the Federal Reserve classified many of the proposed revisions as “clarifications” or “technical updates,” the NPR includes several important changes to this rule. Comments must be received by August 16, 2019.
Continue Reading Federal Reserve Issues Notice of Proposed Rulemaking Regarding Confidential Supervisory Information and FOIA Procedures

On February 13, the European Commission published a list of 23 jurisdictions that it views as posing “significant threats to the financial system of the [European] Union” in the area of anti-money laundering and counter-terrorist financing (“AML/CFT”).  On the same day, the U.S. Treasury Department issued a press statement in which it advised that it

On September 11, 2018, the Board of Governors of the Federal Reserve System, the Office of the Comptroller of the Currency, the Federal Deposit Insurance Corporation, the National Credit Union Administration, and the Bureau of Consumer Financial Protection (the “Bureau”, and, collectively, the “Agencies”) issued a statement “clarifying the role of supervisory guidance.” The release affirms that the Agencies “do not take enforcement actions based on supervisory guidance” and that such guidance “does not have the force and effect of law.” This statement continues a recent pattern in regulatory policy of downplaying the force of guidance documents, at least as they relate to enforcement actions.

The statement explains that, rather than create binding rules with the force and effect of law, guidance “outlines supervisory expectations or priorities” and/or provides examples of practices the Agencies consider acceptable under applicable legal standards, such as safety and soundness standards. Further, the Agencies state that guidance is often issued in part as a response to requests from supervised institutions to “provide insight to industry” and help “ensure consistency in the supervisory approach.”


Continue Reading Banking Regulators Issue Joint Policy Statement Downplaying the Role of Supervisory Guidance in Enforcement

The CFPB issued a compliance bulletin on November 28, 2016 warning supervised companies about the potential compliance risks of production and sales incentives provided to employees and service providers. Although the CFPB “invite[d] further dialogue and discussion,” the bulletin highlights incentive practices as a continued area of scrutiny for the CFPB. In recent testimony to

The election of Donald J. Trump as President, along with continued Republican control of the Senate and House of Representatives, promises to bring change to the Federal Deposit Insurance Corporation (“FDIC”).  The transition at the FDIC should be gradual due to the structure of the agency’s board of directors.  The five-person board consists of three directors appointed by the President and confirmed by the Senate (the “independent directors”), and two directors who serve by virtue of their positions as heads of other agencies, the Comptroller of the Currency and the Director of the Consumer Financial Protection Bureau (“CFPB”).  One of the three independent directors is separately appointed by the President and confirmed by the Senate to serve as Chair, and another is separately appointed by the President and confirmed by the Senate to serve as Vice Chair.  In addition, one of the three independent directors must have State bank supervisory experience.  No more than three of the directors may be members of the same political party.

The Federal Deposit Insurance Act is silent as to whether, and for what reasons, the President may remove an independent director from the board before his or her term has expired, and no court has addressed these questions with respect to the FDIC.  However, courts have referred to other statutes that similarly provide a fixed term for a senior agency official but are silent on the President’s removal powers.  These courts have sometimes indicated that, based on the structure and mission of the organization as an agency that is meant to be “independent,” the President may only remove such an official for “good cause.”  See, e.g., SEC v. Blinder, Robinson & Co, 855 F. 2d 677 (10th Cir. 1988).


Continue Reading Post-Election Outlook for Financial Regulatory Agencies: Federal Deposit Insurance Corporation