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On October 17, 2018, the Bureau of Consumer Financial Protection (“BCFP” or the “Bureau”) announced the release of its Fall 2018 semiannual update of its rulemaking agenda, which is included in the Unified Agenda of Federal Regulatory and Deregulatory Actions (the “Unified Agenda”), published by the Office of Information and Regulatory Affairs (“OIRA”). The BCFP’s updated rulemaking agenda is available on the OIRA web site. The agenda lists twelve rulemakings in the prerule, proposed rule, and final rule stages and another eight potential rulemakings in the long-term actions stage. These items include a number of new and revised rulemaking items, reflecting recent legislative enactments and evolving Bureau priorities.
Continue Reading BCFP Releases Fall 2018 Rulemaking Agenda

On September 14, 2018, Superintendent of the New York State Department of Financial Services (“NYSDFS”) Maria T. Vullo filed a complaint in federal court against the U.S. Office of the Comptroller of the Currency (“OCC”) to block the OCC from issuing any special purpose national bank (“SPNB”) charters. The OCC announced last month, after much

Arizona recently became the first state in the U.S. to create a “regulatory sandbox” program to facilitate the development of innovative financial products and services. Such products would either incorporate new or emerging technology or reimagine uses of existing technology. The program would exempt participants from certain state financial regulations, but not federal requirements.


On August 10, 2018, the Bureau of Consumer Financial Protection announced that a federal district court in the Western District of Missouri approved a consent order in a case against a set of twenty corporate entities and two individual principals (collectively, “Hydra Group”). The BCFP alleged violations of the Consumer Financial Protection Act of 2010

On July 5, 2018, Square, Inc. (“Square”) announced (paywall) that it had temporarily withdrawn a pending application with the FDIC to obtain deposit insurance for a proposed industrial loan company (“ILC”), in order to strengthen the application before reapplying. The company stated that a parallel application with the Utah Department of Financial Institutions for the

On July 2, 2018, All American Check Cashing, Inc., Mid-State Finance, Inc., and the president and owner of both companies (collectively, “All American”) filed a brief asking the U.S. Court of Appeals for the Fifth Circuit to find the Bureau of Consumer Financial Protection (“BCFP” or the “Bureau”) (formerly known as the CFPB) unconstitutionally structured

On March 26, 2018, the staff of the Federal Trade Commission’s Bureau of Consumer Protection (“BCP”) filed a comment in response to the Consumer Financial Protection Bureau’s Request for Information on the procedures for issuing Civil Investigative Demands.

In large part, the comment summarizes the BCP’s experience with its own CID program and highlights the BCP’s recent reform efforts. However, the FTC staff comment also provides recommendations to the CFPB, several of which are summarized here:

  • The comment notes that the CFPB Director, Assistant Director, and Deputy Assistant Directors of the Office of Enforcement all have the authority to issue CIDs, whereas this authority at the FTC is limited by statute to the FTC Commissioners themselves, who review and often modify CIDs or even decline to issue them. FTC staff suggest that review by a “very senior official” is appropriate because of the seriousness of a CID and that the CFPB may wish to consider revising its delegation of authority accordingly. Moreover, the comment emphasizes that agency-head approval “ensures that there will be an independent assessment of the costs and benefits of the CID by someone who is not conducting the investigation.”
  • FTC staff also recommend applying an oversight approach to opening and closing investigations that is more consistent with the FTC’s. The heads of both agencies delegate the authority to initiate investigations. At the FTC this delegation includes delegation to managers in the BCP, led by the BCP Director. The comment notes that the BCP Director meets “regularly” with the Commissioners to maintain a close understanding of their enforcement priorities and objectives. In turn, the BCP Director must ensure that the other BCP managers make decisions about opening, furthering, or closing investigations consistent with those priorities and objectives.
  • The comment suggests that the CFPB use its response to the RFI to publicly “ratify” the agency’s recently adopted policy that CIDs include a more specific description of the relevant investigation and how the requested information is connected to that investigation. The comment notes that the CFPB’s new policy brings it in line with FTC practice.
  • FTC staff also suggest that the CFPB pair its meet-and-confer requirement with delegated authority to enforcement staff allowing the staff to modify the time and manner of complying with a CID, contingent on a CID recipient demonstrating progress toward compliance with the information demands.
  • The BCP staff also recommend that the CFPB shorten and simplify the production requirements for electronically stored information. The comment notes that the BCP’s guidelines are “significantly shorter and less complex.”

Continue Reading FTC Files Comments with CFPB on CID Processes

On March 28, 2018, the Consumer Financial Protection Bureau (“CFPB”) issued a Request for Information (“RFI”) regarding the effectiveness and accessibility of its guidance materials and activities, including implementation support.  Specifically, the RFI asks for information about the following aspects of the CFPB’s methods of providing guidance to the public:

  • Regulatory Inquiries Function: This function

On February 7, 2018, the Consumer Financial Protection Bureau issued a Request for Information (“RFI”) seeking comments and information from the public regarding the Bureau’s enforcement processes. The RFI seeks public input on “how best to achieve meaningful burden reduction or other improvement” to the Bureau’s enforcement processes “while continuing to meet the Bureau’s statutory