The Consumer Financial Protection

The Consumer Financial Protection [Agency? Bureau?] ACI Prepaid Compliance Conference Andrew Lorentz Ed Woodson June 24, 2010

Consumer Financial Protection [Agency? Bureau?] or How to make a federal entity* from a toaster *Or a bureau inside an agency, or a commission, or something WilmerHale

The Theory Impetus from a 2007 article by Elizabeth Warren in Democracy It is impossible to buy a toaster that has a one-in-five chance of bursting into flames and burning down your house. But it is possible to refinance an existing home with a mortgage that has the same one-in-five chance of putting the family out on the street. Existing consumer financial regulation is ineffective Fed, OCC, OTS regulate for bank safety and soundness, which often conflicts with consumer welfare Need an agency whose sole mission to is protect consumers from misleading and dangerous financial products (focus on credit ) WilmerHale

Evolution Administration proposal June 2009 -> House Bill December 2009 -> Senate Bill May 2010 -> Conference [ongoing] Independent federal “Agency” -> semi-independent “Bureau” Power over any “financial activity” -> carve-outs -> exceptions for smaller institutions Broad and near-exclusive supervisory and enforcement power -> more limited powers over things that aren’t gigantic banks WilmerHale

Common Themes: “FTC on Steroids” Substantial Autonomy Combined rulemaking, supervisory, and enforcement authority for “enumerated consumer laws” transferred from Fed, the OCC, OTS, FDIC, FTC, and NCUA Deposits, mortgages, credit, loan service, consumer reports, debt collection, money transmitting, real estate, stored value And anything else defined as a “financial activity” (House Bill) or a “consumer financial product or service” (Senate Bill) WilmerHale

Entity Organization: House Bill (Title IV) Independent “Agency” Director for first two years Then five-member Commission serving five-year staggered terms Consumer Financial Protection Oversight Board Seven members (chairs of key regulators), plus up to five presidential appointees that can include consumer protection experts, depositary institutions that primarily serve underserved communities, etc. Advises Director, but has not independent authority WilmerHale

Entity Organization: Senate Bill (Title X) “ Bureau” “within” Federal Reserve Director appointed by President, not by Fed Fed may not intervene in Bureau examinations Fed may not prevent issuance of any Bureau rule Fed may not appoint or remove any Bureau staff Financial Stability Oversight Council Other roles in financial reform bill Chaired by Secretary of Treasury and composed of representatives of key regulators WilmerHale

Funding House Bill: CFPA/B receives ten percent of the Fed’s operating budget plus ability to assess fees on “covered persons”; no assessments on small banks to cover examination costs Senate Bill: CFPA/B receives up to 12% of Fed operating budget Director decides what amount, up to the 12% cap, is “reasonably necessary” Fed has no control over CFPA/B budget or financial operations WilmerHale

Scope of Rulemaking Authority Assumes authority to issue rules under “enumerated consumer laws” Extends to any person engaged in a “consumer financial product or service” Exclusive rulemaking authority, unless specifically exempted (small banks, FTC, etc.) Can issue regulations, orders, and guidance Includes enumerated financial activities and a “bank catch-all” that encompasses all (House) or consumer-related (Senate) banking activities WilmerHale

Rulemaking Standards General : “The [CFPA/B] may take any action authorized under subtitle E to prevent a covered person or service provider from committing or engaging in an unfair, deceptive, or abusive act or practice under Federal law in connection with any transaction with a consumer for a consumer financial product or service, or the offering of a consumer financial product or service.” (House §4301(a), Senate §1031(a)) Procedure : Must consider cost and benefits to consumers, “covered persons”, [and the government], and should consider the potential for loss of access to financial products. The CFPA/B must consult with prudential regulators. (House §4202(a)(2), Senate §1022(b)) WilmerHale WilmerHale

Rulemaking Standards Exemption Authority : Broad, by person or class of persons. Decision to exempt must consider the following factors: assets, volume of transactions, pre-existing regulatory protections. (House §4202(b)(3), Senate §1022(b)(3)) Disclosures : CFPA/B can mandate/regulate disclosures, and create model disclosures. Compliance with model disclosures will provide a “safe harbor” (Senate) or “per se” compliance (House). (House §4302, Senate §1032) WilmerHale WilmerHale

Rulemaking Standards Unfair : Senate (§1031(c)): The [CFPA/B] may have a reasonable basis to conclude that the act or practice causes or is likely to cause substantial injury which is not reasonably avoidable , and which is not outweighed countervailing benefits. Public policy benefits may be considered. House (§4301(c)): References §5 of the FTC Act and 1980 policy statement (similar to House but also adds factor of “ unethical or unscrupulous conduct ”). Deceptive : Senate: Undefined. House(§4301(c)): References §5 of the FTC Act and 1983 policy statement (a material representation or omission that is likely to mislead a reasonable consumer ). WilmerHale WilmerHale

Rulemaking Standards Abusive : Senate (§1031(d)): If materially interferes with ability to understand terms. OR If takes unreasonable advantage of: lack of understanding; the inability to protect interests in selecting or using a product; or reasonable reliance by consumer on a covered person to act in the consumer’s interest. House (§4301(c)): If reasonably likely to result in an inability to understand the terms or protect their own interests in selecting or using a product. OR If widespread use is reasonably likely to contribute to financial system instability. WilmerHale WilmerHale

Institutional Checks on Rulemaking Authority: Senate Bill Financial Stability Oversight Council may temporarily stay or permanently set aside a Bureau regulation if petitioned by a Council member agency Stay and set aside requires a 2/3 vote Decision based on regulation's risk to: Safety and soundness of banking system Stability of the U.S. financial system If a prudential regulator objects in writing to a proposed Bureau rule, the objection must be addressed in the rule’s adopting release WilmerHale

Scope of Supervisory Authority Large insured depository institutions (at least $10 billion in assets, or 2% of banks), and any affiliates thereof. Non-depository Institutions House Bill: Potentially all covered persons CFPA shall develop “risk-based programs” based on risks posed to consumers in relevant geographic markets and markets for consumer financial products and services Unclear if risk-based programs will exempt certain covered persons Senate Bill: Covered persons who: Provide various consumer mortgage loan services Are “a larger participant of a market for other consumer financial products or services” (to be defined by rulemaking) WilmerHale

Scope of Enforcement Authority Depository institutions: Primary authority over large banks, and other regulators have backup authority Senate: Primary regulator has exclusive authority over small banks House: Primary regulator has primary authority over small banks, and CFPA has backup authority Nondepository institutions: House: Primary authority, concurrent with FTC, and other agencies have backup authority Senate: Exclusive authority, concurrent with FTC WilmerHale

Scope of Enforcement Authority CFPA/B to have subpoena power and can conduct hearings. Appeals from CFPA/B determinations to go to Court of Appeals Can issue temporary cease and desist orders Can bring actions in federal district court or state court for legal and equitable relief WilmerHale

Exceptions to Authority: Regulators Some regulators retain their consumer protection authority SEC and CFTC retain authority over regulated entities FTC retains existing authority under the FTCA and under any “non-enumerated” law (e.g. Community Reinvestment Act) State-regulated insurance and brokerage agencies retain authority Primary regulators retain supervisory and enforcement authority over “small” banks and “small” credit unions WilmerHale

Exceptions to Authority: Merchants Sellers of stored value unless they exercise “substantial control” (Senate) over or “influence the terms or conditions” (House) of the stored value product Most extensions of purchase money credit and related debt collection, if for nonfinancial goods or services Senate: No exemption if merchant is engaged significantly in offering consumer financial products/services and: Non-delinquent/default debt is conveyed to another person Credit subject to a finance charge is regularly extended, unless merchant is a small business WilmerHale

Exceptions to Authority: Others Insurance Consumer reporting agencies Accountants Tax preparers Attorneys Real estate brokers and agents Many more! House: pawnbrokers and auto dealers WilmerHale

Interchange (Senate Bill only) Durbin amendment passed 64-33 Applies to “electronic debit transactions” Key Provisions: Interchange fees must be “reasonable and proportional to the actual cost incurred by the issuer or payment card network with respect to the transaction ” [emphasis added] Exemption for issuers having less than $10B in assets….but… Prohibits network restrictions on merchants Merchants can provide incentives between networks, forms of payment Merchants can set minimums and maximums for forms of payment Regulatory authority granted to Federal Reserve, but…such authority may transfer to CFPA/B WilmerHale WilmerHale

Remittances (House & Senate Bills) House Bill more robust than Senate Bill Disclosure requirements Pre-sale disclosure : sum of $$ actually delivered, plus significant other information in House Bill Receipt : highly detailed in both bills, including timing expectations Some flexibility in means of disclosure delivery for electronic/telephonic remittances Web and telephone disclosure/tracking means (House only) Foreign language requirements WilmerHale WilmerHale

Remittances (House & Senate) Specific “error” resolution procedures No preemption Applicability to prepaid card “remittances”? WilmerHale WilmerHale

Preemption No “field” preemption: State consumer financial laws would be preempted only if inconsistent with federal law State laws affording broader consumer financial protection are not preempted Enumerated consumer protection laws (FDCPA, FCRA, ECOA, etc) not preempted WilmerHale

Preemption: Banks State laws applying to a national bank are preempted only to the extent the laws: Significantly interfere with or materially impair a national bank from engaging in the business of banking ( Barnett ) Discriminate against the national bank in favor of a state-chartered bank Preemption determination may be made by a court, regulation, or OCC order ”in accordance with applicable law, on a case-by-case basis.” OCC must consult with CFPA/B before making case-by-case determination WilmerHale

Preemption: Banks No preemption for subsidiaries or affiliates of national banks that themselves are not national banks Overrules contrary OCC regulation upheld by Supreme Court in Watters v. Wachovia House Bill: National bank preemption requires an applicable federal substantive standard that regulates the particular conduct, activity, or authority that would otherwise be subject to the state consumer financial law OCC must consult with CFPA before making finding Prevents preemption with no federal replacement WilmerHale

Preemption: Non-federal enforcement State AGs may enforce consumer protection provisions or CFPA/B regulations Senate Bill: With respect to national banks: State AGs may only enforce CFPA/B regulations, not provisions of the Senate Bill itself Private rights of action not explicitly granted. House Bill explicitly does not create private right, and Senate Bill is silent. Private rights may exist under enumerated consumer laws WilmerHale

Outlook Rep. Barney Frank (D-MA) chairing conference committee, which started meeting June 14 Base text is Senate bill Goal is to have final bill to President Obama before July 4 break Larger context of financial services reform Some major open issues Governance / independence Interplay between the CFPA/B and primary regulators Scope of preemption Who else gets exempted WilmerHale

Recent Proposed Legislation … Future CFPA/B Rulemaking? Prepaid Card Consumer Protection Act of 2009 Sen. Robert Menendez, D-NJ, with substantial input from consumer advocates Amends the Electronic Funds Transfer Act. Not introduced to date (CFPA/B jurisdiction may have reduced perceived need) Intended Target: GPR and other reloadable prepaid cards Impacted Target: GPR, reloadable, and gift Fundamental Effect: A narrowing of the range of GPR/reloadable service offerings (and associated fees) to a “one size fits all” standard Possible Rationales? (unfair/deceptive/abusive?) WilmerHale WilmerHale

Recent Proposed Legislation … Future CFPA/B Rulemaking? Prepaid Card Consumer Protection Act of 2009 Key Provisions: Amends definition of “ account ” to include “spending card accounts” Amends definition of “ financial institution ” to include “operators and managers” of “accounts” Defines “ spending card account ” as: General Definition…the mistaken “or” Specific inclusions: GPR cards and “reloadable not marketed as gift” as provided in the Credit CARD Act of 2009. Specific exclusions: all other Credit Card Act exclusions (e.g. LAP) WilmerHale WilmerHale

Recent Proposed Legislation … Future CFPA/B Rulemaking? Fees : everything prohibited except what is specifically allowed, such as: activation; monthly periodic (not dormancy), 2 nd replacement card (per year), 5 th customer service contact (per month) Information & Disclosure Requirements : significant requirements and few charges FDIC Insurance : must have pass-through insurance for cardholder (very impactful if applicable to gift) WilmerHale WilmerHale

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