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Articles by Buckley Sandler LLP
GDPR-Based Objections to U.S. Discovery Requests: 2019 Year in Review
Analysis A look at what arguments parties put forth in the past year, and a few suggestions for how litigants can avoid violating one jurisdiction’s law to satisfy another’s courts. U.S. civil litigants faced with an obligation to produce “personal data” protected by GDPR, the European Union’s General Data Protection Regulation, can find themselves on the horns of a serious dilemma.
DOJ issues updated guidance for corporate compliance programs | Lexology
On April 30, 2019, the Department of Justice Criminal Division released updated guidance on the Evaluation of Corporate Compliance Programs (the "Guidance").
FCC to create reassigned number database to reduce unwanted calls | Lexology
On December 12, the FCC adopted new rules to establish a single, comprehensive database designed to reduce the number of calls inadvertently made to reassigned numbers as part of its strategy to help stop unwanted calls. According to FCC Chairman Ajit Pai, the database would enable callers to verify—prior to placing a call—whether a number has been permanently disconnected and is therefore eligible for reassignment.
CFPB publishes fall 2018 rulemaking agenda | Lexology
On October 17, the Office of Information and Regulatory Affairs released the CFPB’s fall 2018 rulemaking agenda. According to the Bureau’s preamble, the information presented is current as of August 30 and represents regulatory matters it “reasonably anticipates” having under consideration during the period of October 1, 2018, to September 30, 2019.
FTC fall 2018 rulemaking agenda announces plan to review potential updates to federal privacy rules | Lexology
On October 17, as part of its fall 2018 rulemaking agenda, the FTC announced that it plans to review potential updates to federal privacy rules on how banks protect consumer data. The planned recommendation—scheduled to be presented to FTC commissioners at the end of November—will incorporate recommendations by staff and the public on changing the Gramm-Leach-Bliley Act Safeguard Rules (the Rule) given the potential conflict between the Rule and state, local, or other federal laws or regulations.
DOJ issues new guidance regarding corporate monitors | Lexology
On October 11, Assistant Attorney General Brian A. Benczkowski issued a memorandum to the DOJ’s Criminal Division that revises the framework for assessing when DOJ will require a corporate monitor as part of a resolution. Under the revised framework, Criminal Division attorneys must now consider whether the company’s “remedial measures” or changes to “corporate culture” are enough to protect against future misconduct.
SEC launches FinHub to facilitate fintech innovation | Lexology
On October 18, the SEC announced the launch of its Strategic Hub for Innovation and Financial Technology (FinHub). According to the SEC, FinHub will assist in facilitating public engagement on fintech-related topics, including blockchain/distributed ledger technology, digital marketplace financing, automated investment advice, and artificial intelligence/machine learning.
New York Court of Appeals holds that accrual clause does not delay commencement of six-year statute of limitations for RMBS repurchase claims | Lexology
On October 16, the New York Court of Appeals a trial court’s dismissal of trustee RMBS repurchase claims against a mortgage originator on statute of limitations grounds, concluding that New York’s six-year statute of limitations for breaches of representations and warranties governed despite the inclusion of an accrual clause within the governing agreements.
FTC announces settlement over tenant screening FCRA violations | Lexology
On October 16, the FTC announced that it reached a settlement with a Texas-based company over allegations that it violated the FCRA by failing to take reasonable steps to ensure the accuracy of tenant screening information furnished to landlords and property managers. The FTC alleges that the company compiled screening reports through an automated system using broad criteria that incorrectly matched applicants to criminal records.
FTC report outlines efforts to protect older consumers from fraud | Lexology
On October 18, the FTC released a report to Congress outlining the agency’s comprehensive efforts to protect older consumers in the marketplace from fraud, identity theft, imposter scams, deceptive credit schemes, and other unlawful practices.
FHFA proposes rule on capital requirements for Freddie and Fannie | Lexology
On June 12, the Federal Housing Finance Agency (FHFA) announced a proposed rulemaking, which implements a regulatory capital framework for Freddie Mac and Fannie Mae (the Enterprises) including (i) a new framework for risk-based capital requirements; and (ii) two alternative approaches to setting minimum leverage capital requirements.
Hank Asbill Joins Buckley Sandler
Asbill has obtained outstanding results for his clients for decades. He has successfully defended corporate and individual clients in more than 100 trials and 30 appeals covering a wide range of high-profile matters in numerous state and federal jurisdictions around the country.
DOJ Sues Washington State Company for Alleged SCRA Violations
On November 9, the DOJ filed a complaint in the Western District of Washington against a Washington company for allegedly foreclosing on servicemembers’ homes in violation of the Servicemembers Civil Relief Act (SCRA). According to DOJ’s complaint, its investigation uncovered at least 28 unlawful non-judicial foreclosures. In addition to a declaration that the company violated the SCRA, the DOJ is seeking monetary damages, a civil penalty, and injunctive relief.
CFPB Publishes Two RFIs Concerning Free Access to Credit Scores
On November 13, the CFPB’s Office of Financial Education (OFE) published two requests for information (RFI) in the Federal Register concerning free access to credit scores. The first RFI requests information related to (i) consumers’ experience when accessing free credit scores, and (ii) the experience of companies and nonprofits when offering free access to credit scores to their customers and the general public.
New York Governor Cuomo Directs NYDFS to Make Credit Reporting Agencies Comply with the State's Cybersecurity Regulation
On September 18, 2017, New York Governor Andrew Cuomo directed the New York Department of Financial Services (NYDFS) to issue a regulation that would require all consumer credit reporting agencies doing business in the state to register with NYDFS by February 1, 2018, and to re-register annually. Governor Cuomo's directive was issued in response to a recent highly publicized security incident at a major consumer credit reporting agency.
House Financial Services Committee Issues Report Accusing Bureau of Contempt Charges Relating to Investigation into Arbitration Rulemaking
On August 4, the Majority Committee Staff of the House Financial Services Committee (Committee) released a report accusing CFPB Director Richard Cordray of failing to comply with an April 4, 2017 Congressional subpoena concerning the Committee’s on-going investigation into the Bureau’s arbitration rulemaking, and presenting a case for instituting contempt of Congress proceedings.
SEC Releases Risk Alert, IMF Issues White Paper on Cybersecurity Awareness
On August 7, the SEC’s Office of Compliance Inspections and Examinations issued a risk alert entitled “Observations from Cybersecurity Examinations,” which provides findings and observations concerning industry practices and legal and compliance issues related to cybersecurity preparedness.
Supreme Court Holds that a Person May Collect Defaulted Debts Purchased for Its Own Account Without Triggering the FDCPA
On June 12, the United States Supreme Court issued a ruling in Henson v. Santander Consumer USA Inc., 1 affirming the Fourth Circuit’s holding that the Fair Debt Collection Practices Act’s (“FDCPA” or the “Act”) definition of the term “debt collector” does not necessarily apply to a company collecting debts in default that it purchased for its own account.
Don’t get burned by coming CDD rule
FinCEN’s issuance of the final customer due diligence (CDD) rule in May 2016 significantly altered the Bank Secrecy Act / Anti-Money Laundering (BSA/AML) compliance landscape.1 Insured depository institutions, among other covered financial entities, must comply with the rule by May 11, 2018. The rule will change banks’ day-to-day business operations by requiring risk-based procedures for conducting customer due diligence on all customers.
CFPB Releases Supervisory Highlights Focused on Student Lending and Mortgage Servicing
On April 26, the CFPB released its Supervisory Highlights for spring 2017, which outlines its supervisory and oversight actions in areas such as mortgage servicing and student loan servicing. According to the Supervisory Highlights, recent supervisory resolutions have “resulted in approximately $6.1 million in restitution to more than 16,000 consumers.” Student loan servicing.
Washington State Enacts Law Defining Licensing Requirements for Transmitters of Money and Virtual Currency
On April 17, Washington Governor Jay Inslee signed into law a new piece of legislation (SSB 5031), which formally adds virtual currency to its money transmitter law.
DOJ Reduces Brazilian Construction Company Penalty Based on Inability to Pay
On April 11, the DOJ filed a memorandum in its case against a Brazilian construction company, requesting that the Court approve a lower sentence than originally proposed based on the company's inability to pay. On December 21, the company and its petrochemical affiliate reached a $4.5 billion combined global settlement with U.S., Brazilian, and Swiss authorities to resolve FCPA allegations, in which both companies agreed to plead guilty in the U.S. to conspiracy to violate the FCPA.
Legislation Proposed to Create Consistent Financial Data Reporting Standards Across Federal Agencies
On March 16, Congressmen Darrell Issa (R-Calif.) and Jared Polis (D-Colo.) introduced the Financial Transparency Act of 2017 (H.R. 1530), a bipartisan bill intended “to amend securities, commodities, and banking laws to make the information reported to financial regulatory agencies electronically searchable.” Specifically, H.R. 1530 would require the Treasury Department to disseminate data standards for all financial regulatory agencies, while directing each agency to transform its regulatory...
Virtual Currency Added to Utah’s Unclaimed Property Act
In March, Utah passed SB 175 amending its Unclaimed Property Act.
Fed/CFPB OIG Releases Strategic Plan 2017-2020
On April 11, the Office of Inspector General (OIG) for the Fed and the CFPB published its Strategic Plan 2017–2020, providing an overview of the OIG’s organizational objectives for the next four years, as well as the indicators it will use to measure its performance as the “trusted oversight organization” of the Fed and the CFPB.
Cordray Discusses Consumer Credit Reports at Operation HOPE Global Forums Annual Meeting
On April 11, CFPB Director Richard Cordray delivered prepared remarks at the Operation HOPE Global Forums Annual Meeting in Atlanta addressing, among other things, financial challenges facing the “economically vulnerable”—most notably with respect to credit reporting and the handling of consumer disputes. As previously covered in InfoBytes, credit reporting was one of the top three consumer complaint categories for 2016.
D.C. Circuit Rules FCC Lacks Authority Under TCPA to Regulate Faxes Sent with Recipient’s Consent
In a 2-1 split decision, the U.S. Court of Appeals for the District of Columbia Circuit recently ruled that the Federal Communications Commission (FCC) lacks authority under the Telephone Consumer Protection Act (TCPA) to regulate facsimiles sent with the recipient’s consent. Bais Yaakov of Spring Valley et al. v. F.C.C. et al., No. 14-1234 (D.C. Cir. Mar. 31, 2017) (Dkt. No. 1668739).
District Court Says Bank/RMBS Trustee Must Face Suit Filed by Institutional Investors Claiming Breach of Trust Agreement
On March 30, a federal court in the Southern District of New York denied in part a bank’s motion to dismiss claims brought in five consolidated actions by institutional investors alleging breach of contract and conflict of interest in connection with billions of dollars of alleged losses stemming from the bank’s role as a trustee of 53 residential mortgage-backed securities (RMBS).
CFPB Proposes Amendment to Regulation C to Clarify HMDA Rule
On April 13, the CFPB announced the release of its proposal to amend Regulation C (12 CFR Part 1003), the regulation that implemented the Home Mortgage Disclosure Act (HMDA) and requires lenders to collect, report and disclose data on home loan applications, originations, and purchases of mortgage loans.
OCC's Office of Innovation Announces Dates of “Office Hours,” Accepting Meeting Requests
On April 10, the OCC’s Office of Innovation announced that May 16 and 17, 2017, will be the dates of its first “Office Hours” in San Francisco, California.
FINRA Releases Revisions to Its Sanction Guidelines
On April 10, FINRA issued a notice revising its Sanction Guidelines to reflect recent developments in its disciplinary process, revisions to certain rules, and amendments to the levels of sanctions imposed during proceedings.
Education Secretary Rolls Back Obama Administration Federal Student Loan Servicing Policies
On April 11, Education Secretary Betsy DeVos rolled back Obama administration policies designed to reform how student loan servicers collect debt. In a memo sent to Federal Student Aid Chief Operating Officer James Runcie, DeVos formally withdrew several policy memos issued last year by former Education Secretary John B.
PHH Submits Reply Brief in Case Against CFPB; DOJ Allocated 10 Minutes at May 24 Oral Argument
As recently covered by InfoBytes, on March 31 the CFPB and seven amicus curiae respondents each filed briefing in PHH Corp. v CFPB urging the D.C. Circuit to uphold the constitutionality of the Bureau’s single-director, independent-agency structure.
Departing Federal Reserve Governor Offers Final Thoughts
On April 4, outgoing Federal Reserve Governor Daniel K.
New Mexico Enacts Data Breach Notification Act
On April 6, New Mexico Governor Susana Martinez signed into law the Data Breach Notification Act (H.B. 15), making New Mexico the 48th state to pass a data breach notification law.
HUD Issues Restated Consolidated Financial Statements for 2016 and 2015 Correcting $520 Billion in Errors
On March 1, HUD-OIG issued an Independent Auditor's Report (Auditor’s Report) (2017-FO-0005) on HUD’s fiscal years 2016 and 2015 (Restated) consolidated financial statements. The Auditor’s Report—issued in accordance with the Chief Financial Officers Act of 1990—revealed, among other things, eleven “material weaknesses,” seven “significant deficiencies,” and five “instances of noncompliance” with applicable laws and regulations.
NYDFS Authorizes Coinbase to Offer Trading of Digital Currencies in New York
On March 22, the New York State Department of Financial Services (NYDFS) announced the approval of Coinbase, Inc.’s application to offer Ether and Litecoin to New York customers. “Ether” is a “digital cryptography-based asset” of the Ethereum network, “similar to how bitcoin is the digital cryptography-based asset of the Bitcoin network.” Litecoin, developed as a modification of the Bitcoin protocol, is the first alternative virtual currency to Bitcoin to gain public acceptance.
FINRA Bars Broker Charged in NY Pension Fund Scandal
On March 28, FINRA filed a disciplinary action in the form of a Letter of Acceptance, Waiver and Consent (Letter of Acceptance) against one of the brokers charged in December of last year for participating in a "pay-for-play" bribery scheme involving the $184 billion New York State Common Retirement Fund (NYSCRF).
State AGs, Industry Groups Submit Comments Addressing CFPB’s Proposed Delay of Prepaid Accounts Rule
As previously covered in InfoBytes, the Bureau released its final rule (the “Prepaid Accounts Rule”) on prepaid financial products in October of last year in order to provide consumers with additional federal protections under the Electronic Fund Transfer Act and also to offer consumers standard, easy-to-understand information about prepaid accounts. Recently, however, the CFPB announced its intention to delay the effective date of its Prepaid Accounts Rule by six months.
CFPB Proposes Amendments to 2015 HMDA Rule
On April 13, the Consumer Financial Protection Bureau (CFPB) issued a proposal to amend the 2015 Home Mortgage Disclosure Act (HMDA) rule. The changes are primarily for the purpose of clarifying data collection and reporting requirements, and most of the clarifications and revisions would take effect in January 2018. Comments on the CFPB's proposal are due 30 days after publication in the Federal Register.
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