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The Enforcement Blog

AMLA Implementation: FinCEN Requests Input on Beneficial Ownership Rule

Posted in Regulatory Developments

Following the enactment of the Anti-Money Laundering Act of 2020 (AMLA), which encompasses the Corporate Transparency Act (CTA), the Financial Crimes Enforcement Network (FinCEN) published an Advance Notice of Proposed Rulemaking (ANPR) on April 5, 2021, to implement Section 6403 of the CTA, relating to beneficial ownership reporting. In the ANPR, FinCEN solicits comment within 30 days on 48 questions that cover, among other topics, reporting requirements, the beneficial ownership registry, and disclosure of beneficial ownership information (BOI) to third parties.

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Stop; Reverse That: CFPB Rescinds Abusiveness Policy Statement

Posted in CFPB

On March 11, 2021, the Consumer Financial Protection Bureau (CFPB or “Bureau”) issued a Rescission of Statement of Policy rescinding its January 24, 2020 Policy Statement regarding the prohibition on abusive acts or practices (“2020 Policy Statement”). The CFPB indicates that it is rescinding the 2020 Policy Statement “to better protect consumers and the marketplace … and to enforce the law as Congress wrote it.” The Bureau’s action signals a return to the “Know It When You See It” standard for UDAAP abusiveness, which will require regulated entities to “read the tea leaves” based on allegations in enforcement actions and statements in CFPB supervisory guidance and the CFPB examination manual.

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FDIC Brokered Deposits Final Rule: Key Aspects for Broker Dealers

Posted in Regulatory Developments
On January 22, 2021, the Federal Deposit Insurance Corporation (“FDIC”) published its final rule (“Final Rule”) revising and modernizing its regulations related to brokered deposits and the interest rate restrictions that apply to insured depository institutions (“IDIs”) that are less than well capitalized. Under Section 29 of the Federal Deposit Insurance Act, certain IDIs that are not well capitalized are prohibited from accepting, or require a waiver to accept, deposits from a deposit broker. Section 29 defines a “deposit broker” and sets forth nine exclusions from the definition of deposit broker. The Final Rule establishes a new framework for analyzing certain aspects of the “deposit broker” definition, including what constitutes “facilitating” the placement of deposits and what business arrangements satisfy the “primary purpose exception.” This alert summarizes the Final Rule and identifies key aspects for broker dealers.

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A Sign of Things to Come: The California DFPI Exercises Its New Authority in Regulating Earned Wage Access Products

Posted in Regulatory Developments

The law creating a new California mini-CFPB took effect on January 1, 2021, and a few weeks later, the California Department of Financial Protection and Innovation (DFPI) entered into “first-of-their kind” memoranda of understanding (MOUs), by which the DFPI will regulate earned wage access (EWA) products offered by five companies in California. These MOUs follow the CFPB’s issuance of an advisory opinion for EWA products, but they go much further in imposing pricing limitations and reporting and examination obligations for products that the DFPI gained authority to regulate under the new California Consumer Financial Protection Law (CCFPL). These MOUs, along with the CFPB’s advisory opinion, signal creation of regulatory guardrails for previously unregulated products. They also reflect the DFPI’s continued focus on capping interest rates for financial products offered in California.

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OCC Permits National Banks and Federal Savings Associations to Use Independent Node Verification Networks and Stablecoins for Payment Activities

Posted in Regulatory Developments, Uncategorized

As part of the Office of the Comptroller of the Currency’s (OCC) declared effort to keep pace with a mounting demand for faster, cheaper, and more efficient payments, and the widespread adoption of new technologies, the agency’s Senior Deputy Comptroller & Chief Counsel issued an interpretive letter on January 4, 2021 (the “Interpretive Letter”) clarifying the permissibility of independent node verification networks (INVNs) and related stablecoins. Under the Interpretive Letter, national banks and federal savings associations (FSAs) may use such new technologies to conduct bank-permissible functions, as long as such activities are conducted in a safe and sound manner and in accordance with applicable law.

The Interpretive Letter comes shortly after the release of a December 23, 2020 statement from the President’s Working Group on Financial Markets (the “Working Group Statement”) on the regulatory and supervisory considerations for stablecoin arrangements. The Working Group Statement encourages responsible payments innovation, while highlighting the requirement to strictly comply with applicable law, including all relevant anti-money laundering (AML), countering the financing of terrorism (CFT), and economic sanctions obligations. The OCC shares the Working Group Statement’s emphasis on the importance of legal compliance in the development of INVN and stablecoin arrangements.

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The Anti-Money Laundering Act of 2020

Posted in Regulatory Developments
On New Year’s Day, Congress overrode President Trump’s veto of the National Defense Authorization Act (NDAA) for the 2021 fiscal year, turning the bill into law without requiring the president’s signature. The NDAA includes the Anti-Money Laundering Act of 2020 (AMLA), the first major reform of the 50-year-old United States anti-money laundering (AML) framework since the 2001 USA PATRIOT Act was enacted after 9/11.

The AMLA is designed to modernize AML and counter-financing of terrorism (CFT) laws, improve coordination among government and industry stakeholders, and emphasize the importance of risk-based AML/CFT programs. The updates are numerous, and include enhanced whistleblower protections, a broadened purpose for the Bank Secrecy Act (BSA), new penalties for certain BSA violations, and the addition of two new committees to the BSA Advisory Group.

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CFPB Task Force Releases Recommendations for Improving Financial Services Consumer Protection

Posted in CFPB, Regulatory Developments
On January 5, 2021, the Consumer Financial Protection Bureau (CFPB or Bureau) Taskforce on Federal Consumer Financial Law (Task Force) released a report (Report) recommending changes designed to contemporize and strengthen consumer financial protections, encourage competition and innovation, and improve inclusion and access. The Report is the product of months of study and public outreach by the Task Force, which was charged with evaluating the current legal and regulatory environment for both consumers and financial services providers and providing recommendations for improvement.

In October 2019, the CFPB established the Task Force of external experts as an independent body within the CFPB that reported to Director Kraninger. In April 2020, the CFPB published a request for public comments to help identify areas for Task Force focus. According to the Task Force’s charter, the charter will expire 90 days after completion of the Report, unless renewed. The Report was issued in two volumes. Volume I covers the context of consumer finance and its current regulation. Volume II contains the Task Force’s recommendations.

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FDIC Finalizes Supervisory Regime for Industrial Banks and their Controlling Shareholders

Posted in Regulatory Developments

On December 15, 2020, the Federal Deposit Insurance Corporation (“FDIC”) issued a final rule (“Final Rule”) setting forth standards to apply to controlling shareholders of industrial banks that are not subject to consolidated supervision by the Board of Governors of the Federal Reserve System. The Final Rule is substantially similar to the FDIC’s proposal announced March 17, 2020, and will take effect on April 1, 2021.

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FinCEN Seeks to Expand Scope of Information Collection and Recordkeeping Requirements for Money Transmitters and other Financial Institutions

Posted in Regulatory Developments

A new proposed rulemaking (the “NPRM”) would lower the current $3,000 threshold for the applicability of the Bank Secrecy Act (“BSA”) Recordkeeping Rule and Travel Rule to $250 for covered funds transfers that begin or end outside the United States. This proposed change would—among other things—require nonbank financial institutions, such as money transmitters, to obtain information, including Social Security number, from all consumers that initiate covered transfers in an amount of $250 or more. If finalized as proposed, the change would have a significant impact on financial services providers that offer cross-border funds transfer services. In addition, the NPRM would modify the definition of “money”—as the term is used in connection with the Recordkeeping and Travel Rules—to include convertible virtual currency (“CVC”) and to clarify that funds transfers involving CVC are also covered. This change would be the first recognition of virtual currency in the regulations implementing the BSA.

 

Comments on the NPRM are due on November 27, 2020.

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Is California’s Agent of a Payee Exemption Shrinking?

Posted in Regulatory Developments

Earlier this year, the California Department of Business Oversight (DBO) issued a draft rulemaking relating to the scope of the agent of a payee exemption (the “Exemption”) under the Money Transmission Act, Cal. Fin. Code § 2000 et seq. (MTA). As we observed at the time, the rulemaking affirms a broader interpretation of the scope of the Exemption than has been historically applied. However, a new interpretive opinion from the DBO appears to potentially narrow how the Exemption applies to payment processors that facilitate payments on behalf of consumer-facing merchants. This interpretation, if more widely applied, could risk undermining well-established compliance approaches for companies that provide payment processing services.

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