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Nowell D. Bamberger’s practice focuses on cross-border contentious disputes matters, including litigation and criminal and regulatory investigations.

On May 6, 2021, the United States Government Accountability Office (“GAO”)—an independent, non-partisan congressional watchdog organization—published a report summarizing its study on the impact of the Consumer Financial Protection Bureau’s (“CFPB” or the “Bureau”) reorganization of its fair lending enforcement and supervisory activities.[1]  In 2018, the Trump administration-led CFPB decided to relocate the Office of Fair Lending and Equal Opportunity (the “Office of Fair Lending”) from the Supervision, Enforcement, and Fair Lending Division (“SEFL”) to the Office of Equal Opportunity and Fairness (“OEOF”), a division within the Office of the CFPB Director that plays no role in enforcement.  GAO found shortcomings in the reorganization process and highlighted that the reorganization likely led to a decrease in fair lending enforcement activity in 2018.  GAO ultimately recommended that the Bureau analyze the effects of the reorganization on its enforcement and supervision of fair lending laws, develop performance goals, and take measures to assess its fair lending activities going forward.

While not binding on the CFPB, GAO’s report is significant as it comes at a time when the current administration has signaled that it is motivated to increase enforcement of fair lending laws. Acting CFPB Director Dave Uejio has committed the Bureau to implementing GAO’s recommendations, and Biden’s CFPB Director nominee Rohit Chopra has similarly expressed that he would focus on fair lending.  Likewise, progressive advocates are using the report as an opportunity to apply increased pressure on the Biden administration to become more active in this area.
Continue Reading GAO Recommends CFPB Evaluate Trump Era Fair Lending Reorganization

The Biden CFPB has begun a significant expansion in the use of consumer finance enforcement tools to act on behalf of marginalized communities.  On the back of Acting Director David Uejio’s announcement earlier this year of his intention to prioritize cases involving racial equity, and subsequent filing of the Biden CFPB’s first enforcement action against Libre Services for alleged abuse and “unfair practices” involving Spanish-speaking immigrant communities, the CFPB has also signaled a focus on potential violations of fair lending protections for LGBTQ individuals.
Continue Reading The CFPB Broadens Enforcement Reach to Include Protection of LGBTQ Individuals

Conventional wisdom is that under the Biden Administration, the Consumer Financial Protection Bureau (“CFPB” or the “Bureau”) will pivot to a more muscular approach to enforcement of consumer financial protection laws.  The current leadership has already begun to signal the CFPB’s move towards a more aggressive approach while President Biden’s nomination to lead the agency, FTC Commissioner Rohit Chopra, is considered by the Senate Committee on Banking, Housing, and Urban Affairs.  CFPB Acting Director Dave Uejio has issued a number of statements identifying the agency’s priorities, particularly for the Bureau’s Division of Supervision, Enforcement & Fair Lending (“SEFL”), which are expected to continue—and potentially broaden—under a Chopra CFPB.[1]  The CFPB has already begun to rescind Trump administration policies restricting its enforcement more generally, and has indicated its intent to prioritize the enforcement of potential violations related to the COVID-19 pandemic and racial inequity.
Continue Reading The CFPB’s Much-Anticipated Enforcement Shift Has Begun

On September 10, 2020, the Division of Enforcement (“Division”) of the Commodity Futures Trading Commission (“CFTC”) released guidance (“CFTC Guidance”) outlining factors the Division will consider when evaluating compliance programs in connection with enforcement actions. The CFTC Guidance ties into guidance released by the Division in May directing staff to consider an entity’s compliance program

On October 3, 2019, the governments of the United Kingdom and United States signed the first-ever executive agreement governing cross-border data requests (the “Agreement”) pursuant to the US Clarifying Lawful Overseas Use of Data Act (“CLOUD Act”).[1]  As contemplated by the CLOUD Act, the Agreement provides a mechanism for the governments to access and share data stored abroad by electronic communications services providers (“CSP”) in their respective countries in a timely manner.  The Agreement will enter into effect following a 180 day Congressional review period required by the CLOUD Act and a similar review by the UK Parliament.   
Continue Reading United Kingdom and United States Governments Sign First-Ever CLOUD Act Agreement

On May 15, 2019, the U.S. Securities and Exchange Commission (“SEC”) and the U.S. Commodity Futures Trading Commission (“CFTC”) announced that they entered into an Enhanced Multilateral Memorandum of Understanding Concerning Consultation and the Exchange of Information (“Enhanced MMoU”) under the auspices of the International Organization of Securities Commissions (“IOSCO”), along with nine other international financial regulators.[1]  Both the SEC and CFTC are already signatories to IOSCO’s predecessor memorandum of understanding with 121 other signatories.  However, the Enhanced MMoU provides for significant enhancements in cross-border enforcement cooperation—including the ability to compel testimony outside of the United States—that, if widely adopted, could increase the signatory regulators’ abilities to undertake (and coordinate) multilateral cross-border investigations.
Continue Reading SEC and CFTC Chairs Sign Enhanced Multilateral Memorandum of Understanding Expanding Cross-Border Enforcement Cooperation

On May 8, 2019, the Division of Enforcement of the Commodity Futures Trading Commission released an Enforcement Manual – the first public document of its kind from the Division.

Though the Manual does not reveal any significant shifts in policy, it will undoubtedly serve as an important resource for individuals and entities dealing with CFTC

On May 2, 2019, the United States District Court for the Southern District of New York issued an important decision delineating the boundaries between conducting a proper internal investigation and acting as an arm of the government.

For the government, the consequences of “outsourcing” an investigation to a company and its counsel could be exclusion

On March 6, 2019, the U.S. Commodity Futures Trading Commission (“CFTC”) Enforcement Division released an advisory (the “Advisory”) on self-reporting and cooperation for violations of the Commodity Exchange Act (“CEA”) that involve foreign corrupt practices.[1]  The Advisory lays out guidelines for companies or individuals “not registered (or required to be registered) with the CFTC” to receive significant cooperation credit for voluntarily and timely disclosing CEA violations involving foreign corrupt practices.[2]  Indeed, where such disclosure is followed by “full cooperation and appropriate remediation” and other measures, the Division of Enforcement will extend a presumption that no civil monetary penalties be imposed.[3]  Moreover, while registrants—which are subject to “independent reporting obligations”—will not benefit from such a presumption, cooperation may still garner “substantial reduction in the civil monetary penalty.”[4]

The Advisory is the latest signal of the CFTC’s efforts over the last two years to more clearly define the benefits of voluntary cooperation with the Agency.[5]  This may indicate that the CFTC is taking an increased interest in corruption cases related to the commodities or swaps markets.
Continue Reading CFTC Enforcement Division Issues New Advisory on Self-Reporting and Cooperation

On March 4, 2019, the Commodity Futures Trading Commission (“CFTC”) announced a whistleblower award of over $2 million to an individual—unaffiliated with the company the CFTC charged—for providing expert analysis in conjunction with a related action instituted by another federal regulator.  While the Securities and Exchange Commission, which possesses a similar whistleblower award regime,[1] has previously issued awards to multiple claimants for both related actions[2] and to company outsiders,[3] this is the first such award to be granted by the CFTC in either respect.

The award demonstrates the CFTC’s continued commitment to the Whistleblower Program, and to using all available means in conducting enforcement actions.  This award also reflects both the CFTC’s willingness to collaborate with other federal regulators and to rely on external sources of expert data analysis and likely reflects the CFTC’s continued expansion of its Whistleblower Program, both in terms of sources of information and awards granted. 
Continue Reading CFTC Issues First Whistleblower Award Originating From Both a Related Action and a Company Outsider