On May 16, the Consumer Financial Protection Bureau (CFPB or Bureau) announced that it will launch a new initiative to provide guidance to other agencies with consumer financial protection responsibilities on how the CFPB intends to enforce “Federal consumer financial law.” 12 U.S.C § 5481(14).

The CFPB will use Consumer Financial Protection Circulars, described as “general statements of policy,” under the Administrative Procedure Act. These circulars will provide background information about applicable law; articulate considerations relevant to the CFPB’s exercise of its authorities; and, in the interest of maintaining consistency, advise other parties with authority to enforce “Federal consumer financial law.” Circulars will be released publicly.

The CFPB’s first-issued circular, “Deceptive representations involving the FDIC’s name or logo or deposit insurance,” appears in the form of a Q&A. The question: When do representations involving the name or logo of the Federal Deposit Insurance Corporation (FDIC) or about deposit insurance constitute a deceptive act or practice in violation of the Consumer Financial Protection Act (CFPA)? The CFPB then follows with its answer: “Covered persons or service providers,” the Bureau writes, “likely violate the CFPA’s prohibition on deception” by misusing the name or logo of the FDIC by engaging in false advertising or making misrepresentations to consumers about deposit insurance, regardless of whether such conduct (including the misrepresentation of insured status) is engaged in knowingly. In addition to its answer, the CFPB also provides a section on analysis with footnotes.

Whether this Q&A format will continue for all future circulars is yet to be seen.

The federal banking regulators often issue joint statements and guidance (e.g., November 10, 2021 “Joint Statement on Supervisory and Enforcement Practices Regarding the Mortgage Servicing Rules in Response to the Continuing COVID-19 Pandemic and CARES Act”). The CFPB initiative and its first circular, however, indicate the CFPB is willing to act on its own by sharing its views with its sister agencies without coordinating with them beforehand.

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Photo of Chris Willis Chris Willis

Chris is the co-leader of the Consumer Financial Services Regulatory practice at the firm. He advises financial services institutions facing state and federal government investigations and examinations, counseling them on compliance issues including UDAP/UDAAP, credit reporting, debt collection, and fair lending, and defending…

Chris is the co-leader of the Consumer Financial Services Regulatory practice at the firm. He advises financial services institutions facing state and federal government investigations and examinations, counseling them on compliance issues including UDAP/UDAAP, credit reporting, debt collection, and fair lending, and defending them in individual and class action lawsuits brought by consumers and enforcement actions brought by government agencies.

Chris also leverages insights from his litigation and enforcement experience to help clients design new products and processes, including machine learning marketing, fraud prevention and underwriting models, product structure, advertising, online application flows, underwriting, and collection and loss mitigation strategies.

Chris brings a highly practical focus to his legal advice, informed by balancing a deep understanding of the business of consumer finance and the practical priorities of federal and state regulatory agencies.

Chris speaks frequently at conferences across the country on consumer financial services law and has been featured in numerous articles in publications such as the Wall Street Journal, the New York Times, the Washington PostAmerican BankerNational Law JournalBNA Bloomberg, and Bank Safety and Soundness Advisor.

Photo of Stefanie Jackman Stefanie Jackman

Stefanie devotes her practice to assisting financial services institutions facing state and federal government investigations and examinations, counseling them on complex compliance issues, as well as defending them in individual and class action lawsuits. Stefanie represents clients across the financial services industry, including…

Stefanie devotes her practice to assisting financial services institutions facing state and federal government investigations and examinations, counseling them on complex compliance issues, as well as defending them in individual and class action lawsuits. Stefanie represents clients across the financial services industry, including banks and nonbanks, mortgage banking lenders and servicers, debt collectors and buyers, third-party service providers, health care and medical revenue cycle service providers, credit and prepaid card companies, auto lenders, and fintechs. She regularly advises her clients on issues arising under an array of federal and state consumer financial laws, including UDAP/UDAAP statutes, the FDCPA, FCRA, TCPA, EFTA, SCRA, and TILA.

In addition to her litigation and government investigations work, Stefanie focuses a significant portion of her practice on providing compliance-related advice to her clients. She regularly counsels clients on conducting compliance assessments relating to their debt collection, credit reporting and dispute resolution processes, fair lending and underwriting, and vendor oversight, as well as the functionality of their overall compliance management system. Stefanie also brings her litigation and enforcement experience to bear in assisting clients in designing new products and processes, including product structuring, advertising, online application flows, underwriting, and servicing-related strategies.

Photo of James Kim James Kim

James advises fintechs, banks, investors, and other clients regarding federal and state consumer financial laws and regulations, including Title X of the Dodd-Frank Act (UDAAP), TILA, RESPA, EFTA, and the FCRA. He helps clients navigate examinations and investigations with the Consumer Financial Protection…

James advises fintechs, banks, investors, and other clients regarding federal and state consumer financial laws and regulations, including Title X of the Dodd-Frank Act (UDAAP), TILA, RESPA, EFTA, and the FCRA. He helps clients navigate examinations and investigations with the Consumer Financial Protection Bureau (CFPB), Federal Deposit Insurance Corporation (FDIC), Federal Reserve Board, Federal Trade Commission (FTC), and various state agencies.

James also assists clients with product development, regulatory due diligence, and matters involving cutting-edge issues, such as financial technology, data aggregation, credit and prepaid cards, and marketplace lending.

James served as a senior enforcement attorney with the CFPB, where he coordinated with the FTC, Office of the Comptroller of the Currency, FDIC, Federal Communications Commission, and state attorneys general. He was lead counsel in the CFPB’s first enforcement actions involving mobile payments, and a member of an interdepartmental credit card/prepaid card/emerging payments issue team.

James is highly rated by Chambers USA, which uses client and peer feedback to list top attorneys in private practice. As one client told Chambers in 2021: “James is excellent. He came from the CFPB so he has the insider knowledge…He has a very strong background in enforcement and supervision matters, a very quick turnaround time and meets the deadline every single time.”