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Legislation to fix CFPB privilege waiver problem passes Congress

Posted in CFPB Exams

The U.S. Senate, by unanimous consent, has passed a bill previously approved by the House of Representatives (H.R. 4014) that amends the Federal Deposit Insurance Act to provide protection against waiver of the attorney-client privilege when privileged information is shared with the CFPB or by the CFPB with other federal agencies.  The bill is expected to be signed into law soon by President Obama. 

The bill has two main components.  First, it adds the CFPB to the list of federal agencies that may share privileged information of a regulated entity with other federal agencies without waiver of any state or federal law privilege.  Second, it identifies the CFPB as a regulator to whom a regulated entity may submit privileged information without waiving any state or federal law privilege. 

The bill is intended to give regulated entities that provide privileged information to the CFPB with the same anti-waiver protection they have when dealing with the federal banking agencies or state banking regulators. However, those protections have several important limitations which we discuss in our legal alert.