Tag Archives: privilege

The CFPB and privilege: the fight isn’t over

By Steven D. Burt and Daniel JT McKenna on January 11th, 2013 Posted in CFPB Enforcement, CFPB Exams

We blogged recently about H.R. 4014, which President Obama signed into law near the end of 2012. The law identifies the CFPB as a regulator to whom a regulated entity may submit privileged information without waiving any state or federal law privilege and provides that the CFPB may share privileged information of a regulated entity with other… More >

President signs ATM fee sticker bill and CFPB privilege waiver bill

By Barbara S. Mishkin on December 26th, 2012 Posted in CFPB Exams, CFPB General

On December 20, 2012, President Obama signed into law (1) the bill amending the Electronic Fund Transfer Act (H.R. 4367) to eliminate the ATM fee sticker requirement, and (2) the bill amending the Federal Deposit Insurance Act (H.R. 4014) to provide protection against waiver of the attorney-client privilege when privileged information is shared with the CFPB… More >

Legislation to fix CFPB privilege waiver problem passes Congress

By Barbara S. Mishkin on December 14th, 2012 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… More >

ABA CFPB panel yields interesting comments

By Christopher J. Willis on August 7th, 2012 Posted in CFPB Enforcement, CFPB Exams, Debt Collection, Hot Issues

On Friday, August 3, I had the pleasure of speaking on a panel at the ABA Annual Meeting with Meredith Fuchs, General Counsel of the CFPB, and Michael Gordon, Senior Counselor to the Director of the CFPB. Also on the panel were Mark Metz from Bank of America, Jean Noonan from Hudson Cook, and Reginald… More >

With Bi-Partisan Support, Senate Banking Committee Chairman Introduces Bill Combining ATM Fee Notice and CFPB Anti-Privilege Waiver Provisions

By Keith R. Fisher on July 25th, 2012 Posted in CFPB Exams, Deposit Accounts

On Tuesday July 17, Senate Banking Committee Chairman Tim Johnson (D.-SD) introduced a new bill, S. 3394, which combines two consumer-related regulatory initiatives that had already been separately introduced and passed by the House of Representatives. These are (1) eliminating one of the automated teller machine (“ATM”) fee notice provisions (so-called “ATM placard regulation”), passed… More >

The AFSA proposal on privilege protection: needed fix or political roadblock?

By Christopher J. Willis on May 22nd, 2012 Posted in CFPB Exams, CFPB Rulemaking

Last week, the American Banker reported that while the legislative “fix” to the CFPB privilege waiver problem is stalled in the Senate, an alternative version of the legislation is being circulated in Congress. This alternative version, being proposed by the American Financial Services Association, broadens the existing proposed legislation (HR 4014) principally by providing that… More >

ABA and Consumer Financial Services Committee file comments on CFPB proposals

By Barbara S. Mishkin on April 18th, 2012 Posted in CFPB Rulemaking

The American Bar Association (ABA) and the Committee on Consumer Financial Services of the ABA’s Section of Business Law have submitted comment letters on two CFPB proposals. The Committee’s letter comments on the “larger participant” proposal and the ABA’s letter comments on the proposed rule on confidential treatment of privileged information. The Committee’s “larger participant”… More >

The CFPB takes another stab at the privilege waiver issue

By Christopher J. Willis on March 13th, 2012 Posted in CFPB Rulemaking, Hot Issues

One of the issues that we have discussed several times on this blog is the CFPB’s position with respect to privileged information it may request during examinations of supervised entities. As we have noted, the CFPB has taken the position that no waiver of the privilege has occurred when such information is provided, but its… More >

Cordray: teaming up with state AGs

By Christopher J. Willis on March 7th, 2012 Posted in CFPB Rulemaking, Hot Issues, Mortgages

Director Cordray attended a meeting of the National Association of Attorneys General yesterday, delivering some prepared remarks and answering questions from the state AGs in attendance. Here are the highlights – statements that give us a clue about what the CFPB and the AGs will be joining forces to do in the near future: A… More >

House and Senate Bills offer incomplete “fixes” to privilege waiver issue

By Keith R. Fisher on February 13th, 2012 Posted in CFPB General, Federal Agencies, Hot Issues

In a recent blog on the Bacchus-Capito letter to CFPB Director Richard Cordray, possible “legislative fixes” to the highly publicized privilege waiver issues involving the Bureau and possible amendments to 12 U.S.C. §§ 1821(t) and 1828(x) were discussed. The major shortcoming identified with regard to such amendments was the persistent problem of the Bureau’s sharing… More >

Is the new House fix for the privilege issue really a fix?

By Christopher J. Willis on February 9th, 2012 Posted in Hot Issues

Last week, a second legislative effort was launched to attempt to fix the much-discussed issue regarding the CFPB’s demands for attorney-client privileged information from banks subject to its supervision. The new bill, H.R. 3871, seeks to “preserve privilege for information submitted to” the Bureau, but the key text of the legislation may or may not fully… More >

House urges Cordray not to request privileged material pending “legislative fix”

By Keith R. Fisher on February 2nd, 2012 Posted in CFPB General, Federal Agencies, Hot Issues

A hearing entitled “How will the CFPB Function under Richard Cordray?” was held on January 24 by the House Subcommittee on TARP, Financial Services and Bailouts of Public and Private Programs. At that hearing, Mr. Cordray testified that Congress’s failure to amend 12 U.S.C. § 1828(x) to include the Bureau was an oversight and that… More >

The Bureau takes a short cut on the privilege issue

By Christopher J. Willis on January 9th, 2012 Posted in CFPB General

Last week, the CFPB released Bulletin 12-01, in which it took the position that it can demand attorney-client privileged documents from its supervised institutions without the privilege being waived as to third parties. It reached this conclusion by relying on a federal statute applicable to the federal banking agencies, even though the underlying statute does… More >