Consumer Financial Services

July 1, 2019

WASHINGTON—Jeremy Newell has joined Covington's Financial Services Group as a partner in Washington. Mr. Newell's arrival follows the recent addition of Karen Solomon, who joined Covington after serving as the acting Chief Counsel of the Office of the Comptroller of the Currency. Mr. Newell was formerly Executive Vice President, General Counsel & Chief ...

December 6, 2018, Inside Privacy

On December 4, 2018, the Federal Trade Commission (“FTC”) announced that it is accepting public comments regarding its Identity Theft Detection Rules, 16 C.F.R. Part 681 (the “Rules”), as part of a systematic review of the Commission’s regulations and guidelines. The review of the Rules is particularly noteworthy because identity theft is among the top...… ...

November 14, 2018, Inside Privacy

On November 6, 2018, the French data protection authority (the “CNIL”) published a report that discusses some of the questions raised by the use of blockchain technology and perceived tensions between it and foundational principles found in the General Data Protection Regulation (the “GDPR”).  As we noted in an earlier blog post on this topic,...… Continue ...

October 26, 2018, Inside Privacy

On October 18, 2018, the Dutch Supervisory Authority for data protection adopted guidance on the second Payment Service Directive (“PSD2”).  The PSD2 intends to open the financial services market to a larger scale of innovative online services.  To that effect, the PSD2 sets out rules for obtaining access to the financial information of bank customers. ...… ...

August 17, 2018, Bloomberg

David Martin is quoted by Bloomberg regarding the President’s request of the Securities and Exchange Commission to study ending quarterly reporting for U.S. businesses in order to ease regulations and spur growth. Mr. Martin says “You’re probably going to get a debate where you have people saying these reports are unnecessary, and I don’t think that will ...

July 24, 2018, Inside Privacy

Blockchain technology has the potential to revolutionise many industries; it has been said that “blockchain will do to the financial system what the internet did to media”.  Its most famous use is its role as the architecture of the cryptocurrency Bitcoin, however it has many other potential uses in the financial sector, for instance in...… Continue Reading

July 6, 2018, Inside Privacy

By Mark Young and Gemma Nash The UK Financial Conduct Authority (“FCA”) published on July 5 a joint Discussion Paper with the Prudential Regulation Authority (“PRA”) and the Bank of England (“BoE”) on “Building the UK financial sector’s operational resilience.” The Discussion Paper focuses on the ability of regulated firms and financial market infrastructures ...

June 21, 2018, Law360

June 13, 2018, Inside Privacy

On June 11, 2018, the Financial Services Information Sharing and Analysis Center (“FS-ISAC”) announced the launch of the CERES Forum, an information sharing initiative for central banks, regulators, and supervisors designed to strengthen responses to cyber and physical threats.  The new forum will become operational on July 1, 2018. Although FS-ISAC primarily ...

April 23, 2018, Bloomberg Law

Eric Mogilnicki is quoted in a Bloomberg Law article regarding the CFPB leadership dispute between Mick Mulvaney and Leandra English. According to Mogilnicki, even if Trump's choice of Mulvaney to lead the CFPB is taken out by the D.C. Circuit, the president is going to get another shot to name both acting and permanent directors at the bureau. “It seems to me ...

March 16, 2018, Inside Privacy

By Bruce Bennett, Carlo Kostka, Craig Pollack, Dan Cooper, Gemma Nash, Kristof Van Quathem, Mark Young, and Sophie Bertin The EU Payment Services Directive (PSD2), which took effect on January 13, 2018, puts an obligation on banks to give Third Party Providers (TPPs) access to a customer’s payment account data, provided the customer expressly consents to...… ...

March 8, 2018, Law360

March 2018, The Business Lawyer

February 14, 2018, Credit Union Times

Eric Mogilnicki is quoted in a Credit Union Times article regarding what's next for the CFPB following a federal appeals court decision in late January upholding the lawfulness of the Bureau's structure. According to Mogilnicki, "The combination of that opinion and Acting Director Mulvaney's recent statement that the Bureau would stop 'pushing the envelope' on ...

February 7, 2018, Bloomberg Law

Eric Mogilnicki is quoted in a Bloomberg Law article regarding potential constitutional challenges faced by the CFPB following the U.S. Court of Appeals ruling on January 31. According to Mogilnicki, plenty of questions are still up in the air. The CFPB could settle some cases that otherwise would keep working through the constitutional question, while other ...

February 2, 2018, Covington Alert

On Wednesday, January 31, 2017, the D.C. Circuit, sitting en banc, issued its long awaited decision in PHH v. CFPB, holding that the Bureau’s structure is constitutional and overruling an earlier decision that would have permitted the President to replace the Bureau’s Director at will.

February 1, 2018, Law360

January 31, 2018, American Banker

Eric Mogilnicki is quoted in an American Banker article regarding a federal appeals court decision upholding the constitutionality of the CFPB’s single-director structure. "It's a victory for the CFPB in the long-long run, but the Democrats may have to wait two or three years to replace a Trump nominee," says Mogilnicki. "I do think that the win on independence ...

January 31, 2018, The National Law Journal

Eric Mogilnicki is quoted by The National Law Journal in an article regarding the significance of a federal appeals court ruling upholding the lawfulness of the CFPB’s single-director structure. “The combination of that opinion and Acting Director Mulvaney’s recent statement that the bureau would stop ‘pushing the envelope’ on enforcement matters will provide ...

January 31, 2018, Politico

Eric Mogilnicki is quoted in a Politico article regarding the federal appeals court ruling upholding the constitutionality of the CFPB’s structure. According to Mogilnicki, it's “quite likely” PHH would prevail in its argument against the penalty following today’s decision, and that an appeal from the administration would be unlikely due to political ...

January 31, 2018, Law360

Eric Mogilnicki is quoted in a Law360 article regarding the D.C. Circuit’s ruling that the CFPB's single-director structure is not a violation of the president’s powers under Article II of the Constitution. According to Mogilnicki, because of the for-cause protection in place for any Senate-confirmed director, a Democrat president may be prevented from putting ...

January 31, 2018, Law360

January 17, 2018, The National Law Journal

Eric Mogilnicki is quoted by The National Law Journal in an article regarding the CFPB's investigative demands. Commenting on the time crunch, Mogilnicki says, “That timetable is too fast, especially when the [civil investigative demand] includes a laundry list of requests that require detailed investigation to determine what documents are available.” He adds, ...

January 9, 2018, Bloomberg BNA

Eric Mogilnicki spoke at an American Bar Association meeting and is quoted in a Bloomberg BNA article regarding potential changes at the Consumer Financial Protection Bureau (CFPB). According to Mogilnicki, “There’s going to be as much change coming in with the new Administration as when CFPB was created."

September 6, 2017, Law360

August 22, 2017, Inside Privacy

On August 18, 2017, the Central Bank of Kenya (“CBK”) used its authority under Section 33(4) of the Banking Act to publish a Guidance Note on identifying and mitigating cyber risk.  The Guidance Note directs institutions licensed under the Banking Act (Cap. 488) (“Institutions”) to develop and implement a comprehensive set of program requirements to...… Continue ...

July 31, 2017, Law360

July 15, 2017, Inside Privacy

As our readers know, New York’s Department of Financial Services (“NY DFS”) released a draft of its new Cybersecurity Regulations on September 13, 2016, and the final version of the regulations went into effect on March 1, 2017 (23 NYCRR 500).  Among other things, the regulations require regulated entities to conduct cyber risk assessments and...… Continue ...

July 10, 2017, Covington Alert

Today the Consumer Financial Protection Bureau (the “CFPB” or the “Bureau”) published a final rule substantially curtailing the ability of financial services providers and consumers to enter into pre-dispute arbitration clauses. The final rule, like the proposed rule that preceded it, would: prevent financial services providers from including arbitration ...

June 7, 2017, American Banker

Eric Mogilnicki is quoted in an American Banker article regarding the impact of legal challenges on the Consumer Financial Protection Bureau. According to Mogilnicki, "Obviously, litigation soaks up resources that could be used to begin and proceed with investigations."

May 23, 2017, The National Law Journal

Eric Mogilnicki is quoted by The National Law Journal in an article regarding the future of the Consumer Financial Protection Bureau ahead of the D.C. Circuit's ruling on the constitutionality of the agency's single-director structure. According to Mogilnicki, “The bureau was designed to be largely immune from politics, and has governed accordingly. The court’s ...

May 22, 2017, Law360

Eric Mogilnicki is quoted in a Law360 article regarding the upcoming rehearing of a case challenging the constitutionality of the single-director leadership structure of the Consumer Financial Protection Bureau. According to Mogilnicki, “I think the threshold issue, if that gets the most attention, it will suggest that the court is likely to pull back rather ...

April 24, 2017, Covington Alert

On April 19, 2017, the House Financial Services Committee (the “Committee”) released a new “discussion draft” of the Financial CHOICE Act, its comprehensive regulatory reform bill (“CHOICE Act 2.0”). The Committee released the first version of the bill (“CHOICE Act 1.0”) in June 2016.

April 8, 2017

WASHINGTON—Covington partner Eric Mogilnicki has been named a Fellow of the American College of Consumer Financial Services Lawyers. Mr. Mogilnicki is the third Covington lawyer to be named a Fellow, joining Andrew Smith and David Stein.  Mr. Mogilnicki focuses his practice on assisting clients with investigations, examinations, and enforcement actions by the ...

Spring 2017, The Business Lawyer

March 6, 2017, Covington Alert

Following up on the Consumer Financial Protection Bureau’s (the “Bureau,” or “CFPB”) monthly complaint report highlighting credit reporting issues (and particularly issues with accuracy and disputes), on March 2, 2017, the CFPB issued a special edition of its Supervisory Highlights bulletin focusing on consumer reporting issues, highlighting those same concerns. ...

February 17, 2017, The Wall Street Journal

Eric Mogilnicki is quoted by The Wall Street Journal in an article regarding the recent decision by the U.S. Court of Appeals ordering a rehearing of an earlier ruling that the CFPB’s single-director structure was unconstitutional. However, as Mogilnicki points out, the court may not even rule on the question of constitutionality: “The court could resolve the ...

February 17, 2017, Law360

February 2017, The American Lawyer

Eric Mogilnicki was featured as a “Lateral All-Star” in The American Lawyer’s Lateral Report, recognizing his move to Covington as one of the “most notable and intriguing” in 2016. 

January 19, 2017, Inside Privacy

The Securities and Exchange Commission’s (“SEC”) Office of Compliance Inspections and Examinations (“OCIE”) and the Financial Industry Regulatory Authority, Inc. (“FINRA”) (a private self-regulatory organization overseen by OCIE), recently released their 2017 examination priorities.  It is no surprise to find cybersecurity listed as an examination priority again ...

December 29, 2016, Corporate Counsel

Eric Mogilnicki is quoted in a Corporate Counsel article regarding the anticipated spotlight on the Consumer Financial Protection Bureau in 2017 following Donald Trump’s election and an October 2016 ruling from the U.S. Court of Appeals for the D.C. Circuit. According to Mogilnicki, "The election results might speed up some work by the bureau on rules, for ...

December 6, 2016, Covington Alert

Without much fanfare, the Consumer Financial Protection Bureau (the “Bureau,” or “CFPB”) recently released its Fall Unified Regulatory Agenda (“URA”), which describes the Bureau’s regulatory priorities for the next six months. The URA outlines fairly ambitious plans for the coming months, including final action on the controversial arbitration rule and the ...

November 22, 2016, Bloomberg BNA

Eric Mogilnicki is quoted in a Bloomberg BNA article regarding early signals that could offer insight into the regulatory landscape for financial services under the Trump administration. Mogilnicki says, “I would watch the extent to which other senators support Sen. Elizabeth Warren’s efforts on Trump administration nominees.” He adds, “Those hearings and votes ...

November 18, 2016, The Wall Street Journal

Eric Mogilnicki is quoted by The Wall Street Journal in an article regarding how Republican lawmakers may use the Congressional Review Act to block Obama-era regulations. According to Mogilnicki, “The CFPB has been working on an arbitration rule for several years, and was poised to issue a final rule in the next few months.” He continues, “It may now find that ...

November 14, 2016, The National Law Journal

Eric Mogilnicki is quoted by The National Law Journal in an article considering the effect of Donald Trump’s presidency on financial regulations. Commenting on the potential impact of Trump on the existence of the CFPB,  Mogilnicki says, "The president-elect has experience firing people, and he may seek to fire Director Cordray even if the PHH case is still ...

November 10, 2016, Bloomberg BNA

Eric Mogilnicki is quoted in a Bloomberg BNA article regarding how Donald Trump could affect the leadership and rulemaking and enforcement activities of the Consumer Financial Protection Bureau (CFPB). Commenting on the recent court decision on the constitutionality of the CFPB’s structure, Mogilnicki says, ‘‘There’s a real possibility that the en banc court ...

October 27, 2016, Bank Director

Eric Mogilnicki is quoted in a Bank Director article regarding the significant impact the CFPB has had on the banking industry in its first five years of existence. According to Mogilnicki, the bureau signifies an evolution rather than a revolution in the banking industry's regulatory infrastructure. "Banks have always been concerned about compliance and ...

October 11, 2016, The National Law Journal

Eric Mogilnicki is quoted in a National Law Journal article regarding the D.C. Circuit’s decision limiting the authority of the Consumer Financial Protection Bureau. According to Mogilnicki, “If the court had ruled that the decisions of the bureau have to be made by a commission, that would cast more doubt than this ruling, which makes clear that Director ...

October 11, 2016, Covington Alert

The U.S. Court of Appeals for the D.C. Circuit today released its long-awaited decision in PHH Corp., et al. v. Consumer Financial Protection Bureau, No. 15-1177 (D.C. Cir., Oct. 11, 2016). The 110-page decision, which includes a concurrence and a concurrence in part and dissent in part, represents a significant blow to the CFPB.

July 28, 2016, Covington Alert

Today, the Consumer Financial Protection Bureau (“CFPB”) issued its outline of proposals under consideration for a debt collection rulemaking that would govern third-party debt collection activities of debt collection agencies, debt buyers, collection law firms, and loan servicers. Release of this outline of proposals signals the start of the Small Business ...

June 30, 2016, American Banker

Eric Mogilnicki is quoted in an American Banker article regarding the ways banks, credit card companies, and other financial firms may react to a CFPB proposal to limit the use of arbitration clauses. Mogilnicki, who expects transition issues as companies try to preserve old clauses, says, “There may be a flood of arbitration clauses added to contracts just ...

June 10, 2016, The National Law Journal

Eric Mogilnicki participated in a panel discussion at the American Constitution Society’s annual convention and is quoted in this National Law Journal article regarding arbitration and the future of class actions. According to Mogilnicki, federal agencies such as the Consumer Financial Protection Bureau should take a bigger role in pursuing cases, arguing that ...

May 5, 2016, Covington Alert

Today, the Consumer Financial Protection Bureau published a proposed rule substantially curtailing the ability of financial services firms and consumers to enter into voluntary pre-dispute arbitration clauses. The proposed rule would prevent financial services providers from including arbitration clauses in consumer contracts unless those arbitration clauses ...

May 3, 2016, Law360

April 2016, Data Protection Law & Policy

March 8, 2016, Covington Alert

March 2016, E-Commerce Law and Policy

February 26, 2016, Covington Alert

August 29, 2014, The New York Times

Covington's David Martin is quoted in this article regarding Luis Aguilar, a commissioner at the S.E.C., stating that he was concerned that the agency’s stance on cases involving executives who put misleading and fraudulent numbers into their financial filings might be weakening. "Mr. Aguilar’s missive goes to the heart of one of the S.E.C.’s main jobs – ...