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 clauses in consumer contracts unless those arbitration clauses expressly permit class actions to proceed in court; and
• require financial services providers to provide copies of consumer arbitration agreements, claims, and decisions to the Bureau for possible publication.

The final rule will become effective 60 days after its publication in the Federal Register, but apply only 180 days after its effective date.

June 21, 2017, The National Law Journal

John Dugan is quoted by The National Law Journal in an article regarding the future of the CFPB and the agency's director, Richard Cordray, under President Trump. Commenting on a report published by the Treasury Department offering recommendations for financial regulation reform, Dugan states that the report could help the legislative prospects of reforms to the ...

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

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. Director Cordray also issued remarks relating to these issues the same day during the Bureau’s Community Advisory Board meeting. The Bureau sees that it has a unique role to play, as the only federal regulator that can supervise the credit reporting market from end-to-end, and believes that its involvement has brought about substantial changes over the last five years. Now, the Bureau is placing a renewed emphasis on accuracy and dispute resolution in the credit reporting space that deserves the industry’s attention and focus.

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 28, 2016, American Banker

Ethan Levisohn is quoted in American Banker regarding the potential restructuring of the Consumer Financial Protection Bureau under President-elect Trump and the new Congress. Ethan comments on the PHH Corp. v. CFPB case, which in October found that the CFPB’s single-director structure is unconstitutional. According to Levisohn, PHH may have clipped the bureau's ...

December 23, 2016, Inside Privacy

Based on reports citing New York Department of Financial Services (“DFS”) sources (see here and here), DFS may propose a revised version of its first-in-the-nation cybersecurity regulations on December 28, 2016.  That revision would be followed by a new 30-day comment period, with the revised regulations scheduled to take effect on March 1, 2017. This...… ...

December 23, 2016, Inside Privacy

On December 19, 2016, the New York State Assembly Standing Committee on Banks heard testimony about a proposed regulation introduced by the New York State Department of Financial Services that would require financial services companies to develop and implement cybersecurity programs to defend against cyber-attacks.  As we covered when Governor Andrew Cuomo ...

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 commencement of “pre-rule activities,” such as convening Small Business Regulatory Enforcement Fairness Act (“SBREFA”) panels if necessary, on overdrafts, debt collection, and several other rules. Although announced just last week, the preamble to the CFPB’s URA states that it is current as of October 19, 2016. Given the outcome of the November election, however, it is far from certain whether the CFPB will be able to adhere to its rulemaking plans.

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.

September 15, 2016, Inside Privacy

On September 13, 2016, New York Governor Andrew Cuomo announced a proposed regulation that would require financial service institutions to develop and implement cybersecurity programs to prevent and mitigate cyber-attacks.  The proposed regulation will be subject to a 45-day comment period once it is published in the New York State Register. The regulation will ...

August 31, 2016, Inside Privacy

The Federal Trade Commission (“FTC” or “Commission”) is soliciting public comments on its Standards for Safeguarding Customer Information (“Safeguards Rule”) as part of the systematic review of all FTC rules and guides on a 10-year schedule.  The Safeguards Rule was promulgated by the Commission pursuant to the Gramm-Leach-Bliley Act’s (“GLBA”) directive for ...

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 Regulatory Enforcement Fairness Act (“SBREFA”) process. Under the SBREFA process, the CFPB must hold a Small Business Review Panel to discuss this outline of proposals and consider the potential impacts on small business entities before issuing a proposed rule. In other contexts, such as the CFPB’s proposed payday and small dollar lending rule, more than one year elapsed between the Small Business Review Panel and the issuance of a proposed rule.

July 1, 2016, Journal of Investment Compliance

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 17, 2016, Inside Privacy

The EU Network and Information Security (NIS) Directive now looks likely to enter into force in August of this year.  Member States will then have 21 months to implement it into national law before the new security and incident notification obligations will start to apply to the following entities: designated* “operators of essential services” within...… ...

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 expressly permit class actions to proceed in court. The rule would also require financial services firms to provide copies of consumer arbitration agreements, claims and decisions to the Bureau for possible publication.

May 3, 2016, Law360

April 2016, Data Protection Law & Policy

March 8, 2016, Covington Alert

March 3, 2016, Inside Privacy

On March 2, 2016, the Consumer Financial Protection Bureau (CFPB) entered into a consent order with online payment systems operator Dwolla, Inc., based on allegations that Dwolla deceived consumers about its data security practices and the safety of its online payment system. The CFPB brought this action under its authority in Sections 1031(a) and 1036(a)(1)...… ...

March 2016, E-Commerce Law and Policy

February 26, 2016, Covington Alert

November 10, 2014, Inside Privacy

By David Fagan and Sumon Dantiki Recently several media outlets reported that the New York State Department of Financial Services (“NYDFS”) sent a letter to many of the nation’s banks, regarding the “level of insight financial institutions have into the sufficiency of cybersecurity controls of their third-party service providers.”  The letter requested financial ...

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 – ...