CFPB's constitutionality affirmed, class action suit filed against cryptocurrency exchange, and more in this issue of Consumer Financial Services Practice Digest

4 min


CFPB's Constitutionality Affirmed in En Banc DC Circuit Ruling

Sitting en banc, the U.S. Court of Appeals for the DC Circuit ruled that the CFPB structure is constitutional. By a vote of 7 to 3, the full panel of judges reversed an earlier panel decision that took issue with the independent agency's single-director structure. The en banc decision left intact the DC Circuit panel's interpretation of the RESPA. Ultimately, the court remanded the case back to the Bureau for further proceedings consistent with the RESPA-related holdings of the court.

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Update on CFPB's New Era of Rulemaking

Prepaid Rule Amended to Provide Commonsense Approach to Balancing Consumer Protection with Regulatory Burden

On January 25, 2018, the CFPB announced final changes to its 2016 prepaid rule. These changes largely respond to concerns raised by the prepaid industry regarding compliance with the 2016 rule, and are in keeping with the tone expressed in Mick Mulvaney's memo to CFPB staff, which was republished as an op-ed. The new CFPB approach will be to regulate more through formal rulemaking and less through enforcement, with a greater emphasis on prioritization of consumer complaints.

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Venable Named 2017 "Consumer Protection Group of the Year"

Law360, a leading trade publication in the legal industry, recently named Venable a 2017 Consumer Protection Group of the Year. The firm was singled out for its counsel to influencers on advertising disclosures, two notable court victories in Consumer Financial Protection Bureau actions, and the first victory in a Telephone Consumer Protection Act class action lawsuit involving so-called robocalls, which proceeded all the way to a jury verdict. (Subscription may be required to view content.)

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Class Action Lawsuit Filed Against Failed Cryptocurrency Exchange BitConnect

Within a week of shutting down its operations pursuant to cease-and-desist letters from securities regulators, BitConnect, a cryptocurrency lending and exchange platform, also received service of a class action lawsuit filed by some of its investors. The lawsuit also included its U.S.-based directors and promoters. The plaintiffs are represented by the same law firm that filed the recent class action lawsuits against the promotors of the Initial Coin Offerings by Tezos and Giga Watt.

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SEC Obtains ex parte TRO and First Court-Appointed Receiver to Stop an ICO

A Dallas-based cryptocurrency payment processing platform, AriseBank (Arise), claimed to be the world's first "decentralized bank" with FDIC insurance, was taken over by the U.S. SEC through the appointment of a court-appointed receiver. The SEC filed a complaint seeking emergency ancillary relief under seal to insure that, if granted, Arise's assets would be frozen. The United States District Court for Northern District of Texas agreed with the SEC's request and granted a temporary restraining order freezing all of Arise and its co-founders' assets, including all digital assets purported to be worth at least $600 million.

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CFPB Retrospective—Five Enduring Lessons in the Wake of Cordray's Departure

The resignation of Richard Cordray as director of the Consumer Financial Protection Bureau last November marks the end of an era at the often controversial—but never boring—consumer protection agency. Under Cordray's leadership, the CFPB hit the ground running in 2012 and quickly established a reputation as an aggressive regulator through high-profile enforcement actions and tough examinations of financial services providers. With Cordray's departure, and President Trump's appointment of Mick Mulvaney as acting director, it seems the Bureau's focus will shift, at least in the short term.

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Consumer Financial Services Outlook 2018

Venable's Consumer Financial Services practice hosted a webinar that reviewed the current state of federal and state consumer financial protection law and policy and outlined what companies need to know about what's ahead. The speakers shared their experiences from the front lines and offered strategies to help navigate the evolving legal and regulatory landscape.

A copy of the presentation can be downloaded by clicking here. To listen to recordings (and view the synced presentations) of any of our prior legal webinars, please click here.


February 6, 2018: "Playing Your Best Hand When Dealt a State Attorney General Investigation," at the 2018 RMA Annual Conference

February 6, 2018: "Don't Gamble with Regulation: A General Counsel Roundtable," at the 2018 RMA Annual Conference

February 6, 2018: "Consumer Complaints: Meet Expectations Webinar," produced by Dodd Frank Update

February 7, 2018: "The Future of Receivables Management: CEO Roundtable," at the 2018 RMA Annual Conference

February 8, 2018: "Current Issues in Debt Buying," at the 2018 RMA Annual Conference

February 8, 2018: "Why Consumer Protection? A Panel on Private Practice Consumer Protection Careers," a telephonic panel discussion hosted by the ABA Consumer Protection Section of Antitrust Law

March 1, 2018: "Investing in Compliance as a Strategy to Prevent or Resolve Government Investigations," at Venable LLP's New York Office

March 7, 2018: "Ensuring Effective Compliance in Lead Generation," at the LeadsCon 2018 Las Vegas Conference

April 25-27, 2018: "Consumer Financial Services Legal and Regulatory Update," at the 2018 Financial Counseling Association

May 11, 2018: "Hot Topics in Financial Services Litigation and Enforcement," at ACI's Women Leaders in Financial Services Law and Compliance event