August 3, 2018

Consumer Financial Services Practice Digest

3 min

Is the FTC the Federal Fintech Regulator to Watch?

While industry watchers in Washington, DC eagerly await the next fintech charter pronouncement from the OCC, the FTC has quietly established itself as one of the main federal fintech regulators. The FTC was not the first federal agency active in the space—that was the Bureau with Project Catalyst; and it has not been the splashiest either—the OCC probably has that honor. But with a combination of enforcement actions, industry outreach, and strategic appointments and initiatives, the FTC has developed a consistent fintech presence.

Vendor Management Rules of the Road: Compliance When Working With 3rd Parties

Managing third-party service provider relationships can get complex. Federal and state regulators increasingly have a laser-like focus on vendor management and monitoring, and effective vendor management compliance programs can yield enterprise-wide benefits. Venable attorney Jonathan Pompan recently provided practical vendor management observation and tips at OLA Compliance University. For presentation materials, including a checklist, click here.

Congress Requests FDIC Review of Brokered Deposits

On July 26, 2018, Representative Blaine Luetkemeyer (R-MO), chairman of the Financial Institutions and Consumer Credit Subcommittee of the House Financial Services Committee, along with Representative Scott Tipton (R-CO), sent a letter asking FDIC Chair Jelena McWilliams to review the agency's interpretation of brokered deposits. The representatives criticized the existing limitations on brokered deposits as "not [having] been adequately updated to reflect technological, legal, business model and product range changes."

New Website Accessibility Guidelines: W3C Publishes WCAG 2.1

Any organization with a publicly facing website—in other words, virtually any organization—should be aware that the World Wide Web Consortium (W3C) recently published its most recent update to the Web Content Accessibility Guidelines (WCAG) 2.0, titled WCAG 2.1. The W3C is a private organization that develops website accessibility standards.

In recent years, the WCAG 2.0 has become the widely accepted industry standard of technical requirements for making websites, mobile apps, and other digital content accessible to persons with disabilities. Although the DOJ has yet to adopt the WCAG 2.0 as the applicable standard for the private sector, governmental and private plaintiffs increasingly urge adopting WCAG 2.0 AA as the standard by which to measure a website's accessibility—and more and more courts and agencies do so.

Slimming Down: Second and Third Circuits Construe TCPA Autodialer Definition Narrowly But Still Grapple With Its Contours

Late June was busy in the TCPA litigation world, with the U.S. Courts of Appeals for the Second and Third Circuits weighing in on an issue that arises all the time with the TCPA—what is and is not an autodialer. Earlier this year, the D.C. Circuit set aside the FCC's interpretation of "automatic telephone dialing system" (ATDS) as it was defined in the FCC's 2015 TCPA Order, however, the court left open the issue of how to define an ATDS. Now, two other Circuits have jumped into the mix, with opinions showing that defining what constitutes an ATDS is easier said than done.

Upcoming Events

September 7, 2018: "State Enforcement Activity in the Consumer Financial Services Industry," a Venable Hosted Webinar

October 9, 2018: "As American as Apple Pie? The Trial by Media Phenomenon," 2018 Government Investigations & Civil Litigation Institute (GICLI) Annual Meeting