Litigation Against the CFPB: An Update on Recent Enforcement Actions

(115 Ratings)

Produced on: January 12, 2018

Course Format On Demand Audio

Taught by

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Course Description

Time 62 minutes
Difficulty Intermediate

Since its formation in 2011, the Consumer Financial Protection Bureau (“CFPB” or “Bureau”) has racked up some impressive settlements. Charged with enforcing 18 different consumer protection statutes and armed with expansive new UDAAP power under Title X of the Dodd Frank Wall Street Reform and Consumer Protection Act (the “Dodd Frank Act”), the Bureau has launched investigations and brought enforcement actions across many areas, such as credit card add-on products, student loans and loan servicing, mortgages and mortgage servicing, debt collection, and consumer credit reporting.Between penalties and consumer redress, billions of dollars have been extracted from the financial sector.

This reflects two related factors - both a young agency’s willingness to assert its impressive enforcement authority, and companies’ reluctance to litigate these claims. Faced with massive exposure and pressure from prudential regulators, nearly 80% of public companies that come under the scrutiny of the CFPB choose to settle rather than litigate the merits of these claims.

In this presentation, Ryan Scarborough, a Williams & Connolly LLP partner who regularly handles financial services litigation brought by the Bureau and prudential bank regulators, and Rachel Rodman, a Williams & Connolly LLP counsel who formerly worked as an enforcement attorney at the CFPB, will share their observations from recent CFPB investigations and enforcement actions. They will discuss the price to companies of a reluctance to litigate, and highlight recent examples where litigation - particularly when there is reason to believe that the Bureau has overreached - dramatically improved outcomes compared to settlement. 



Learning Objectives:

  1. Review the weapons in the Bureau’s enforcement arsenal, including its use of supervisory examinations as a netting mechanism, its aggressive use of civil investigative demands, and far-reaching powers to pursue damages, restitution, and civil money penalties
  2. Discuss the elements of the traditional CFPB settlement paradigm and factors that influence the decision whether to settle or litigate
  3. Update participants on recent CFPB enforcement actions and overall trends
  4. Understand how some companies in recent enforcement actions have used litigation to achieve far better outcomes compared to settlement

Faculty

Ryan Scarborough

Williams & Connolly LLP

Ryan Scarborough defends financial institutions, law firms, corporations, and their directors and officers against threatened or actual litigation from government regulators, consumers, shareholders, and competitors.  In recent years, Ryan has litigated against the Consumer Financial Protection Bureau, the Federal Deposit Insurance Corporation, the Office of the Comptroller of the Currency, the Federal Housing Finance Agency, and other financial regulatory agencies.  He has been recognized by The Legal 500 for his work in handling Financial Services litigation, which praises him for his “calming approach” when advising financial institutions and high-ranking executives across a range of litigation and enforcement actions.

Ryan draws upon his deep experience in both federal and state courts across the country.  He has led trial teams in cases ranging from banking to pharmaceutical mass torts to contractual disputes, argued dispositive motions and appeals, and prepared, defended, and examined experts and fact witnesses at deposition and trial.

Ryan frequently speaks and writes about topics related to regulatory and enforcement initiatives.  Ryan published an article in the Fordham Journal of Corporate and Financial Lawdiscussing "Why Does the FDIC Sue Bank Officers? Exploring the Boundaries of the Business Judgment Rule in the Wake of the Great Recession," 20 Fordham J. Corp. & Fin. L. 367 (2015).  His most recent article, entitled "The Law of Unintended Consequences: How the CFPB’s Unprecedented Legislative Authority and Enforcement Approach Has Invited Increasing Challenges," appeared in the July 2016 edition of Banking & Financial Services Policy Report.  

Ryan’s pro bono work includes an active role in supervising Williams & Connolly LLP associates who represent clients in landlord-tenant disputes, Social Security disability cases, and historical preservation matters in Washington, D.C.  He has also served as an adjunct professor at Georgetown University Law Center, where he taught a trial practice seminar regarding expert witnesses. 

Ryan was born and raised in Austin, Texas.  He graduated summa cum laude from Duke University in 1994 with a degree in Public Policy Studies.  Ryan then studied abroad in Japan for a year as a Fulbright Scholar at Tohoku University before entering law school.  Ryan graduated cum laude from Harvard Law School in 1998, and served as a Primary Editor on the Harvard Law Review.  He joined Williams & Connolly in 2000 after clerking for U.S. District Court Judge Alan C. Kay in Honolulu.


Rachel Rodman

Williams & Connolly LLP

Rachel Rodman focuses her practice on government investigations and complex civil litigation in the trial and appellate courts, with an emphasis on representing banks, specialty finance companies, Fintech companies, and other providers of consumer financial products and services.

Rachel originally joined the firm in 2004 and then rejoined in 2016 after serving four years at the Consumer Financial Protection Bureau (CFPB). From 2011-2013, Rachel served as Senior Counsel in the Legal Division. In this capacity, she advised agency leadership, including the Director and General Counsel, on emerging issues under Title X of the Dodd-Frank Act and represented the agency in federal district and appellate courts. From 2013 through 2016, Rachel was an Enforcement Attorney in the Division of Supervision, Fair Lending and Enforcement, where she led investigations of banks and nonbanks involving overdraft practices, debt collection, mortgage servicing, and consumer reporting. Rachel was lead counsel in several of the CFPB’s major settlements with banks, including the agency’s first action bringing claims under its new mortgage servicing rules (Regulation X).

Rachel is a native of northern Virginia. She received a B.A. in International Relations from Colgate University, where she graduated summa cum laude and was awarded the Harvey Picker Award recognizing the outstanding graduate in International Relations. Rachel spent one year working for Amnesty International USA before attending law school at the University of Virginia. She graduated from the University of Virginia School of Law in 2004, where she was a member of the Virginia Law Review. Rachel lives in Arlington, Virginia with her husband and two sons.


Representative Experience

  • Defended nonbank mortgage servicer in investigation by CFPB concerning compliance with Regulation X
  • Led enterprise risk assessment for Fortune 50 company on compliance with federal consumer financial law*
  • Represented company concerning issue of first impression under Section 16(b) of the Securities Exchange Act of 1934 in Southern District of New York and Second Circuit
  • Represented medical device manufacturer at trial in patent litigation in Northern District of California

*Matters handled prior to joining Williams & Connolly LLP


Reviews

RF
Renee F.

The speakers were great presenters.

JO
Joseph J. O.

An informative, even handed presentation.

AF
Amy F.

Very current analysis

DG
Dennis G.

Great course!

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