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Privacy and Consumer Protection Enforcement Under the Biden Administration January 7, 2020 Privacy and Consumer Protection Enforcement under the Biden Administration January 7, 2020 Panelists Joel Cohen Elizabeth Papez Alexander Southwell Ashley Rogers Ryan Bergsieker Amanda Aycock Winston Chan Victoria Weatherford Mylan Denerstein MCLE Certificate Information • Most participants should anticipate receiving their certificate of attendance via email approximately four weeks following the webcast. • Virginia Bar Association members should anticipate receiving their certificate of attendance six weeks following the webcast. • Please direct all questions regarding MCLE to [email protected]. 2 Panelists Joel Cohen Mylan Denerstein Elizabeth Papez Partner Partner Partner [email protected] [email protected] [email protected] +1 212.351.2664 +1 212.351.3850 +1 202.955.8608 Ashley Rogers Winston Chan Alexander Southwell Partner Partner Partner [email protected] [email protected] [email protected] +1 214.698.3316 +1 303.298.5774 +1 212.351.3981 Amanda Aycock Ryan Bergsieker Victoria Weatherford Associate Partner Associate [email protected] [email protected] [email protected] +1 212.351.2356 +1 303.298.5774 +1 415.393.8265 3 Agenda 1. DOJ and SEC Update – Consumer Fraud 2. FTC Update – Consumer Protection 3. HHS Update – Privacy 4. CFPB Update – Consumer Financial Protection 5. State Attorney General Update – Consumer Protection 4 Legislation & Supervision Rules & Structure DOJ and SEC Transition 2021 Enforcement DOJ and SEC Update – Consumer Fraud Department of Justice • Anticipated Priorities ‒ Renewed focus on preserving the integrity of the department and guarding its investigations and prosecutions from undue partisan influence. ‒ Continued emphasis on combatting fraud against consumers and corporate fraud that victimizes the general public, particularly in the healthcare field. • COVID-19 Hoarding and Price Gouging Task Force, established in March 2020 to address COVID-19-related market manipulation, hoarding, and price gouging. • National Rapid Response Strike Force, established in September 2020. Charged with investigating and prosecuting fraud cases involving major healthcare providers. “This Office, together with the Department’s COVID-19 Hoarding and Price Gouging Task Force, is working tirelessly to ensure that scam artists who seek to capitalize on the worldwide pandemic will be brought to justice.” – Richard P. Donoghue, U.S. Attorney for the Eastern District of New York 6 Department of Justice • The DOJ has engaged in a national, coordinated effort to combat illegal conduct by those attempting to defraud healthcare providers and government agencies during the COVID-19 pandemic. ‒ DOJ brought separate criminal cases in the District of Oregon against two individuals accused of fraudulently converting to their personal use loans intended to help small businesses during the pandemic. ‒ DOJ brought a criminal complaint in the Eastern District of New York against two individuals accused of conspiring to commit wire fraud by seeking more than $4 million from a purported purchaser of PPE that the defendants did not own or have authorization to sell. 7 Securities & Exchange Commission • Leadership Changes ‒ Chairman and division heads are expected to have tough enforcement records • Legislative Changes ‒ National Defense Authorization Act strengthens SEC’s ability to pursue disgorgement • Alters standards set forth in SCOTUS decisions in Kokesh and Liu • Gives the SEC the explicit authority to pursue disgorgement in court • Expands the statute of limitations period 8 Trends to Watch • An uptick in enforcement actions and proceedings is expected in 2021 ‒ A high volume of referrals and whistleblower complaints in 2020 will lead to more enforcement actions in 2021. • Record-breaking whistleblower awards in both amount and frequency • ~40% increase in tips and referrals in 2020 ‒ The new administration is expected to enact aggressive enforcement policies to reflect its no tolerance approach, including an enforcement focus on larger Wall Street firms. 9 Anticipated Priorities • Investigating and responding to misconduct related to COVID-19 ‒ Accounting and Disclosure Fraud: the SEC is expected to continue to closely scrutinize how companies disclosed financial information and coronavirus- related risks to the investing public. ‒ Complex Financial Instruments: the SEC has prioritized looking into how risks associated with complex structured products are disclosed to investors. • Increasing oversight of broker-dealers and investment advisors ‒ The SEC is likely to ramp up examinations assessing compliance with Regulation Best Interest and may act to tighten the rule further. • Bringing aggressive enforcement actions ‒ For example, the SEC is expected to put an increased focus on market manipulation and insider trading, including by using its data analytics technology to identify suspicious activity. 10 Legislation & Supervision Rules & Structure FTC Transition 2021 Enforcement FTC Update – Consumer Protection FTC Consumer Protection Enforcement: Key Determinants • Anticipated Leadership Changes at Commissioner Party Term Joseph J. Simons R 5/1/18 – the FTC (Chairman) 9/25/24 Rebecca Kelly Slaughter D 5/2/18 – • Potential Comprehensive Federal 9/25/22 Privacy Legislation Noah Joshua Phillips R 5/2/18 – 9/25/23 • Potential Sector-Specific Federal Christine S. Wilson R 9/25/18 – Privacy Legislation 9/25/25 Rohit Chopra D 5/2/18 – • FTC Budget and Resource Allocation 9/25/19 Decisions • Cooperation with Revitalized CFPB and Other Regulators 12 Potential FTC Consumer Protection Priorities • Increased pursuit of monetary relief • Increased use of consumer protection rulemaking • Increased pursuit of individual liability for corporate leaders • Increased reliance on unfairness theories, including with respect to data security 13 Potential FTC Consumer Protection Priorities • Increased pursuit of platform liability • Increased scrutiny of algorithms that use consumer data • Increased scrutiny of privacy issues related to ad targeting • Expanded focus on children’s privacy 14 Legislation & Supervision Rules & Structure HHS Transition 2021 Enforcement HHS Update – Privacy Potential HHS Consumer Protection Priorities • HIPAA enforcement as an HHS priority • Continued emphasis on right of access enforcement • Reinvigorated HIPAA audit program • Privacy Rule revisions to address sharing patient information • Potential new legislation addressing telehealth privacy 16 Legislation & Supervision Rules & Structure CFPB Transition 2021 Enforcement CFPB Update – Consumer Financial Protection CFPB: Appointments & Legislation • Key Appointments • Director and Senior Leadership • Legislation • Public credit reporting bureau with mandatory jurisdiction over federal program lenders • Bankruptcy discharge for student debt • Responses to Supreme Court decisions • Lucia, Seila Law, Liu, AMG 18 CFPB Enforcement Trends: 2015 - 2000 Enforcement Trends: 2015 - 2020 • Scaled back enforcement agenda ‒ Prohibition on regulation by enforcement ‒ Focus on smaller firms and egregious harm • Structural limits ‒ Relocation of fair lending enforcement to Director’s office ‒ Limitations on Enforcement Office initiation of investigations ‒ Elimination of rules and guidance absent Congressional reauthorization ‒ Limits on funding requests and advisory board functions 19 CFPB: Look Ahead “Reverse the Trump administration’s efforts to weaken the CFPB” and “hold financial institutions accountable for discriminatory practices.” - WSJ 10/21/20 Transition Regulatory Structural Enforcement Leandra English CARES Act New Director More Actions Transition Review New Rules & Guidance Fair Lending Office Greater Penalties New Policy Agenda Fair Lending Investigation Broader Scope Credit & Other Reporting Powers Large Institutions Consumer Capital Access ALJ Appointments Lending Programs FTC/State AG Regulation by Enforcement Consumer Lending Credit ReportingP’ships Arbitration Consumer Capital Markets 20 Legislation & Supervision Rules & Structure State Attorneys General Shift in Focus 2021 Enforcement State Attorney General Update – Consumer Protection State AGs Generally Democratic AGs Republican AGs Fewer resources devoted to suing More resources devoted to suing the federal government and filling federal government for perceived perceived gaps overreach More coalitions with federal agencies Fewer coalitions with federal agencies Continued focus on consumer Continued focus on consumer protection protection Continued pursuit of big national Continued pursuit of big national issues like antitrust, data privacy issues like antitrust, data privacy 22 New York Significant resources have been allocated to fighting the Trump Administration, and will be reallocated… 23 New York Focus going forward on hot-button state or national issues and consumer protection across sectors… Data Privacy and Antitrust Covid-19 “My office is committed to Enforcement protecting consumer data and holding all businesses accountable for implementing safe security practices.” … plus privacy, antitrust, environment, healthcare, employment, housing, policing and law enforcement, criminal justice reform, gun violence 24 New York “[W]e must commit to greater regulatory oversight of large social media companies. The integrity of our elections and markets depends on it. The swift and effective response of DFS-regulated cryptocurrency companies illustrates how effective regulation can foster innovation and growth, while also protecting consumers.” - Linda
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