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Richard Cordray, the First Director of the Bureau of Consumer Fresh Air for Those Pushed Around by the BCFP

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Richard Cordray, the First Director of the Bureau of Consumer Fresh Air for Those Pushed Around by the BCFP INDUSTRY INSIGHT / MICHELLE GARCIA GILBERT BACK TO BASICS Richard Cordray, the first director of the Bureau of Consumer fresh air for those pushed around by the BCFP. Financial Protection (BCFP, formerly the Consumer Financial On January 23, 2018, Mulvaney emailed a Protection Bureau), resigned in late November of 2017 after memo to his BCFP staff. Previously, Mulvaney argued, the BCFP had “pushed the envelope” announcing his candidacy for Ohio governor. His departure when it came to its approach to regulation instigated not only a legal battle over his rightful successor and enforcement. The Bureau’s past envelope- but also raised questions about what direction the Bureau would take in the pushing did damage to both businesses aftermath of his departure. Under new leadership and an administration with and consumers. Rather than regulation by different priorities, what would the BCFP’s guiding principles become? enforcement, Mulvaney said the Bureau would use formal rulemaking and education will help As part of his resignation, Cordray named his to the full Senate after a 13-12 Senate Banking prevent consumer abuse. Chief of Staff, Leandra English, as the Bureau’s Committee vote. Kraninger’s boss, Mulvaney, In his memo, Mulvaney said, “We don’t acting director. However, President Donald has a controversial history with the Bureau—he just work for the government, we work for the Trump appointed Mick Mulvaney, Director voted to eliminate it while in the U.S. House for people. And that means everyone.” Later in of the Office of Management and Budget, as South Carolina. the memo, Mulvaney continued, saying, “If a interim director to replace Leandra English Senator Elizabeth Warren, an architect of company closes its doors under the weight of under the Federal Vacancies Reform Act, which the BCFP, said insisted that the English should a multi-year Civil Investigative Demand, you allows the President to appoint an interim by all rights assume the acting director role. and I will still have jobs … But what about the replacement for an appointed officer of an English then sued for the position, ultimately workers who are laid off as a result?” executive agency without Senate confirmation. lost that lawsuit, and appealed. As of July 6, The new Strategic Plan for 2018, drafted On June 18, 2018, President Trump 2018, English resigned and dropped her appeal. by Mulvaney, is committed to the Bureau’s nominated Kathy Kraninger, a senior official at statutory responsibilities but shows no interest the Office of Management and Budget, as the AN END TO ENVELOPE-PUSHING in using the Bureau as a cudgel to enforce Bureau’s Director, and her nomination advanced Mick Mulvaney seems to be a breath of “unwritten” regulations— unless directed to do 86 » VISIT US ONLINE @ DSNEWS.COM Under the direction of Acting Director Mick Mulvaney, the Bureau of Consumer Financial Protection has embraced a new name and path that puts less emphasis on regulatory enforcement and more on education and innovation. 87 In his Semi-Annual Report, Mulvaney Illinois, Iowa, Massachusetts, and North “Mulvaney recommended four changes to the Dodd-Frank Carolina are likely to increase their resources Act, which founded the Bureau: dedicated to enforcement of these laws. emphasized that » Fund the Bureau through Congressional Between November 21, 2017, when the appropriations, under Section 1017 of Bureau announced a settlement with Citibank, Dodd-Frank and July 13, 2018, no enforcement actions » the Bureau will Require legislative approval of major have been filed. Four enforcement actions were Bureau rules settled with significant reductions in penalties or » focus much more Ensure the Director answers to the with a restitution award only. Cordray issued an President average of two to four enforcement actions each » on persecuting Create an independent Inspector General month. for the Bureau As of July 16, 2018, the Bureau confirmed they are investigating possible violations of illegal acts rather The Bureau is currently funded by transfers consumer protection laws. So, look for more each year of combined earnings from the state enforcement of consumer protection laws, than making new Federal Reserve System. For 2018, the budget and for more Bureau cooperation with lenders, totaled approximately $663 million, up from servicers, creditors, and businesses. Mulvaney laws or policy—a $631.7 million in 2016 and $646.2 million in announced at the end of May 2018 that the 2017. Bureau is working with the Commodity Futures Mulvaney also listed the Bureau’s Spring Trading Commission (CFTC) to develop a notable change 2018 rulemaking agenda, with an immediate fintech sandbox. A sandbox allows startups to focus on Business Lending Data (Regulation test products with feedback from regulators. compared to B); the Expedited Funds Availability Act The CFTC, a swaps and derivatives (Regulation CC); the Debt Collection Rule; regulator, has launched one of the most robust Home Mortgage Disclosure Regulation sandboxes at the federal level. The United (Regulation C); Payday, Vehicle Title, and the tenor under Kingdom’s Financial Conduct Authority Certain High-Cost Installment Loans; the announced earlier this year plans for a global Gramm-Leach-Bliley Act (GLBA) (Regulation testing bed for new financial technology Cordray’s rule.” P); the Amendment Relating to Disclosure of applications. Arizona started a regulatory Records and Information; and Amendments to so by Congress. The two strategic goals of the sandbox in March 2018, and Illinois has the Federal Mortgage Disclosure Requirements Bureau come directly from Sections 1011 and announced similar plans. under the Truth in Lending Act (Regulation Z) 1013 of the Dodd-Frank Act: “to regulate the The Dodd-Frank Act allows the BCFP offering and provision of consumer financial BACK TO BASICS to foster such innovation, though rarely has products or services under the Federal consumer What does all this mean for enforcement the Bureau done so. Now, it seems, that may financial laws” and “to educate and empower of the Dodd-Frank Act under the refocused change. consumers to make better informed financial BCFP? State Attorneys General, who have Michelle Garcia Gilbert is Managing Partner of decisions.” collaborated closely with the Bureau since the Gilbert Garcia Group. Gilbert has been admitted There are also five strategic objectives to its founding, plan to shoulder much more to the following practices and courts: Florida Bar, achieving those goals—educating consumers, responsibility under the administration of 1986; Middle District of Florida, 1988; Northern protecting consumers from UDAAP and President Trump. At the winter meeting of the District of Florida, 2005; Southern District of discrimination, reducing unwarranted National Association of Attorneys General on Florida, 2006; U.S. Supreme Court, 2000; U.S. regulatory burdens, enforcing federal consumer February 28, 2018, Mulvaney emphasized that Court of Appeals, Eleventh Circuit, 2003. She financial law consistency, and facilitating access the Bureau will focus much more on persecuting matriculated at the University of South Florida and innovation in markets through transparency illegal acts rather than making new laws or (B.A., 1982, cum laude), and the University and efficiency. It’s worth noting that Cordray’s policy—a notable change compared to the tenor of Notre Dame (J.D., 1985). Gilbert handles a Strategic Plan was 40 pages long, while under Cordray’s rule. wide variety of legal matters for the firm and has Mulvaney’s is a much more limited 15 pages. State AGs have already begun shifting substantial litigation experience in both default In April 2018, Mulvaney also sent a Semi- in reaction to Mulvaney’s new policies. State and non-default cases, including jury and non-jury Annual Report to Congress for the period of enforcement of consumer protection laws has trials, motion practice, and appellate oral argument, April 1, 2017, to September 30, 2017, in which tripled over the past year. Pennsylvania and throughout the state of Florida. She has managed he stated that the Bureau is too powerful and Washington have set up consumer financial the firm’s expansion into probate, estate planning, has too little oversight. protection units, and California, Oregon, business transactional and corporate law. 88 .
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