OCC Establishes Standards For Independent Consultants Required Under Enforcement Actions


On November 12, the OCC issued Bulletin 2013-33, which establishes the standards the OCC uses when it requires banks to employ independent consultants as part of an enforcement action. The Bulletin explains that when conducting its initial assessment of the need for an independent consultant, the OCC considers, among other factors: (i) the severity of the violations; (ii) the criticality of the function requiring remediation; (iii) confidence in bank management’s ability to identify violations and take corrective action in a timely manner; (iv) the expertise, staffing, and resources of the bank to perform the necessary actions; (v) actions already taken by the bank to address the violations or issues; and (vi) the services to be provided by an independent consultant. The bulletin outlines the OCC’s process for reviewing a consultant selected by a bank, including its expectations for a bank’s due diligence process when retaining an independent consultant. The bulletin also describes the OCC’s oversight of the performance of the consultant, the nature of which can be impacted by, among other things: (i) the nature of deficiencies or violations the independent consultant is engaged to identify, including with respect to recommendations regarding remediation; (ii) the scope and duration of work; and (iii) the potential for and materiality of harm to consumers and the bank.