A&B ABstract:

The Consumer Financial Protection Bureau (“CFPB” or the “Bureau”) issued a Policy Statement to provide a framework for how it intends to apply the Dodd-Frank Act’s “abusiveness” standard going forward in its supervision and enforcement activities. While this framework attempts to provide clarity where the Dodd-Frank Act left uncertain what acts and practices would be considered “abusive,” the Policy Statement fails to address several key issues. In particular, the Policy Statement does not identify specific conduct that would be considered abusive—leaving public statements on such issues to enforcement matters and litigation.

Background to the Policy Statement

The Dodd-Frank Act (“the Act”) added a prohibition on “abusive” acts and practices to the established prohibition on unfair or deceptive acts and practices. Over the years, the Federal Trade Commission’s policy statements, enforcement actions, and judicial precedents have defined the prohibitions on “unfair” and “deceptive.” The abusiveness standard is less developed. The Act grants the CFPB authority to declare an act or practice as “abusive” if the act or practice: (1) materially interferes with the ability of a consumer to understand a term or condition of a consumer financial product or service; or (2) takes unreasonable advantage of (A) a lack of understanding on the part of the consumer of the material risks, costs, or conditions of the product or service; (B) the inability of the consumer to protect the interests of the consumer in selecting or using a consumer financial product or service; or (C) the reasonable reliance by the consumer on a covered person to act in the interests of the consumer. This Policy Statement follows a symposium convened by the CFPB in 2019 where a panel of academics and regulatory and industry experts debated, among other issues, whether the CFPB should further define abusiveness.

Defining “Abusive” in Precedent

The CFPB and other agencies have seldomly alleged a standalone “abusive” claim; instead, such claims are generally paralleled by claims of “unfairness” and “deceptiveness.” When alleging abusive practices, the CFPB almost always alleged deceptive or unfair practices based on the same set of underlying facts. For example, in 2017 the CFPB alleged that a loan servicer routinely entered student loan borrowers into forbearance without adequately providing information to borrowers regarding possible income-based repayment plans. The CFPB argued that the servicer’s actions constituted both abusive practices and unfair practices under the Act, and the Court agreed. While such decisions have provided some guidance on what constitutes an abusive practice under the Act, the courts, in reviewing such allegations, considered the statutory language but did not offer any guidance on what conduct might be construed as “abusive” but not construed as “unfair.”

The CFPB’s reticence to prosecute claims of abusive practices created a vacuum of interpretive guidance on how the abusiveness standard actually constrains businesses, beyond the black letter definition contained in the Act. For example, questions remained as to what act or practice would “materially interfere” with a consumer’s understanding of terms and conditions, or what exactly would constitute a financial service provider “taking unreasonable advantage” of a consumer seeking a product of service. These undefined terms left confusion and uncertainty for covered persons seeking to avoid violations. By contrast, the unfairness and deceptiveness standards (which were already in place before the Act’s introduction of an abusiveness standard) have been subject to decades of case law and agency interpretations, which have yielded clear guidance on what acts and practices are considered unfair or deceptive.

Content of the Policy Statement

The Policy Statement acknowledges that “[u]ncertainty remains as to the scope and meaning of abusiveness,” which “creates challenges for covered persons in complying with the law,” and it sets forth a framework regarding how the CFPB will enforce the abusiveness standard. It does not, however, describe or provide examples of precisely what conduct the CFPB would deem abusive.

The Policy Statement describes three categories of principles that the CFPB intends to apply to its supervision and enforcement actions. The CFPB has stated that the principles reflect the standards it has applied in prior actions.

1. Benefits vs. Harms: “The Bureau intends to focus on citing conduct as abusive in supervision and challenging conduct as abusive in enforcement if the Bureau concludes that the harms to consumers from the conduct outweigh its benefits to consumers (including its effects on access to credit).” The Policy Statement notes that incorporating this principle “not only ensures that the Bureau is committed to using its scarce resources to address conduct that harms consumers, but also ensures that the Bureau’s supervisory and enforcement decisions are consistent across matters.
2. No Dual Pleadings: The Bureau intends to avoid “dual pleading” of abusiveness along with unfairness or deception violations which arise from all or nearly all the same facts, and alleging “stand alone” abusiveness violations that “demonstrate clearly the nexus between cited facts and the Bureau’s legal analysis.” The Bureau believes that this approach to pleading will “provide more certainty to covered persons as to the metes and bounds of conduct the Bureau determines is abusive” and “facilitate the development of a body of jurisprudence as to the conduct courts conclude is abusive.”
3. “Good Faith” Limits on Monetary Relief: “[T]he Bureau generally does not intend to seek certain monetary remedies for abusive acts or practices if the covered person made a good-faith effort to comply with the law based on a reasonable—albeit mistaken—interpretation of the abusiveness standard. However, if a covered person makes a good-faith but unsuccessful effort to comply with the abusiveness standard, the Bureau still intends to seek legal or equitable remedies, such as damages and restitution, to redress identifiable consumer injury.”

The Policy Statement in Context

The Policy Statement is not a CFPB rulemaking. Rather, the Policy Statement merely “constitutes a general statement of policy that is exempt from the notice and comment rulemaking requirements of the Administrative Procedure Act” and is only “intended to provide information regarding the Bureau’s general plans to exercise its discretion.” It “does not impose any legal requirements on external parties, nor does it create or confer any substantive rights on external parties that could be enforceable in any administrative or civil Proceeding.” As such, while the Policy Statement is intended as a helpful guide to the Bureau’s enforcement philosophy with regard to the abusiveness standard, it is not law, and is subject to revision in the event of any change in the CFPB’s leadership, policies, or priorities.

The Policy Statement is not expected to affect ongoing litigation. In remarks to the United States House of Representative Financial Oversight Committee on February 6, 2020, CFPB Director Kathleen Kraninger stated that “At this point, we have not amended any filings in court and don’t intend to related to this specifically,” indicating that the CFPB doesn’t anticipate repleading any of its pending court enforcement actions in light of the Policy Statement.

Takeaways:

While the principles outlined in the Policy Statement provide an indication of how the CFPB will react to conduct it deems to be “abusive,” it falls short of providing clarity on it will deem abusive, thereby continuing the uncertainty regarding the abusive standard that has existed since its inception. Moreover, the principles set forth in the Policy Statement are themselves subject to uncertainty. For example, it is unclear what exactly constitutes consumer benefits or harms and how those factors are weighed to determine whether conduct is abusive; likewise, it is unclear what types of actions are sufficient to demonstrate a good-faith effort to comply with the law under a mistaken interpretation of the abusiveness standard.

Notably, however, the Policy Statement expressly left open “the possibility of engaging in a future rulemaking to further define the abusiveness standard,” which presumably may take the form of enforcement actions, CFPB advisories or other guidance, or updates to the CFPB examination manual.

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