Since 1938, the Federal Trade Commission Act has rendered it unlawful to engage in Unfair or Deceptive Acts or Practices as a matter of federal law. The scope and meaning of that “UDAP” prohibition has been fleshed out in agency pronouncements and case law over the years, and has an accepted, if still somewhat amorphous, meaning. Then in 2010 along came the Dodd-Frank Act, which created the Consumer Financial Protection Bureau (CFPB) and gave it authority to implement and enforce a prohibition on Unfair, Deceptive, or Abusive Acts or Practices. The age-old UDAP thus became UDAAP, and the $64,000 question (or, given the scope of CFPB penalties and remedies, the $64 million question) became what to make of the extra “A.” What does abusive mean? And more specifically, what conduct would be deemed abusive that wouldn’t already be deemed unfair or deceptive under the familiar UDAP prohibition?

Nearly five years after the CFPB gained its authorities, the answer to those questions is not yet clear, although certain patterns have begun to emerge. In its existence, the CFPB has brought nearly 125 enforcement actions. In over 80 of those, it has alleged or found UDAAP violations. In only 16 cases has the CFPB alleged abusive conduct, but fully half of those cases, were filed in 2015 and 2016, suggesting an increased willingness to rely on this authority. In this paper, we provide an analysis of how the CFPB has used its abusiveness authority to date and what we might expect in the future.