American University Washington College of Law Symposium

Speaking Engagement | June.29.2022

American University | Washington, D.C.

CFPB’s New Approach to Discrimination: Invoking UDAAP
Wednesday, June 29, 2022 - 12:00 PM EDT

The Consumer Financial Protection Bureau earlier this year claimed a new tool to prevent discrimination in financial services by examining institutions for conduct that, while potentially falling outside the ambit of traditional fair lending laws, was nonetheless "unfair." To the uninitiated, the change seemed semantic. To providers and consumers of financial services and products, it is potentially seismic.

Orrick partners Jeremiah Buckley and John Coleman joined a distinguished panel for a symposium that steered the conversation about this controversial and untested approach to a shared understanding of the bureau's expectations, and how institutions can meet them.

Click here to view the recording.

Symposium conversation

Eric Halperin, Assistant Director for the Office of Enforcement, Consumer Financial Protection Bureau, interviewed by V. Gerard Comizio, Associate Director, Business Law Program at the American University Washington College of Law

Symposium presenters

David Silberman, Senior Fellow, Center for Responsible Lending
Kitty Ryan, Senior Vice President, American Bankers Association
John Coleman, Partner, Orrick
Moderator: Jerry Buckley, Partner and Co-founder, Buckley LLP

Program description

Defining conduct as unfair, deceptive, or abusive triggers liability under the Consumer Financial Protection Act, a broad statute that could reach well beyond the traditional lending realm covered by the Equal Credit Opportunity Act. In fact, the CFPB paired its announcement with revised examination procedures for assessing UDAAP compliance and a separate blog post by its enforcement and supervision heads explaining that they were "cracking down on discrimination in the financial sector." They said the new procedures would guide examiners to look "beyond discrimination directly connected to fair lending laws" and "to review any policies or practices that exclude individuals from products and services, or offer products or services with different terms, in an unfairly discriminatory manner."

The bureau's full-court press on this new initiative left some meaningful questions unanswered. This symposium will explore the legal and policy questions raised by the CFPB's adoption of a theory of "unfair discrimination." The symposium will begin with a conversation between CFPB Enforcement Director Eric Halperin and Professor Comizio about the CFPB's theory of unfairness and the implications of the changes to the examination manual for regulated institutions.

This program covers how the CFPB's UDAAP authority interacts with laws enacted specifically to prevent discriminatory conduct, the legal support for the CFPB's new theory, and the specific steps institutions should consider taking to ensure compliance with it. Indications that the Federal Trade Commission could adopt a similar theory of "unfair discrimination" make this a timely and relevant discussion for companies within and without the financial services industry.

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Speakers

Jeremiah Buckley Partner, Financial & Fintech Advisory, Strategic Advisory & Government Enforcement (SAGE)

Washington, D.C.

See my bio

D:+1 202 349 8010
E: [email protected]

Practice:

Financial & Fintech Advisory
Strategic Advisory & Government Enforcement (SAGE)
Fintech

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See full bio

Jeremiah Buckley Partner

Washington, D.C.

Jerry is a thought leader in the field of financial services regulation. He co-hosts RegFi, a weekly podcast series, that explores how financial regulation will change more in the next 10 years than in the last 50: https://www.orrick.com/en/Podcasts/RegFi.

Early in his career, Jerry served as Minority Staff Director of the United States Senate Banking Committee, and he played an important role in drafting many of the laws that impact the consumer financial services industry today. Since entering private practice, he has guided clients in developing compliance programs, dealing with regulatory and enforcement challenges and helping shape public policy.

Throughout his career, he has focused on promoting enhanced delivery of financial services. He was a leader in advocating the passage of the federal ESign Act, which authorized use of electronic records in financial services and other transactions. He served as counsel to the Drafting Committee for Standards and Procedures for Electronic Records and Signatures (SPeRS). He co-authored The Law of Electronic Records and Signatures (West Publishing Company) as well as Introduction to Mortgage Banking (American Bankers Association).

He has also taken a lead in promoting national data protection standards. His American Banker article, “Congress needs to hurry up on data protection,” lays out the case for national standards as an alternative to a patchwork of state privacy laws. He serves as advisor to the Financial Services Trade Associations Data Protection Working Group, an informal alliance of national financial trade associations responding to fast changing legislative and regulatory developments related to privacy and data security. He is also an advisor to the Association for Data and Cyber Governance (ADCG) and the Alliance for Innovation in Regulation (AIR).

His clients include banks, mortgage companies, credit card issuers, insurance companies, broker dealers, fintech companies, investment banks and private equity investors. Jerry provides strategic counsel and advice on business formations and acquisitions, licensing and chartering, risk management and enforcement matters involving federal and state regulators.

He has defended companies that are targets of inquiries or enforcement actions by the Office of the Comptroller of the Currency (OCC), Federal Deposit Insurance Corporation (FDIC), Federal Reserve, Consumer Financial Protection Bureau (CFPB), Federal Trade Commission (FTC), Department of Housing and Urban Development (HUD), Congressional Committees and state attorneys general.

Jerry has promoted a modernized approach to financial regulation (regtech). He led Buckley LLP's effort to publish a widely read white paper titled “Financial Regulators’ Dilemma: Administrative and Regulatory Hurdles to Innovation.” The paper is based on interviews with Heads of Innovation at the principle financial agency regulators, and lays out legal and administrative stumbling blocks identified by regulators themselves impeding regtech advances.

Jerry's opinion pieces regularly appear in financial service publications. He has advocated for development of “dynamic disclosures” to offer more useful information to consumers than is provided under the often cumbersome and voluminous static disclosures currently provided.

An article he wrote in the American Banker in 2016, “The Compliance Officer Bill of Rights,” focused attention on the growing risks faced by compliance officers. This led to a symposium on “Rights and Responsibilities of Today’s Chief Compliance Officers — Their Evolving Role,” which was chaired by Jerry and sponsored by American University Washington College of Law. Chief compliance officers from the nation’s leading companies participated in this seminal discussion about how to define and make safe the job of a chief compliance officer.

He has acted as counsel for a number of national financial services trade associations on matters before regulatory agencies and Congress, and in filing amicus briefs related to the interpretation of banking and consumer finance laws in cases before the U.S. Supreme Court and appellate courts.

He is an Adjunct Associate Professor of Law at American University's Washington College of Law. In 2007, he founded a national financial services consulting company known as Treliant Risk Advisors.

In 2015 he was awarded the Senator William Proxmire Lifetime Achievement Award from the American College of Consumer Financial Services Lawyers.

John Coleman Partner, Financial & Fintech Advisory, Strategic Advisory & Government Enforcement (SAGE)

Washington, D.C.

See my bio

D:+1 202 349 8006
E: [email protected]

Practice:

Financial & Fintech Advisory
Strategic Advisory & Government Enforcement (SAGE)
Fintech

vCard

See full bio

John Coleman Partner

Washington, D.C.

Prior to joining Orrick, John was a partner at Buckley LLP, which he joined after 15 years in federal government service as a litigator and advisor to senior policymakers, most recently as Deputy General Counsel for Litigation and Oversight at the Consumer Financial Protection Bureau. He joined the CFPB soon after its creation in 2010 and was one of a core group of attorneys tasked with interpreting the authorities granted to the agency by the Consumer Financial Protection Act of 2010 and establishing the procedures by which the agency exercises those authorities. He was the first person to appear in court on behalf of the CFPB and was involved in every significant litigation matter in the agency’s history prior to his departure. As Deputy General Counsel, he managed the team of attorneys responsible for representing the Bureau in litigation, including appellate matters, and before congressional oversight bodies.

John served every director or acting director in the CFPB's history during his tenure at the CFPB, advising them and senior officials in the Division of Supervision, Enforcement, and Fair Lending on a range of complex legal and policy matters, including those arising in the course of examinations, investigations and enforcement actions. He also advised the Director and senior officials in the Division of Research, Markets, and Regulations with respect to rulemakings, and represented the agency in all rulemaking challenges.

Prior to joining the CFPB, John was a trial attorney in the Federal Programs Branch of the Department of Justice’s Civil Division, representing federal agencies and officials in high-profile civil litigation, including cases brought under the U.S. Constitution, the Administrative Procedure Act and federal antidiscrimination laws.

Following law school, he served as a law clerk for the Honorable T.S. Ellis III, of the United States District Court for the Eastern District of Virginia.