CFPB Asks for Feedback About its Investigative Process

As promised last week by Acting Director Mick Mulvaney, today the Consumer Financial Protection Bureau (CFPB or Bureau) released its Request for Information (RFI) regarding Civil Investigative Demands (CID). Per the announcement, "this RFI will provide an opportunity for the public to submit feedback and suggest ways to improve outcomes for both consumers and covered entities."

The CFPB will begin accepting comments once the RFI is printed in the Federal Register, which is expected to occur on Friday, January 26. The deadline to submit comments is 60 days following the date of publication (so, likely March 27, 2018).

The RFI contains a list of 11 topics related to CIDs, but noted that the nonexhaustive list is meant to assist in the formulation of comments and is not intended to restrict the issues that may be addressed. The topics include:

1. The Bureau’s processes for initiating investigations, including 12 CFR 1080.4’s delegation of authority to initiate investigations to the Assistant Director of the Office of Enforcement and the Deputy Assistant Directors of the Office of Enforcement;
   
   
2. The Bureau’s processes for the issuance of CIDs, including the non-delegable authority of the Director, Assistant Director of the Office of Enforcement, and the Deputy Assistant Directors of the Office of Enforcement to issue CIDs;
   
   
3. Specific steps that the Bureau could take to improve CID recipients’ understanding of investigations, whether through the notification of purpose included in each CID or through other avenues, including facilitating a better understanding of the specific types of information sought by the CID;
   
   
4. The nature and scope of requests included in Bureau CIDs, including whether topics, questions, or requests for written reports effectively achieve the Bureau’s statutory and regulatory objectives, while minimizing burdens, consistent with applicable law, and the extent to which the meet and confer process helps achieve these objectives;
   
   
5. The timeframes associated with each step of the Bureau’s CID process, including return dates, and the specific timeframes for meeting and conferring, and petitioning to modify or set aside a CID;
   
   
6. The Bureau’s taking of testimony from an entity, including whether 12 CFR 1080.6(a)(4)(ii), and/or the Bureau’s processes should be modified to make expressly clear that the standards applicable to Federal Rule of Civil Procedure 30(b)(6) also apply to the Bureau’s taking of testimony from an entity;
   
   
7. The Bureau’s processes for handling the inadvertent production of privileged information, including whether 12 CFR 1080.8(c) and/or the Bureau’s processes should 6 be modified in order to make expressly clear that the standards applicable to Federal Rule of Evidence 502 also apply to documents inadvertently produced in response to a CID;
   
   
8. The rights afforded to witnesses by 12 CFR 1080.9, including limitations on the role of counsel described in 12 CFR 1080.9(b) in light of the statutory delineation of objections set forth in 12 U.S.C. 5562(c)(13)(D)(iii);
   
   
9. The Bureau’s processes concerning meeting and conferring with recipients of CIDs, including, for example, negotiations regarding modifications and the delegation of authority to the Assistant Director of the Office of Enforcement and Deputy Assistant Directors of the Office of Enforcement to negotiate and approve the terms of satisfactory compliance with civil investigative demands and extending the time for compliance;
   
   
10. The Bureau’s requirements for responding to CIDs, including certification requirements, and the Bureau’s CID document submission standards; and
    
    
11. The Bureau’s processes concerning CID recipients’ petitions to modify or set aside Bureau CIDs.

You can view the RFI, which includes instructions for submitting comments, here.

insideARM Perspective

As covered entities, larger market participants (LMP) in debt collection - those with $10 million or more in annual receipts from collection activities (specifically excluding debt collected that were originally owed to a medical provider) - likely have a good deal of feedback for the Bureau. The CFPB rule establishing the LMP definition was finalized in October 2012. Since that time, the Bureau has conducted investigations of dozens of industry firms.