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Innovative Financial Disclosures

By Tara Sugiyama Potashnik, Leonard L. Gordon & Jonathan L. Pompan on October 29, 2013
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Editor’s Note: Today the CFPB published in the Federal Register details regarding an innovative program for testing online disclosures, and we have dedicated two blog posts written by fellow Venable attorneys to this subject.

Do you represent twenty-first century clients that offer consumer financial products or services?  Perhaps their offerings are available online and via mobile.  Or perhaps your clients have been around for decades and prefer traditional modes of conducting business but have begun to realize that they may need a makeover to be appealing to the Millennials.  Maybe they would like to be more agile, but have found that the disclosure requirements of various laws and regulations (e.g., Truth in Lending Act/Regulation Z, Electronic Funds Transfer Act/Regulation E, Gramm-Leach-Bliley Act/Regulation P) hamper their style and the delivery of their message.  As their attorney, what are your options?  In the past, you might have focused on counseling your clients on how to use the model forms found in those regulations for required disclosures.  Now you have a new option—advising and assisting them with the development of trial disclosures that comport with the Consumer Financial Protection Bureau’s (“CFPB”) newly finalized Policy to Encourage Trial Disclosure Programs (“Policy”).

The Policy is intended to “facilitate access and innovation” in the “markets for consumer financial products and services.”  The Policy recognizes that innovative companies are a rich resource that may be well-positioned to improve upon current regulatory requirements by developing disclosures that more accurately and effectively help consumers understand the costs, benefits, and risks of various consumer financial products and services.

How does the Policy work?  By providing companies with a safe harbor or “waiver” to test new disclosures on a trial basis.  If a company’s proposed disclosures are approved by the CFPB, during the testing period, the company will be deemed to be in compliance with or exempt from the relevant federal disclosure requirements.

Proposals may include: (1) innovative disclosures (e.g., disclosure content, format); and/or (2) innovative ways of delivering disclosures (e.g., means of disclosure delivery).  These proposals may be submitted by individual companies or groups of entities working together, but only those companies specifically approved by the CFPB are permitted to test the disclosures in lieu of complying with existing requirements.

The Policy provides us with insight into how the CFPB intends to regulate as a twenty-first century agency.  The CFPB has already shown an inclination to promote innovation in the marketplace through the launch of its Project Catalyst, the agency’s initiative to support innovation in the creation of consumer-friendly financial products and services.  This Policy is a core part of that initiative.  The CFPB intends to use data from the trial disclosure programs to determine whether proposed innovations improve upon existing requirements.  Such data may inform future disclosure rulemakings of the CFPB.

Tara Sugiyama Potashnik

Venable Chief of Staff Tara Sugiyama Potashnik draws from years of experience as a data privacy attorney to advocate for clients before the U.S. Congress, federal and state agencies, and state attorneys general. Tara works with professionals at the firm’s highest levels, allowing…

Venable Chief of Staff Tara Sugiyama Potashnik draws from years of experience as a data privacy attorney to advocate for clients before the U.S. Congress, federal and state agencies, and state attorneys general. Tara works with professionals at the firm’s highest levels, allowing her to seamlessly connect clients with the right talent to address their needs. As a leader in the firm’s Technology and Innovation Group, she orchestrates teams that advocate on privacy, cybersecurity, and autonomous and connected mobility matters. Tara also manages crisis response situations and convenes multi-stakeholder initiatives to develop self-regulatory codes and programs.

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Photo of Leonard L. Gordon Leonard L. Gordon

Len Gordon, chair of Venable’s Advertising and Marketing Group, is a skilled litigator who leverages his significant experience working for the Federal Trade Commission (FTC) to help protect his clients’ interests and guide their business activity. Len regularly represents companies and individuals in…

Len Gordon, chair of Venable’s Advertising and Marketing Group, is a skilled litigator who leverages his significant experience working for the Federal Trade Commission (FTC) to help protect his clients’ interests and guide their business activity. Len regularly represents companies and individuals in investigations and litigation with the FTC, state attorneys general, the Department of Justice (DOJ), and the Consumer Financial Protection Bureau (CFPB). Len also represents clients in business-to-business and class action litigation involving both consumer protection and antitrust issues. He also counsels clients on antitrust, advertising, and marketing compliance issues.

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Photo of Jonathan L. Pompan Jonathan L. Pompan

Jonathan Pompan is co-chair of the firm’s Consumer Financial Services Practice Group and Consumer Financial Protection Bureau (CFPB) Task Force. Jonathan’s practice focuses on providing comprehensive legal advice and regulatory advocacy to a broad spectrum of clients, such as nonbank financial products and…

Jonathan Pompan is co-chair of the firm’s Consumer Financial Services Practice Group and Consumer Financial Protection Bureau (CFPB) Task Force. Jonathan’s practice focuses on providing comprehensive legal advice and regulatory advocacy to a broad spectrum of clients, such as nonbank financial products and services providers, advertisers and marketers, and trade and professional associations, before the CFPB, the Federal Trade Commission (FTC), state attorneys general, and regulatory agencies. At a time when government consumer protection agencies are stepping up their scrutiny, Jonathan develops strong and lasting relationships with clients by understanding their business objectives, helping them recognize opportunities and avoid legal pitfalls.

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  • Posted in:
    Banking, Finance and Securities
  • Blog:
    All About Advertising Law
  • Organization:
    Venable LLP
  • Article: View Original Source

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