To help you keep abreast of relevant activities, below find a breakdown of some of the biggest events at the federal and state levels to impact the Consumer Finance Services industry this past week:

Federal Activities

State Activities

Federal Activities:

  • On January 19, the Consumer Financial Protection Bureau (CFPB) issued a new circular, affirming that companies offering “negative option” subscription services must comply with federal consumer financial protection law. Negative option programs include subscription services that automatically renew unless the consumer affirmatively cancels, as well as trial marketing programs that charge a reduced fee for an initial period and then automatically begin charging a higher fee. Companies risk violating the law if they do not clearly and conspicuously disclose the terms of their subscription services and obtain consumers’ informed consent or if they make it unreasonably difficult for consumers to cancel. For more information, click here.
  • On January 19, the Securities and Exchange Commission (SEC) filed a consent order, memorializing crypto-lending firm Nexo Capital, Inc.’s (Nexo) assent to pay a $45 million fine to remedy its offering of an interest-bearing cryptocurrency deposit product called the “Nexo Earn Interest Product” (EIP), which the SEC alleged constituted the offering and selling of unregistered securities in violation of federal securities law. Critically, under the consent order, Nexo must “cease the EIP to all U.S. investors by April 1, 2023 and [must] exit the U.S. entirely shortly thereafter.” For more information, click here.
  • On January 18, the U.S. Department of Treasury’s Financial Crimes Enforcement Network (FinCEN) issued an order, identifying Hong Kong-based cryptocurrency exchange Bitzlato Limited (Bitzlato) as a “primary money laundering concern” due to Bitzlato’s alleged connection to illicit Russian finance and ransomware activities. FinCEN’s order prohibits all “covered financial institutions” from transmitting any funds involving Bitzlato. Notably, FinCEN alleged that public reporting demonstrated that Bitzlato did not effectively implement policies and procedures designed to combat money laundering and illicit finance. For more information, click here.
  • On January 18, the CFPB released the updated “Mortgage Servicing Examination Procedures,” providing transparency to stakeholders about how we do our work. The examination procedures describe the types of information that CFPB examiners gather to evaluate mortgage servicers’ policies and procedures; assess whether servicers are complying with applicable laws; and identify risks to consumers related to mortgage servicing. The updated examination procedures include CFPB guidance released since the last update in June 2016. For more information, click here.
  • On January 18, the U.S. Department of Justice (DOJ) charged Anatoly Legkodymov, the founder of Hong Kong-based cryptocurrency exchange Bitzlato, with conducting a money transmitting business that transmitted illicit funds and with failing to develop and implement an effective KYC/AML program in violation of the Bank Secrecy Act. According to the DOJ, Bitzlato had been responsible for processing approximately $4.58 billion worth of cryptocurrency transactions since 2018. For more information, click here.
  • On January 17, during an interview with Bloomberg, CFTC Commissioner Caroline Phan noted that she believes “crypto financial instruments should be held to the same standard as other financial instruments,” and she is hopeful that the CFTC and other federal regulatory agencies will provide more crypto-related guidance throughout 2023. For more information, click here.
  • On January 17, FinCEN published two notices and requests for comment in the Federal Register related to the reporting process the agency intends to use to collect data. Specifically, FinCEn is issuing a final rule, requiring certain entities to file with FinCEN reports that identify two categories of individuals: the beneficial owners of the entity and individuals who have filed an application with specified governmental authorities to create the entity or register it to do business. These regulations implement Section 6403 of the Corporate Transparency Act, enacted into law as part of the National Defense Authorization Act for Fiscal Year 2021, and describe who must file a report, what information must be provided, and when a report is due. Comments are due by March 20. For more information, click here.
  • On January 17, Acting Comptroller of the Currency Michael Hsu delivered remarks at the Brookings Institute about the limits of large bank manageability. He stated that “[e]nterprises can become so big and complex that control failures, risk management breakdowns, and negative surprises occur too frequently — not because of weak management, but because of the sheer size and complexity of the organization.” He spoke about his belief that the “most effective and efficient way to successfully fix [these] issues … is to simply if — by divesting businesses, curtailing operations, and reducing complexity.” For more information, click here.
  • On January 17, the World Economic Forum (WEF) released a “toolkit” for decentralized autonomous organizations (DAOs). The “toolkit” is comprised of a set of resources that the WEF hopes will help developers, policymakers, and stakeholders in the crypto industry “realize the full potential” of evaluating, engaging, or developing DAOs. The WEF’s toolkit is segmented into five sections:
    • What are DAOs?;
    • DAO operations;
    • DAO governance;
    • Legal structures; and
    • Recommendations.

    For more information about the WEF’s DAO toolkit, click here. For more information about DAOs, click here.

State Activities:

  • On January 20, California Attorney General Rob Bonta submitted a comment letter, applauding the CFPB for its preliminary determination that the state’s Commercial Financing Disclosure Law (CFDL) is not preempted by the federal Truth in Lending Act (TILA). CFDL was enacted in 2018 as a tool for small businesses seeking to navigate the complex commercial financing market. The CFDL requires uniform disclosures of certain credit terms in a manner similar to those mandated by TILA’s provisions, but for commercial transactions not regulated by TILA. Before the CFDL’s adoption, there were no federal or state law disclosure requirements for commercial financing. For more information, click here.
  • On January 19, New York Attorney General Letitia James and a multistate coalition obtained up to $24 million from cryptocurrency companies Nexo, Inc. and Nexo Capital, Inc. (Nexo) for “engaging in the unregistered offer and sale of securities and commodities” and for allegedly “lying to investors about their registration status.” The agreement represents the culmination of a civil lawsuit brought by the AG in September 2022 and administrative actions by securities regulators in nine other states. Nexo is now banned from the New York securities industry for five years and must notify its investors to withdraw their assets from the platform. For more information, click here.
  • On January 19, New Hampshire Governor Chris Sununu released the final report and recommendations compiled by the governor’s Commission on Cryptocurrencies and Digital Assets, which was established on February 9, 2022. Principally, the commission’s final report touched on three points:
    • Blockchain technology (digital databases secured by cryptographic software protocols distributed across connected computers) will be an important technical innovation with many potentially important applications in our human societies and economies;
    • The legal and regulatory status of blockchain technologies and applications, such as cryptocurrencies and digital assets, is highly uncertain, and this legal and regulatory uncertainty is materially undermining innovation and economic development of new technologies, activities, and industry, as well as protections for investors and consumers; and
    • The New Hampshire government (governor, legislature, executive branch agencies, and courts of our judicial branch) should devote resources to establishing a state legal regime that will offer an attractive jurisdiction for the best responsible blockchain innovators, entrepreneurs, and businesses, while protecting investors and consumers using their applications.

    For more information, click here.

  • On January 18, the New York Department of Financial Services (DFS) announced that it adopted an updated check cashing regulation initially proposed in June 2022. The regulation implements a new method for calculating fees that accounts for the needs of licensees and consumers who utilize check cashing services. In 2005, New York became the only state to grant automatic increases to the maximum percentage check cashing fee, anchoring the increases to the Consumer Price Index (CPI). However, this method did not account how inflation disproportionately impacts underserved New Yorkers who rely on check cashing services to access their funds. The regulation eliminates automatic increases based on CPI, creating instead a two-tier system of fees for check cashers. For more information, click here.
Photo of Ethan G. Ostroff Ethan G. Ostroff

Ethan Ostroff’s practice focuses on financial services litigation and consumer law compliance counseling. Ethan is part of the firm’s national practice representing consumer-facing companies of all types in defense of individual and class action claims and counseling them on compliance with federal and

Ethan Ostroff’s practice focuses on financial services litigation and consumer law compliance counseling. Ethan is part of the firm’s national practice representing consumer-facing companies of all types in defense of individual and class action claims and counseling them on compliance with federal and state laws.

Photo of Elizabeth Briones Elizabeth Briones

Elizabeth is an associate in the Consumer Financial Services practice.  Elizabeth represents businesses big and small – from corporations to local partnerships. She is an experienced litigator with a background in complex matters ranging from corporate contract disputes, premises, negligence, fraud, and other…

Elizabeth is an associate in the Consumer Financial Services practice.  Elizabeth represents businesses big and small – from corporations to local partnerships. She is an experienced litigator with a background in complex matters ranging from corporate contract disputes, premises, negligence, fraud, and other business torts. She has appeared in state, federal, and multidistrict litigation.

Photo of Addison Morgan Addison Morgan

Addison is an associate in the firm’s nationally recognized Consumer Financial Services Practice Group. He has represented several of the nation’s preeminent financial institutions in litigation arising under the Fair Credit Reporting Act (FCRA), the Telephone Consumer Protection Act (TCPA), the Fair Debt…

Addison is an associate in the firm’s nationally recognized Consumer Financial Services Practice Group. He has represented several of the nation’s preeminent financial institutions in litigation arising under the Fair Credit Reporting Act (FCRA), the Telephone Consumer Protection Act (TCPA), the Fair Debt Collection Practices Act (FDCPA), the FTC Holder Rule, and other consumer protection state analogs.

Photo of Thailer Buari Thailer Buari

Thailer is an attorney in the firm’s Consumer Financial Service practice, where he represents clients in consumer law, business disputes, and commercial litigation. Thailer manages cases from inception to trial, focusing on all aspects of the litigation process, including case development, settlement negotiations…

Thailer is an attorney in the firm’s Consumer Financial Service practice, where he represents clients in consumer law, business disputes, and commercial litigation. Thailer manages cases from inception to trial, focusing on all aspects of the litigation process, including case development, settlement negotiations, legal research and analysis, document review, motions hearings, and mediations.

Photo of Jed Komisin Jed Komisin

Jed defends clients engaged in civil litigation. He has significant courtroom experience and works with his clients to find comprehensive solutions to their legal issues.

Photo of Alan D. Wingfield Alan D. Wingfield

Alan Wingfield helps consumer-facing clients navigate compliance, litigation and regulatory risks posed by the complex web of state and federal consumer protection laws. He is a trusted advisor and tireless advocate, helping clients develop practical compliance and dispute-resolution strategies.