Justice Muse

On Tuesday, the Federal Reserve, FDIC and the Office of the Comptroller of the Currency (the “OCC”) issued a Joint Statement on Crypto-Asset Risks to Banking Organizations.  This Statement should signal to banking institutions that crypto-assets are about to receive a lot more attention from prudential regulators.  In particular, these institutions should likely expect more targeted reviews related to cryptocurrency assets and how they impact the safety and soundness of those institutions.

Today, the CFPB announced that it ordered Wells Fargo to pay $3.7 Billion related to allegations of widespread mismanagement of auto loans, mortgages and deposit accounts.  Whispers about this penalty broke in the news weeks ago, but the CFPB’s order involving the penalty and redress amounts was publicly announced today. 

Wells Fargo seems to be in the hot seat again with regulators. Repeated regulatory action like this in any industry should signal that there is a lack of an effective comprehensive compliance program. The key word here is effective. Every financial institution has a written compliance program. But, this should serve as a cautionary tale about identifying consistent themes about the effectiveness of one's processes and procedures.

Musings of a Former DOJ Trial Attorney: Let’s talk bank exam privilege. As most practitioners in this space are aware, documents and communications relating to the supervisory role of bank regulators are protected under bank exam privilege. It’s also commonly understood that the privilege itself is owned by the bank regulator, not the financial institution. How does that play out in the real life of an AUSA or DOJ Trial Attorney investigating the financial institution or issues involving the financial institution? Well, oftentimes, financial institutions will redact communications with the bank regulator and internal documents and communications involving that exam. What financial institutions don’t anticipate is that the bank regulator may waive the privilege related to specific exams. In other words, if the bank regulator grants that waiver, and to the extent that no other privilege applies, those previously protected documents and communications lose that protection.