CFPB to Provide Early Warning Notice of Potential Enforcement Actions

By: Kathryn M. Baugher

On November 7, the Consumer Financial Protection Bureau unveiled a process designed to warn individuals and companies of possible enforcement actions against them. At its discretion, the Bureau may provide an Early Warning Notice and an opportunity to respond before deciding whether to pursue an enforcement action. This process is not required by law, however, and the CFPB may decide not to provide notice in certain cases, such as when the Bureau’s Office of Enforcement believes that prompt action is necessary.The recipient of an Early Warning Notice will have 14 calendar days to submit an optional written response. In the submission, recipients should focus on legal or policy reasons why they believe the Bureau should not take legal action against them. If the statement includes any factual assertions, the assertions must be made under oath by someone with personal knowledge of such facts. The statement cannot exceed 40 pages.

While recipients may welcome the opportunity to present their side of the story, the Bureau notes that it may use information contained in the written statement as an admission, or in any other manner permitted by law, in connection with CFPB enforcement proceedings or otherwise. The Bureau also notes that statements may be discoverable by third parties.

The CFPB’s Early Warning Notice Bulletin includes additional details and is available here. A Sample Early Warning Notice can be found here.

If a person under investigation would like to submit a written statement on their own initiative, they may do so by following the procedure discussed above and outlined more fully in the Early Warning Notice Bulletin.

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