H.B. 2369 amended the DOBS Code to grant the Department the authority to impose a civil money penalty of up to $25,000 per violation against an institution, or any of its officers, employees, directors, or trustees for: violations of any law or Department order,engaging in any unsafe or unsound practice, or breaches of a fiduciary duty in conducting the institution’s business. This is a significant enforcement tool that the Department can use against institutions that violate Pennsylvania law.
Another very significant amendment to the DOBS Code is the repeal of the requirement that the Department issue prior warning to an institution, or its officers, employees, directors or trustees, before initiating an enforcement action. Thus, the Department can issue an order against an officer, employee, director, or trustee of an institution for a violation of law, engaging in an unsafe or unsound practice, or breaching a fiduciary duty. In addition, the Department can immediately suspend those individuals if the Department believes that the institution, its shareholders, or depositors have suffered or may suffer significant financial harm or other prejudice from that individual’s continued involvement with the institution. Should the Department prevail at a post-removal due process hearing, the individual could be disqualified from working not only for the institution he or she was removed from, but from working for any Pennsylvania institution, credit union or licensee, for a period of time to be determined by the Department. While the initial removal order will remain confidential, any final order issued will likely be published on the Department’s website.
Third, the amendments to the DOBS Code clarify the Department’s authority to issue "orders" such as cease-and-desist orders, orders to show cause, consent agreements and orders, and notices of fines pursuant to five of the 12 statutes under the Department’s jurisdiction, which, as codified, do not provide the Department with the ability to "order" corrective action or money penalties for violations of those acts. See the Check Casher Licensing Act, 63 P.S. 2304; the Consumer Discount Company Act, 7 P.S. 6212; the Credit Services Act, 73 P.S. 2190; the Money Transmitter Act, 7 P.S. 6110, and the Pawnbroker License Act, 63 P.S. 281-8. New section 202.D provides the Department with "order" authority so that it can better enforce the laws under its jurisdiction and no longer has to rely on the attorney general, district attorneys or other law enforcement authorities to initiate enforcement actions to enforce those statutes.
Fourth, the DOBS Code was amended to permit the release of certain information with the public regarding institutions and credit unions similar to the 2008 amendment to the DOBS Code, which permitted the Department and its employees to share certain information to the public without violating the confidentiality provisions of section 302. In addition, the institutions themselves will be permitted to disclose formal enforcement actions similar to orders issued by the Federal Deposit Insurance Corporation or the Federal Reserve Board without making a prior written request to the Department.
The DOBS Code amendments expand state "visitorial powers" over national banks to comply with Dodd-Frank’s codification of the U.S. Supreme Court’s opinion in Cuomo v. Clearing House Association, 129 S.Ct. 2710. The Supreme Court held that the New York attorney general’s law enforcement power – for example, the power to enforce non-preempted laws such as New York’s fair lending law – is distinguishable from the supervisory power over national banks, which is a power exclusive to the Office of the Comptroller of the Currency . Dodd-Frank codified the Cuomo opinion and provides that state attorneys general may initiate civil actions against national banks and federal savings associations in order to enforce regulations of the Consumer Financial Protection Bureau ("CFPB"), certain other applicable federal laws, and state laws not preempted by federal law. However, such power does not extend to enforcing Dodd-Frank in general, except as noted.
Accordingly, Pennsylvania’s attorney general can initiate civil actions against national banks, federal savings banks, and state-chartered institutions with respect to Pennsylvania’s non-preempted laws, as well as to enforce Title X of Dodd-Frank and regulations promulgated by the CFPB. It will be interesting to see if the attorney general attempts to initiate such actions against national banks, especially when Pennsylvania’s Democratic attorney general is sworn into office in January 2013.
The attorney general’s ability to initiate civil actions against financial institutions, credit unions, licensees, foreign financial institutions, national banks, federal savings associates or their subsidiaries will be subject to approval of, or brought at the request of, the Department. If the attorney general refuses to initiate an action at the request of the Department, new section 506 of the DOBS Code provides that the Office of General Counsel ("OGC") may initiate an action on behalf of the Commonwealth. However, Dodd-Frank only authorizes an attorney general or the attorney general’s equivalent to initiate actions against national banks or federal savings associations. It is questionable whether the OGC, as the attorneys representing the governor and agencies under the governor’s jurisdiction, is the equivalent of the Office of Attorney General, which is an independent agency with the authority to represent the governor or administrative agencies in civil action in Pennsylvania pursuant to the Commonwealth Attorneys Act. 71 P.S. 732-201, 732-301.
The DOBS Code has further been amended in light of Dodd-Frank to clarify that the Department can examine subsidiaries of national banks and their employees in order to enforce state consumer financial laws to the extent not otherwise preempted by federal law. Subsidiaries of national banks and federal savings associations doing business in Pennsylvania should anticipate examinations by the Department for compliance with state and local laws and regulations as if such laws and regulations apply to Pennsylvania state-chartered institutions and their subsidiaries. In addition, the DOBS Code has been amended to grant the Department the authority to share information with the CFPB, such as reports of examination.
New section 506.I of the DOBS Code provides that Pennsylvania’s consumer financial laws not otherwise preempted by federal law apply to national banks and federal savings associations and their subsidiaries as though they are state-chartered institutions. Dodd-Frank provides that state consumer financial laws are preempted only if:the state consumer financial law would have a "discriminatory effect" on national banks; the state consumer financial law "prevents or significantly interferes with the exercise by the national bank of its powers" in accordance with the Supreme Court decision in Barnett Bank of Marion County, N.A. v. Nelson, Florida Insurance Commissioner, et al.the "State consumer financial law is preempted by a provision of Federal law other than." See section 1044 of Dodd-Frank. In addition, section 1044 of Dodd-Frank codified the Barnett holding by providing that a reviewing court shall assess the determinations of the OCC, the reasoning, the consistency with other determinations, and any other relevant factors for the court. Finally, the amendments clarify that state consumer financial laws also apply to foreign financial institutions, which include institutions regulated by other states and other countries.
Lastly, the provisions of new section 506 of the DOBS Code make it clear that no other Pennsylvania agency or political subdivision may exercise the Department’s powers and responsibilities without express authorization by the Department. Such agencies would be permitted to enforce any other permitted power so long as enforcement is not related to or incidental to the banking or financial activities, or operations or conditions of such entities. The restrictions on initiating enforcement actions in no way impact the Pennsylvania attorney general or municipal and law enforcement agencies’ ability to commence criminal proceedings against financial institutions.
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