On January 24, 2018, the Consumer Financial Protection Bureau (“CFPB” or the “Bureau”) published a Request for Information (“RFI”) on its civil investigative demand (“CID”) process. This is the first in a series of planned RFIs on the Bureau’s activities. In the RFI, the CFPB recognizes that “responding to a CID can impose burdens on the recipients” and expresses interest in how the CID process can be “updated, streamlined, or revised” to achieve the CFPB’s objectives “while minimizing burdens.” The RFI seeks “feedback on all aspects” of the CID process, but specifically requests comment on eleven questions representing “a preliminary attempt by the Bureau to identify” elements of its CID process “on which it should immediately focus.” The RFI signals the Bureau’s potential openness to revising its CID process, which has been regarded as difficult, expensive, and time consuming by many financial institutions.

The Bureau’s specific questions cover topics such as:

  • The processes for initiating investigations and issuing CIDs, including the delegation of authority for those tasks;
  • The approaches through which the Bureau could improve recipients’ understanding of investigations;
  • The timeframes associated with the CID process, including return dates and the timeframes set for meet and confer sessions and the filing of petitions to modify or set aside a CID;
  • The nature and scope of requests in CIDs, “including whether topics, questions, or requests for written reports effectively achieve the Bureau’s statutory and regulatory objectives, while minimizing burdens”;
  • Various aspects related to the manner by which the CFPB conducts investigations, including the standards governing the taking of testimony from an entity and the handling of inadvertent production of privileged information;
  • The requirements for responding to a CID, including certification requirements and document submission standards; and
  • The process by which CID recipients must file petitions to modify or set aside a CID, including whether it is appropriate for investigators to provide the Director with a response to the petition without serving that response on the petitioner, the costs and benefits of the petition process compared to direct adjudication in court, and whether petitions should be made public. As to that last point, it is worth noting that, while investigations are generally non-public, a petition to modify or set aside a CID is made public, which may discourage recipients from filing a petition.

Given the recent email Acting Director Mick Mulvaney emphasizing that the Bureau must work for covered entities as well as consumers, it is likely that comments raising concerns with the CID process will receive a fair hearing.