I. BACKGROUND
The Consumer Financial Protection Bureau (CFPB) has authority to supervise and examine insured depository institutions with total assets of more than $10 billion as well as their affiliates and service providers, in order to assist their compliance with Federal consumer financial laws, to obtain information about their activities subject to such laws and their associated compliance systems or procedures, and to detect and assess risks to consumers and to markets for consumer financial products and services. In exercising its supervisory authority, the CFPB may request from the institutions it supervises information that may be subject to one or more statutory or common law privileges, including the attorney-client privilege and attorney work product protection.
Certain supervised institutions have expressed concern that compliance with the CFPB’s supervisory requests for such information may result in a waiver of any applicable privilege with respect to third parties. While there are specific statutory protections afforded to information submitted to other Federal banking agencies, Congress failed to include similar protections for privileged information that is submitted to the CFPB.
The CFPB has previously issued a bulletin in which it stated its view that “because entities must comply with the CFPB’s supervisory requests for information, the provision of privileged information to the CFPB would not be considered voluntary and would thus not waive any privilege that attached to such information.” Further, the Bulletin observed that the prudential regulators’ authority to examine very large depository institutions, and their affiliates, for compliance with Federal consumer financial laws, as well as all related powers and duties, transferred to the CFPB on July 21, 2011. The CFPB interprets this transfer of authority as including the ability to obtain privileged information without waiving any applicable privilege claimed by the provider of the information.
II. CONFIDENTIAL TREATMENT OF PRIVILEGED INFORMATION
In the final rule, the CFPB has amended its rules relating to the confidential treatment of information to add a new section providing that the submission by any person of any information to the CFPB in the course of the CFPB’s supervisory or regulatory processes will not waive or otherwise affect any privilege such person may claim with respect to such information under Federal or State law as to any other person or entity. In addition, the CFPB has provided that its provision of privileged information to another Federal or State agency does not waive any applicable privilege, whether the privilege belongs to the CFPB or any other person. The final rule became effective on August 6, 2012.