by Jeff Sovern
Here (behind a paywall, unfortunately). But here's the part that's not behind the paywall:
To avoid unwanted scrutiny from the Consumer Financial Protection Bureau and other regulators, banks need to start thinking about "what is fair, not just what is legal," banking attorneys say.
And isn't that one of the reasons we needed a CFPB? Because lenders ignored what is fair?
One point that the article makes is that disclosures don't save an objectionable product, especially if they're confusing. That's the direction the FTC has been going in with privacy, but it seems a (welcome) departure from the idea of the duty to read. The article also claims that the Bureau believes that if products generate enormous profits, they had better generate similarly large benefits for consumers.
The article also notes that the Bureau has not defined what it considers unfair, deceptive or abusive practices ("UDAAP") beyond the statutory definitions. I can understand why lenders would want the Bureau to do so, because that would enable them to predict when they might fall afoul of those rules. On the other hand, such a definition might hem the Bureau in too much at a time when it is still finding its way in this area. My own opinion is that the Bureau should resist calls to offer greater specificity about how it will use its UDAAP powers until it is more experienced. It would be unfortunate if the Bureau said it would not use its powers to prohibit certain conduct, and then lenders found a way to engage in that conduct inappropriately.
I don't want to summarize the whole piece, but it's definitely worth a look.