Anthony J. McFarland, Partner - Bass, Berry & Sims PLC
Brian R. Iverson, Associate - Bass, Berry & Sims PLC
Third-party risk and relationship management has become a point of concern and focus for many financial service providers. This is due, in part, to an increased focus by regulators. Both the Consumer Financial Protection Bureau (CFPB) and the Office of the Comptroller of the Currency (OCC) have released guidance on the subject, even asserting authority to regulate the third-party providers themselves. We have also seen recent enforcement action taken by both of these regulators relating to proper third-party risk management.
The Australian Competition and Consumer Commission (ACCC) has made available Undertaking by Coles Supermarkets Australia Pty Ltd (Coles) (3 April 2014), which it accepted on 7 April 2014. According to the ACCC, the undertaking follows an ACCC investigation into a Coles promotional video which dairy farmer organisations had complained about "during a time of intense public debate about the impact of [Coles's A$1 milk product] on Australian dairy farmers who supplied the product".
The United States Federal Trade Commission (FTC) has announced that it has approved Decision and Order (3 April 2014), which "settl[es] charges that [NEW Plastics Corp (NEW)] ... misled consumers and distributors about the recycled content, post-consumer recycled content, and recyclability of its products".
The United States (US) District Court for the Western District of Louisiana has ordered Japan-based Takeda Pharmaceutical Co (Takeda) and US-based Takeda partner Eli Lilly & Co (Lilly) to pay US$6 billion and US$3 billion in punitive damages, respectively, after a jury found that the companies sought to cover up cancer risks associated with their diabetes medicine "Actos".
The United States (US) National Highway Traffic Safety Administration (NHTSA) has made available a letter (8 April 2014) in which NHTSA advises General Motors (GM) legal staff that GM "has not fully responded" to Special Order (4 March 2014) and therefore has been accruing civil penalties on a daily basis since 3 April 2014.
The Australian Competition and Consumer Commission (ACCC) has announced that the Federal Court of Australia has fined EnergyAustralia A$1.2 million, declaring that, through the conduct of certain sales representatives acting on its behalf, the company:
The New Zealand Commerce Commission (NZCC) has announced that MAC Warranties Ltd (MAC) has agreed to provide NZ$182,000 in customer compensation after the Auckland District Court found that the finance company misled customers in explaining its sale of 79 repossessed vehicles that had been tendered as security for their loans from MAC.
The United States (US) Federal Trade Commission (FTC) has announced that it has approved Decision and Order (25 March 2014), which "resolv[es] FTC allegations that [Apple Inc (Apple)] unfairly charged consumers for in-app purchases incurred by children without their parents' consent".
Bloomberg reports that Hewlett-Packard Company (HP) has agreed to pay US$57 million to settle a suit that alleges the company's management defrauded shareholders in its handling of company strategy in 2011.
The United Kingdom Financial Conduct Authority (FCA) has fined (24 March 2014) Santander UK £12,377,800 after finding that the bank breached Principles 7 (Communications with clients) and 9 (Customers: relationships of trust) of the FCA's Principles for Business (February 2014) in the way it offered customers financial advice.
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