H. R. 1483
IN THE HOUSE OF REPRESENTATIVES
April 11, 2013
Ms. Waters (for herself, Mr. Conyers, Mr. Al Green of Texas, and Mr. Cummings) introduced the following bill; which was referred to the Committee on Financial Services
To amend the Federal Deposit Insurance Act to provide requirements for appropriate Federal banking agencies when using independent consultants in carrying out a consent order, to grant SIGTARP authority to provide oversight of such consultants, and for other purposes.
This Act may be cited as the
Stop Outsourcing Banking Enforcement
and Examination Act
Use of consultants in consent orders
The Federal Deposit Insurance Act (12 U.S.C. 1811) is amended by adding at the end the following:
Use of consultants in consent orders
An appropriate Federal banking agency that enters into a consent order with a person regulated by such agency may only use an independent consultant in carrying out such order if all of the following requirements are met:
No less than two weeks before any activity under the consent order commences, the appropriate Federal banking agency shall make the following information available to the public:
The full and unredacted consent agreement resulting from the consent order.
All material information related to any past business relationships of the independent consultants, regulators, financial institutions, and third party service providers to the order, and their agents and employees, regardless of their involvement in the execution of the order.
A detailed estimate of engagement costs.
A detailed description of a well-defined methodology for fulfilling the consent order.
The appropriate Federal banking agency shall issue a report to the Congress, not less than once every quarter until the consent order ends, detailing the progress in fulfilling the consent order and the performance of the independent consultant.
Restriction on participation
No independent consultant carrying out a consent order has prior or current work that will be under review in such consent order or a concurrent and substantially similar consent order.
Retention and payment of consultant
The independent consultant is hired, and paid, directly by the appropriate Federal banking agency and the appropriate Federal banking agency is to be reimbursed for such expenses by the entity subject to the consent order.
Restriction on application of penalties to other ongoing enforcement actions
Any remediation or penalties under the consent order will not apply to, or be settled in conjunction with, any other consent order, settlement, or enforcement action.
Private right of action
If an independent consultant fails to comply with the contract under which the consultant is assisting the appropriate Federal banking agency in carrying out a consent order which requires financial remediation to a person or class of persons, any person or class of persons aggrieved by such failure may bring a civil action in a court of competent jurisdiction for damages resulting from such violation, and may obtain other appropriate relief, including equitable relief. If the plaintiff prevails in any such action, the court shall award the plaintiff any litigation costs reasonably incurred, together with reasonable attorneys' fees and reasonable expert witness fees, as determined by the court.
Clawback of fees
If a court determines that an independent consultant has violated the terms of the contract with the appropriate Federal banking agency or has failed to disclose required conflict of interest information, the independent consultant shall repay the appropriate Federal banking agency all fees received by the consultant during the period of time such violation or failure was occurring.
If the independent consultant made all reasonable efforts to uncover conflicts of interest among the consultant’s agents and employees, the consultant shall not be subject to paragraph (1) with respect to a failure to disclose required conflict of interest information.
An employee of an appropriate Federal banking agency that was involved in approving an independent consultant to assist in carrying out a consent order may not seek employment with, or be employed by, such independent consultant during any period in which such consent order is in effect, any amendment to such consent order is in effect, or any subsequent consent order based on the original consent order is in effect.
SIGTARP to oversee use of consultants
Section 121 of the Emergency Economic Stabilization Act of 2008 (12 U.S.C. 5231) is amended—
in subsection (c), by adding at the end the following:
In addition, the Special Inspector General shall also have the duties and responsibilities of providing oversight of—
consent orders entered into by an appropriate Federal banking agency; and
the performance of independent consultants hired by an appropriate Federal banking agency to assist in carrying out such consent orders, as described under section 51 of the Federal Deposit Insurance Act.
by amending subsection (k) to read as follows:
Oversight of consent orders
Right of action related to consent order monitoring
The Special Inspector General may bring a civil action in any court of competent jurisdiction against an independent consultant described under section 51(a) of the Federal Deposit Insurance Act for damages and equitable relief for any violations of the consultant’s duties under the contract under which the consultant is assisting an appropriate Federal banking agency in carrying out a consent order.
Whistleblower incentives and protection related to consent order monitoring
The Special Inspector General shall establish a whistleblower program under which—
the Special Inspector General pays an award or awards to 1 or more whistleblowers who voluntarily provide original information to the Special Inspector General that leads to the successful enforcement of a judicial or administrative action brought by the Special Inspector General against an independent consultant described under section 51(a) of the Federal Deposit Insurance Act that results in monetary sanctions exceeding $1,000,000; and
the employer of a whistleblower may not discriminate against a whistleblower in the terms and conditions of employment of the whistleblower because of any lawful act done by the whistleblower.
Form of program
To the extent practicable, the whistleblower program established under this subsection shall be carried out in the same manner as the whistleblower provision under section 21F of the Securities Exchange Act of 1934 (15 U.S.C. 78u–6).