Fairness and inclusion: Regulatory challenges

Investor demand, public awareness, social unrest, and the priorities and directives of the Administration have focused regulatory attention on supervision and enforcement of consumer and investor protection on a broad scale and expanded the parameters of “fairness” to include all consumer touchpoints.

Explore here insights from the KPMG report Ten key regulatory challenges of 2022.

The perception of “fairness” has expanded beyond the parameters of fair lending and lending products specifically to include all access and touchpoints. 

Areas of heightened regulatory attention will include:

• Increased volume and variety of consumer and investor protection supervisory and enforcement activity (e.g., housing insecurity (foreclosures, evictions), fees and expenses, best execution, CARES Act provisions.)
• Access to credit by small businesses, including women- and minority-owned businesses, under federal emergency programs (such as the PPP) and CFPB’s forthcoming small business data collection rule.
• Application of “best interest” standard in retail investments and wealth management, including “fair and balanced” marketing practices in addition to fiduciary and suitability standards.
• Potential bias in the use of AI and machine learning (models, tools, and/or data) for purposes of personalizing services, marketing/offers, credit underwriting, fraud prevention, and other operations. 
• Barriers to access and inclusion, especially for “vulnerable” populations, evaluated through regulatory compliance (e.g., ECOA, FCRA, FDCPA, CRA, UDAP/UDAAP, Suitability, ADA) and demonstrated community outreach/commitment/investment.

Execute centralized processes and quickly streamline and simplify all customer-focused communications.

Communications (in all formats and through all channels) are expected to be clear, accurate, and complete, providing disclosure sufficiently adequate for consumers to understand relevant information, alternatives, and/or conflicts of interest. 

Further, regulators will:

• Look for statements or claims made in disclosures and marketing materials to be consistent with actual practices, and terms to be defined and used consistently. 
• Interpret misstatements or omissions of material facts or failure to present material information in a “fair and balanced” manner as potentially fraudulent or misleading.
• Require compliance with the SEC’s Investment Adviser Marketing Rule beginning November 2022; IAs should conduct a readiness assessment and gap analysis, and remediate any program gaps.
• Expect customer-facing employees to understand consumer and/or investor protection policies and be able to convey them in simple terms.

Enhance complaint management processes, technology, and data analytics; aggregate concerns, identify root causes, and deploy effective and streamlined responses.

Complaints management is fundamental to regulators’ assessment of a company’s compliance management system; it can serve as a guide to potentially emerging risks, management or structural deficiencies, third-party provider issues, recurring concerns, and necessary product or service improvements. 

• Expect regulatory attention to evidence of Board and senior management commitment; documentation of intake/resolution; policies and procedures; tracking; regular audits; cross-referencing across the organization; third-party relationship monitoring.  

Multiple regulators have taken decisive action to prioritize and expedite consumer protection investigation and enforcement based in large part on complaints data. 

• CFPB states that complaints—and how companies respond—inform the CFPB’s supervision, enforcement, and rule-writing. Company responses are expected to be timely, substantive, complete, and consistent between consumer groups. CFPB is also analyzing complaint submission patterns by demographic and socio-economic groups to guide policy.
• FTC’s Bureau of Consumer Protection and SEC’s Division of Enforcement have each been newly authorized to initiate and conduct investigations of potential consumer/investor harms, including “rapid response” to allegations of abuse or fraud.

Set clear and measurable diversity, equity, and inclusion (DEI) goals; develop metrics to measure and monitor progress and factor into management accountability goals. 

Calls to improve racial equity and inclusion within financial services have gained momentum consistent with investor demands, public awareness, social unrest, and the priorities and directives of the Administration. The pressure is only increasing.

Forthcoming developments related to DE&I concerns will include:

• Anticipated SEC rule proposals to require disclosure of board diversity and human capital measures such as workforce diversity, turnover, skills and development training, health and safety, and compensation.  
• Actions by state regulators to establish diversity requirements for boards and senior management (e.g., California and New York rulemakings) as well as other entities, such as NASDAQ’s “diversify or explain” listing rule. 
• Regulatory attention to consistency between an organization’s DE&I-related goals and commitments and actions, including community development investment, vendor selection, credit activity, and strategies to promote financial inclusion.
• Investor and social media attention to demonstrated board commitment and disclosure, including through shareholder/proxy voting; potential for reputation risk. 

The year 2022 brings high levels of risk and regulatory supervision and enforcement. Regulatory “perimeters” continue to expand, and regulatory expectations are rapidly increasing. All financial services companies should expect high levels of supervision and enforcement activity across ten key challenge areas. Read the full report to learn more.