Court allows fintechs to defend CFPB's open banking rule

Bloomberg News

A federal judge granted the Financial Technology Association the right to intervene in the Consumer Financial Protection Bureau's open banking rule, allowing the fintech industry to defend a rule on consumer financial data rights that the Trump administration refused to uphold.  

On Wednesday, U.S. District Court Judge Danny Reeves said the FTA has a substantial legal interest in the rule because its members, including fintechs and data aggregators, would be adversely affected if the rule were vacated. 

Penny Lee, president and CEO of the FTA, said the court's order "gives the fintech industry a seat at the table to defend Americans' financial data rights, ensuring that the big banks cannot dictate the future of open banking." 

The open banking rule, also known as 1033 for its section in the Dodd-Frank Act, was first initiated in 2016 and was finalized last year by former CFPB Director Rohit Chopra. 

The CFPB was immediately sued by the Bank Policy Institute, the Kentucky Bankers Association and Forcht Bank, a $1.6 billion-asset bank in Lexington, Kentucky. The bankers alleged the CFPB exceeded its authority, arguing that Congress never intended for banks to be compelled to share consumers' data with fintechs or other third parties. 

When the Trump administration took over the CFPB in February, it asked for all recently finalized rules to be stayed. Then, in an unusual move, acting CFPB Director Russell Vought sided with BPI and the banks that had sued the bureau. Throughout, the FTA repeatedly sought to intervene in the case. The court held a hearing on May 5. Neither the CFPB nor BPI objected to FTA's motion to intervene. 

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"While it is still uncertain whether the CFPB will defend the rule in issue, it seems that, at the minimum, the FTA's interests are likely not protected by the current parties," Reeves wrote in a three-page order of the U.S. District Court for the Eastern District of Kentucky. The judge noted that members of the FTA "operate business models premised on consumers being able to access and securely share their financial data."

Under 1033, financial firms would have to provide their customers access to data on checking accounts, prepaid cards, credit cards, digital wallets and payment apps. Banks are concerned that the rule giving consumer bank account data to third-party financial technology firms will expose banks to greater liability and require costly oversight of fintechs, with no chance to recoup their costs.

The rule could radically reshape consumer finance and impact banks by allowing fintechs to better compete with financial institutions. The fight over changes to 1033 is just beginning anew.

"If big tech companies want to make the case for why their self-interest should take precedence over protecting consumers, we welcome that challenge," said Paige Pidano Paridon, an executive vice president at BPI. "We are confident in the merits of our case and will continue to take all necessary actions to protect consumer financial data against misuse."

The FTA claims the rule creates what it called "a higher bar for safety and security" across the financial services ecosystem by encouraging the widespread adoption of APIs to facilitate data-sharing. The open banking rule also banned most secondary uses of data.

Bankers are concerned that fintechs will use venture capital funding to subsidize lower rates on loans and other products to steal customers from big banks. Fintechs promise a wide range of financial benefits to low- and moderate-income consumers that bankers say may or may not be real. 

Plaintiffs have until May 30 to file a brief in the case and the FTA and CFPB will have 30 days to respond.