Getting a Grip
So what’s a weary in-house attorney to do? Across the
board, experts say that it’s crucial to comment during
the rulemaking process, whether through a trade organization or individually on behalf of your company.
“It’s absolutely critical that your voices be heard,
because that’s what’s going to shape those rules,”
Most large companies are already
heavily involved in the rulemaking
process to address critical portions
of the law, says Gordon Bava,
chair of the business, finance and
tax division at Manatt, Phelps
& Phillips. As for companies that
haven’t started voicing their view, Bava
has a blunt warning.
“If they haven’t already gotten started, they’re probably
already too late,” he says.
As far as reacting to the rules themselves
as they begin to take shape, Lynyak says the
starting point for every company should be a
legal risk analysis. Such an analysis will help
in-house counsel determine what parts of
their operations the laws may impact.
Once you know what parts of your
business could be affected, you’ll have the
tools to make comments that can most
effectively shape the laws that emerge from
the rulemaking process.
In the end, good old hard work is an in-house attorney’s best weapon for navigating
“Know enough about the law, know enough about your
business, and know how the activities of your customers could
impact you under Dodd-Frank and make you subject to something,” Taft says. “It’s a big task, no question about it.”
Consumer Protection Controversy
In September 2010, President Obama appointed Elizabeth Warren, who chaired the Congressional Oversight
Panel that kept an eye on the government bailout program, as interim director of the Consumer Financial
Protection Bureau (CFPB), a new bureau created through the Dodd-Frank Act.
“Never again will folks be confused or misled by the pages of barely understandable fine print that you find
in agreements for credit cards or mortgages or student loans,” Obama said at the time. “Basically, the Consumer
Financial Protection Bureau will be a watchdog for the American consumer, charged with enforcing the toughest
financial protections in history.”
Warren, a professor at Harvard Law School and chief adviser to the National Bankruptcy Review Commission, is
charged with organizing the bureau but will defer leadership to a yet-to-be-appointed chair (or possibly committee)
once the CFPB is established.
Her appointment is not without controversy, however. Wall Street has balked at her role in the CFPB because of
her stinging criticism of the Troubled Asset Relief Program. Others, however, applaud her commitment to protecting
the middle class from predatory financial practices.
Though most of the attorneys InsideCounsel spoke with declined to discuss the Warren controversy, Gordon
Bava, chair of the business, finance and tax division at Manatt, Phelps & Phillips, had an unruffled reaction to
“In talking with the typical banker, I believe they are very concerned about what or how Elizabeth Warren has
been characterized,” Bava says. “But she is an extraordinarily capable professor, and she has an understanding of the
practicalities of implementing a new regime and an understanding that banks are not, per se, the enemy.”