Pub. 13 2018-2019 Issue 2

WWW.NEBANKERS.ORG 16 in your association’s trade journal is a solid approach to business development. DBrown@brighthouse.com | thenewslinkgroup.com | (v)813.423.1429 ADVERTISING in your association’s trade journal is a solid approach to business development. Business publications are rated the first choice for staying in touch with what’s going on in their sector by 61% of decision makers. 83% of managers would recommend to people starting a career in their sector to read the business publications. A recent Nielsen Catalina study shows an average ROI of $7.81 for every $1.00 spent on print ads. Almost half of those surveyed preferred to look at an ad in print, and only 1 in 10 preferred to see that same ad in a digital version. And no one wanted to see it in an app. Print is tangible, it’s engaging, it’s readable, but most of all… it works! It is difficult to argue with the proposition that regulatory en- forcement orders should be clear and precise. At some level, this issue can also be related to banks’ concerns about regulation by enforcement.Banksareofcourseexpectedtocomplywithpublished regulationsadoptedincompliancewithpublic notice and comment requirements. Regulation by enforcement also requires a bank to maintain awareness of the enforcement actions taken against peer institutions and then to parse the terms of those enforcement actions for guidance on how the bank should act to avoid a similar fate. Critics of the regulation by enforcement approach couldwell suggest that if a regulator intends to follow such an approach, it should at least take care to assure that its orders are crafted to provide meaningful guidance to the industry generally. It remains to be seen whether the Eleventh Circuit precedent will become generally useful to banks facing enforcement actions. Bankers are perhaps justifiably reluctant to pick fights with their regulators, so a test of this precedent in a banking enforcement action may be some time in coming. In addition, bank regulators have supervisory authority that the FTC does not. Even if a particular enforcement order isnot enforceabledue to its vagueness, thebank regulator probablymaintains enough tools and leverage to see that the bank doeswhat the regulatorwants. Theremay also be an element of “being careful what you wish for” here. If regulators are forced to act with greater specificity (the Eleventh Circuit’s reference to micromanagement comes to mind), the results could well be worse than those that arise from vague orders. For more information, contact Bryan Handlos at Kutak Rock LLP: (402) 346-6000 or bryan.handlos@kutakrock.com. Bryan is amember of Kutak Rock LLP’s banking practice group where he concentrates on bank regulatory matters.  For more information, contact Bryan Handlos at Kutak Rock LLP: (402) 346-6000 or bryan.handlos@kutakrock. This has been a significant concern with respect to the Consumer Financial Protection Bureau (the “CFPB”) in particular. It is perhaps open to question whether that truly remains a current concern given the change in direction of the CFPB following the last election. Counselor’s Corner — continued from page 15 1 LabMD, Inc. v. Fed. Trade Comm'n, No. 16-16270, 2018 WL 3056794 (11th Cir. June 6, 2018). 2 The event which precipitated this case was a LabMD employee’s installation of a peer-to-peer file sharing application which allowed a third party to access a folder of personal information regarding 9,300 consumers. 3 This has been a significant concernwith respect to theConsumer Financial Protection Bureau (the “CFPB”) in particular. It is perhaps open to question whether that truly remains a current concern given the change in direction of the CFPB following the last election.