The CFPB & "Substantial Assistance"

The Consumer Financial Protection Bureau's (CFPB) use of its "substantial assistance" authority is becoming a common way for the agency to go after parties that might otherwise escape its reach. After not using this tool at all in its first three-and-half years of existence, the CFPB has now started to bring such claims with increasing frequency. The CFPB has brought ten substantial assistance cases, charging both counterparties of entities alleged to have engaged in unfair, deceptive or abusive acts or practices (UDAAPs) and individual owners and managers of such entities. Based on its enforcement actions to date, the CFPB apparently intends to use substantial assistance claims both as a fallback if other claims fail and to extend its jurisdictional reach where other theories are unavailable. But key questions remain, including what the CFPB must establish under the provision's scienter requirement, what constitutes substantial assistance, what violations may form the