Bureau of Consumer Financial Protection v. Fifth Third Bank, N.A.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

BUREAU OF CONSUMER

FINANCIAL PROTECTION,

Plaintiff, Case No. 1:21-cv-262

v. JUDGE DOUGLAS R. COLE

FIFTH THIRD BANK, N.A.,

Defendant.

OPINION AND ORDER

In this case, the Bureau of Consumer Financial Protection (the Bureau) alleges

that Fifth Third Bank, N.A., (Fifth Third) violated various federal consumer

protection statutes in its dealings with its customers, mainly by opening accounts or

adding products or services to existing accounts, without customer authorization,

thereby causing those customers to incur fees. (Am. Compl., Doc. 73). The parties

have now settled their dispute. Or, rather, they are willing to settle their dispute,

contingent upon this Court’s approving a consent decree they jointly submitted. (Doc.

151).

While consent decrees are a common method for resolving disputes like this,

at least some courts confronted with them have nonetheless raised concerns. These

concerns extend to both the court’s basic authority to enter such decrees in an

otherwise-settled matter (i.e., jurisdictional concerns) and the scope of the court’s

remedial authority under traditional principles of equity to enter what amounts to

permanent injunctive relief.

The Court, however, will not belabor those points here. That is because, in a

thoughtful opinion, Judge Beaton has recently explored both issues in detail.

Lexington Ins. Co. v. Ambassador Grp., LLC, 581 F. Supp. 3d 863 (W.D. Ky. 2021).

This Court echoes the concerns raised there, but it has little to add beyond the careful

analysis that opinion articulates.

More relevant here, the Court agrees with Judge Beaton that, whatever the

merits of either the jurisdictional concerns or the remedial concerns if this Court were

writing on a blank slate, the Sixth Circuit has already resolved them in binding

decisions. Id. at 868, 870. On the jurisdictional front, the Sixth Circuit instructs that

a court has jurisdiction to enter a consent decree in support of settlement so long as

the decree (1) “spring[s] from and serve[s] to resolve a dispute within the court’s

subject-matter jurisdiction,” (2) “com[es] within the general scope of the case made by

the pleadings,” and (3) “further[s] the objective of the law upon which the complaint

was based.” Benalcazar v. Genoa Twp., 1 F. 4th 421, 425 (6th Cir. 2021) (quoting

Local No. 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 510, 525 (1986)).

And the Sixth Circuit has also confirmed that whether the Court should actually issue

a permanent injunction (which is what a consent decree amounts to) is largely guided

by traditional equitable principles, under which the Court is to determine “whether

the decree is fair, adequate, and reasonable, as well as consistent with the public

interest.” Lexington Ins., 581 F. Supp. 37 at 870 (quoting United States v. Lexington-

Fayette Urb. Cnty. Gov’t, 591 F.3d 484, 489 (6th Cir. 2010)). Beyond that, “the district

court’s inherent power is broad and the court’s choice of remedies is reviewed for

abuse of discretion.” Id. (quoting United States v. Bd. of Cnty. Comm’rs of Hamilton

Cnty., 937 F.3d 679, 688 (6th Cir. 2019)) (cleaned up).

How do those two frameworks play out here? Start with jurisdiction. The

proposed consent decree clearly springs from and serves to resolve a dispute within

this Court’s subject-matter jurisdiction. This action involves allegations that Fifth

Third violated federal statutes that the Bureau has the authority to enforce. That

suffices to establish subject-matter jurisdiction. 28 U.S.C. § 1331. And the parties

engaged in vigorous negotiations to resolve this matter, which strongly suggests the

consent decree (one of the terms they negotiated) is necessary to resolution. As to the

second element, the proposed consent decree falls well within the general scope of the

case. The consent decree orders Fifth Third not to violate the very provisions that the

Bureau sought to enforce against Fifth Third’s past conduct here in the future. (Doc.

151-1, #2211, 2213–14). Beyond that, it also requires Fifth Third to maintain various

policies and procedures designed to serve that goal, to adopt a compliance plan along

those lines, to engage in certain ongoing reporting, and to maintain various records

relating to all of these actions. (Id. at #2214–17, 2221–22). That all strikes the Court

as related to the scope of the case here. Finally, the Court concludes that the terms

of the consent decree also further the objective of the law. Congress presumably

adopted these laws (and the Bureau, its corresponding regulations) based on the view

that compliance with them would serve customers’ interests. Consumer Financial

Protection Act of 2010 (CFPA) § 1021, 12 U.S.C § 5511 (“The Bureau shall seek to

implement and, where applicable, [to] enforce Federal consumer financial law

consistently for the purpose of ensuring that all consumers have access to markets

for consumer financial products and services and that markets for consumer financial

products and services are fair, transparent, and competitive.”). Accordingly, steps

designed to ensure such compliance, or to detect non-compliance, would further those

objectives.

What about the propriety of the requested permanent injunctive relief (via the

entry of a consent decree) as a matter of equitable principles? The types of harms

alleged here—unauthorized fees—strike the Court as harms for which there is

generally an adequate remedy at law. E.g., CFPA § 1055(c), 12 U.S.C. § 5565(c). But

two further thoughts. First, the alleged harms are diffuse and inflicted on unknowing

customers, so a remedy at law might not be so easy after all. Second, and more

importantly, the interest the Bureau’s suit seeks to advance is its own separate

regulatory interest in preventing such violations in the first instance. True, the

statute makes civil penalties available for violations, which means the Bureau could

wait for the harm to occur and to seek a remedy on the back end. But those civil

penalties do not really “remedy” the regulatory interest in preventing such harms up

front. Beyond that, at least one of the statutes under which the Bureau proceeds here,

the CFPA, specifically authorizes the Bureau to seek “equitable relief including a

permanent or temporary injunction as permitted by law,” CFPA § 1054(a), 12 U.S.C.

§ 5564(a), which demonstrates that Congress agrees that injunctive relief should be

available in cases prosecuted under that statute. True, the statute’s reference to the

availability of such relief does not render the other elements traditionally required to

obtain injunctive relief unnecessary. See Starbucks Corp. v. McKinney, 144 S. Ct.

1570, 1576–77 (2024). But it certainly suggests that Congress sees the harms at issue

as irreparable. And, as noted, the Court agrees. The balance of harms likewise favors

the relief, as both the Bureau and Fifth Third have agreed to it. That suggests both

parties view the entire settlement as providing more benefits than harms and that

relief at law will not, on its own, adequately remedy the alleged harms. Cf. McGowan

v. Parish 237 U.S. 285, 295–96 (1915) (noting that a party’s proffer of a consent decree

can waive his objection that a legal remedy may be available and may therefore bar

equitable relief in a cause that properly invokes the court’s equity authority).

Beyond that, the Court also concludes that the settlement is “fair, adequate,

and reasonable,” and “consistent with the public interest.” Lexington Ins., 581 F.

Supp. 37 at 870 (citation omitted). As just noted, the consent decree emerged from

hard-fought negotiations between the parties. That suggests each side has concluded

that it is fair, adequate, and reasonable. Having reviewed the consent decree, the

Court sees no reason to upset that conclusion. Cf. Hawes v. Macy’s Inc., No. 1:17-cv-

754, 2023 WL 8811499, at *11 (S.D. Ohio Dec. 20, 2023) (“Each party entered

mediation with separate sets of goals and each extracted concessions from the other.

The Court therefore presumes the settlement negotiations were not plagued by fraud

or corruption.”). As for the public interest, as already described above, the injunctive

relief under the consent decree is largely directed at preventing and detecting future

violations, a result that presumably serves that interest. And then there is also the

underlying public policy that favors settling disputes, thereby avoiding (or at least

reducing the length of) complex, costly, time-consuming litigation. See Aro Corp. v.

Allied Witan Co., 531 F.2d 1368, 1372 (6th Cir. 1976) (“Public policy strongly favors

settlement of disputes without litigation.”); Kukla v. Nat’l Distillers Prods. Co., 483

F.2d 619, 621 (6th Cir. 1973) (“The power of a trial court to enter a judgment enforcing

a settlement agreement has its basis in the policy favoring the settlement of disputes

and the avoidance of costly and time-consuming litigation.”).

Finally, the Court addresses one additional issue that is appropriate for courts

to consider whenever parties ask the court to enter an order that will require ongoing

judicial monitoring: administrability. Cf. Ramirez v. Collier, 595 U.S. 411, 433–34

(2022) (discussing the administrability of the equitable remedy requested as a factor

weighing in favor of granting the relief that a court considers as part of its weighing

the balance of equities). Whether categorized as an aspect of reasonableness, or

instead as a public policy consideration, the point is that courts should hesitate to

enter judicial orders that are difficult to administer. Such concerns have at least two

facets. The first is definiteness. Any obligations that an order imposes on a party

must be stated with sufficient clarity for a court to ascertain whether the party has

transgressed them or not. See Fed. R. Civ. P. 65(d)(1)(C) (“Every order granting an

injunction and every restraining order must: … describe in reasonable detail—and

not by referring to the complaint or other document—the act or acts restrained or

required.”); accord Perez v. Ohio Bell Tel. Co., 655 F. App’x 404, 410–12 (6th Cir.

2016). Based on the Court’s review, the proposed order here passes that test. Second,

a court should consider whether an order makes an unwarranted claim on scarce

judicial resources, or in some way requires a judge to go beyond the scope of his

traditional role and duties as a judge. So, for example, an order that obligated a court

to spend hours routinely poring over extensive reports may fall short on the former.

While an order that obligated a court to perform detailed statistical analyses of the

information contained in those reports may raise concerns under the latter. Put

simply, even when all parties are amenable to an order, courts nonetheless must

remain mindful of their own limitations, in terms of both resources, expertise, and

statutory authority. Nw. Airlines, Inc. v. Transp. Workers Union of Am., 451 U.S. 77,

95–98 (1981) (defining federal courts’ very narrow role in fashioning remedies,

especially when Congress has chosen very specific remedies under statute). All that

said, the proposed order here does not raise any concerns on this front either.

In sum, the Court concludes that it has the jurisdiction to enter the proposed

consent decree and that doing so constitutes an appropriate exercise of the Court’s

equitable remedial powers. The Court therefore adopts and enters the proposed order

(Doc. 151-1) as follows:

CONSENT ORDER

The Bureau of Consumer Financial Protection (Bureau) commenced this civil

action on March 9, 2020, to obtain injunctive and monetary relief and civil penalties

from Fifth Third Bank, N. A. (Fifth Third). The Amended Complaint alleges

violations of §§ 1031 and 1036(a)(1)(B) of the Consumer Financial Protection Act of

2010 (CFPA), 12 U.S.C. §§ 5531 and 5536(a)(1)(B); the Truth in Lending Act (TILA),

15 U.S.C. § 1601 et seq., and its implementing regulation, Regulation Z, 12 C.F.R.

part 1026; the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., and the

Truth in Savings Act (TISA), 12 U.S.C. § 4301 et seq., and its implementing

regulation, Regulation DD, 12 C.F.R. part 1030, in connection with Fifth Third’s sales

and business practices relating to Consumer Financial Products and Services.

The Bureau and Fifth Third agree to entry of this Stipulated Final Judgment

and Order (Order), without adjudication of any issue of fact or law, to settle and

resolve all matters in dispute arising from the conduct alleged in the Amended

Complaint (Doc. 73).

FINDINGS

1. This Court has jurisdiction over the parties and the subject matter of

this action.

2. Fifth Third neither admits nor denies the allegations in the Amended

Complaint, except as specified in this Order. For purposes of this Order, Fifth Third

admits the facts necessary to establish the Court’s jurisdiction over the parties and

the subject matter of this action.

3. Fifth Third waives all rights to seek judicial review or otherwise to

challenge or to contest the validity of this Order and any claim it may have under the

Equal Access to Justice Act, 28 U.S.C. § 2412, concerning the prosecution of this

action to the date of this Order. Each Party agrees to bear its own costs and expenses,

including, without limitation, attorneys’ fees.

4. Entry of this Order is in the public interest.

DEFINITIONS

5. The following definitions apply to this Stipulated Final Judgment and

Order:

a. “Account-Opening Affected Consumers” means any consumer

subjected to any Unauthorized-Account-Opening Acts or Practices during

the Redress Period.

b. “Board” means Fifth Third’s duly elected and acting Board of Directors.

c. “Consumer Financial Product or Service” is defined in 12 U.S.C.

§ 5481 and means any financial product or service that is described in one

or more categories under (A) paragraph (15) of 12 U.S.C. § 5481 and is

offered or provided for use by consumers primarily for personal, family, or

household purposes; or (B) clause (i), (v), (vii), (ix), or (x) of paragraph

(15)(A) of 12 U.S.C. § 5481 and is delivered, offered, or provided in

connection with a Consumer Financial Product or Service referred to in 12

U.S.C. § 5481(5)(A).

d. “Consumer Reporting Agency” means a Consumer Reporting Agency as

defined by 15 U.S.C. § 1681a(f).

e. “Effective Date” means the date on which this Stipulated Final Judgment

and Order is entered.

f. “Fifth Third” means Fifth Third Bank, N. A., and its successors and

assigns.

g. “Redress Period” means January 1, 2010, through December 31, 2016.

h. “Related Consumer Action” means a private action by or on behalf of one

or more consumers or an enforcement action by another governmental

agency brought against Fifth Third based on substantially the same facts

as described in the Amended Complaint (Doc. 73).

i. “Supervision Director” means the Supervision Director for the Bureau,

or their delegate.

j. “Unauthorized-Account-Opening Acts or Practices” means any of the

following:

i. applying for, opening, issuing, activating, or enrolling a consumer

in any Consumer-Financial Product or Service, including but not

limited to lines of credit, credit cards, deposit accounts, and online-

banking services, without the consumer’s consent; and

ii. transferring funds between a consumer’s accounts without the

consumer’s consent or authorization.

CONDUCT PROVISIONS

I

Prohibited Conduct

IT IS ORDERED that:

6. Fifth Third and its officers, agents, servants, employees, and attorneys

who receive actual notice of this Order, whether acting directly or indirectly, may not

violate §§ 1031 and 1036(a)(1)(B) of the Consumer Financial Protection Act of 2010

(CFPA), 12 U.S.C. §§ 5531 and 5536(a)(1)(B); the Truth in Lending Act (TILA), 15

U.S.C. § 1601 et seq., and its implementing regulation, Regulation Z, 12 C.F.R. part

1026; the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., and the Truth

in Savings Act (TISA), 12 U.S.C. § 4301 et seq., and its implementing regulation,

Regulation DD, 12 C.F.R. part 1030, by engaging in Unauthorized-Account-Opening

Acts or Practices.

7. Fifth Third and its officers, agents, servants, employees, and attorneys

who receive actual notice of this Order, whether acting directly or indirectly, will not

represent to any consumer that Fifth Third is acting in a fiduciary capacity with

respect to that consumer unless Fifth Third has reasonably confirmed that any

Consumer Financial Product or Service recommended to that consumer is in the

consumer’s best interests.

II

Required Conduct

8. Fifth Third must maintain policies and procedures that:

a. ensure the Bank does not set performance-management and sales

goals for its employees that foster Unauthorized-Account-

Opening Acts or Practices; this includes, but is not limited to,

maintaining, or continuing to maintain, policies and procedures

that: (i) do not allow product-specific sales goals; (ii) utilize

incentive-compensation clawback policies for employees found to

have engaged in Unauthorized-Account-Opening Acts or

Practices; (iii) do not incentivize employees to open accounts that

do not get used or funded; (iv) provide contemporaneous

notifications to customers when accounts are opened; and (v)

otherwise ensure rigorous control and auditing functions to detect

and prevent employee misconduct relating to potential

unauthorized accounts.

b. require the collection and retention of evidence demonstrating

that a consumer has authorized the application, issuance, or

opening of any Consumer Financial Product or Service; and

c. ensure that Fifth Third (i) appropriately handles consumer

inquiries or complaints concerning Unauthorized-Account-

Opening Acts or Practices; (ii) appropriately handles employee

inquiries, concerns, or complaints concerning sales pressure or

Unauthorized-Account-Opening Acts or Practices; (iii) tracks

indicia of Unauthorized-Account-Opening Acts or Practices; (iv)

identifies unauthorized account openings and remediates affected

consumers; and (v) provides employee training reasonably

designed to prevent Unauthorized-Account-Opening Acts or

Practices.

9. Fifth Third must periodically evaluate the policies and procedures

required by Paragraph 8 and revise, expand, and supplement them as needed to

ensure they are compliant.

III

Compliance Plan

IT IS FURTHER ORDERED that:

9. Within 90 days of the Effective Date, Fifth Third must create and

implement a comprehensive compliance plan designed to ensure that Fifth Third’s

account-opening acts or practices comply with §§ 1031 and 1036(a)(1)(B) of the

Consumer Financial Protection Act of 2010 (CFPA), 12 U.S.C. §§ 5531 and

5536(a)(1)(B); the Truth in Lending Act (TILA), 15 U.S.C. § 1601 et seq., and its

implementing regulation, Regulation Z, 12 C.F.R. part 1026; the Fair Credit

Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., and the Truth in Savings Act (TISA),

12 U.S.C. § 4301 et seq., and its implementing regulation, Regulation DD, 12 C.F.R.

part 1030, and the terms of this Order. The Compliance Plan must include, at a

minimum:

a. detailed steps Fifth Third has taken or will take to address each action

required by this Order;

b. a mechanism to ensure that the Board is kept apprised of the status of

compliance actions; and

c. specific timeframes and deadlines for implementation of the steps described

above, if not already implemented.

Fifth Third will provide the Compliance Plan to the Bureau upon request.

IV

Role of the Board and Executives

IT IS FURTHER ORDERED that:

10. Fifth Third’s Board has the ultimate responsibility for ensuring that

Fifth Third complies with this Order.

11. Fifth Third’s Board and Chief Executive Officer must review all plans

and reports required by this Order and any submissions to the Bureau before such

submission.

12. One year after the Effective Date, Fifth Third must submit to the

Supervision Director an accurate written compliance progress report (Compliance

Report) that has been approved by the Board, the accuracy of which is sworn to under

penalty of perjury, and which, at a minimum:

a. describes the steps that Fifth Third’s Board has taken to reasonably assess

whether Fifth Third is complying with the Redress Plan, Compliance Plan,

and each applicable paragraph and subparagraph of this Order;

b. describes in detail whether and how Fifth Third has complied with the

Redress Plan, Compliance Plan, and each applicable paragraph and

subparagraph of this Order, including the manner of verification of such

compliance and any corrective actions taken to remedy potential

noncompliance with the applicable requirement, paragraph, or

subparagraph; and

c. attaches a copy of each Order Acknowledgment obtained under Section IX,

unless previously submitted to the Bureau.

13. Fifth Third’s Board must:

a. authorize whatever actions are necessary for Fifth Third to assess whether

Fifth Third is complying with the Redress Plan, Compliance Plan, and each

applicable paragraph and subparagraph of this Order;

b. authorize whatever actions, including corrective actions, are necessary for

Fifth Third to fully comply with the Redress Plan, Compliance Plan, and

each applicable paragraph and subparagraph of this Order; and

c. require timely reporting by management to Fifth Third’s Board and Chief

Executive Officer on the status of compliance obligations.

MONETARY PROVISIONS

V

Order to Provide Redress

14. Within 30 days of the Effective Date, Fifth Third must submit to the

Supervision Director for review and non-objection a comprehensive written plan for

providing redress to Account-Opening Affected Consumers during the Redress Period

consistent with this Stipulated Final Judgment and Order (Redress Plan). The

Redress Plan must, at a minimum:

a. describe the steps Fifth Third has taken or will take, including the use of

data analytics and other methods available, to reasonably identify Account-

Opening Affected Consumers and the types and amounts of any fees or

other harm, including adverse effects on Consumer Reporting Agency

information, incurred by each Account-Opening Affected Consumer as a

result of Unauthorized-Account-Opening Acts or Practices;

b. provide, or confirm the prior provision of, redress to Account-Opening

Affected Consumers. The Redress Plan must also include and describe

procedures for Fifth Third to support and provide to the Bureau any

determination made by Fifth Third that providing redress to particular

Account-Opening Affected Consumers is impracticable;

c. return, or confirm the prior return of, all fees and costs incurred by Account-

Opening Affected Consumers as a result of Unauthorized-Account-Opening

Acts or Practices, and request correction of any errors in furnishing

information to Consumer Reporting Agencies resulting from the

Unauthorized-Account-Opening Acts or Practices;

d. detail how Fifth Third has located or will locate Account-Opening Affected

Consumers for payment of redress and the steps Respondent has taken or

will take with respect to consumers whose redress payments are returned

as undeliverable or not cashed within a prescribed time; and

e. provide the Bureau with a copy of the form of the letter or notice that was

or will be sent to Account-Opening Affected Consumers notifying them of

any redress and offering to close the products or end the services without

fees or penalties.

15. Within 180 days after completing the Redress Plan, Fifth Third’s

internal audit department must review and assess compliance with the terms of the

Redress Plan and validate that the Redress Plan has been properly executed and

must report the results of the review and assessment in a written submission to the

Board and to the Supervision Director.

16. Fifth Third must provide all redress under the Redress Plan within one

year of the Supervision Director making a determination of non-objection to the

Redress Plan, unless the Supervision Director grants an extension of that deadline.

17. Fifth Third may not condition the payment of any redress to any

Account-Opening Affected Consumer on that Account-Opening Affected Consumer

waiving any right.

VI

Order to Pay Civil Money Penalty

IT IS FURTHER ORDERED that:

18. Under Section 1055(c) of the CFPA, 12 U.S.C. § 5565(c), by reason of the

violations of law alleged in the Complaint, Fifth Third must pay a civil money penalty

of $15 million to the Bureau.

19. Within 10 days of the Effective Date, Fifth Third shall pay the civil

money penalty by wire transfer to the Bureau or to the Bureau’s agent in compliance

with the Bureau’s wiring instructions.

20. The civil money penalty paid under this Order will be deposited in the

Civil Penalty Fund of the Bureau as required by Section 1017(d) of the CFPA, 12

U.S.C. § 5497(d).

21. Fifth Third shall treat the civil money penalty paid under this Order as

a penalty paid to the government for all purposes. Regardless of how the Bureau

ultimately uses those funds, Fifth Third may not:

a. claim, assert, or apply for a tax deduction, tax credit, or any other tax

benefit for any civil money penalty paid under this Order; or

b. seek or accept, directly or indirectly, reimbursement or indemnification

from any source, including but not limited to payment made under any

insurance policy, with regard to any civil money penalty paid under this

Order.

VII

Additional Monetary Provisions

22. In the event of any default on Fifth Third’s obligations to make payment

under this Order, interest, computed under 28 U.S.C. § 1961, as amended, will accrue

on any outstanding amounts not paid from the date of default to the date of payment

and will immediately become due and payable.

23. Fifth Third relinquishes all dominion, control, and title to the funds paid

under this Order to the fullest extent permitted by law and no part of the funds may

be returned to Fifth Third.

24. The facts alleged in the Complaint will be taken as true and be given

collateral estoppel effect, without further proof, in any proceeding based on the entry

of the Order, or in any subsequent civil litigation by or on behalf of the Bureau,

including in a proceeding to enforce its rights to any payment or monetary judgment

under this Order, such as a nondischargeability complaint in any bankruptcy case.

25. The facts alleged in the Complaint establish all elements necessary to

sustain an action by the Bureau under Section 523(a)(2)(A) of the Bankruptcy Code,

11 U.S.C. § 523(a)(2)(A), and for such purposes this Order will have collateral

estoppel effect against Fifth Third, even in Fifth Third’s capacity as debtor-in-

possession.

26. Fifth Third acknowledges that its Taxpayer Identification Number,

which Fifth Third previously submitted to the Bureau, may be used for collecting and

reporting on any delinquent amount arising out of this Order, in accordance with 31

U.S.C. § 7701.

27. Within 30 days of the entry of a final judgment, order, or settlement in

a Related Consumer Action, Fifth Third must notify the Supervision Director of the

final judgment, order, or settlement in writing. That notification must indicate the

amount of redress, if any, that Fifth Third paid or is required to pay to consumers

and describe the consumers or classes of consumers to whom that redress has been

or will be paid. To preserve the deterrent effect of the civil money penalty in any

Related Consumer Action, Fifth Third may not argue that Fifth Third is entitled to,

nor may Fifth Third benefit by, any offset or reduction of any monetary remedies

imposed in the Related Consumer Action because of the civil money penalty paid in

this action or because of any payment that the Bureau makes from the Civil Penalty

Fund. If the court in any Related Consumer Action offsets or otherwise reduces the

amount of compensatory monetary remedies imposed against Fifth Third based on

the civil money penalty paid in this action or based on any payment that the Bureau

makes from the Civil Penalty Fund, Fifth Third must, within 30 days after entry of a

final order granting such offset or reduction, notify the Bureau and pay the amount

of the offset or reduction to the U.S. Treasury. Such a payment will not be considered

an additional civil money penalty and will not change the amount of the civil money

penalty imposed in this action.

COMPLIANCE PROVISIONS

VIII

Reporting Requirements

IT IS FURTHER ORDERED that:

28. Fifth Third must notify the Bureau of any development that may affect

compliance obligations arising under this Order, including but not limited to, a

dissolution, assignment, sale, merger, or other action that would result in the

emergence of a successor company; the creation or dissolution of a subsidiary, parent,

or affiliate that engages in any acts or practices subject to this Order; the filing of any

bankruptcy or insolvency proceeding by or against Fifth Third; or a change in Fifth

Third’s name or address. Fifth Third must provide this notice at least 30 days before

the development or as soon as practicable after the learning about the development,

whichever is sooner.

29. Within 7 days of the Effective Date, Fifth Third must:

a. designate at least one telephone number and email, physical, and postal

addresses as points of contact that the Bureau may use to communicate

with Fifth Third; and

b. identify all businesses for which Fifth Third is the majority owner, or that

Fifth Third directly or indirectly controls, by all of their names, telephone

numbers, and physical, postal, email, and Internet addresses.

30. Fifth Third must report any change in the information required to be

submitted under Paragraph 28 at least 30 days before the change or as soon as

practicable after learning about the change, whichever is sooner.

IX

Order Distribution and Acknowledgment

IT IS FURTHER ORDERED that:

31. Within 7 days of the Effective Date, Fifth Third must submit to the

Supervision Director an acknowledgment of receipt of this Order, sworn under

penalty of perjury.

32. Within 30 days of the Effective Date, Fifth Third must deliver a copy of

this Order to each of its Board members and executive officers, as well as to any

managers, employees, service providers, or other agents and representatives who

have responsibilities related to the subject matter of the Order.

33. For 5 years from the Effective Date, Fifth Third must deliver a copy of

this Order to any business entity resulting from any change in structure referred to

in Section VIII, any future Board members and executive officers, as well as to any

managers, employees, service providers, or other agents and representatives who

have responsibilities related to the subject matter of the Order, before they assume

their responsibilities.

34. Fifth Third must secure a signed and dated statement acknowledging

receipt of a copy of this Order within 30 days of delivery, from all persons receiving a

copy of this Order under this Section.

35. Ninety days from the Effective Date, Fifth Third must submit to the

Bureau a list of all persons and their titles to whom this Order has been delivered

under the Section of this Order titled “Order Distribution and Acknowledgment” and

a copy of all signed and dated statements acknowledging receipt of this Order under

Paragraph 32.

X

Recordkeeping

IT IS FURTHER ORDERED that:

36. Fifth Third must create, for at least 5 years from the Effective Date, the

following business records: All documents and records necessary to demonstrate full

compliance with each provision of this Order, including all submissions to the

Bureau. Fifth Third must retain these documents for at least 5 years after creation

and make them available to the Bureau upon the Bureau’s request.

37. All documents and records must be maintained in their original

electronic format. Data should be centralized, and maintained in such a way that

access, retrieval, auditing and production are not hindered.

XI

Notices

IT IS FURTHER ORDERED that:

38. Unless otherwise directed in writing by the Bureau, Fifth Third must

provide all submissions, requests, communications, or other documents relating to

this Order in writing, with the subject line, “CFPB v. Fifth Third Bank, National

Association, SDOH Case No. 1:21-cv-262,” and send them by email to

Enforcement_Compliance@cfpb.gov addressed as follows:

ATTN: Supervision Director

Consumer Financial Protection Bureau

Office of Supervision

XII

Compliance Monitoring

IT IS FURTHER ORDERED that:

39. Within 14 days of receipt of a written request from the Bureau, Fifth

Third must submit additional compliance reports or other requested information,

which must be sworn under penalty of perjury; provide sworn testimony; or produce

documents.

40. Fifth Third must permit Bureau representatives to interview any

employee or other person affiliated with Fifth Third who has agreed to such an

interview regarding: (a) this matter; (b) anything related to or associated with the

conduct described in the Amended Complaint; or (c) compliance with this Order. The

person interviewed may have counsel present.

41. Nothing in this Order will limit the Bureau’s lawful use of compulsory

process, under 12 C.F.R. § 1080.6.

XIII

Transfer or Assignment of Operations

IT IS FURTHER ORDERED that:

42. Should Fifth Third seek to transfer or assign all or part of its operations

that are subject to this Order, Fifth Third must, as a condition of sale, obtain the

written agreement of the transferee or assignee to comply with all applicable

provisions of this Order.

XIV

Release

IT IS FURTHER ORDERED that:

43. The Bureau releases and discharges Respondent from all potential

liability for law violations that the Bureau has or might have asserted based on the

practices described in its Amended Complaint, to the extent such practices occurred

before the Effective Date and the Bureau knows about them as of the Effective Date.

The Bureau may use the practices described in the Amended Complaint in future

enforcement actions against Respondent and its affiliates, including, without

limitation, to establish a pattern or practice of violations or the continuation of a

pattern or practice of violations or to calculate the amount of any penalty. This

release does not preclude or affect any right of the Bureau to determine and ensure

compliance with this Order, or to seek penalties for any violations of this Order.

XV

Retention of Jurisdiction

IT IS FURTHER ORDERED that:

44. All pending motions are hereby denied as moot. The Court will retain

jurisdiction of this matter for purposes of construction, modification, and enforcement

of this Order. The Court DIRECTS the Clerk to TERMINATE this case on its

docket.

SO ORDERED.

July 18, 2024

DATE DOUGLAS R. COLE .

UNITED STATES DISTRICT JUDGE