The Department of Justice is reaching out to two financial industry trade groups in an apparent effort to quell concerns about the scope of its investigation into fraudsters' use of the banking system.
Online payday lenders, companies that process payments on their behalf, and some banks have complained that the probe, nicknamed Operation Choke Point, will touch both bad actors and law-abiding firms.
But in a letter Wednesday, Assistant Attorney General Stuart Delery pledged to tailor the investigative efforts so that they do not discourage lawful conduct.
The letter, which was sent to the American Bankers Association and the Electronic Transactions Association, does not mention online payday lending specifically. But it comes on the heels of a top Republican lawmaker's claim that the apparent aim of the Justice Department investigation is to shut down online lenders, including those operating lawfully.
"Our policy is not to prohibit or discourage financial institutions from providing payment processing services to customers operating in compliance with applicable federal and state law," Delery wrote, "and we are committed to tailoring our investigative efforts accordingly."
He added that "we will continue to review our efforts to minimize any impact and collateral consequences on institutions we are not investigating."
That promise from was welcome news to Jason Oxman, chief executive of the Electronic Transactions Association, which represents many of the nation's largest payment processors. "I thought that was very encouraging," he says.
Still, Oxman was critical of the scope of recent efforts by not only the Justice Department, but also the Federal Deposit Insurance Corp. and the Federal Trade Commission, to crack down on fraudsters' use of the payments system.
"Our view is that DOJ, the FTC, the FDIC, any law enforcement investigations, should target illegal actors," not the firms processing the transactions, he says. "It's as if law enforcement viewed the phone companies as responsible for responsible for illegal activity that is conducted on a telephone. Our concern is that to a hammer, everything looks like a nail."
The ABA, which has maintained a low public profile as regulators and law-enforcement agencies have stepped up their scrutiny of banks' ties to online lenders, did not immediately respond to a request for comment Thursday.
Notably, the Justice Department's letter was not addressed to certain other trade groups that have been more publicly critical of the government's crackdown on some online payday lenders' use of the banking system.
For example, the Online Lenders Alliance, whose president, Lisa McGreevy, has complained about "unprecedented government pressure," was not among the letter's addressees.
The Online Lenders Alliance includes companies that argue they don't need to be licensed in every state where their borrowers live, a contention that the Justice Department and numerous state authorities reject
The Third Party Payment Processors Association was also not one of the letter's recipients. Marsha Jones, the president of that group, has accused federal investigators of "strong-arming banks and processors" in "its zeal to eliminate an industry it finds objectionable."
After reviewing Delery's letter Thursday, officials from both the Online Lenders Alliance and the Third Payment Processors Association said separately that they are "encouraged."
The Justice Department's letter comes two weeks after House Oversight Committee Chairman Darrell Issa, R-Calif., wrote to the department requesting a slew of documents related to Operation Choke Point.
A Justice Department spokesman said Wednesday that the agency would respond to Issa's letter in the near future.
Under Operation Choke Point, the department has sent subpoenas to more than 50 banks and third-party payment processors. One of those banks, the $809-million asset Four Oaks Bank in Greensboro, N.C., announced a tentative settlement with the Justice Department on Jan. 9. A complaint filed by the Justice Department alleges that Four Oaks willfully ignored violations of the law in order to preserve lucrative revenue from numerous online lenders.
Jeffrey Knowles, a lawyer who represents Four Oaks, said in an email Thursday that the settlement deal, which has yet to be approved by a federal judge, would allow the bank to focus its resources on its core business.
"While we believe the bank has defenses to the allegations and claims in the government's complaint, the proposed settlement if approved by the court would allow the bank to resolve this matter without further litigation, and without admitting or denying the Justice Department's allegations," he said.