Compliance Insider: Blurred Lines

BenoitBy “blurred lines,” I don’t mean the controversial, chauvinistic and wildly successful hit song by Robin Thicke/T.I./ Pharrell Williams (and Marvin Gaye?). Artistic license in music and lyrics is a component of the craft. The same can’t be said, however, for government speech. Any government pronouncement should clearly express its intent, and not mislead the parties to whom it is directed. To do otherwise is at best crass and disingenuous, and at worst debilitating to the target’s reputation and the speaker’s credibility.

In the legal world, words matter. We are paid to state clearly the message we mean to convey, and choose carefully the words we use for that purpose.Much of the government is staffed by lawyers, so language use should be a skill with which they are familiar.

Which makes it frustrating when the Consumer Financial Protection Bureau issues press releases announcing it found a company to have engaged “illegally” in some practice, where no “criminal” behavior was alleged. The behavior may have been “illegal” in a technical sense but it is a word most people associate with criminality. Few, if any, technical violations of civil statutes can be characterized as criminal. It’s almost as if the Bureau’s marketing folks are crafting press releases without the benefit of substantive legal review. Were companies under the Bureau’s jurisdiction to do that with their own press releases and marketing, the Bureau would likely find the practice, at a minimum, to be a compliance lapse.

Most words have multiple synonyms for the varying gradations of the subject word. For example, the word “happy” connotes a feeling of comfort and contentment; a generally pleasurable experience. My Microsoft dictionary function (which I consulted after I wrote the prior sentence) defines it as “feeling or showing pleasure, contentment or joy.” Point being, I (like most people) know what happy means, imply because I’ve spoken the language for a long time.

“Happy” synonyms tend to be on a spectrum, but where they fall on said spectrum determines what gradation of “happy” is communicated. My Microsoft thesaurus identifies the synonyms, “blissful” (defined as “perfectly happy”), “exultant” (extremely happy, joyful, or triumphant), “ecstatic” (showing or feeling great pleasure or delight; completely dominated by an intense emotion), “delighted” (filled with great enjoyment and pleasure), “cheery” (in good spirits), and “jovial” (cheerful in mood or disposition). Each is a gradation of “happy” that conveys a slightly different meaning, or intensity, of the underlying word. Which synonym we choose is determined by how much, or how little, happiness we want to (or should) express.

I’m a generally happy guy, but one who is frustrated with how political our regulatory agencies have become. I’m definitely not “ecstatic” or “exultant” about what I see in my little part of the regulatory world. I’m mostly disappointed (“not satisfied”) as I see so many good things that could be done if partisanship were out of the picture. Of course, politics is all about partisanship. But good governing requires balance, compromise, respect, thoughtfulness, candor and clarity of purpose, among many other things. Hyperbolic language blurs the message and the mission of good governing.

There is much good the CFPB can do for consumers and industry without resorting to hyperbole. It degrades its credibility by doing so and damages the good mission it is meant to undertake. The Bureau doesn’t sell a product, so it need not resort to hyperbole and puffery. It also need not mislead the public and damage generally good actors through a poor choice of words. Last I checked, that kind of behavior by others is often viewed as unfair, deceptive or abusive. Surely, that is not the intent of our government, is it?

Michael Benoit is a partner in the Washington, D.C., office of Hudson Cook LLP. He is a frequent speaker and writer on a variety of consumer credit topics. Michael can be reached at 202-327-9705 or mbenoit@hudco.com. Nothing in this article is legal advice and should not be taken as such. Please address all legal questions to your counsel.

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