Recent news reports indicate that the CFPB has placed advertisements to recruit investigators and said that the investigators’ activities are intended to inform the CFPB’s enforcement division about consumer experiences with different financial products and services.
Those reports lead us to speculate that the CFPB may be planning to use “mystery shoppers.” Mystery shoppers have commonly been used in the past to identify weaknesses in fair lending compliance, particularly with regard to pre-application discrimination. While the CFPB might similarly use mystery shoppers to target fair lending or other specific compliance weaknesses, it might also use mystery shoppers in connection with its authority to prohibit “unfair, deceptive or abusive” acts or practices. For example, the CFPB might send mystery shoppers to identify violations by companies who have been the subject of consumer complaints or whose risk of engaging in unfair, deceptive or abusive practices was rated high in pre-examination risk assessments. Information the CFPB obtains from mystery shoppers might also be used in rulemaking on unfair, deceptive or abusive practices.
If the CFPB is considering the use of “mystery shoppers,” we hope there will be an opportunity for public comment on its plans. Given the potential for information obtained from mystery shoppers to lead to hyperbole and overgeneralization, we would expect the CFPB to proceed cautiously.