On April 10, the FDIC rescinded its supervisory guidance on multiple re-presentment NSF fees, effective immediately. The agency determined that the prior guidance, originally issued on June 16, 2023 (covered by InfoBytes here), was overly broad and had raised uncertainty about when disclosures regarding re-presentments may result in “unfairness” concerns under Section 5 of the FTC Act. The 2023 guidance had rescinded and replaced earlier guidance from 2022 (covered here), which warned supervised financial institutions that charging customers multiple NSF fees on re-presented unpaid transactions could increase regulatory scrutiny and litigation risk.

The now-rescinded 2023 guidance updated the FDIC’s supervisory approach after the agency received additional data from institutions’ remediation efforts showing the extent of consumer harm and the challenges institutions faced in accurately identifying harmed parties. That guidance specified that FDIC would not request an institution to conduct a lookback review absent a likelihood of substantial consumer harm. Under the new directive, FIL-14-2026, the FDIC stated that supervised institutions should ensure their consumer disclosures accurately reflect their practices and comply with applicable laws, regulations, and other current legal requirements.