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On December 11, the FTC entered into a proposed settlement with an Arizona-based company and its officer (defendants) relating to an allegedly deceptive credit card telemarketing operation. As previously covered by InfoBytes, the FTC alleged that the defendants—as part of a larger group of 12 defendants comprised of an independent sales organization, sales agents, payment processors, and identified principals—violated the FTC Act and the Telemarketing Sales Rule by assisting a telemarketing company in masking its identity by processing the company’s credit card payments and laundering credit card transactions on behalf of multiple fictitious companies. The proposed settlement, among other things, prohibits the defendants from engaging in credit card laundering and bans them from telemarketing, processing payments, or acting as an independent sales organization or sales agent. The order also stipulates a judgment of $5.7 million, which will be suspended unless it is determined that the financial statements submitted by the defendants contain any inaccuracies.
In March 2018, the FTC reached settlements with two of the other defendants (see InfoBytes coverage here). Litigation continues against the remaining defendants.
On July 26, the Director of the FTC’s Bureau of Consumer Protection, Andrew Smith, testified before subcommittees of the U.S. House Committee on Oversight and Government Reform regarding the FTC’s program to combat consumer fraud. The prepared testimony discusses the FTC’s anti-fraud program and highlights the agency’s enforcement actions against illicit companies that pose as government agents, such as the IRS, to convince consumers and small businesses to send them money. The FTC touts the steps taken to spur development of technological solutions to unlawful robocalls, including call-blocking and call-filtering products. The testimony also focuses on the FTC’s efforts to curb payment processors from assisting fraudulent actors in violation of the FTC Act. The FTC notes that the Commission has brought 25 actions against payment processors that failed to comply with requirements to ensure their systems were not being used to process fraudulent merchant transactions. The FTC emphasized that while the “overwhelming majority” of payment processors abide by the law, when certain processors do not, they cause “significant economic harm to consumers and legitimate businesses.”
On March 12, the U.S. District Court for the Northern District of California denied a company’s post-trial motions to set aside September 2017 judgments in a lawsuit brought by the CFPB for alleged violations of the Consumer Financial Protection Act (CFPA). Specifically, the bi-weekly payments company requested that the court set aside its injunction and reconsider a $7.93 million penalty in light of “new evidence” that demonstrated the company’s inability to pay the penalty. As previously covered by Infobytes, the CFPB filed the lawsuit in 2015, alleging, among other things, that the company made misrepresentations to consumers about its bi-weekly payment program by overstating the savings provided by the program and creating the impression the company was affiliated with the consumers’ lender. In denying the company’s motion, the court held that the company failed to present new evidence that would justify the relief. Additionally, the court rejected the argument that the permanent injunction placed on the company was overly burdensome, stating “in light of the evidence of defendants[’] prior practices…the limitations of the injunction reflect appropriate safeguards ‘to avoid deception of the consumer.’”
On March 9, the FTC entered into a settlement with a credit card merchant and its individual officer (collectively, “defendants”) relating to an allegedly deceptive credit card telemarketing operation. According to the FTC’s amended complaint, the defendants violated the FTC Act and the Telemarketing Sales rule by assisting a telemarketing company in masking its identity by processing the company’s credit card payments through multiple fictitious companies. The FTC previously had banned the telemarketing company from selling fraudulent “work-at-home” opportunities in 2015. The settlement, among other things, prohibits the defendants from processing payments or acting as an independent sales organization. The order also stipulates a judgment of approximately $1.3 million, which will be suspended unless it is determined that the financial statements defendants submitted to the FTC contain any inaccuracies.
On September 8, a federal judge in the U.S. District Court for the Northern District of California issued an opinion and order against a company after a seven-day bench trial, finding that the company misrepresented its bi-weekly payment program in violation of the Consumer Financial Protection Act (CFPA). As previously covered in InfoBytes, the CFPB filed a complaint in 2015 against the company, its wholly owned subsidiary, and the company’s founder, alleging that the company’s false and misleading marketing practices were abusive and deceptive when it minimized the existence or amount of the program’s setup fee, misled borrowers on the amount of actual savings, and created the impression that the company was affiliated with the lender. The payment program allowed the defendants to contract with borrowers to make their mortgage, credit card, or other loan payments for them. The program automatically debited their accounts every two weeks in an amount equal to one-half of the monthly payment on the loan. This resulted in 26 payments per year, with the extra payments going towards paying down the principal on the loan. The judge granted the $7.9 million civil penalty proposed by the CFPB but denied the restitution of almost $74 million that the CFPB had sought—a full refund of all setup fees—because it found that “the CFPB has not proved that defendants engaged in the type of fraud commonly connoted by the well-worn phrase ‘snake oil salesmen,’” and specifically had “not shown, and could not show, that the [payment] program never provid[ed] a benefit to consumers, or that no fully-informed consumer would ever elect to pay to participate in the program.” The court found that further injunctive relief is warranted but directed the parties to meet and confer to determine the specific terms of the relief. The court noted that the CFPB had only sought civil penalties under the “basic tier” of the CFPA’s civil penalties provision and speculated that the CFPB did not propose higher penalties because it also expected to obtain a large amount of restitution. Nevertheless, the court found that higher penalties for reckless or knowing violations were not warranted because the defendants had taken “affirmative steps such as training, quality control, and seeking legal counsel, in an effort to stay on the right side of the line.”
District Court Dismisses CFPB Lawsuit Against Payment Processors, Cites “Blatant Disregard” for Discovery Order
On August 25, a federal judge in the U.S. District Court for the Northern District of Georgia filed an order dismissing claims brought by the CFPB against four payment processors for allegedly engaging in an illegal robocall phantom debt collection operation involving certain payment processors and a telephone broadcast service provider (defendants). (See previous InfoBytes coverage here.) According to a complaint filed in 2015, the defendants “knew, or should have known” that the debt collectors were contacting millions of consumers in an attempt to collect debt that consumers did not owe or that the collectors were not authorized to collect by using threats, intimidation, and deceptive techniques in violation of the Consumer Financial Protection Act and the Fair Debt Collection Practices Act.
According to the order, however, the CFPB displayed a “blatant disregard” for the court’s instructions when asked repeatedly to identify the factual bases for its claims, and willfully failed to present a knowledgeable 30(b)(6) witness during depositions. As examples of “willful disregard,” the court noted that the CFPB’s approach was to first “bury the Defendants in so much information that [they] cannot possibly identify, with any reasonable particularity, what supports the CFPB’s claims,” and second, to “assert privilege objections to questions that the Court … repeatedly ordered to be answered.” The court also indicated that Bureau witnesses relied on “memory aids”—which the court characterized as “scripts”—to provide answers to the defendants’ questions and were unable to testify beyond what was stated on the memory aids. This behavior made the court “not optimistic that reopening the depositions would be fruitful.” As a result, the court dismissed the defendants from the action, granting sanctions under Rule 37, which permits “a district court [to] impose sanctions upon a party for failure to comply with a discovery order,” which may include striking pleadings in whole or in part.
On April 3, the U.S. Supreme Court granted certiorari in a case challenging a Texas law that bars retailers from imposing credit card surcharges, and remanded the case to the Fifth Circuit in light of its ruling last week in Expressions Hair Design, that a similar statute in New York regulated merchants’ First Amendment rights. In Rowell, a landscaping business, a computer networking company, a self-storage facility, and an event design and production company sought to challenge a Texas law allowing merchants to charge different prices to customers who pay with cash and customers who pay with a credit card, but barring merchants from describing the price difference as a surcharge for credit cards, leaving them to describe it instead as a discount for using cash. The Fifth Circuit held that the Texas law did not violate the retailers’ free speech rights, aligning it with the Second Circuit in its September 2015 ruling in the Expressions Hair Design litigation against New York State.
As previously reported on InfoBytes, the Supreme Court last week in the Expressions case unanimously rejected the Second Circuit’s conclusion that the New York credit card law regulates conduct alone, rather than speech. As explained in the Supreme Court’s opinion, the law at issue “is not like a typical price regulation,” which regulates a seller’s conduct by dictating how much to charge for an item. Rather, the Court explained, the law regulates “how sellers may communicate their prices.” (emphasis added). The Supreme Court, however, did not address the question of whether the law unconstitutionally restricts speech.
On March 29, the U.S. Supreme Court vacated and remanded a lawsuit challenging a New York law—N.Y. Gen. Bus. Law § 518—which provides that no seller “may impose a surcharge on a holder who elects to use a credit card” instead of a cash payments. (See Expressions Hair Design, et al. v Schneiderman.) Plaintiffs, a group of New York merchants, argued that the law violates the First Amendment by regulating how they communicate their prices. Plaintiffs further alleged that the law is unconstitutionally vague. In its defense, the State of New York asserted that the law merely prevents unfair profiteering, consumer anger, and deceptive sales tactics. After the district court ruled in favor of the Plaintiffs, the Court of Appeals for the Second Circuit vacated the judgment with instructions to dismiss. The Second Circuit appellate panel reasoned that the law is a “price regulation” that regulates conduct rather than speech and, as such, is immune from scrutiny under the First Amendment.
Writing for the Supreme Court—which was unanimous in the judgment—Chief Justice John G. Roberts disagreed with the Second Circuit panel’s conclusion that the law regulates conduct alone. Specifically, Justice Roberts notes in his opinion that Section 518 “is not like a typical price regulation,” which regulates a seller’s conduct by dictating how much to charge for an item. Rather, the Chief Justice explained, the law regulates “how sellers may communicate their prices.” Notably, the majority opinion declined to delve into the First Amendment issues raised by the parties, including whether the law is a valid commercial speech regulation, citing its status as “a court of review, not of first view.”
Justice Stephen G. Breyer filed a concurring opinion in which he noted that because the law’s interpretation is unclear, on remand, the Second Circuit should ask New York's highest court to clarify it, as this “is a matter of state law.” Justice Sonia M. Sotomayor, joined by Justice Samuel A. Alito, Jr., also filed a concurring opinion in which she called the majority's ruling a “quarter-loaf outcome,” because the holding failed to address whether the law unconstitutionally restricts speech. The Second Circuit erred by not certifying the question of the statute's interpretation to the N.Y. Court of Appeals “and this Court errs by not correcting it,” Sotomayor reasoned. The Justice indicated that she would have “vacate[d] the judgment below and remand with instructions to” certify the question for a definitive interpretation.
Federal Court in North Dakota Dismisses CFPB Complaint Against Payment Processor for Insufficient Factual Allegations
In an Order issued on March 17, a U.S. District Court for the District of North Dakota dismissed an enforcement action filed by the CFPB against a payment processor and its two top executives. The Bureau had filed the lawsuit last year against a Fargo-based third-party payment firm, and its co-owners, alleging that the firm had “ignored” warnings from financial institutions of possible unauthorized debits and other possibly suspicious activity, including the possibility that the firm was processing electronic funds transfers on behalf of payday lenders in states where payday loans are illegal.
In granting Defendants’ motion to dismiss without prejudice, the Court held, among other things, that the CFPB had failed to “plead facts sufficient to support the legal conclusion that consumers were injured or likely to be injured” by the actions attributed to the defendants in the complaint. As explained by the Court, "[a]lthough the complaint need not contain detailed factual allegations, it must contain 'more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” The Court emphasized both that (i) “[f]ormulaic recitations of the elements of a claim or assertions lacking factual enhancement are not sufficient,” and (ii) that “[t]he facts alleged in the complaint must be plausible, not merely conceivable.” Applying this standard, the Court ultimately held that the CFPB’s complaint “d[id] not contain sufficient factual allegations to back up its conclusory statements regarding Intercept’s allegedly unlawful acts or omissions.”
CFPB Fines Prepaid Debit Card Company and Payment Processor $13 Million for Preventable Service Breakdown, Claims Consumers Denied Access to Their Own Money
On February 1, the CFPB announced that it had entered a consent order against two companies—a prepaid card company and its payment processor—for failing to conduct adequate testing and preparation before and during a switch to a new payment processing platform in 2015. In addition, the Bureau cited both companies for improper administration of accounts after the switch. The allegations arise out of an approximate three week breakdown in services in October 2015 which, among other things, denied cardholders access to their accounts, delayed the processing of deposits and payments, and also, in some instances, erroneously double posted deposits which falsely inflated account holders’ balances. The consent order also notes that the prepaid card company failed to provide adequate customer service to consumers impacted by the breakdown. The CFPB stated that it received roughly 830 consumer complaints in the weeks following the switch. Based on these and other allegations, the Bureau ordered the two companies to prepare a plan to prevent future service disruptions and pay an estimated $10 million in restitution to harmed consumers as well as a $3 million civil penalty.
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