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  • Democratic AGs object to CFPB sandbox

    State Issues

    On February 11, a coalition of 22 Democratic state Attorneys General responded to the CFPB’s proposed policy on No-Action Letters (NAL) and a new federal product sandbox, pushing back on the Bureau’s efforts to provide relief to financial institutions looking to implement new consumer financial products or services. (InfoBytes coverage on the proposal available here.) The Attorneys General argued that the Bureau “has no authority to issue such sweeping immunity absent formal rulemaking” and urged the Bureau to rescind the proposals, which the Bureau had stated were exempt from the notice and comment procedures of the Administrative Procedures Act.

    In addition to challenging the Bureau’s authority to establish these policies, the Attorneys General asserted specific concerns with the NAL proposal, including (i) the fact that the proposed NAL policy would make NALs binding on the CFPB indefinitely; (ii) the streamlined application process and 60-day decision window, potentially causing the Bureau to render hasty, uninformed decisions; and (iii) the proposed NAL policy’s purported deviations from the policies of other federal agencies, such as the SEC.

    As for the new product sandbox, the Attorneys General viewed the proposed policy as “even more troubling” than the NAL proposal, as it provides immunity from “enforcement actions by any Federal or State authorities, as well as from lawsuits brought by private parties.” The Attorneys General rejected the Bureau’s contention that the statutory safe harbors in TILA, ECOA, and the EFTA grant the authority to provide the broad enforcement relief and accused the Bureau of “abandoning its critical role in monitoring the risk that new and emergency technologies post to consumers in the financial marketplace.”

    State Issues State Attorney General Fintech CFPB Regulatory Sandbox Safe Harbor

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  • State AGs urge FTC to update identity theft rules

    State Issues

    On February 11, a bipartisan group of 29 state Attorneys General, the District of Columbia Attorney General, and an official from the Hawaii Office of Consumer Protection, responded to the FTC’s request for comment on whether the agency should make changes to its identity theft detection rules (the Red Flags Rule and the Card Issuers Rule), which require financial institutions and creditors to take certain actions to detect signs of identity theft affecting their customers. (Covered by InfoBytes here.) 

    In their response, the Attorneys General urge the FTC not to repeal the Rules, arguing that it “would place consumers at greater risk of identity theft, especially consumers in states that have not enacted” laws that complement the Rules. Instead, the response letter requests the FTC modify the Rules to “ensure their continued relevance” and “keep pace with the ingenuity of identity thieves.” The suggestions include: (i) that notices of changes to email addresses and cell phone numbers be sent to both the prior and updated addresses and phone numbers, an expansion of the current use of mailing addresses; (ii) the encouragement of more current forms of authentication, including multi-factor authentication, to replace examples which imply that knowledge-based authentication by itself is sufficient; and (iii) the addition of new suspicious activity examples related to the use of an account, such as a covered account accessed by unknown devices or IP addresses, an unauthorized user unsuccessfully trying to guess account passwords through multiple attempts, and attempts by foreign IP addresses to access multiple accounts in a close period of time.

    State Issues FTC Identity Theft RFI State Attorney General Privacy/Cyber Risk & Data Security

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  • Bank settles ride-sharing overdraft suit for $22 million

    Courts

    On January 31, the U.S. District Court for the Southern District of New York granted final approval and class certification to a $22 million settlement resolving class action allegations that a national bank improperly charged overdraft fees on “one-time, non-recurring” transactions made with a ride-sharing company. The court found that the bank mischaracterized these one-time charges as recurring transactions, which allowed the bank to charge overdraft fees of $35. Prior to the court’s approval of the settlement, 12 state Attorneys General sent a letter to the court arguing that the agreement’s release of liability to the ride-sharing company was inequitable. The court found, however, that the release “does not compromise the fairness, reasonableness, and adequacy of the settlement,” where, among other things, plaintiffs’ counsel investigated the viability of claims against the ride-sharing company and concluded that litigation against the company could present problems for the proposed class and for individual recovery. The $22 million settlement constitutes 80 percent of all revenues charged by the bank as a result of the overdraft fees. The court also approved $5.5 million in attorneys’ fees and $50,000 in costs.

    Courts Overdraft Class Action Settlement Attorney Fees State Attorney General Consumer Finance

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  • Florida Attorney General settles with car rental company for misleading fee disclosures

    State Issues

    On January 22, the Florida Attorney General announced a settlement with a car rental automotive group resolving allegations the company did not adequately disclose add-on fees for cashless tolls and other related add-on charges. According to the settlement, the Attorney General launched an investigation after receiving consumer complaints alleging the company did not clearly disclose that consumers would be charged $15 per cashless toll, in addition to the actual toll fees. Additionally, consumers who opted into an add-on product that would allow them to go through cashless tolls without penalty alleged the company misled them regarding that product’s fees. The settlement requires the company to (i) clearly and conspicuously disclose all fees regarding cashless tolls or associated products within written agreements; (ii) provide clear disclosures regarding fees on their website, online reservation system, confirmation emails and at the rental counters; (iii) refund fees paid for tolls or the associated add-on product to consumers who were charged between January 1, 2011 and January 7, 2019, and who submit claim forms; and (iv) provide accurate disclosures on damage waivers. The settlement also prohibits the company from charging consumers for a higher car class when the car class reserved by a consumer is unavailable.

    State Issues Courts Disclosures State Attorney General Settlement Add-On Products

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  • State Attorneys General weigh in on small-dollar lending RFI

    Federal Issues

    On January 22, a coalition of 14 state Attorneys General submitted a comment letter responding to the FDIC’s Request for Information (RFI) on small-dollar lending. (See previous InfoBytes coverage on the RFI here.) According to the letter, while the coalition welcomes the FDIC’s interest in encouraging FDIC-supervised financial institutions to offer responsibly underwritten and prudently structured small-dollar credit products that are economically viable and address consumer credit needs, the coalition simultaneously raises several legal risks affecting state-chartered banks seeking to enter this space.

    • Banks face challenges when entering into relationships with “fringe lenders,” specifically with respect to the potential evasion of state restrictions related to state usury laws, “rent-a-bank” lending, and tribal sovereign immunity. The coalition recommends that the FDIC discourage banks from entering into such relationships.
    • State-chartered banks are still subject to state unfair or deceptive acts or practices laws and state-law unconscionability claims. The coalition recommends that the FDIC encourage banks to evaluate consumers’ ability to repay, factoring in conditions such as consumers’ monthly expenses, their ability to repay a loan’s entire balance without re-borrowing, and their “capacity to absorb an unanticipated financial event. . .and, nonetheless, still be able to meet the payments as they become due.” The coalition recommends that the FDIC include the factors banks should consider before extending small-dollar loans to consumers in any guidance that it issues.

    Federal Issues State Issues State Attorney General Small Dollar Lending FDIC RFI

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  • Retailer settles multistate data breach investigation for $1.5 million

    State Issues

    On January 8, a national retailer reached a $1.5 million multistate settlement with 43 states and the District of Columbia to resolve an investigation following a 2013 data breach of customer payment card information. According to the Illinois Attorney General’s announcement, the retailer will implement provisions to prevent future breaches, such as (i) complying with Payment Card Industry Data Security Standard requirements; (ii) maintaining a system to collect and monitor network activity; (iii) updating software that maintains and safeguards personal information; and (iv) devaluing payment card information through the use of encryption and tokenization technology to obfuscate payment card data. The retailer must also retain a third-party professional responsible for conducting an information security assessment and report, as well as outlining corrective measures.

    State Issues Privacy/Cyber Risk & Data Security State Attorney General Credit Cards Data Breach Settlement

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  • Fifteen states urge the 4th Circuit against allowing non-tribal payday lenders to receive tribal immunity

    State Issues

    On December 27, 2018, fifteen state Attorneys General filed an amici brief with the U.S. Court of Appeals for the 4th Circuit opposing the use of structures in which non-tribal payday lenders affiliate with tribal lenders to benefit from their tribal immunity and avoid state usury caps. The brief was filed in an appeal from a district court ruling, which held that a Michigan-based payday lender could not claim tribal immunity in a consumer class action because it could not prove it was an actual tribal entity. The Attorneys General argue that granting tribal immunity to non-tribal lenders would “bar enforcement of state consumer protection laws as well as, potentially, investigations into their activities.” The brief rejects the payday lender’s arguments that the plaintiff should bear the burden of negating “arm-of-the-tribe immunity” and instead urges the court to place the burden on the entity seeking the immunity. Allowing a non-tribal entity to benefit from sovereign immunity without “rigorous demonstration”, the Attorneys General argue, “may well undermine the purpose for tribal immunity” and “would have serious consequences for States’ ability to protect consumers.”

    The brief was filed by the District of Columbia and the States of Connecticut, Hawaii, Iowa, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New York, North Carolina, Pennsylvania, Vermont, and Virginia.

    State Issues State Attorney General Payday Lending Usury Interest Rate

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  • For-profit education company forgoes collection on almost $494 million in student loans

    State Issues

    On January 3, an Illinois-based for-profit education company settled with 49 state attorneys general, agreeing to forgo collection of nearly $494 million in debts owed by almost 180,000 students nationally. According to the Illinois Attorney General’s announcement, after a seven-year investigation into the company’s practices, the participating states allege that, among other things, the company (i) deceived students about the total costs of enrollment; (ii) failed to adequately disclose that certain programs lacked programmatic accreditation, which would negatively affect a student’s ability to get a license or employment in that field; and (iii) misled prospective students about post-graduate job rates. Under the settlement, the company has agreed to forgo collection of debts owed by students who either attended a company institution that closed before Jan. 1, 2019, or whose final day of attendance at two participating online institutions occurred on or before Dec. 31, 2013. In addition to the debt relief, the settlement also requires the company to, among other things, reform its recruiting and enrollment practices, including providing students with a single page disclosure that covers the (i) anticipated total direct cost; (ii) median debt for completers; (iii) programmatic cohort default rate; (iv) program completion rate; (v) notice concerning transferability of credits; (vi) median earnings for completers; and (vii) the job placement rate.

    State Issues State Attorney General Student Lending Debt Collection Debt Relief

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  • NYDFS, New York Attorney General reach $9 million settlement with student loan servicer

    State Issues

    On January 4, NYDFS and the New York Attorney General announced a joint $9 million settlement with a national student loan servicer to resolve allegations that the servicer, among other things, deceived student loan borrowers about their repayment options and steered them into higher-cost repayment plans. According to a press release issued by the Attorney General’s office, the servicer “steered distressed borrowers away from available income-based repayment plans towards other, more expensive options, thus costing them money and increasing their risk of default.” Additionally, the consent order alleges that the servicer misinformed borrowers—including servicemembers—about their repayment options, such as telling borrowers they were not eligible for Public Service Loan Forgiveness plans when they may have qualified after consolidating their loans. Furthermore, the servicer allegedly (i) improperly processed applications for income-based repayment; (ii) allocated underpayment for certain borrowers to maximize late fees; (iii) improperly processed payments; (iv) failed to accurately report information to credit reporting agencies; (v) failed to “properly recalculate monthly payments for servicemembers when adjusting their interest rates under the Servicemembers’ Civil Relief Act”; (vi) charged improper late fees; and (vii) did not provide borrowers notification of their eligibility for a co-signer release.

    The servicer, while neither admitting nor denying the findings alleged by NYDFS and the Attorney General, has agreed to pay $8 million in restitution to New York borrowers and a $1 million fine. Moreover, the servicer has agreed to stop servicing private and federal loans—with the exception of Perkins Loans—over the next five years.

    State Issues NYDFS Student Lending Settlement Student Loan Servicer Servicemembers SCRA State Attorney General

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  • State Attorneys General fine national bank $575 million for incentive compensation, mortgage and auto lending practices

    State Issues

    On December 28, a national bank reached a $575 million multistate settlement with 50 states and the District of Columbia. Among other things, the settlement resolves allegations that have been the subject of previous litigation concerning the bank’s incentive compensation sales program (covered by InfoBytes here), as well as allegations involving certain practices related to mortgage rate-lock extension fees, auto loan force-placed insurance policies, and guaranteed asset/auto protection products. As previously covered by InfoBytes, the bank reached a settlement last year with the CFPB and the OCC to resolve allegations concerning its auto and mortgage lending practices, which were previously discontinued and for which voluntary consumer remediation was initiated by the bank.

    State Issues State Attorney General Incentive Compensation Settlement Force-placed Insurance Rate Lock

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