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Financial Services Law Insights and Observations


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  • FTC fines two companies $6M for inaccurate background reports

    Federal Issues

    The FTC fined two companies that sell consumer background reports through subscriptions for violations of the FTC Act and Fair Credit Reporting Act (“FCRA”). In addition to allegedly claiming, without substantiation, to have the most accurate reports available to the public, the complaint says two companies deceptively claimed individuals had criminal or arrest records when the individual did not; deceptively claimed consumers can remove information or flag it as inaccurate, and deceptively failed to disclose that third-party reviews were incentivized and biased.

    The companies also furnished consumer reports to subscribers “without reason to believe those subscribers have permissible purposes to obtain such reports.”

    The stipulated order requires the companies to pay a civil penalty of $5.8 million, prohibits them from advertising, marketing, promoting, or offering for sale certain reports including arrest records, bankruptcy records, and eviction records until the establish and implement a comprehensive monitoring program, and prohibits them from continuing any of the deceptive practices set forth in the complaint.

    Federal Issues FTC Enforcement FTC Act FCRA Consumer Reporting Deceptive Third-Party

  • Judge grants MSJ in class action over disputed debt investigation


    On July 28, the U.S. District Court for the Southern District of Alabama granted summary judgment in favor of a defendant third-party debt collector in an FCRA and FDCPA putative class action, holding that the defendant carried out a reasonable investigation following plaintiff’s dispute of the debt it had reported to credit reporting agencies (CRAs) and that the plaintiff failed to establish that the defendant knew or should have known that the debt was inaccurate or invalid. Defendant entered into an asset purchase agreement with another third-party debt collector and reported debts to credit reporting agencies under the name of the non-defendant third-party debt collector, including an account erroneously associated with plaintiff. When defendant received notice that plaintiff disputed the erroneous account information, defendant verified the account information in its system and provided by the CRA, asked the creditor to provide account documentation, and then requested that the CRAs delete their reporting of the account once the creditor failed to provide account documentation within the requested thirty-day period.

    In relation to the FCRA claim, the court found that the defendant “did everything required by the FCRA in response to Plaintiff’s dispute” such that the plaintiff “failed to establish how this investigation was not reasonable” or in violation of the FCRA. The court also found that plaintiff “failed to show that any different result would have occurred had [defendant] conducted any part of its investigation differently.” Finally, plaintiff’s claim failed as a matter of law concerning defendant’s initial report of the debt to the CRAs because the defendant was not required under the FCRA to “investigate the validity of a debt before commencing to report on that account to the CRAs.” While the defendant was prohibited from reporting inaccurate consumer information, no private cause of action exists for violations of this initial reporting provision of the FCRA.

    For the FDCPA claim, the court held that the plaintiff failed to establish that the defendant had knowledge that the debt it reported was not accurate or was otherwise disputed or invalid. Because the CFPB passed Regulation F in November 2021, after the events at question in this litigation, furnishing information regarding a debt to a CRA before communication with plaintiff was not unlawful at that time. Finally, the court found that plaintiff failed to timely assert that defendant violated the FDCPA provision prohibiting false, deceptive, or misleading representation by using the non-defendant third-party debt collector’s name when reporting the account to the CRAs because this allegation was not present in plaintiff’s complaint.

    Courts Third-Party Debt Collection FCRA FDCPA Alabama Credit Reporting Agency Class Action

  • FTC fines company $7.8 million over health data and third-party advertisers

    Federal Issues

    On July 14, the FTC finalized an order against an online counseling service, requiring it to pay $7.8 million and prohibiting the sharing of consumers’ health data for advertising purposes. The FTC alleged that the respondent shared consumers’ sensitive health data with third parties despite promising to keep such information private (covered by InfoBytes here). The FTC said it will use the settlement funds to provide partial refunds to affected consumers. The order not only bans the respondent from disclosing health data for advertising and marketing purposes but also prohibits the sharing of consumers’ personal information for re-targeting. The order also stipulates that the respondent must now obtain consumers’ affirmative express consent before disclosing personal information, implement a comprehensive privacy program with certain data protection measures, instruct third parties to delete shared data, and adhere to a data retention schedule.

    Federal Issues Privacy, Cyber Risk & Data Security FTC Enforcement Consumer Protection Telehealth FTC Act Deceptive Advertisement Third-Party

  • Texas enacts data broker requirements

    State Issues

    The Texas governor recently signed SB 2105 (the “Act”) to regulate data brokers operating in the state. The Act defines a “data broker” as “a business entity whose principal source of revenue is derived from the collecting, processing, or transferring of personal data that the entity did not collect directly from the individual linked or linkable to the data.” The Act’s provisions apply to data brokers that derive, in a 12-month period, (i) more than 50 percent of their revenue from processing or transferring personal data, or (ii) revenue from processing or transferring the personal data of more than 50,000 individuals, that was not collected directly from the individuals to whom the data pertains. Among other things, the Act requires covered entities to post conspicuous notices on websites or mobile applications disclosing that they are a data broker. Data brokers must also register annually with the secretary of state and pay required fees. Additionally, data brokers must implement a comprehensive information security program to protect personal data under their control and conduct ongoing employee and contractor education and training. Data brokers are required to take measures to ensure third-party service providers maintain appropriate security measures as well.

    The Act does not apply to deidentified data (provided certain conditions are met), employee data, publicly available information, inferences that do not reveal sensitive data that is derived from multiple independent sources of publicly available information, and data subject to the Gramm-Leach-Bliley Act. Additionally, the Act does not apply to service providers that process employee data for a third-party employer, persons or entities that collect personal data from another person or entity to which they are related by common ownership or control where it is assumed a reasonable consumer would expect the data to be shared, governmental entities, nonprofits, consumer reporting agencies, and financial institutions.

    The Texas attorney general has authority to bring an action against a data broker that violates the Act and impose a civil penalty in an amount not less than the total of “$100 for each day the entity is in violation,” as well as the amount of unpaid registration fees for each year an entity fails to register. Penalties may not exceed $10,000 in a 12-month period. By December 1, the secretary of state is required to promulgate rules necessary to implement the Act. The Act is effective September 1.

    State Issues Privacy, Cyber Risk & Data Security State Legislation Texas Data Brokers Third-Party

  • NCUA annual report to Congress covers cybersecurity

    Privacy, Cyber Risk & Data Security

    On June 28, the NCUA released its annual report on cybersecurity and credit union system resilience to the House and Senate banking committees. The report outlines measures the agency has taken to strengthen cybersecurity within the credit union system, outlines significant risks and challenges facing the financial system due to the NCUA’s lack of authority over third-party vendors, and addresses current and emerging threats. Explaining that cybersecurity is one of the NCUA’s top supervisory priorities with cyberattacks being a top-tier risk under the agency’s enterprise risk management program, the report discusses ways the NCUA continues to enhance the cybersecurity resilience of federally insured credit unions (FICUs). Measures include continually improving the agency’s examination program, providing training and support, and implementing a final rule in February, which requires FICUs to report any cyberattacks that disrupt its business operations, vital member services, or a member information system as soon as possible (and no later than 72 hours) after the FICU’s “reasonable belief that it has experienced a cyberattack.” The final rule takes effect September 1. (Covered by InfoBytes here.) The report also raises concerns regarding the NCUA’s lack of authority over third-party vendors that provide services to FICUs. Calling this a “regulatory blind spot” with the potential to create significant risks and challenges, the agency stresses that one of its top requests to Congress is to restore the authority that permits the agency to examine third-party vendors.

    Privacy, Cyber Risk & Data Security Federal Issues NCUA Credit Union House Financial Services Committee Senate Banking Committee Third-Party

  • Agencies flag intermediaries in evading Russia-related sanctions

    Financial Crimes

    On March 2, the DOJ, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC), and the Department of Commerce’s Bureau of Industry and Security (BIS) issued a joint compliance note on the use of third-party intermediaries or transshipment points to evade Russian- and Belarussian-related sanctions and export controls. This is the first collective effort taken by the three agencies to inform the international community, the private sector, and the public about efforts taken by malign actors to evade sanctions and export controls in order to provide support for Russia’s war against Ukraine. The compliance note outlines enforcement trends and details attempts made by Russia “to circumvent restrictions, disguise the involvement of Specially Designated Nationals and Blocked Persons [] or parties on the Entity List in transactions, and obscure the true identities of Russian end users.” The compliance note also provides common red flags indicating whether a third-party intermediary may be engaged in efforts to evade sanctions or export controls, and outlines guidance for companies on maintaining effective, risk-based sanctions and export compliance programs. The agencies highlight other measures taken to constrain Russia, including stringent export controls imposed by BIS to restrict Russia’s access to technologies and other items, sanctions and civil money penalties issued against U.S. persons who violate OFAC sanctions and non-U.S. persons who cause U.S. persons to violate Russian sanctions programs, and the DOJ’s interagency law enforcement task force, Task Force KleptoCapture, which enforces sanctions, export controls, and economic countermeasures imposed by the U.S. and foreign allies and partners.

    Financial Crimes Of Interest to Non-US Persons OFAC OFAC Designations OFAC Sanctions Russia Ukraine Ukraine Invasion Department of Treasury DOJ Department of Commerce Third-Party

  • Bowman discusses bank and third-party cyber risk management expectations

    On February 15, Federal Reserve Board Governor Michelle W. Bowman delivered remarks at the Midwest Cyber Workshop, during which she discussed topics related to third-party service provider reliance and regulatory expectations concerning cyber risk management. “While we expect banks to be in touch with us when an event happens, cyber events should not be the first time a cyber-risk conversation occurs between a bank and its regulator.” Community banks frequently cite cybersecurity as one of the top risks facing the banking industry, Bowman said, adding that bankers have mentioned difficulties in attracting and retaining the staff needed to mitigate cyber risk. She also noted that ransomware disproportionately impacts smaller banks that might not “have sufficient resources to protect against these attacks.”

    Pointing out that banks are becoming increasingly reliant on third-party service providers, Bowman said regulators should “consider the appropriateness of shifting the regulatory burden from community banks to more efficiently focus directly on service providers.” Regulators have authority to do so under the Bank Service Company Act, Bowman said, adding that “[i]n a world where third parties are providing far more of these services, it seems to me that these providers should bear more responsibility to ensure the outsourced activities are performed in a safe and sound manner.” She also referenced a 2021 final rule that requires banks to timely notify their primary federal regulator in the event of a significant computer-security incident within 36 hours after the banking organization determines that a cyber incident has taken place (covered by InfoBytes here). The reporting process, Bowman said, is also intended to streamline small banks’ efforts to monitor service providers (which are required to notify a bank-designated point of contact at each affected customer bank when a computer-security incident has occurred).

    “We look forward to working with you to assist in clarifying expectations, applying regulatory guidance or seeking feedback on cyber-risk management strategies,” Bowman said. “We encourage bank management teams to engage with regulatory points of contact whenever questions arise on cybersecurity matters just as with any other regulatory matter.”

    Bank Regulatory Federal Issues Privacy, Cyber Risk & Data Security Third-Party Federal Reserve

  • Parties reach agreement to resolve data scraping allegations


    On December 8, the U.S. District Court for the Northern District of California issued a consent judgment and permanent injunction against a now-defunct plaintiff data analytics company in an action concerning whether the plaintiff breached a user agreement with a defendant professional networking site by using an automated process to extract user data (a process known as “scraping”) for the purposes of selling its analytics services to businesses. The case was sent back to the district court earlier this year by the U.S. Court of Appeals for the Ninth Circuit (on remand from the U.S. Supreme Court) after the appellate court affirmed the district court’s order preliminarily enjoining the defendant from denying the plaintiff access to publicly available member profiles. (Covered by Infobytes here.)

    As previously covered by InfoBytes, last month the district court ruled that the plaintiff breached its user agreement by creating fake accounts and copying url data as part of its scraping process. Nonetheless, at the time, the district court noted that there remained a legitimate dispute over whether the defendant waived its right to enforce the user agreement after the plaintiff openly discussed its business model, including its reliance on scraping, at conferences it organized that were attended by defendant’s executives. The district court further questioned when the defendant became aware of the plaintiff’s scaping, whether it should have taken “steps to legally enforce against known scraping” sooner, and whether the defendant can raise certain defenses to its breach of contract claim tied to the plaintiff’s data scraping and unauthorized use of data.

    On December 6, the parties separately reached an agreement to resolve all outstanding claims in the case. The final consent judgment enters a $500,000 judgment against the plaintiff and waives all other monetary relief. Additionally, the plaintiff is permanently enjoined from scraping or accessing the defendant’s platform without express written permission, whether directly or indirectly through a third party or whether logged in to an account or not. The plaintiff is also prohibited from developing, using, selling, or distributing any software or code for data collection from the defendant’s platform. The plaintiff must also delete all software code in its possession that is designed to access the defendant’s platform, must delete all member profile data in its possession (including data stored with a third party), and is barred from “using, distributing, selling, analyzing, or otherwise accessing any data” collected without the defendant’s express permission, whether directly or indirectly through a third party, among other requirements.

    Courts Privacy, Cyber Risk & Data Security Data Scraping Consumer Protection Appellate Ninth Circuit State Issues Third-Party

  • District Court says sellers may be vicariously liable for third-party TCPA violations


    On December 5, the U.S. District Court for the Western District of Washington denied an online retail pharmacy’s (defendant) motion for summary judgment in a TCPA suit. According to the order, the defendant engaged with a third party to call potential customers and transfer leads who were interested in the defendant’s services to its inbound call center. The order further noted that the third party contracted with another company to generate leads. Like the third party, the company did not make any calls but contracted with one or more vendors to place calls. The plaintiff received two calls from a prerecorded message that introduced itself as a person with the company. After asking the plaintiff if anyone in the household used prescription medications, among other things, he was transferred to an employee of the defendant who identified the defendant company by name and tried to sell the plaintiff their services. The plaintiff sued the defendant, arguing that it was “vicariously liable” for calls he received from a telemarketer that transferred the calls to the defendant’s sales representative. The defendant argued it was not directly liable under the TCPA because it did not directly place the calls to the plaintiff. The defendant also said it was not vicariously liable for calls placed by vendors because those vendors did not have express or implied actual authority to place calls for the defendant.

    According to the district court, courts may hold sellers such as the defendant vicariously liable for TCPA violations of third-party callers “where the plaintiff establishes an agency relationship, as defined by federal common law, between the defendant and the third-party caller.” The court further wrote that labeling the contracted company “an independent contractor in the agreement with [the defendant] does not foreclose a finding that an agency relationship existed.” The district court also noted that there was a “genuine issue” of material fact as to whether the defendant had an agency relationship with the contracted company’s vendor.

    Courts TCPA Third-Party

  • Senate Banking grills regulators on crypto

    Federal Issues

    On November 15, the Senate Committee on Banking, Housing, and Urban Affairs held a hearing entitled “Oversight of Financial Regulators: A Strong Banking and Credit Union System for Main Street” to hear from federal financial regulators about growing risks related to bank mergers, bailouts, climate change, crypto assets, and cyberattacks, among other topics. Committee Chairman Sherrod Brown (D-OH) opened the hearing by emphasizing that Congress “must stay vigilant and empower regulators with the tools to combat these growing risks,” and said that banks and credit unions must be able to partner with third parties in a manner that enables competition but without risking consumer money. He also warned that big tech companies and shadow banks should not be allowed to “play by different rules because of special loopholes.” In his opening statement, Ranking Member Patrick J. Toomey (R-PA) challenged the regulators to “not stray beyond their mandates into politically contentious issues or establish unnecessary new regulatory burdens,” pointing to the participation of the Federal Reserve Board, FDIC, and OCC in the Network for the Greening the Financial System as an example of politicizing financial regulation.

    Testifying at the hearing were the Fed’s Vice Chair for Supervision Michael S. Barr, NCUA Chair Todd M. Harper, acting FDIC Chairman Martin J. Gruenberg, and acting Comptroller of the Currency Michael J. Hsu. Cryptocurrency concerns were a primary focus during the hearing, where Toomey asked the regulators why they still have not provided public clarity on banks’ involvement in crypto activities, such as providing custody services or issuing stablecoins.

    Pointing to a major cryptocurrency exchange’s recent major collapse, Toomey pressed Hsu on whether the OCC “discourages banks from providing custody services” for crypto assets. Toomey speculated, “it seems to me if people had access to custody services provided by a wide range of institutions, including regulated financial institutions, they might be able to sleep more comfortably knowing that those assets are unlikely to be used for some completely inappropriate purpose.” Answering that the OCC discourages banks from engaging in activities that are not safe, sound, and fair, Hsu acknowledged that there are underlying fundamental issues and questions about what it means to control crypto through a custody “which have not been fully worked out.” Toomey emphasized that part of the obligation rests on the OCC to provide clarity on how banks could provide these services in a safe, sound, and fair manner, and stressed that currently these activities are operating in a space outside the regulatory perimeter. Barr agreed that it would be useful for the Fed to provide guidance to banks on how to safely custody crypto assets and said it is something he plans to work on with his colleagues.

    Toomy further noted that Congress’s failure “to pass legislation in this space and the failure of regulators to provide clear guidance has created ambiguity that has driven developers and entrepreneurs overseas where regulations are often lax at best.” Senator Bill Haggerty (R-TN) cautioned that lawmakers should not resort to a “heavy-handed” regulatory response to the cryptocurrency exchange’s collapse. “No amount of poorly considered, knee-jerk over-regulation here in the U.S. would have prevented a foreign-domiciled company like [the collapsed cryptocurrency exchange] from doing what it did,” Haggerty said. “The fact of the matter is that crypto, much like all of finance, isn’t beholden to a specific country or a specific legal system, and by not acting and by failing to provide legal clarity here in the United States, Congress only incentivizes activity to migrate outside of our country’s borders,” Haggerty stated, adding that it is “important to recognize that whatever happened with a bad actor running a centralized exchange and defrauding customers” has “nothing to do with the technology underpinning crypto itself.” When asked by Sen. John Kennedy (R-LA) which regulator was responsible for watching the collapsed cryptocurrency exchange, Gruenberg said “I think in the first instance, you’d probably want to engage with the market regulators, the SEC and the CFTC, to talk about the activities and the authorities in this area.”

    The regulators also discussed efforts to mitigate cybersecurity risks and strengthen information security within the banking industry. Hsu stressed during the hearing that “the greatest risk is the risk of complacency,” while noting in his prepared remarks that the OCC is aware of the risks associated with cybersecurity and has “encouraged banks to stay abreast of new technology and threats.” Barr pointed to the importance of operational resilience in his prepared remarks, noting that “technology-based failures, cyber incidents, pandemics, and natural disasters,” combined with the growing reliance on third-party service providers, expose banks to a range of operational risks that are often challenging to anticipate. Harper commented in his prepared remarks that the NCUA continues to provide guidance for credit unions to reinforce their ability to withstand potential cyberattacks, and recommends that credit unions report cyber incidents to the NCUA, the FBI, and the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency. In his prepared remarks, Gruenberg pointed to recent examination findings revealing that banks that have dedicated resources for implementing appropriate controls are better at defending against cyberattacks, and said the FDIC is “piloting technical examination aids that will help [] examiners focus on the controls [] found to be most effective in defending against these attacks.”

    The House Financial Services Committee also held a hearing later in the week that focused on similar topics with the regulators. Chair Maxine Waters (D-CA) and Rep. Patrick McHenry (R-NC) also announced that the committee will hold a hearing in December to investigate the aforementioned cryptocurrency exchange’s collapse and understand the broader consequences the collapse may have on the digital asset ecosystem.

    Federal Issues Digital Assets Privacy, Cyber Risk & Data Security Senate Banking Committee House Financial Services Committee FDIC OCC NCUA Federal Reserve Risk Management Third-Party Climate-Related Financial Risks Fintech


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