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  • CFPB sues payday lender over debt collection practices

    Federal Issues

    On July 12, the CFPB filed a complaint against a Texas-based payday lender (defendant) for allegedly engaging in illegal debt-collection practices and allegedly generating $240 million in reborrowing fees from borrowers who were eligible for free repayment plans in violation of the CFPA. As previously covered by InfoBytes, in 2014, the Bureau ordered the defendant to, among other things, pay $10 million for allegedly using false claims and threats to coerce delinquent payday loan borrowers into taking out an additional payday loan to cover their debt. The Bureau stated that after the CFPB’s 2014 enforcement action, the defendant “used different tactics to make consumers re-borrow.” The complaint alleges that the defendant “engaged in unfair, deceptive, and abusive acts or practices by concealing the option of a free repayment plan to consumers who indicated that they could not repay their short term, high-cost loans originated by the defendant.” The Bureau also alleges that the defendant attempted to collect payments by unfairly making unauthorized electronic withdrawals from over 3,000 consumers’ bank accounts. The Bureau seeks permanent injunctive relief, restitution, disgorgement, damages, civil money penalties, and other relief.

    Federal Issues CFPB Enforcement Consumer Finance Payday Lending CFPA UDAAP Abusive Unfair Deceptive Debt Collection

  • Ex-NFL players no longer part of CFPB, New York suit on high-cost loans

    Courts

    On June 27, the CFPB and New York attorney general filed an amended complaint in the U.S. District Court for the Southern District of New York, removing references to a New Jersey-based finance company’s arrangements with seven former NFL players in an action concerning whether the company and its affiliates (collectively, “defendants”) mischaracterized high-cost loans as assignments of future payment rights. As previously covered by InfoBytes, the agencies filed a lawsuit in 2017 claiming, among other things, that the defendants misled World Trade Center attack first responders and professional football players in selling expensive advances on benefits to which they were entitled and mischaracterized extensions of credit as assignments of future payment rights, thereby misleading their victims into repaying far more than they received. Specifically, the initial filing in 2017 alleges that the defendants (i) used “confusing contracts” to prevent the individuals from understanding the terms and costs of the transactions; (ii) lied to the individuals by telling them the companies could secure their payouts more quickly; (iii) misrepresented how quickly they would receive payments from the companies, and (iv) collected interest at an illegal rate. The amended complaint removes all references to defendants’ arrangements with the ex-NFL players, but maintains claims related to financing deals signed with first responders to the World Trade Center attack.

    The court issued an order on June 28 accepting the agencies’ unopposed motion to file the amended complaint to “remove references to NFL player consumers and to remove allegations in Count VIII” related to alleged violations of New York General Obligations Law § 13-101 concerning personal injury claims. No additional details on the reasons for the removals are provided.

    The amended complaint follows a March order issued by the district court (covered by InfoBytes here) in which it ruled that the CFPB could proceed with its 2017 enforcement action. In 2020, the U.S. Court of Appeals for the Second Circuit vacated the district court’s 2018 order (covered by InfoBytes here), which had dismissed the case on the grounds that the Bureau’s single-director structure was unconstitutional, and that, as such, the agency lacked authority to bring claims alleging deceptive and abusive conduct by the company. The 2nd Circuit remanded the case to the district court, determining that the U.S. Supreme Court’s ruling in Seila Law LLC v. CFPB (holding that the director’s for-cause removal provision was unconstitutional but severable from the statute establishing the Bureau, as covered by a Buckley Special Alert) superseded the 2018 ruling. 

    Courts State Issues CFPB State Attorney General Enforcement New York UDAAP Deceptive Abusive

  • Industry groups urge CFPB to rescind UDAAP anti-discrimination policy

    Federal Issues

    On June 28, industry groups and the U.S Chamber of Commerce (collectively, “groups”) released a White Paper, Unfairness and Discrimination: Examining the CFPB’s Conflation of Distinct Statutory Concepts, urging the CFPB to rescind the recently released unfair, deceptive and abusive acts or practices (UDAAP) examination manual. As previously covered by a Buckley Special Alert, in March, the CFPB announced significant revisions to its UDAAP exam manual, in particular highlighting the CFPB’s view that its broad authority under UDAAP allows it to address discriminatory conduct in the offering of any financial product or service. The White Paper, among other things, explained the groups’ position that the Bureau’s UDAAP authority cannot be used to extend the fair lending laws beyond the limits of existing statutory law. The White Paper stated that the Bureau “conflated” concepts of “unfairness” and “discrimination” “by announcing, via a UDAAP exam manual ‘update,’ that it would examine financial institutions for alleged discriminatory conduct that it deemed to be ‘unfair’ under its UDAAP authority.” The groups stated that the agency has “taken the law into its own hand” arguing that “the Bureau did not follow Administrative Procedure Act requirements for notice-and-comment rulemaking.” The groups said the change in the examination manual is “contrary to law and subject to legal challenge” as well as legislative repeal under the Congressional Review Act. Additionally, the groups argued that the Bureau’s interpretation exceeds the agency’s statutory authority, and that the Bureau’s “action should be held unlawful and set aside.” The groups further stated that “[c]hanges that alter the legal duties of so many are the proper province of Congress, not of independent regulatory agencies, and the CFPB cannot ignore the requirements of the Administrative Procedures Act and Congressional Review Act. The CFPB may well wish to fill gaps it perceives in federal antidiscrimination law. But Congress has simply not authorized the CFPB to fill those gaps.”

    In a letter sent to CFPB Director Rohit Chopra, the groups conveyed that Congress did not intend for the Bureau to “fill gaps” between the clearly articulated boundaries of antidiscrimination statutes with its UDAAP authority. The groups urged Director Chopra to rescind the exam manual update and stated that “[s]hould [he] believe additional authority is necessary to address alleged discriminatory conduct, we stand ready to work with Congress and the CFPB to explore that possibility and to ensure the just administration of the law.

    Federal Issues CFPB UDAAP Consumer Finance Deceptive Abusive Unfair Examination Discrimination Administrative Procedures Act

  • FTC, Florida file complaint against grant funding operation

    Federal Issues

    On June 27, the FTC and the Florida attorney general filed a complaint against a Florida-based grant funding company and its owner (collectively, “defendants”) alleging that the defendants violated the Consumer Protection Act, the FTC Act, and the Florida Deceptive Unfair Trade Practices Act. According to the complaint, the defendants deceptively marketed grant writing and consulting services to minority-owned small businesses by, among other things, (i) promising grant funding that did not exist and/or was never awarded; (ii) misleading customers about the status of grant awards; and (iii) failing to honor a “money-back guarantee” and suppressing customer complaints. The complaint also alleged that the owner relied on funds that she acquired through the federal Paycheck Protection Program Covid-19 stimulus program to start the company. The U.S. District Court for the Middle District of Florida issued a restraining order with asset freeze, appointment of a temporary receiver, and other equitable relief order against the defendants, which also prohibits them from engaging in grant funding business activities.

    Federal Issues State Issues FTC Enforcement State Attorney General Florida Covid-19 FTC Act Deceptive UDAP

  • FTC finalizes action against e-commerce platform for data breach cover up

    Federal Issues

    On June 24, the FTC announced a final decision and order against two limited liability companies (respondents) accused of allegedly failing to secure consumers’ sensitive personal data and covering up a major breach. As previously covered by InfoBytes, the respondents—former and current owners of an online customized merchandise platform—allegedly violated the FTC Act by, among other things, misrepresenting that they implemented reasonable measures to protect customers’ personal information against unauthorized access and misrepresenting that appropriate steps were taken to secure consumer account information following security breaches. The complaint further alleged that respondents failed to apply readily available protections against well-known threats or adequately respond to security incidents, which resulted in the respondents’ network being breached multiple times. Under the terms of the final settlement, one of the respondents is required to pay $500,000 to victims of the data breaches. The other respondent is required to provide notice to consumers impacted by a 2019 data breach. Among other things, the order prohibits respondents from misrepresenting their privacy and security measures and requires that respondents implement comprehensive information security programs that are assessed by an independent third party.

    Federal Issues Privacy/Cyber Risk & Data Security FTC Enforcement Data Breach FTC Act Deceptive UDAP

  • FTC bans MCA providers, returns $2.7 million to consumers

    Federal Issues

    On June 6, the FTC obtained a stipulated court order permanently banning a company and owner from participating in the merchant cash advance and debt collection industries. As previously covered by InfoBytes, last June the FTC filed an amended complaint against two New York-based small-business financing companies and a related entity and individuals (including the settling defendants), claiming the defendants engaged in deceptive and unfair practices by, among other things, misrepresenting the terms of their merchant cash advances, using unfair collection practices, deceiving consumers about personal guarantees, forcing consumers and businesses to sign confessions of judgment, providing less funding than promised due to undisclosed fees, and making unauthorized withdrawals from consumers’ accounts. Under the terms of the stipulated order, the settling defendants are required to pay a more than $2.7 million monetary judgment to go towards refunds for harmed consumers and must vacate any judgments against former customers and release any liens against their customers’ property. The announcement notes that the settling defendants are also “prohibited from misleading consumers about any key facts about any good or service, including any fees, the total cost of the product, and other facts that reflect their deceptions in this case.”

    Earlier in January, a stipulated order was entered against two other defendants (covered by InfoBytes here), which permanently banned them from participating in the merchant cash advance and debt collection industries and required the payment of a $675,000 monetary judgment.

    Federal Issues Enforcement FTC Merchant Cash Advance Debt Collection Consumer Finance Small Business Lending FTC Act UDAP Deceptive Unfair

  • FTC to modernize guidance on preventing digital deception

    Federal Issues

    On June 3, the FTC announced that it is soliciting public comment on modernizing the agency’s business guidance titled “.com Disclosures: How to Make Effective Disclosures in Digital Advertising,” which was published in 2013 and provides guidance to businesses on digital advertising and marketing. In seeking public comment on possible revisions, the FTC is seeking information on the technical and legal issues that consumers, the FTC’s law enforcement partners, and others believe should be addressed. The issues include, among other things: (i) the usage of sponsored and promoted advertising on social media; (ii) advertising embedded in games and virtual reality and microtargeted advertisements; and (iii) the usage of dark patterns, manipulative user interface designs used on websites and mobile apps, and digital advertising that pose unique risks to consumers. According to the Commission, this effort “is one of a number of initiatives the FTC is undertaking to tackle dark patterns and digital deception, including issuing a click-to-cancel policy statementproposing strengthened advertising guidelines against fake and manipulated reviews, arming staff with new tools to investigate dark patterns, and authorizing a Notice of Penalty Offense against deceptive reviews.” Comments close on August 2.

    Federal Issues Agency Rule-Making & Guidance FTC Consumer Protection Deceptive Disclosures

  • FTC secures TRO against credit repair scheme

    Federal Issues

    On May 31, the FTC announced that the U.S. District Court for the Eastern District of Maryland granted a temporary restraining order against a credit repair operation for allegedly engaging in deceptive practices that scammed consumers out of more than $213 million. According to the FTC’s complaint, the operation targeted consumers with low credit scores promising its products could remove all negative information from their credit reports and significantly increase credit scores. The operation allegedly violated the FTC Act, the Credit Repair Organizations Act, and the Telemarketing Sales Rule by, among other things, (i) making misrepresentations regarding its credit repair services; (ii) selling a product that purportedly sends rent payment information to credit bureaus even though “this information is not generally part of consumers’ credit score and many credit bureaus don’t accept this kind of information directly from consumers”; (iii) charging illegal advance fees; (iv) failing to provide consumers required information such as refund and cancellation policies; and (v) recruiting consumers to sell credit repair products to other consumers as part of a pyramid scheme even though few consumers ever received the promised earnings (and many consumers actually lost money as agents). Beyond the temporary restraining order, the FTC is seeking a permanent injunction, monetary relief, and other equitable relief.

    Federal Issues FTC Enforcement Consumer Finance Credit Repair Fees Courts FTC Act CROA TSR UDAP Deceptive

  • FTC takes action against telemarketing operation

    Federal Issues

    On May 25, the FTC announced an action resolving allegations against a subscription scam operation and its officers (collectively, “defendants”) that allegedly deceptively used telemarketing schemes on consumers. According to the complaint, which was filed in the U.S. District Court for the District of Nevada, the defendants allegedly violated the FTC Act and the Telemarketing Sales Rule (TSR) by calling consumers to claim that they were conducting a survey and offering “free” or low-cost magazine subscriptions. After the survey, the defendants allegedly sent consumers a bill falsely stating that they agreed to pay several hundred dollars for the magazine subscriptions. According to the FTC, there was a “no-cancellation policy,” and the defendants allegedly harassed consumers when they refused to pay the exorbitant bills, including by threatening to initiate collection actions or threatening to submit derogatory information about them to the major credit bureaus. The proposed order follows a 2010 permanent injunction that was entered against the same defendants, which prohibited them from committing future violations. The recent order requires the defendants to pay a suspended judgment of $14.4 million and requires them to give up all claims to money already paid to the FTC. Additionally, the defendants are required to monitor their compliance with the proposed order “and may face significant contempt remedies if they violate its terms.” The FTC noted that the original monetary relief was vacated after the Supreme Court’s decision in AMG Capital Management LLC v. FTC, which limited the FTC’s ability to obtain monetary relief in federal court (covered by InfoBytes here). The FTC pointed out that the “settlement of this matter for a suspended judgment of $14.47 million, after originally having been awarded $24 million at trial, demonstrates the challenges since the Supreme Court’s AMG decision.”

    Federal Issues FTC Telemarketing Deceptive UDAP Enforcement FTC Act TSR

  • District Court enters consent order in 2016 CFPB structured settlement action

    Courts

    On May 18, the U.S. District Court for the District of Maryland approved a consent order against defendants in an action concerning allegedly unfair, abusive, and deceptive structured settlement practices. As previously covered by InfoBytes, in 2016 the Bureau initiated an enforcement action against the defendants alleging that they violated the CFPA by employing abusive practices when purchasing structured settlements from consumers in exchange for lump-sum payments. According to the Bureau, the defendants encouraged consumers to take advances on their structured settlements and falsely represented that the consumers were obligated to complete the structured settlement sale, “even if they [later] realized it was not in their best interest.” In July 2021, the court denied the defendants’ motions to dismiss the Bureau’s amended complaint, which argued that the enforcement action was barred by the U.S. Supreme Court’s decision in Seila Law LLC v. CFPB, which held that the director’s for-cause removal provision was unconstitutional (covered by a Buckley Special Alert). The defendants had also argued that that the ratification of the enforcement action “came too late” because the statute of limitations on the CFPA claims had already expired (covered by InfoBytes here). Under the terms of the May 18 consent order, the individual defendant, who “had an ownership interest in [the company] and served in executive positions at [the defendants] from their inception to their dissolution" is prohibited from, among other things, participating or assisting others in participating in transfer of payment streams from structured-settlement holders and referring consumers to a specific individual or for-profit entity for advice concerning any structured-settlement transaction, including for independent professional advice. The individual defendant must also pay a $5,000 civil money penalty.

    Courts CFPB Enforcement Settlement Structured Settlement CFPA UDAAP Unfair Deceptive Abusive Consumer Finance

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