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FTC charges funeral company with deceptive marketing practices
On April 22, the DOJ filed a complaint on behalf of the FTC against certain defendants providing funeral goods and services to consumers throughout the U.S. for alleged violations of Section 5 of the FTC Act and the FTC’s Funeral Rule. (See also FTC press release here.) According to the complaint, the defendants, who arrange third-party cremation services, allegedly (i) misrepresented that they perform local funeral services, which were instead outsourced to unaffiliated third parties; (ii) charged consumers additional undisclosed costs; and (iii) illegally threatened to withhold remains or information about the remains from consumers who refused to pay previously undisclosed fees or the new, higher prices. The complaint seeks injunctive relief, monetary relief, and civil penalties.
FTC takes action against day-trading company for deceptive sales techniques
On April 19, the FTC filed a complaint against a day-trading investment company and its CEO alleging the defendants violated the FTC Act and the Telemarketing Sales Rule (TSR) in connection with the company’s investment opportunities. According to the complaint, the Massachusetts-based defendants promote day-trading investments online and sell programs promising to show consumers how to earn substantial profits in a short time period. The FTC contends that the defendants promote these so-called “profitable” and “scalable” trading strategies to consumers through allegedly deceptive sales pitches and inform consumers that their strategies are effective even with initial investments as small as $500. However, the FTC claims that 74 percent of customers’ accounts actually lost money and that only 10 percent of the accounts earned more than $90.
Under the terms of the proposed stipulated order, the defendants are required to pay $3 million in consumer redress and are permanently restrained and enjoined from making unsubstantiated earnings claims concerning consumers’ potential to earn money using their trading strategies regardless of the amount of capital invested or the amount of time spent trading. Defendants are also prohibited from violating federal law, or from making any misrepresentations about investment opportunities, including misrepresentations in connection with telemarketing regarding the amount of “risk, liquidity, earnings potential, or profitability of goods or services that are the subject of a sales offer.”
FTC takes action against medical school for deceptive tactics
On April 14, the FTC filed a complaint against a Caribbean for-profit medical school and its Illinois-based operators alleging the defendants violated the Telemarketing Sales Rule, Holder Rule, and Credit Practices Rule (CPR) in connection with its marketing and credit practices. According to the complaint, the defendants improperly marketed the school’s medical license exam pass rate and residency match success. In addition, financing contracts omitted a legally-mandated Holder Rule notice in their credit agreements, among other things. Under the Holder Rule, “any seller that receives the proceeds of a purchase money loan [must] include, in the underlying credit contract, a specific notice informing the consumer of their right to assert claims against any holder of the credit contract.” In addition to omitting the required notice, the defendants also allegedly attempted to waive consumers’ legal rights by inserting language in the credit agreements stating, “ALL PARTIES, INCL[U]DING BOTH STUDENT BORROWER AND COSIGNER. . .WAIVE ANY CLAIM OR CAUSE OF ACTION OF ANY KIND WHATSOEVER THAT THEY MAY HAVE WITH RESPECT TO [DEFENDANT]…” The FTC also contended that the defendants included a notice informing cosigners of their liability in the middle of the contract, instead of providing a separate document containing specific language required by the CPR.
Under the terms of the proposed stipulated order, the defendants are required to pay a $1.2 million judgment that will go towards refunds and debt cancellation for affected consumers, and also cease collection of approximately $357,000 in consumer debt covered by the proposed order. Defendants are also required to notify each consumer that their debt is being cancelled and that consumer reporting agencies will be directed to delete the debt from the consumers’ credit reports. Additionally, defendants are prohibited from misrepresenting their pass rates and residency matches, and from making unsubstantiated claims or violating federal law. The order also provides Holder Rule protections, including prohibiting defendants from selling, transferring, or assigning any consumer credit contracts unless the recipient of such contract agrees, in writing, “that its rights are subject to the borrowers’ claims and defenses against [d]efendants” and requiring defendants to notify each borrower whose credit contract is sold.
FTC settles with retailers over deceptive product representation
On April 8, the FTC used its Penalty Offense Authority against two national retailers for allegedly engaging in false labeling and marketing tactics by presenting rayon textile products as bamboo. According to the complaints (see here and here), which were filed by the DOJ on behalf of the FTC, since at least 2015, the companies allegedly made false or unsubstantiated representations in violation of the FTC Act by improperly labeling and marketing textile fiber products as “made of bamboo” in both product titles and descriptions. The companies also, among other things, falsely marketed some of the “bamboo-derived” products as providing general environment benefits, such as being produced “free of harmful chemicals, using clean, non-toxic materials,” also in violation of the FTC Act. Additionally, in connection with the advertising of textile fiber products containing rayon, the companies allegedly made representations regarding the products’ fiber content without disclosing the full fiber content, in violation of the Textile Act and Textile Rules.
According to the proposed settlements (see here and here), the companies are, among other things: (i) prohibited from making deceptive claims, including false and/or unsubstantiated claims, relating to bamboo fiber products; (ii) prohibited from future violations of the FTC Act and Textile Act and Textile Rules; and (iii) ordered to pay $5.5 million total in penalties.
CFPB sues credit reporter and one of its executives
On April 12, the CFPB sued a credit reporting agency (CRA), two of its subsidiaries (collectively, “corporate defendants"), and a former senior executive for allegedly violating a 2017 enforcement order in connection with alleged deceptive practices related to their marketing and sale of credit scores, credit reports, and credit-monitoring products to consumers. The 2017 consent order required the corporate defendants to pay a $3 million civil penalty and more than $13.9 million in restitution to affected consumers as well as abide by certain conduct provisions (covered by InfoBytes here). The Bureau’s announcement called the corporate defendants “repeat offender[s]” who continued to engage in “digital dark patterns” that caused consumers seeking free credit scores to unknowingly sign up for a credit monitoring service with recurring monthly charges. According to the Bureau’s complaint, the corporate defendants, under the individual defendant’s direction, allegedly violated the 2017 consent order from the day it went into effect instead of implementing agreed-upon policy changes intended to stop consumers from unknowingly signing up for credit monitoring services that charge monthly payments. The Bureau claimed that the corporate defendants’ practices continued even after examiners raised concerns several times. With respect to the individual defendant, the Bureau contended that he had both the “authority and obligation” to ensure compliance with the 2017 consent order but did not do so. Instead, he allowed the corporate defendants to “defy the law and continue engaging in misleading marketing, even in the face of thousands of consumer complaints and refund requests.” The complaint alleges violations of the CFPA, EFTA/ Regulation E, and the FCRA/Regulation V, and seeks a permanent injunction, damages, civil penalties, consumer refunds, restitution, disgorgement and the CFPB’s costs.
CFPB Director Rohit Chopra issued a statement the same day warning the Bureau will continue to bring cases against repeat offenders. Dedicated units within the Bureau’s enforcement and supervision teams will focus on repeat offenders, Chopra stated, adding that the Bureau will also work with other federal and state law enforcement agencies when repeat violations occur. “Agency and court orders are not suggestions, and we are taking steps to ensure that firms under our jurisdiction do not engage in repeat offenses,” Chopra stressed. He also explained that the charges against the individual defendant are appropriate, as he allegedly, among other things, impeded measures to prevent unintended subscription enrollments and failed to comply with the 2017 consent order, which bound company executives and board members to its terms.
The CRA issued a press release following the announcement, stating that it considers the Bureau’s claims to be “meritless” and that as required by the consent order, the CRA “submitted to the CFPB for approval a plan detailing how it would comply with the order. The CFPB ignored the compliance plan, despite being obligated to respond and trigger deadlines for implementation. In the absence of any sort of guidance from the CFPB, [the CRA] took affirmative actions to implement the consent order.” Moreover, the CRA noted that “[r]ather than providing any supervisory guidance on this matter and advising [the CRA] of its concerns – like a responsible regulator would – the CFPB stayed silent and saved their claims for inclusion in a lawsuit, including naming a former executive in the complaint,” and that “CFPB’s current leadership refused to meet with us and were determined to litigate and seek headlines through press releases and tweets.”
FTC order targets credit reporter for UDAP violation
On April 7, the FTC finalized an order against a respondent business credit report provider to settle allegations that the respondent engaged in deceptive and unfair practices by failing to provide businesses with a clear, consistent, and reliable process to fix errors in their credit reports, even though the respondent was selling products to those businesses that purported to help the businesses improve their reports. The FTC’s administrative complaint also claimed that the respondent’s telemarketers deceptively pitched another service to businesses and falsely claimed that the businesses had to purchase the service in order for the respondent to complete the business’s credit profile. In addition, the respondent allegedly failed to disclose to businesses that the service’s subscription automatically renewed each year and that other renewal practices could lead to increasing costs (covered by InfoBytes here). Under the terms of the final order, the respondent is required to make substantial changes to its processes and provide refunds to harmed businesses. Measures include (i) deleting disputed information free of charge or conducting a reasonable reinvestigation to determine the accuracy of disputed information in a report of a business; (ii) complying with specific time periods within which to promptly investigate and correct errors; (iii) informing businesses of investigation results and providing businesses with free access to the revised information; (iv) making clear disclosures to businesses about the rate at which the firm accepts subscribers’ requests to add payment history information, as well as its limits for providing assistance in adding such information; (v) allowing current subscribers to cancel their services and obtain refunds; and (vi) placing restrictions on the respondent’s ability to automatically renew subscriptions or switch subscribers into a more expensive product.
CFPB’s UDAAP claims to proceed against mortgage lender
On March 31, the U.S. District Court for the District of Columbia mostly denied motions to dismiss filed by a mortgage lender and four executives (collectively, “defendants”) sued by the CFPB for allegedly engaging in unlawful mortgage lending practices. As previously covered by InfoBytes, the Bureau filed a complaint last year against the defendants alleging violations of several federal laws, including TILA and the CFPA. According to the Bureau, (i) unlicensed employees allegedly offered and negotiated mortgage terms; (ii) company policy regularly required consumers to submit documents for verification before receiving a loan estimate; (iii) employees denied consumers credit without issuing an adverse action notice; and (iv) defendants regularly made misrepresentations about, among other things, the availability and cost savings of FHA streamlined refinance loans.
The mortgage lender had argued in its motion to dismiss that neither TILA nor the Secure and Fair Enforcement for Mortgage Licensing Act (SAFE Act) required the lender to ensure that its individual employees were licensed under state law. In denying the motions to dismiss, the court disagreed with the lender’s position stating that in order for a mortgage originator to comply with TILA, it must also comply with Bureau requirements set out in Regulation Z, including a requirement that “obligates loan originator organizations to ensure that individual loan originators working for them are licensed or registered as required by state and federal laws.”
The court also concluded that the individual defendants must face claims for allegedly engaging in unfair or deceptive practices. The Bureau contended that the company’s chief compliance officer had warned the individual defendants that certain unlicensed employees were engaging in activities requiring licensure, and that the company’s owners approved the business model that permitted the underlying practices. According to the court, an individual “engages” in a UDAAP violation if the individual “participated directly in the practices or acts or had authority to control them” and “‘had or should have had knowledge or awareness’ of the misconduct.” The court rejected defendants’ arguments that it was improper to adopt this standard, and stated that “the fact that a separate theory of liability exists for substantially assisting a corporate defendant’s UDAAP violations has no bearing on how courts evaluate whether an individual defendant himself engaged in a UDAAP violation.”
While the court allowed the count to continue to the extent that it was based on allegations of unlicensed employees performing duties that would require licensure, it found that the complaint did not support an inference that the individual defendants knew that the employees were engaging in activities to make it appear that they were licensed. The court provided the Bureau an opportunity to replead the count to provide a stronger basis for such an inference.
FTC sues company over “free” tax filing campaign
On March 29, the FTC issued an administrative complaint against a company that produces tax filing software for allegedly engaging in deceptive business practices when advertising, marketing, distributing, and selling their purportedly “free” tax filing services. The FTC also filed a complaint for a temporary restraining order and an emergency motion for a temporary restraining order (TRO) and preliminary injunction against the company in the U.S. District Court for the Northern District of California, stating that unless the court steps in, the company will “be free to continue disseminating the deceptive claim that consumers can file their taxes for free using [the software] when, in truth, in numerous instances, defendant does not permit consumers to file their taxes for free using [the software].” The FTC stated in its announcement that millions of consumers are unable to take advantage of the tax filing software’s allegedly “free” service (including those who get a 1099 form for work in the gig economy or those who earn farm income), noting that roughly two-thirds of tax filers were unable to file their taxes for free in 2020. According to the complaint, these consumers are often informed they need to upgrade to a paid version to complete and file their taxes. The FTC specifically pointed to the company’s “Absolute Zero” ad campaign, in which the company informed consumers that its “offering was truly free.” The agency said company’s campaign included the words “Free Guaranteed” to “bolster and emphasize the claim that the offer was truly free.” While many of the company’s ads do contain a fine print disclaimer clarifying that the offer is limited to consumers with “simple tax returns,” the FTC said this is inadequate to cure the misrepresentation that consumers can file their taxes for free because the disclaimers are “disproportionately small compared to the prominent text emphasizing that the service is free,” appear for just seconds, and are in writing only and not read by a voiceover.
CFPB settles with student loan servicer over unfair practices
On March 30, the CFPB announced a settlement with a student loan servicer to resolve allegations that the company engaged in deceptive acts with respect to borrowers with Federal Family Education Loan Program (FFELP) loans about their eligibility for Public Service Loan Forgiveness (PSLF), in violation of the Consumer Financial Protection Act, among other things. The CFPB alleged that the company engaged in unfair, deceptive, or abusive acts or practices by misrepresenting: (i) that FFELP borrowers could not receive PSLF; (ii) that FFELP borrowers were making payments towards PSLF before loan consolidation; and (iii) that certain jobs were not eligible for PSLF. The Bureau also alleged that the servicer “did not provide any information about how to become eligible for PSLF when borrowers inquired about the program or mentioned that they worked in a job that was likely a qualifying public-service job.”
Under the terms of the consent order, the servicer is required to: (i) notify all affected borrowers of the Department of Education’s limited PSLF waiver to provide affected consumers the opportunity to take advantage of the waiver before it ends on October 31; (ii) “develop and implement a call script for Customer Service Representatives that, at minimum, requires them to solicit information from all FFELP Consumers about whether a consumer’s employment may make them eligible for PSLF, and if so, to direct them to a Public Service Specialist, who will provide accurate and complete information about PSLF”; and (iii) pay a civil money penalty of $1 million to the Bureau.
According to a statement by CFPB Director Rohit Chopra, the Bureau “has long been concerned that others in the student loan servicing industry have derailed borrowers from making progress toward loan cancellation,” and “CFPB law enforcement work has identified these problems for years, finding failures at multiple servicers.”
FTC issues final order in FTC Act violations matter
On March 21, the FTC announced a final order resolving allegations that an online fashion retailer (defendant) allegedly violated the FTC Act by engaging in deceptive practices. As previously covered by InfoBytes, according to the complaint, the defendant allegedly violated the FTC Act by, among other things, misrepresenting that the product reviews on its website reflected the views of all purchasers who submitted reviews, when it actually suppressed certain negative reviews. The complaint further noted that the defendant utilized a third-party review management software to automatically post higher-rating reviews to its website, while withholding other lower-rating reviews for the defendant’s approval prior to posting—which never took place. According to the final order, the defendant is: (i) required to pay $4.2 million as monetary relief to the FTC; (ii) prohibited from misrepresenting information about product reviews; and (iii) required to publicly display all product reviews on its website.