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States accuse crypto platform of offering unregistered securities
On September 26, the New York attorney general sued a cryptocurrency platform for allegedly offering unregistered securities and defrauding investors. New York was joined by state regulators from California, Kentucky, Maryland, Oklahoma, South Carolina, Washington, and Vermont who also filed administrative actions against the platform. The states alleged that the platform failed to register as a securities and commodities broker but told investors that it was fully in compliance. According to the New York AG’s complaint, the platform promoted and sold securities through an interest-bearing virtual currency account that promised high returns for participating investors. The NY AG said that a cease-and-desist letter was sent to the platform last year, and that while the platform stated it was “working diligently to terminate all services” in the state, it continued to handle more than 5,000 accounts as of July. The complaint charges the platform with violating New York’s Martin Act and New York Executive Law § 63(12), and seeks restitution, disgorgement of profits, and a permanent injunction.
California’s Department of Financial Protection and Innovation (DFPI) said in a press release announcing its own action that it will continue to take “aggressive enforcement efforts against unregistered interest-bearing cryptocurrency accounts.” DFPI warned companies that crypto-interest accounts are securities and are therefore subject to investor protection under state law, including disclosure of associated risks.
New NYDFS proposal to implement Commercial Finance Disclosure Law
On September 14, NYDFS published a notice of proposed rulemaking under New York’s Commercial Financing Disclosure Law (CFDL) related to disclosure requirements for certain providers of commercial financing transactions in the state. As previously covered by InfoBytes, the CFDL was enacted at the end of December 2020, and amended in February to expand coverage and delay the effective date. (See S5470-B, as amended by S898.) Under the CFDL, providers of commercial financing, which include persons and entities who solicit and present specific offers of commercial financing on behalf of a third party, are required to give consumer-style loan disclosures to potential recipients when a specific offering of finance is extended for certain commercial transactions of $2.5 million or less. Last December, NYDFS announced that providers’ compliance obligations under the CFDL will not take effect until the necessary implementing regulations are issued and effective (covered by InfoBytes here).
The newest proposed regulations (see Assessment of Public Comments for the Revised Proposed New Part 600 to 23 NYCRR) introduce several revisions and clarifications following the consideration of comments received on proposed regulations published last October (covered by InfoBytes here). Updates include:
- A new section stating that a “transaction is subject to the CFDL if one of the parties is principally directed or managed from New York, or the provider negotiated the commercial financing from a location in New York.”
- A new section requiring notice be sent to a recipient if a change is made to the servicing of a commercial financing agreement.
- An revised definition of “recipient” to now “include entities subject to common control if all such recipients receive the single offer of commercial financing simultaneously.”
- Clarifying language stating that the “requirements pertaining to the statement of a rate of finance charge or a financing amount, as that term appears in Section 810 of the CFDL, shall be in effect only upon the quotation of a specific commercial financing offer.”
- Provisions allowing providers to perform calculations based upon either a 30-day month/360-day year or a 365-day year, with the acknowledgment that different methods of computation may lead to slightly different results.
- An amendment stating that “a ‘provider is not required to provide the disclosures required by the CFDL when the finance charge of an existing financing is effectively increased due to the incurrence, by the recipient, of avoidable fees and charges.’”
- An acknowledgement of comments asking that 23 NYCRR Part 600 be identical to California’s disclosure requirements (covered by InfoBytes here) “or as consistent as possible.” In response, NYDFS said that while it generally agrees, and has consulted with the California Department of Financial Protection and Innovation (DFPI), the regulations cannot be identical because the CFDL differs from the California Consumer Financial Protection Law and the Department cannot anticipate any future revisions DFPI may make to its proposed regulations.
Comments on the proposed regulations are due October 31.
2nd Circuit: NY law on interest payments for escrow accounts is preempted
On September 15, the U.S. Court of Appeals for the Second Circuit held that New York’s interest-on-escrow law impermissibly interferes with the incidentals of national bank lending and is preempted by the National Bank Act (NBA). Plaintiffs in two putative class actions obtained loans from a national bank, one before and the other after certain Dodd-Frank provisions took effect. The loan agreements—governed by New York law—required plaintiffs to deposit money into escrow accounts. After the bank failed to pay interest on the escrowed amounts, plaintiffs sued for breach of contract, alleging, among other things, that under New York General Obligations Law (GOL) § 5-601 (which sets a minimum 2 percent interest rate on mortgage escrow accounts) they were entitled to interest. The bank moved to dismiss both actions, contending that GOL § 5-601 did not apply to federally chartered banks because it is preempted by the NBA. The district court disagreed and denied the bank’s motion, ruling first that RESPA (which regulates the amount of money in an escrow account but not the accruing interest rate) “shares a ‘unity of purpose’ with GOL § 5-601.” This is relevant, the district court said, “because Congress ‘intended mortgage escrow accounts, even those administered by national banks, to be subject to some measure of consumer protection regulation.’” Second, the district court reasoned that even though TILA § 1639d does not specifically govern the loans at issue, it is significant because it “evinces a clear congressional purpose to subject all mortgage lenders to state escrow interest laws.” Finally, with respect to the NBA, the district court determined that “the ‘degree of interference’ of GOL § 5-601 was ‘minimal’ and was not a ‘practical abrogation of the banking power at issue,’” and concluded that Dodd-Frank’s amendment to TILA substantiated a policy judgment showing “there is little incompatibility between requiring mortgage lenders to maintain escrow accounts and requiring them to pay a reasonable rate of interest on sums thereby received.” As such, GOL § 5-601 was not preempted by the NBA, the district court said.
On appeal, the 2nd Circuit concluded that the district court erred in its preemption analysis. According to the appellate court, the important question “is not how much a state law impacts a national bank, but rather whether it purports to ‘control’ the exercise of its powers.” In reversing the ruling and holding that that GOL § 5-601 was preempted by the NBA, the appellate court wrote that the “minimum-interest requirement would exert control over a banking power granted by the federal government, so it would impermissibly interfere with national banks’ exercise of that power.” Notably, the 2nd Circuit’s decision differs from the 9th Circuit’s 2018 holding in Lusnak v. Bank of America, which addressed a California mortgage escrow interest law analogous to New York’s and held that a national bank must comply with the California law requiring mortgage lenders to pay interest on mortgage escrow accounts (covered by InfoBytes here). Among other things, the 2nd Circuit determined that both the district court and the 9th Circuit improperly “concluded that the TILA amendments somehow reflected Congress’s judgment that all escrow accounts, before and after Dodd-Frank, must be subject to such state laws.”
In a concurring opinion, one of the judges stressed that while the panel concluded that the specific state law at issue is preempted, the opinion left “ample room for state regulation of national banks.” The judge noted that the opinion relies on a narrow standard of preempting only those “state laws that directly conflict with enumerated or incidental national bank powers conferred by Congress,” and stressed that the appellate court declined to reach a determination as to whether Congress subjected national banks to state escrow interest laws in cases (unlike the plaintiffs’ actions) where Dodd-Frank’s TILA amendments would apply.
New York expands access to PSLF program
On September 15, the New York governor signed S.8389-C/A. 9523-B , which amends the Public Service Loan Forgiveness (PSFL) program statewide. Among other things, the legislation: (i) adds clarifying legal definitions, such as “certifying employment,” “employee,” “full-time,” “public service employer,” “public service loan forgiveness form,” and “public service loan forgiveness program”; (ii) establishes a standard hourly threshold for full-time employment at thirty hours per week for the purposes of accessing PSLF; and (iii) permits public service employers to certify employment on behalf of individuals or groups of employees directly with the U.S. Department of Education. The legislation is effective immediately.
2nd Circuit requires second look at “design and content” of online user agreement
On September 14, the U.S. Court of Appeals for the Second Circuit reversed a district court’s order denying a credit union’s motion to compel arbitration in a case involving the “unique question” of “whether and how to address incorporation by reference in web-based contracts under New York law.” The plaintiff claimed that the credit union wrongfully assessed and collected overdraft and insufficient funds fees on checking accounts that were not actually overdrawn. After the credit union moved to compel arbitration pursuant to a mandatory arbitration clause and class action waiver provision contained in the account agreement, the plaintiff argued that she was not bound by these provisions because they were not included in the original agreement and the credit union did not notify her when it added them to the agreement. According to the credit union, the plaintiff was on inquiry notice of the modified agreement because she separately agreed to an internet banking agreement that incorporated the modified account agreement by reference, and because the modified account agreement was published on the credit union’s website, which the plaintiff used for online banking. The district court disagreed, finding, among other things, that the hyperlink and language related to the account agreement appeared to be “buried” in the internet banking agreement.
On appeal, the 2nd Circuit held that the district court “erred in engaging in the inquiry notice analysis, which requires an examination of the ‘design and content’ of the webpage, without reviewing the actual screenshots of the web-based contract.” Recognizing that the internet banking agreement was a “clickwrap” or a “scrollwrap” agreement, the appellate court explained that it has “consistently upheld such agreements because the user has affirmatively assented to the terms of the agreement by clicking ‘I agree’ or similar language.” While the plaintiff did not dispute that she signed up for internet banking, this did not end the court’s analysis; according to the 2nd Circuit, when addressing questions concerning digital contract formation, “courts also evaluate visual evidence that demonstrates ‘whether a website user has actual or constructive notice of the conditions.’” The credit union did not provide evidence showing how the internet banking agreement was presented to users—thereby preventing the district court from assessing whether the relevant language and hyperlink were clear and conspicuous. The 2nd Circuit, therefore, instructed the district court to consider on remand the design and content of the internet banking agreement “as it was presented to users” to determine whether the plaintiff agreed to its terms, and to assess whether the account agreements are “clearly identified and available to the users” based on applicable precedents regarding inquiry notice of terms in web-based contracts.
States, Democrats urge card companies to create gun-store MCC
On September 2, the California and New York attorneys general sent a letter to the CEOs of three credit card companies asking for the establishment of a unique merchant category code (MCC) for gun store purchases, writing that a specially-designated MCC would help companies flag suspicious activity. The letter follows recent requests sent by several congressional Democrats to the same companies urging them to establish an MCC code for guns. According to the Democrats’ letter, MCCs are four-digit codes maintained by the International Organization for Standardization (ISO) that classify merchants by their purpose of business and are used “to determine interchange rates, assess transaction risks, and generally categorize payments.” The letter noted that according to ISO’s criteria, “a new MCC may be approved if (a) the merchant category is reasonable and substantially different from all other merchant categories currently represented in the list of code values; (b) the merchant category is separate and distinct from all other industries currently represented in the list of code values; (c) the proposal describes a merchant category or industry, and not a process; (d) the minimum annual sales volume of merchants included in the merchant category, taken as a whole is, US$10 million; and (e) sufficient justification for the addition of a new code is found.” The letter stated that a “new MCC code could make it easier for financial institutions to monitor certain types of suspicious activities including straw purchases and unlawful bulk purchases that could be used in the commission of domestic terrorist acts or gun trafficking schemes,” and could garner coordination between financial institutions and law enforcement to aid efforts across the federal government to identify and prevent illicit activity. The letters requested feedback to better understand the companies’ positions.
Real estate brokerages settle NY’s claims of discriminatory practices
On August 30, the New York attorney general and governor announced a joint action taken against three Long Island real estate brokerage firms for allegedly engaging in illegal and discriminatory housing practices. According to the announcement, the Office of the Attorney General and New York Department of State commenced parallel investigations into the brokerage firms, in which they discovered that agents were allegedly violating the Fair Housing Act and New York state law when they allegedly “steered prospective homebuyers of color away from white neighborhoods and subjected them to different requirements than white homebuyers, and otherwise engaged in biased behavior.” In certain instances, agents were allegedly shown to have given preferential treatment to white homebuyers, disparaged neighborhoods of color, and directed prospective homebuyers of color to homes in neighborhoods predominantly resided by communities of color.
Under the terms of the assurance of discontinuance, the brokerage firms agreed to stop the alleged conduct and will offer comprehensive fair housing training to all agents. Agents will also be required to enroll and take state-approved Fair Housing Act compliance courses. Two of the brokerage firms are also required to provide $25,000 to Suffolk County to promote enforcement and compliance with fair housing laws, while the third brokerage firm will pay $30,000 in penalties and costs to the Office of the Attorney General and $35,000 to Nassau County for fair housing testing.
District Court sends cryptocurrency hack suit to arbitration
On August 24, the U.S. District Court for the Eastern District of New York granted a motion to compel arbitration in an action claiming that a mobile communications company’s failure to protect the personal information of a cryptocurrency company founder allowed a hacker to steal $8.7 million in cryptocurrency. The cryptocurrency company and its founder sued the defendant citing violations of the Federal Communications Act and the New York Consumer Protection Act, along with numerous negligence claims. Plaintiff alleged that due to lack of safeguards, a hacker conducted an unauthorized “SIM swap” and used the plaintiff’s personal information to access his cryptocurrency wallets and exchange accounts. Plaintiff further claimed that even though it reported the SIM swap to the defendant, “[m]ore attacks continued to succeed over the following years.” The defendant moved to compel arbitration claiming that the plaintiff electronically signed receipts agreeing to terms and conditions which require the arbitration of disputes unless a customer opts-out. The plaintiff countered that “he was not shown the full terms and conditions to his service; that he could not conduct a ‘complete review and inspection’ of the digital receipt because of the screen’s small size, resolution, and inadequate backlighting; that the displayed receipt did not permit hyperlinked review of the full terms; that the display did not affirmatively seek his consent to arbitration by requiring he press a button or check a box; that the full terms were not separately provided in another form; and that his consent was not otherwise confirmed by [defendant] personnel.”
The court found that had the plaintiff “simply thought he was signing a receipt for equipment purchases–and had no idea that any terms and conditions were displayed on the digital device he signed–the court might have concluded that there remained a question of fact suitable for resolution by a jury.” However, the court found that the plaintiff “never claimed that he was unaware that his transactions with [defendant] carried terms and conditions” nor did he allege that he never received “a notice indicating the existence of the terms” even though the court specifically asked the parties to establish these facts in limited discovery. Accordingly, the court ruled that the plaintiff was on notice of defendant’s terms and agreed to them, thus compelling arbitration.
NYDFS imposes $30 million fine against trading platform for cybersecurity, BSA/AML violations
On August 2, NYDFS announced a consent order imposing a $30 million fine against a trading platform for alleged violations of the Department’s Virtual Currency Regulation (23 NYCRR Part 200), Money Transmitter Regulation (3 NYCRR Part 417), Transaction Monitoring Regulation (3 NYCRR Part 504), Cybersecurity Regulation (23 NYCRR Part 500), and for failing to maintain adequate Bank Secrecy Act/anti-money laundering (BSA/AML) obligations. According to a Department investigation, the platform’s BSA/AML compliance program contained significant deficiencies, including an inadequate transaction monitoring system. Among other things, the platform failed to timely transition its manual system to an automated transaction monitoring system, which was unacceptable for a program of its size, customer profiles, and transaction volumes, and did not devote sufficient resources to adequately address risks. The Department also found “critical failures” in the platform’s cybersecurity program, which failed to address operational risks, and that specific policies within the program did not fully comply with several provisions of the Department’s cybersecurity and virtual currency regulations. According to the press release, pursuant to NYDFS’s Transaction Monitoring Regulation and Cybersecurity Regulation, companies should only file a Certificate of Compliance with the Department if their programs are fully compliant with the applicable regulation.
In light of the program’s deficiencies, NYDFS stated that the platform’s 2019 certifications to the Department attesting to compliance with these regulations should not have been made and thus violated the law. The platform also “failed to comply with the Supervisory Agreement by failing to promptly notify the Department of (a) actual or material potential actions, proceedings, or similar process that were or may have been instituted against [the platform] or any affiliated entity by any regulatory body or governmental agency; and (b) of the receipt by [the platform], or any affiliated entity, of any subpoena from any regulatory body or governmental agency in which [the platform], or any affiliated entity, was the target of the investigation.” NYDFS determined that in addition to the penalty, the platform will be required to retain an independent consultant that will perform a comprehensive evaluation of its compliance with the Department’s regulations and the platform’s remediation efforts with respect to the identified deficiencies and violations.
A Buckley Special Alert is forthcoming.
NYDFS to study overdraft fees
On July 15, New York’s governor signed S9348, directing the superintendent of NYDFS to conduct a study of overdraft fees in the state. (See also NYDFS press release here.) The study will examine, among other things: (i) the total amount of overdraft fees paid in the state; (ii) the geographical distribution of these fees; (iii) whether certain communities have higher rates of overdraft fees than others and the possible reason for such high rates; (iv) “the percentage of overdraft fees reduced through direct or indirect negotiation”; and (v) the enumeration of consumer rights related to overdraft fee negotiations. The results of the study are to be delivered within one year to the governor, the temporary president of the senate, and the speaker of the assembly. The act is effective immediately.